Statement of Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law
Harvard Law School
Testimony Before the Subcommittee on Human Resources
of the House Committee on Ways and Means
Hearing on Interethnic Adoptions
September 15, 1998
Harvard Law School
of the House Committee on Ways and Means
My name is Elizabeth Bartholet. I am the Morris Wasserstein Public Interest Professor of Law at Harvard Law School, where I have served on the Faculty since 1977, specializing in civil rights, family law, child welfare, and adoption issues. I applaud this Committee's action in convening this hearing to consider issues involving implementation of this legislation which has such potential to improve the prospects of children in need of nurturing homes.
I have been actively involved for more than a decade in research, writing, and advocacy related to race and adoption issues, including in recent years work designed to assess the impact and promote the implementation of the Multi-Ethnic Placement Act of 1994 (hereafter MEPA I) and the 1996 Amendments to that Act (hereafter MEPA II). My writings in this area include: "Where Do Black Children Belong? The Politics of Race Matching in Adoption," 139 U. Pa. L. Rev. 1163 (1991); "Race Separatism in the Family: More on the Transracial Adoption Debate," 2 Duke J. Gender L. & Pol'y 99 (Spring 1995); "Private Race Preferences in Family Formation," 107 Yale L.J. 2351 (May 1998); and FAMILY BONDS: ADOPTION & THE POLITICS OF PARENTING, Houghton Mifflin (1993), "Adoption and Race," Chapter 6, pp 87-117. In the Pennsylvania Law Review article I laid out in great detail the nature of the racial matching practices implemented by child welfare agencies throughout the nation, the harm they caused to minority race children as demonstrated by the empirical literature, and their inconsistency with the Constitution of the United States and with Title VI of the 1964 Civil rights Act. I have also written various oped articles and letters to the editor dealing with these issues, two of which are attached hereto.
I have been conscious for many years of the difficulty of enforcing legal rules prohibiting racial barriers in the adoption area, because of the entrenched attitudes held by so many in the child welfare field. Prior to the passage of MEPA I noted that child welfare agencies systematically ignored the established rule of law which at the time made it clear that race should not be used in any absolute or determinative way. See, e.g., Bartholet, Where Do Black Children Belong, supra, 139 Penn. L. Rev. at 1252. I argued then and in connection with the drafting and passage of MEPA I and MEPA II that it was essential for federal law to ban any consideration of race in the child assignment process, because if the law permitted some consideration of race those in the field would use this loophole to continue their systematic race matching practices — practices which have a disastrous impact on black children's opportunities to find nurturing permanent homes. I also believe that for government agencies to favor the formation of same-race families and oppose the formation of transracial families by using race as a consideration in making foster and adoptive placements, is wrong as a matter of principle and inconsistent with federal constitutional provisions governing race,
For these reasons I supported with great enthusiasm the passage of the 1996 Amendments to MEPA I. I saw these Amendments as eliminating a major flaw in MEPA I, by deleting the provision that allowed race as a permissible consideration. I also saw the new enforcement provisions which were designed to subject agencies to mandatory financial penalties as enormously significant.
I continue to believe in the potential of MEPA II to eliminate the racial matching policies that characterize child welfare agency practice throughout our nation. However I do not believe that MEPA II has had a significant impact to date, or that it will have a significant impact without vigorous enforcement action on the part of the federal government. I welcome action by this Committee pressing for such action.
Many assume that the mere passage of MEPA II means that things must necessarily change. This is simply not true. As I wrote recently in the Yale Law Journal:
There is enormous resistance to the principles embodied in this law, and it appears so far to have had little impact. State social service agencies tend to be committed from top to bottom to preserving their race matching ways. Private foundations and non-profit child welfare groups have joined forces with public agencies to promote "kinship care", in part to help ensure that children in need of homes remain within their racial group. "Cultural competence" is one of the code phrases in the post-MEPA era for assessing whether agencies remain sufficiently committed to same-race matching, and are doing enough to recruit families of color to make same-race placement possible. The United States Department of Health and Human Services, responsible for enforcing MEPA, is peopled with child welfare traditionalists imbued with the same-race matching ideology, and has done little to date to ensure that federally funded state adoption agencies live up to the MEPA mandate. MEPA II may someday have a significant impact on public adoption agency practices, but for now race matching by the state is alive and well.(1)
I have written at greater length on these issues in a draft manuscript as follows:
Excerpts from Bartholet, NOBODY'S CHILDREN: RE-VISIONING CHILD WELFARE POLICIES ON ABUSE, FOSTERCARE AND ADOPTION©
MEPA was clearly designed to achieve massive change in the nation's public foster and adoption agencies' policies. These agencies had been using race in a systematic way to categorize waiting children and prospective parents, and to make matching decisions in the foster and adoption placement process. Race matching had been one of the most important decision-making criteria. It had been considered so important that children had been regularly held in foster or institutional care, rather than placed in adoptive homes, simply because same-race matches were unavailable, even though social workers knew that delay and denial of adoptive homes were likely to do children serious damage. Race had outweighed virtually all other parental fitness factors, and social workers had drastically altered their traditional selection criteria for minority race adopters, in their desperation to find same-race matches for the waiting black children.
