(concurring in part; dissenting in part). Foster children suffer abuse ten times more often than children in the general population.1 When the state places a child in foster care, it must take special care that it does not place the child in Judge Posner's metaphorical snake pit. See Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).2 It therefore assumes an affirmative duty to protect that child; a duty compelled by the Due Process Clause. Terrence J. Dee, Foster Parent Liability under Section 1983: Foster Parents' Liability as State Actors for Abuse to Foster Children, 69 Wash. U. L.Q. 1201, 1207 & n.39 (1991). The defendant social workers claim, however, that even if a foster child has a constitutional liberty interest in his or her safety when placed in foster care by the state, they are entitled to qualified immunity because that right was not "clearly established" in 1989 and 1990 when Kara B. and Mikaela R. were placed and maintained in the foster care of Roxanne Smit. I join my colleagues in rejecting that claim.
I part company from them, however, when they conclude that the foster parent is not liable under 42 U.S.C. § 1983 because she was not acting under color of state law when she acted as a state-licensed foster parent. I also dissent from the majority's holding that the *63defendant social workers are immune from liability under state tort law because their acts were discretionary. See § 893.80(4), STATS.
BACKGROUND
In 1989, the juvenile court determined that Kara B. was a child in need of protection or services, and placed her with Roxanne Smit, whose home had been recently licensed as a foster home. On June 11, 1990, Mikaela R. was placed in Smit's home. On December 18,1990, Mikaela was raped in the home. Kara B. then revealed that she had been sexually abused by one of Smit's male Mends and by Smit.
Appellants allege that defendants were deliberately indifferent to Kara's situation and are liable for her injuries in a civil rights action under § 1983. Defendants argue, however, that they are entitled to qualified immunity because at that time it was not "clearly established" that the state had an obligation commanded by the Due Process Clause to protect children it placed in foster homes. See Barnhill v. Board of Regents, 166 Wis. 2d 395, 406, 479 N.W.2d 917, 921 (1992).
Respondents contend that DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989), demonstrates that in 1989 it was not "clearly established" that children placed by the state in foster care had a liberty interest in their personal safety protected by the Due Process Clause.
SECTION 1983 LIABILITY: QUALIFIED IMMUNITY
If the Due Process Clause provides constitutional protection of the liberty interest of foster children in their personal safety, defendants may escape liability if *64that right was not "clearly established" when defendants placed and kept Kara and Mikaela in Smit's home.
A public officer or employee has a qualified immunity from suit and liability under § 1983 if the claimed constitutional right was not "clearly established" when the officer or employee took the action complained of. Barnhill, 166 Wis. 2d at 406, 479 N.W.2d at 921.
In a footnote to its holding, the DeShaney Court responded to an allegation of the complaint that Joshua was in the custody and control of the state as follows:
Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle [v. Gamble, 429 U.S. 97 (1976)] and Youngberg [v. Romeo, 457 U.S. 307 (1982)], that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-142 (CA2 1981), after remand, 709 F.2d 782, cert. denied sub nom Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (ere banc), cert. pending .... We express no view on the validity of this analogy, however, as it is not before us in the present case.
DeShaney, 489 U.S. at 201 n.9 (part of citations omitted).
Thus, because the Supreme Court declined to reach the issue, it can be argued that whether the state *65and its agents have a duty under the Due Process Clause to protect involuntarily-placed foster children from harm was not "clearly established" when Kara and Mikaela were placed and maintained in foster care. However, public officers and employees cannot succeed on a qualified immunity defense simply because the Supreme Court has not had an opportunity to decide whether a person has a specific constitutional right. It is sufficient to deny the defense of qualified immunity if the course of the law should warn a public official or employee that his or her act or omission violates a person's constitutional rights. By 1989 and 1990, the decisions of the federal courts of appeals clearly established that the state had a constitutional obligation under the Due Process Clause to protect children over whom it had assumed custody of some form.
One commentator states: "In most cases, the [courts] have supported the protection of foster children on substantive due process grounds." Arlene E. Fried, The Foster Child's Avenues of Redress: Questions Left Unanswered, 26 COLUM. J.L. & Soc. PROBS. 465, 480 (1993). The Ledbetter court held that a foster child has a liberty interest in a safe environment, and failure to protect the child from an abusive foster parent violated the child's right to substantive due process. Fried, 26 Colum. J.L. & Soc. Probs. at 481 (citing Ledbetter, 818 F.2d at 797). The Seventh Circuit also held that a foster child has a substantive due process right to be protected from a foster parent the agency knows or should know is dangerous to the child's physical or mental health. K.H. v. Morgan, 914 F.2d 846, 848-49 (7th Cir. 1990).
