No issue more highlights feelings of ambivalence over the proper place of racial distinctions in American life than the delicate matter of transracial adoptions. Opponents of such adoptions insist that allowing white adults to raise black children is at worst tantamount to cultural genocide and at best a naive experiment doomed to failure. In most states, custom reflects and reinforces these beliefs; public policy, formally or informally, discourages cross-racial adoptions or foster placements, to the point where thousands of children are denied placement in loving homes.
Now one of the Senate's leading liberals is compounding the damage with a well-intentioned but badly misguided bill titled the Multiethnic Placement Act. Senator Howard Metzenbaum of Ohio sees his bill as a deft compromise. On the one hand, the bill prohibits state agencies or agencies that receive funds from the federal government from completely barring or unduly delaying transracial child placements, either for adoptions or foster care. This aspect of the bill has provoked the opposition of those who strongly favor racial matching, the policy that seeks to place children of a given race with foster parents or adoptive parents of the same race. On the other hand, the bill evinces a preference for racial matching by explicitly stating that race may be taken into account in making child placement determinations and by prohibiting only undue delays caused by efforts at racial matching (thereby implicitly authorizing some delay). This preference stems from Metzenbaum's own belief that "every child who is eligible for adoption has the right to be adopted by parents of the same race," and that "teaching a child self love and to embrace their racial and cultural heritage is more easily accomplished when parents and children are of the same race or ethnic group."
Metzenbaum thus embraces moderate racial matching. While he does not favor barring transracial child placements altogether, he views such arrangements as distinctly less desirable than racially matched child placements. Many intelligent, caring, thoughtful people of good will agree with Senator Metzenbaum. His legislation is supported by Marian Wright Edelman's Children's Defense Fund and is echoed by an editorial in the New York Times, which declared that while total prohibition of transracial adoptions is unwise, "Clearly, matching adoptive parents with children of the same race is a good idea."
These good people are wrong. To understand why and the stakes involved in their error, one must confront three overlapping social disasters.
The first is the fact that increasingly large numbers of children bereft of functioning parents are flooding social welfare agencies. Agencies are charged with maintaining these young refugees from destroyed families and either placing them in the temporary care of foster parents or the permanent care of adoptive parents. According to Metzenbaum, the number of such children has exploded from 276,000 in 1986 to 450,000 in 1992--a vivid and concrete manifestation of what happens when poverty, crime, and substance abuse tear families apart.
Like most social catastrophes in the United States, this one weighs most heavily upon racial minority communities: the percentage of minority children in need of foster care or adoptive homes is far greater than their percentage of the population. In Massachusetts, approximately 5 percent of the population is black, yet black children constitute nearly half of the children in need of foster care or adoptive homes. In New York City, 75 percent of the nearly 18,000 children awaiting adoption are black. Nationwide, there are about 100,000 children eligible for adoption; 40 percent are black. While two years and eight months is the median length of time that children in general wait to be adopted, the wait for black children is often twice that long.
Conceiving of the deprivations suffered by children without parents is both easy and difficult. It is easy because some of the things that we expect parents to do are so obviously important. We expect parents to protect the interests of their children in a singular fashion, to show a degree of loyalty that cannot be bought, to demonstrate a mysterious allegiance deeper than professional duty. It is difficult because of the enormity of even attempting to calibrate the manifold, subtle, perhaps even unknowable losses borne by parentless children. There is one thing, however, about which we can be sure: it is a tragic condition indeed for a child to be condemned to the limbo of parentlessness, to suffer the loneliness of having no one to call "mother" or "father," to be exposed to the anxiety of having no family that is permanently and intimately one's own.
A second social disaster compounds the first. It is the disaster of racial matching itself. Racial-matching policies can vary in intensity, from absolute prohibitions against transracial child placements to temporary preferences for same-race placements. Examples of the former are state laws in the segregationist Jim Crow South that forbade adoption across the race line and, more recently, the position of the National Association of Black Social Workers, which categorically opposes transracial adoptions involving black children and white parents. Examples of the latter include the customary practices of many social workers around the country and statutes like the ones in California, Minnesota, and Arkansas which require that social workers spend a given amount of time--90 days in California--seeking a same-race adoption for children before they are made available to prospective adoptive parents of a different race.