But MEPA appears so far to have had almost no impact. Nor is there any evidence of the kind of enforcement activity that makes change in the near future seem likely. The U.S. Department of HHS, responsible for administrative enforcement, has been awfully quiet since issuing its tough-sounding Guidance. State officials responsible for bringing their agencies into compliance with MEPA are similarly quiet. Listening to the sounds of child welfare activity coming from around the country one gets no sense that the revolutionary change called for by MEPA is in the works. There is instead a deafening silence. All seems to be going on more or less as usual. There have been some changes in the written laws and policies that had demanded race matching, because it is always problematic to have written laws or regulations that are blatantly illegal. But the most common and most extreme race matching policies have always been unwritten. For there to be real change federal and state officials have to send forth clear instructions to child welfare workers throughout the systems in the fifty states that a new order prevails, and they are to change their practices accordingly. The 1997 HHS Guidance was a start on the job that needed to be done, but there has been no adequate follow-up activity. The problem seems to be that those in charge of enforcement and compliance are, for the most part, believers in the tradition of race matching.
While enforcement activity is limited, the MEPA resistance movement seems quite active. Soon after MEPA II's passage, newsletters from various child welfare organizations promoted creative "interpretations" of its provisions. They argued that MEPA II could be read to allow some use of race, so long as race was not used to delay or deny placement, conveniently ignoring the fact that the main point of MEPA II was to eliminate the provision in MEPA I allowing race as a permissible consideration. At child welfare organization conferences and meetings it is hard to find any discussion of MEPA implementation. There is instead talk about the "problems" posed by MEPA. There is talk about the importance of interpreting MEPA so as not to prohibit what "good social work practice" clearly requires, in a context that makes it clear that such practice should involve race matching. There is talk about the only aspect of MEPA that even arguably supports race matching — the provision in the 1994 act that required that State plans provide for the recruitment of foster and adoptive families that reflect the ethnic and racial diversity of children needing homes. Race matching advocates have seized on this provision, which was unfortunately not repealed by the 1996 act, and often talk as if it was the essence of what MEPA is about. This kind of thinking has even found its way into one part of the federal HHS Guidance. Despite the strong strict scrutiny language incorporated throughout the Guidance, one section of the document states:
Active, diligent, and lawful recruitment of potential foster and adoptive parents of all backgrounds is both a legal requirement and an important tool for meeting the demands of good practice….
What is this supposed to mean other than that "good practice" may demand race matching?
There is also a lot of talk at these conferences and meetings of "cultural sensitivity." The phrase has been carefully chosen. Who can be against cultural sensitivity? Surely it must be a good thing, even if use of race in the placement process is illegal. If you look and listen carefully it becomes clear that cultural sensitivity is being used as a euphemistic cover understood by all those in the field.
Resistance to the MEPA mandate is the order of the day. It comes in an endless variety of forms. Most of them are invisible to those who aren't intimately familiar with the workings of the child welfare system. They are also incomprehensible to those who don't understand the profound commitment that many in the system have to the notion that children belong with their racial and ethnic group. What's easy for all to see is the superficial changes. Thus in California, one of the three states in the nation which had a law requiring race matching, passage of MEPA meant repeal of the race matching law. But this change merely scratched the surface. In California, as elsewhere, it was the unwritten policies on race matching that were the most significant. What is key now is who runs the system and whether they are committed to the fundamental changes required by MEPA. Herein lies the problem.
MEPA I's passage inspired the creation of a privately funded task force in California to consider the adoption and race issues and assist in the development of public policy. This might have seemed a promising development for those interested in MEPA implementation. The "Adoption and Race Work Group" issued its preliminary draft report in 1996, and then its final report, adapted to include reference to MEPA II, in 1997.(2) The Report was supposedly designed to help state and local child welfare policy makers and practitioners understand and implement the new laws. Asked for my comments on the preliminary draft report, I reviewed it and found a manifesto for resistance.(3)
This draft report became the final report, with no significant changes in tone or substance. Although the final report referred to the revisions made by MEPA II, it failed to reflect their real import. According to the report race could and should still be taken into account in placement decision making so long as it was done on an individualized basis.