While there are some surprising departures by the federal courts of appeals — Milburn v. Anne Arundel *66County Dep't of Social Servs., 871 F.2d 474 (4th Cir.), cert. denied, 493 U.S. 850 (1989) — the great majority of the federal circuit courts which have considered the question have concluded that foster children possess substantive due process rights to care and protection. Fried, 26 COLUM. J.L. & Soc. Probs. at 485.
The responsibility of social workers to protect foster children has not been explicated solely by caselaw. The 1979 National Association of Social Workers Delegate Assembly adopted a Code of Ethics (revised by the 1990 and 1993 Assemblies) which "represents standards of ethical behavior for social workers in professional relationships with those served, with colleagues, with employers, with other individuals and professions, and with the community and society as a whole." Code of Ethics at v. The Code states that the social worker's primary responsibility is to clients. Id. at 5. The Code also states:
6. The social worker should provide clients with accurate and complete information regarding the extent and nature of the services available to them.
7. The social worker should apprise clients of their risks, rights, opportunities, and obligations associated with social service to them.
Id.
Robert Horowitz says that when the American Bar Association Center on Children and the Law surveyed child welfare liability in the early 1980's, it found relatively few cases. Liability in Child Welfare and Protection Work: Risk Management Strategies, ABA Center on Children and the Law (1991). However, the Children's Center states that when social services professionals are now asked about the incidence of litigation surrounding foster care, more and more *67hands are being raised, reflecting an increase in potential liability for child welfare work. Id. at ix. In Chapter 1, Defining the Risks after DeShaney, Marsha Sprague states that, "[w]hile DeShaney has served to limit the liability of caseworkers, of child protective and child welfare agencies, and of private service providers in some respects, it does not affect most of the cases filed in this context." Id. at 18. In her endnotes, Sprague ranks the areas of risk of liability. Failure to adequately protect the child from harm in foster care ranks as "high." Id. at 27.
In view of all the attention given to this subject, it is impossible to conclude that the department and its social workers did not know that they were potentially liable under the Due Process Clause and § 1983 if they failed to adequately investigate the qualifications of foster care parents with whom they placed children or did not adequately supervise the foster care and promptly remove children when confronted with evidence of abuse.
Thus, the social workers who allegedly knew or should have known that Smit caused or permitted the abuse of children in her care are not entitled to the defense of qualified immunity. Relevant caselaw prior to the placement and supervision of Kara B. and Mikaela R. clearly established that reckless or deliberate indifference to the safety of foster care children violated their liberty interest under the Due Process Clause.
FOSTER PARENT AS STATE ACTOR
The majority concludes that Smit was not a state actor. Section 1983 makes it a federal tort for a person to deprive another of his or her constitutional rights "under color of law." It has been held that," [t]he care of *68foster children is not traditionally the exclusive prerogative of the State." Milburn, 871 F.2d at 479. In Milburn , however, the child was placed in foster care voluntarily by the parent. The Western District Court of Michigan concluded that a foster parent was not a state actor because "[d] ay-to-day parenting decisions were left open to the judgment of the [foster parents]." Lintz v. Skipski, 807 F. Supp. 1299, 1306 (W.D. Mich. 1992), aff'd, 25 F.3d 304 (6th Cir.), cert. denied, 115 S. Ct. 485 (1994).
Treating foster parents as private actors is inconsistent with the historical development of the state-action doctrine. See Dee, 69 WASH. U. L.Q. 1201. It is also inconsistent with the need to closely supervise foster parent care because of the high incidence of abuse. Where a child is placed by the state in foster care, the acts of the foster parent can be said to be "fairly attributable" to the state. See id. at 1218.
Some courts have held that where the parent voluntarily places his or her child in foster care, the foster parent is not a state actor. I do not believe it should matter how the child comes into foster care. Martin Guggenheim, The Effect of Tort Law on Child Welfare Liability, in Risk Management Strategies at 86, states:
It is true that the way in which a child enters the foster care system is significant from the parent's perspective, but that difference is immaterial from the perspective of the child. Once a child is in foster care, regardless of the method by which s/he entered the system, it is difficult to conclude that some children have federal rights which protect them against harm while others have no such federal rights.