Racial matching is a disastrous social policy both in how it affects children and in what it signals about our current attitudes regarding racial distinctions. In terms of immediate consequences, strong forms of racial matching block some parentless children from access to adults who would otherwise be deemed suitable as parents except that they are disqualified on the grounds that they are of the "wrong" race. In some jurisdictions, the relevant decision-makers simply refuse to permit child placements across the color line. In others, authorities will permit foster care across racial lines but then remove the child if they move to deepen the relationship from mere temporary foster care to permanent adoption. In still other jurisdictions, social welfare agencies delay placing children with adoptive parents of the "wrong" race until efforts are undertaken to place the child with adoptive parents of the "right" race. Delay of any length is, of course, a cost in and of itself. While three months might seem like a negligible delay from the perspective of adults, such delays are lengthy indeed from the perspective of infants. Moreover, for many adults, children become less attractive as adoptees as they age. What seems at first like mere delay may obliterate the chance of some youngsters for adoption at all; prospective adoptive parents willing to adopt a child of six months may not be willing to adopt the same child at one year.
Furthermore, given that racial matching mirrors and reinforces the belief that same-race child placements are better and therefore preferable to transracial arrangements, some adults seeking to become foster or adoptive parents are likely to steer clear of transracial parenting. Some adults who would be willing to raise a child regardless of racial differences find themselves unwilling to do so in the face of social pressures that stigmatize transracial adoption as anything from second-best to cultural genocide. What this means in practice is that racial matching narrows the pool of prospective parents, which in turn either delays or prevents the transmission of children in need of parents to adults able and willing to serve as parents. How much misery this adds to our pained country is difficult to calibrate. That racial matching adds a substantial amount of misery, however, is inescapable.
The other level on which racial matching is disastrous has to do with its diffuse, long-term moral and political consequences. Racial matching reinforces racialism. It strengthens the baleful notion that race is destiny. It buttresses the notion that people of different racial backgrounds really are different in some moral, unbridgeable, permanent sense. It affirms the notion that race should be a cage to which people are assigned at birth and from which people should not be allowed to wander. It belies the belief that love and understanding are boundless and instead instructs us that our affections are and should be bounded by the color line regardless of our efforts.
When he introduced the Multiethnic Placement Act, Senator Metzenbaum railed against the strongest versions of racial matching. "Some agencies," he noted disapprovingly, "prevent the adoption of children by prospective parents of a different race, even after the child and parents have bonded after years of living together in a loving foster care home." He stated that his bill would "make it clear that race, national origin or color cannot be the only consideration in making foster care and adoptive placements." Note, however, that he attacks only the most extreme version of racial matching, that which wholly prevents transracial child placements. He leaves alone and indeed authorizes less extreme or obvious versions of racial matching.
This suggests a third social disaster: the mixture of confusion and weakness that disables many people of good will from combating as fully as they might deeply ingrained racialist impulses. Metzen- baum's position not only reflects this failing but compounds it. True, he is a moderate racial matcher. There are, as noted above, more fervent and rigid supporters of racial matching who oppose Metzenbaum's proposed legislation because, in their view, it fails to go far enough in the defense of racial matching. But he apparently does accept the premises of racial matching, preferring same-race child placements so long as they can be accomplished without too high a cost.
What the senator and those who support his legislation have failed to appreciate sufficiently is that, under our law, the drawing of racial distinctions, particularly by government officials, is and should be presumptively illegitimate. Federal constitutional law, for instance, establishes that when government officials use racial criteria in their decision-making, they bear a heavy burden of justification. This aversion to racial criteria stems from our long and bitter history with them, an experience that includes slavery, open, invidious racial distinctions, and de jure segregation. This history suggests that far more often than not, there exists no good reason to draw racial distinctions.
This does not mean that all racial criteria are illegitimate, only that all are presumptively illegitimate. Therefore, if racial criteria are to be used, the burden of persuasion rests on those in favor of using such criteria. Thus, in this context, the burden of persuasion rests not upon those who object to the use of racial criteria in making child placement decisions but rather upon those who wish to use such criteria. The burden of persuasion properly rests upon the proponents of racial matching, not those who contend, as I do, that race ought to play no part in child placement decisions.
There is no rationale sufficiently compelling to justify preferring same-race child placements over transracial placements. One asserted reason for favoring same-race placements (at least in terms of black children) is that African-American parents can, on average, better equip African-American children with what they will need to know in order to survive and prosper in a society that remains, in significant degree, a pigmentocracy. This rationale is doubly faulty.
First, it rests upon a racial generalization, a racial stereotype, regarding the relative abilities of white and black adults in terms of raising African-American children. Typically (and the exception does not apply here), our legal system rightly prohibits authorities from making decisions on the basis of racial generalizations, even if the generalizations are accurate. Our legal system demands that people be given individualized consideration to reflect and effectuate our desire to accord to each person respect as a unique and special individual. Thus, if an employer used whiteness as a criteria to prefer white candidates for a job on the grounds that, on average, white people have more access to education than black people, the employer would be in violation of an array of state and federal laws--even if the generalization used by the employer is accurate. We demand as a society a more exacting process, one more attentive to the surprising possibilities of individuals than the settled patterns of racial groups. Thus, even if one believes that, on average, black adults are better able than white adults to raise black children effectively, it would still be problematic to disadvantage white adults, on the basis of their race, in the selection process.
Second, there is no evidence that black foster or adoptive parents, on average, do better than white foster or adoptive parents in raising black children. The empirical basis for this claim is suspect; there are no serious, controlled, systematic studies that support it. Nor is this claim self-evidently persuasive. Those who confidently assert this claim rely on the hunch, accepted by many, that black adults, as victims of racial oppression, will generally know more than others about how best to instruct black youngsters on overcoming racial bias. A counter-hunch, however, with just as much plausibility, is that white adults, as insiders to the dominant racial group in America, will know more than racial minorities about the inner world of whites and how best to maneuver with and around them in order to advance one's interests in a white-dominated society.
To substantiate the claim that black adults will on average be better than white adults in terms of raising black children, one must stipulate a baseline conception of what constitutes correct parenting for a black child--otherwise, one will have no basis for judging who is doing better than whom. Metzenbaum and other moderate proponents of racial matching imply that white foster or adoptive parents will be, on average, less capable of instilling within a black child an appropriate sense of self-worth and an appropriate racial identity. There exists, however, no consensus on how best to raise a black child (or, for that matter, any other sort of child) or on what constitutes a proper sense of self worth or on what constitutes an appropriate racial identity or on how one would go about measuring any of these things. Is an appropriate sense of blackness evidenced by celebrating Kwanza, listening to rap, and seeking admission to Morehouse College? What about celebrating Christmas, listening to Mahalia Jackson, and seeking admission to Harvard? And what about believing in atheism, listening to Mozart, and seeking admission to Bard? Are any of these traits more or less appropriately black? And who should do the grading on what constitutes racial appropriateness? Louis Farrakhan? Jesse Jackson? Clarence Thomas?
Some moderate proponents of racial matching contend that, on average, white adults seeking foster or adoptive children will be less able than similarly situated black adults to tell these children how best to meet the racial impediments they will surely face. But what is the best advice to give? Blacks do not agree. Nor do whites. Again the key point is that there exists no consensus on how best to raise a black child or any other child.
In light of this lack of consensus, the tenuousness of our information regarding the relationship of racial status to social knowledge, the ever-growing complexity of our multicultural society, and our well-taken aversion to official racial distinctions in the absence of clear, strong justifications for them, our government should reject any scheme that engages expressly in racial steering on the basis of a hunch that certain people--because of their race, color or national origin--will know better how to raise a child than other people of a different race, color, or national origin. If officials are satisfied that adults seeking foster or adoptive children are safe, sober folk, they should have to pass no racial screening. What parentless children need are not "white," "black," "yellow," "brown," or "red" parents but loving parents.
Yet another reason advanced in favor of moderate racial matching is that it may serve to save a child from placement in a transracial family setting in which the child will be made to feel uncomfortable by a disapproving surrounding community. It would be a regrettable concession, however, to allow bigotry to shape our law. One of the asserted justifications of segregation was that it protected blacks from the wrath of those whites who would strongly object to transracial public schooling and transracial accommodations in hotels and restaurants. When the New York Times editorializes today that "clearly, matching adoptive parents with children of the same race is a good idea," we should recall that not very long ago it was believed in some parts of this nation that "clearly" it was a good idea to match people of the same race in separate but equal parks, hospitals, prisons, cemeteries, telephone booths, train cars, and practically every other place one can imagine--all for the asserted purpose of accommodating the underlying racial sentiments of those who opposed "racial mixing."
Some of the most admirable rulings in the history of the Supreme Court have involved rejections of just this sort of accommodation-- first, in striking down de jure segregation in Brown v. Board of Education and, second, in refusing to allow racialist opposition to nullify its ruling. In 1958 some of the white people of Little Rock vociferously, and even violently, protested the admission of black children into a formerly all-white public high school. In response, the local school board decided to suspend its efforts to desegregate the school. But in the same year, in Cooper v. Aaron, the Supreme Court ruled against the school board and ordered that the desegregation plan be reinstated. "The constitutional rights of [the black school children] are not to be sacrificed or yielded," the court declared, "to violence and disorder." More recently, in 1984 in Palmore v. Sidoti, the Supreme Court faced a situation in which a Florida state court judge awarded custody of a child to her white natural father when the child's white natural mother married a black man. The Florida judge stated that it would be in the best interest of the child to be raised in a racially homogeneous household given the ostracism she was likely to face if she continued to live with her mother in a transracial household. Again the Supreme Court reversed the judgment of the local authorities. Echoing Cooper, the Court maintained in Palmore that racialist opposition to transracial living arrangements should not be used as a basis for using racial criteria in making child placement decisions.
There are a growing number of cases in which courts have given relief to children and adults who have been kept apart by officials who, on racial grounds, have clearly prevented transracial foster care or adoption. But significant obstacles impede bringing unlawful conduct to the attention of judges. The government agencies that are supposed to advance the best interests of the children under their care are all too often directed by people who either favor racial matching (particularly its moderate version) or fear confronting those who do. Furthermore, adults who are separated by racial matching from children they might otherwise parent face the bitter reality that, even when the law is on your side, litigation is expensive, time-consuming, nerve-wrenching, and uncertain. If a social welfare official offers a non-racial, pretextual reason for making a child placement decision, it will often be difficult to prove that an illicit racial reason animated the decision. This is especially so in the area of child welfare, where courts typically defer even more than they normally do to the presumed expertise of social welfare professionals.
The Multiethnic Placement Act raises a somewhat different legal issue: the status of a legislative directive that openly instructs officials that they may take race into account in making child placement decisions so long as race is not the only factor considered in determining what placement to make in the best interest of a child. There are, as noted above, strong reasons to believe that the Multiethnic Placement Act should be found to be in violation of the Equal Protection Clause of the Constitution. On the other hand, it is at least thinkable that the Supreme Court would reject a challenge to the act. First, the court typically grants more deference to racial distinctions made by Congress than to racial distinctions made by the states. Second, by authorizing the use of a racial criterion only in conjunction with other factors, the sponsors of the Multiethnic Placement Act resort to a formula that the Supreme Court has used to justify racial criteria in the affirmative action context. In his decisive 1976 opinion in University of California at Davis v. Bakke, Justice Lewis Powell gave his blessing to affirmative action programs in which race is used along with other considerations in selecting candidates for admission to institutions of higher education. Last year, in Shaw v. Reno, which involved the constitutionality of using racial criteria to design congressional districts, Justice Sandra Day O'Connor, writing for the court, seemed to suggest that what bothered her most about the case was that racial characteristics seemed to have been virtually the only thing that mattered to those doing the districting. Given that the Multiethnic Placement Act explicitly states that race may be used only in concert with other considerations, the court might uphold it.
The court, however, would be wrong in doing so. First, a compelling justification should be demanded whenever a racial distinction is drawn, which means that there should be no diminution of scrutiny simply because the Congress purports to authorize the use of a racial distinction along with other factors. Second, as everyone knows or should know, authorizing the use of racial criteria at all will mean in practice the authorization of racial matching--so long as social welfare bureaucrats who favor the practice take minimal steps to obscure the real basis of their decisions.
Some influential sectors of the civil rights community steer far clear of this controversy, particularly the argument advanced here, because they fear implications that might cast a shadow over affirmative action plans. Their fears are understandable; legitimating racial distinctions for purposes of affirmative action in higher education and employment do put a strain on the Equal Protection Clause and anti-discrimination statutes. But with respect to racial preferences in those contexts, it can at least be said that the aim is integrative: the purpose of preferring racial minority candidates is to speed the process of racially integrating sectors of American life from which racial minorities have long been wrongly excluded. By contrast, there is no integrative purpose or effect to racial matching, even in the moderate form authorized by the Metzenbaum bill. To the contrary, its expressed purpose and obvious consequence is to maintain the racial status quo, at least in terms of constituting families.
Supporters of the Multiethnic Placement Act contend that opponents of racial matching should nonetheless support this bill because it at least attacks the worst excesses of racial matching. Sometimes, however, half-steps in addressing a problem are more dangerous than inaction. The Multiethnic Placement Act will fail in its effort to prevent those lengthy delays which even proponents of racial matching recognize as hurtful. It will fail because, as the sponsors of the bill themselves recognize, there exists already a widespread and deeply-ingrained practice of discouraging transracial placements even when the cost of doing so is consigning children to lengthy or indefinite stays in institutional limbo. Attempting to make fine distinctions between acceptable and unacceptable delay will fail to uproot this pernicious practice. Indeed, the Multiethnic Placement Act will likely worsen the situation. At present, there exists no congressional authority for racial matching; if this bill is enacted, such authority will exist.
There is more at stake in the struggle over the Multiethnic Placement Act than has been at stake in any bill involving race relations that the Congress has faced since the passage of the Civil Rights Act of 1964. That this year marks the 30th anniversary of the Civil Rights Act puts into sharp relief the significance of the pending legislation. That act constituted an effort to remove the color line from large areas of American life. It forbade discrimination on the basis of race in public accommodations and in much of the private employment market. It also authorized the cutting off of federal funds from any agency which discriminated on the basis of race. Yet, here we are, 30 years later, with racialist legislation proposed and sponsored by some of Congress's most distinguished liberal senators: Howard Metzenbaum of Ohio, Edward Kennedy of Massachusetts, Christopher Dodd of Connecticut.
The Multiethnic Placement Act looks down upon transracial placements, making them second-class arrangements to be resorted to when all else fails. There was a time when forward-looking people would have thought it praiseworthy for prospective adoptive parents to have said to a state social welfare agency, "We are willing to raise a parentless child regardless of the child's race." Now we confront legislation that openly denigrates such people, portraying them as a mere fallback for parentless children of a different race than they.
When Senator Metzenbaum introduced the Multiethnic Placement Act, he ended his announcement by stating solemnly that his legislation "reaffirms the fundamental principle that our child welfare system should judge people by the content of their character and not by the color their skin." But this is Orwellian double-speak. The stated aim of the bill is to decrease the length of time that children wait to be adopted. Yet it expressly permits delay for the purpose of racial matching, prohibiting only "undue" delay. The bill's stated aim is to prevent discrimination in the placement of children on the basis of race, color, or national origin. Yet the bill expressly permits an agency to "consider the race, color, or national origin of a child as a factor in making a placement decision." Metzenbaum states that the bill "reaffirms the fundamental principle that our child welfare system should judge people by the content of their character and not by the color of their skin." Yet the bill's language does just the opposite.
This state of affairs is, quite simply, a political disaster--at least for integrationists like me who view the anti-racialist impulse of the civil rights movement circa 1963 as the great guiding sentiment around which struggles for racial justice should continue to cohere. Whether or not they recognize it, many liberals have abandoned their commitment to creating a society in which racial difference withers away into moral insignificance. Instead, often marching under the banner of "diversity," they have acquiesced to measures that are moving us toward a society in which one's racial background is deemed to have a definite, positive, moral meaning that the government officially recognizes, reinforces, and celebrates.
Many conservatives are also blameworthy. Some who merely tolerate the changes wrought by the civil rights revolution, because they can effectively do nothing about them, probably like the fact that racial matching is prevalent and may soon receive congressional approval; after all, racial matching validates to some degree the separatist intuitions that animated de jure segregation. Others are simply indifferent to this issue. Not all are; Professor Charles Fried of Harvard Law School, Ronald Reagan's solicitor general, has been actively, eloquently, and rightly engaged in opposing the Multiethnic Placement Act. But he is unusual among conservatives, and the indifference shown by his ideological kin is itself noteworthy. Conservatives of various sorts unite in their attacks against racial preferences in educational and employment settings. But for the most part conservatives who loudly decry liberals' use of racial criteria in other settings have been noticeably quiet about the Multiethnic Placement Act.
Unfortunately, one plausible explanation for this is that while they care intensely about the disadvantage imposed upon whites by preferential treatment in education and employment, they care little about the burdens imposed by racial matching, burdens that hurt everyone but that hurt racial minority children in particular.
The only happy thing about this story is that an end to it has not yet been written. The Multiethnic Placement Act has not yet been enacted. Perhaps its objectionable aspects will be satisfactorily modified. Perhaps alternative legislation barring all race matching will supersede Metzenbaum's bill. Perhaps the president will veto the bill or the courts will invalidate it. But whatever happens, the fact that such a bill even exists in 1994--40 years after Brown, 30 years after the Civil Rights Act of 1964--is evidence that there is much to be done in order to create a more just, decent, and attractive society.