In Massachusetts I have had more direct personal experience with the resistance to change in race matching policies. DSS has readily admitted that it exercised an across-the-board preference for same-race matching. For many years media stories have documented the extremes to which the State Department of Social Services has gone in order to keep children within their racial, ethnic and other communities of origin. Children have been held in foster care rather than being placed in waiting other-race families. Children have been placed with parents previously found guilty of serious felonies, including physical and sexual abuse, because of DSS' apparent inability to find more appropriate parents within the limited racial community it will consider. While DSS has regularly denied that it kept black children in foster care rather than place them transracially, an internal DSS report helped give the lie to that claim. Together with a handful of other children's rights advocates, I saw MEPA as providing an opportunity for achieving significant change in DSS policy. At a meeting with the DSS officials in charge, their commitment to maintaining the status quo was apparent. They repeated their standard official position that race was not used to delay placement, but admitted that no memo had ever gone out to social workers telling them that this was the policy. They saw nothing in MEPA requiring any action on their part, in the absence of specific instructions by the U.S. Department of HHS, and it was clear that to date HHS had done little to push them. After the passage of MEPA I, HHS had apparently required only that DSS revise their written regulations so as to limit the use of race, telling social workers that they should consider it simply as one among the various other factors they used in decision-making. When we pointed out that MEPA II clearly prohibited such generalized consideration of race, the DSS officials indicated that they planned to take no action to change even their written regulations until specifically instructed by HHS. To date, now more than two years after passage of MEPA II, DSS has put out no general proclamation informing social workers and prospective parents that a new order reigns, and that race will not be used in any categorical way, and will be limited to only the kind of exceptional circumstances indicated by the HHS Guidance. At the end of the meeting we asked whether there was any way in which we could be helpful to DSS in implementing MEPA. They indicated interest in our help only in satisfying the recruitment provisions — the provisions that encourage recruitment of minority race parents so as to create a parent pool which reflects the racial breakdown of the group of children in foster care, the only part of MEPA arguably supportive of race matching goals.
There is every reason to think that similar stories could be told about other states' reactions to MEPA. Resistance in the form of evasion, avoidance, and non-action, is commonplace.
Resistance also takes the form of promoting policies which serve the goal of keeping children within the racial community, but can be justified in other terms. Kinship care has been promoted over the last couple of decadesboth because it keeps children within the extended family group, and because, by doing so, it almost always keeps them within the racial group as well. Policies favoring foster placement in the same community as the child's family of origin have been promoted on the grounds that they minimize disruption for the child, especially in cases where the child will eventually be reunited with the birth family. But these policies also generally serve to keep the child in its racial community of origin, given neighborhood segregation patterns.
Child welfare traditionalists have been pushing enthusiastically in recent years for the expansion of kinship care. They fought for a broad exception to the Adoption and Safe Families Act's general requirements that children be guaranteed an early permanent home, so that children could be kept in long-term kinship foster care. They are promoting subsidized long-term guardianship, and "Family Group Decision Making."
Child welfare traditionalists have also been pushing in recent years for renewed emphasis on the goal of local placement. They have promoted forms of foster care which can work only when birth and foster families live near each other, such as family-to-family care where foster families are supposed to help birth families develop the capacity to take care of their own children.
Obviously those who support kinship care and local placement policies have a variety of motivations. But there is also no question but that for opponents of transracial placement, these policies function as convenient endruns around the new MEPA mandate.
The resistance to MEPA brings to mind the resistance to Brown vs Board of Education, the 1954 Supreme Court case ruling state segregation of educational institutions unconstitutional. But a major difference is that there were major governmental and private institutions committed to fighting the battle to enforce Brown and dismantle segregation. Race matching ideology is in many ways more entrenched, at least in the places that seem to matter in terms of child welfare policy. The U.S. Department of HHS, responsible for enforcing MEPA, state social service agencies, and private foundations and non-profit groups involved in child welfare issues, all tend to share the race-matching commitment. While there may be generalized popular support for knocking down racial barriers to adoption, of a kind that helped make MEPA's passage possible, so far there is not the kind oforganizational support that makes change happen.
1. Bartholet, "Private Race Preference in Family Formation," supra, 107 Yale L.J. at 2354.
2. Adoption and Race: Implementing the Multiethnic Act of 1994 and the Interethnic Adoption Provisions, A Report by the Adoption and Race Work Group, Convened by the Stuart Foundations, May 1997, San Francisco, CA: The Stuart Foundations.
3. Letter from Elizabeth Bartholet to Richard P. Barth, 6/27/96.
[THE FOLLOWING ARTICLES BY ELIZABETH BARTHOLET ARE BEING RETAINED IN THE COMMITTEE FILES: "Adoption is about family, not race," Chicago Tribune, 11/9/93, p. 23; "In foster-care limbo," Boston Globe, 3/17/92, p. 17, col. 1; and "Limits on Transracial Adoption Hurt Children," New York Times Editorials/Letters, 12/8/93, p. A24.]