Quoted in Fried, 26 COLUM. J.L. & Soc. PROBS. at 487 n.162.
*69STATE-LAW CLAIMS
(a) Cords v. Anderson.
The majority concludes that § 893.80(4), Stats., immunizes the department and its social workers from tort liability under Wisconsin law for failing to remove the plaintiff children from foster care of a person they knew or should have known was exposing and subjecting the children to sexual abuse. The majority misconstrues § 893.80(4). The statute assumes that the governmental subdivision or its officer or employee makes a choice between reasonable alternatives. The statute protects the agency or officer whose reasonable choice turns out badly. In some situations, the agency or officer may not have a choice of action. For example, the park manager of a state-owned recreational area who knew that a publicly-used trail was inches away from a ninety-foot gorge in dangerous terrain did not have the choice of not posting signs warning users of the danger. Cords v. Anderson, 80 Wis. 2d 525, 541-42, 259 N.W.2d 672, 679-80 (1977). The park manager's duty to warn became ministerial.
It would be shocking to construe Wisconsin's immunity statute to shield from liability public agencies and officers who are deliberately indifferent to the lives and safety of the persons they govern. We have concluded that such conduct as to foster children is actionable under the Due Process Clause and § 1983. Are we so insensitive that we leave to Congress the protection of our children? I believe not.
(b) Professional Discretion.
The majority implies that the "medical discretion" cases — Scarpaci v. Milwaukee County, 96 Wis. 2d 663, *70292 N.W.2d 816 (1980), Protic v. Castle Co., 132 Wis. 2d 364, 392 N.W.2d 119 (Ct. App. 1986), Gordon v. Milwaukee County, 125 Wis. 2d 62, 370 N.W.2d 803 (Ct. App. 1985) — are anomalies. In Stann v. Waukesha County, 161 Wis. 2d 808, 818 & n.3, 468 N.W.2d 775, 779 (Ct. App. 1991), we confined the cited cases to their facts. This was not necessary. However, we should have explained that a public officer or employee who practices a profession must meet the standards of care and conduct required by his or her profession. The supreme court made that clear in Scarpaci. In that case, the court held that while the county medical examiner's decision to conduct an autopsy was "governmental" and subject to § 893.80(4), STATS., how the examiner performed the autopsy involved "professional" discretion to which the standard of care required of medical examiners applied. 96 Wis. 2d at 685-88, 292 N.W.2d at 826-28. In other words, the medical examiner's performance of an autopsy was to be tested according to the standards of his profession.
Social work is no different from the practice of medicine in this respect; there are standards of care to which a social worker must conform, just as there are standards of care to which a doctor must conform. "Social work is among the most demanding professions." Robert H. Cohen, J.D., A.C.S.W., General Counsel, National Association of Social Workers, Foreword to Frederic G. Reamer, Social Work Malpractice and Liability: Strategies for Prevention xi (1994). "Malpractice in social work usually is the result of a practitioner's active violation of a client's rights (in legal terms, acts of commission, misfeasance, or malfeasance) or a practitioner's failure to perform certain duties (acts of omission or nonfeasance)." Id. at 3; see also Social Work Malpractice at 107 ("[S]ocial work*71ers are in a special position to abuse substantive rights of their particularly vulnerable clientele.").
Government-employed social workers take pride in their work and consider themselves professionals. The discretion they exercise is not ordinarily governmental but professional. That discretion must be exercised according to the standards of the social work profession, whether the social worker is privately or publicly employed. Section 893.80(4), Stats., does not immunize a professional from actions which do not meet professional standards.
Whether the defendant social workers met professional standards in placing and maintaining Kara B. and Mikaela R. in the foster care of Roxanne Smit cannot be decided by affidavits; a trial is necessary.
For these reasons, I concur in part and dissent in part.
Terrence J. Dee, Foster Parent Liability under Section 1983: Foster Parents' Liability as State Actors for Abuse to Foster Children, 69 Wash. U. L.Q. 1201, 1201 (1991) (citing Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children from Abuse and Neglect, 23 HARV. C.R.C.L. L. Rev. 199, 206 & n.30 (1988)).
"If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit."