Interracial and transrcial adoption 2l pagesl 750+

38 Taking Sides: Clashing Views in Childhood and Society, 10e

ISSUE Selected, Edited, and with Issue Framing Material by:

Kourtney Vaillancourt, New Mexico State University

Do Federal Laws Make Transracial Adoptions More Commonplace?

YES: Ezra E. H. Griffith and Rachel L. Bergeron, from "Cultural Stereotypes Die Hard: The Case of Transracial Adoption," The Journal of the American Academy of Psychiatry and the Law (2006)

NO: Elizabeth Bartholet and Diane H. Schetky, from "Commentary: Cultural Stereotypes Can and Do Die: It's Time to Move on with Transracial Adoption," The Journal of the American Academy of Psychiatry and the Law (November 3, 2006)

Learning Outcomes

After reading this issue, you should be able to:

• Describe some of the reasons that adoptions are necessary in America. • Discuss the reasons that transracial adoptions might be preferable to institutional care.

• Discuss the arguments against transracial adoption, specifically what researchers argue the challenges might be.

ISSUE SUMMARY

YES: Ezra Griffith and Rachel Bergeron, formerly professors at Harvard Law School, suggest that there is a cul- tural preference for race matching in adoptions. As a result, federal statutory attempts to omit race as a factor in child placement decisions have not been effective.

NO: Elizabeth Bartholet, the Morris Wasserstein Professor of Law and faculty director of the Child Advocacy Program at the Harvard Law School, and Diane Schetky, clinical professor of psychiatry at the Maine Medical Center, state that the current law is clear and effective in prohibiting adoptions based on race. They suggest that in the future, the need for legislation in this area will diminish even further.

Our society has always preferred finding loving and caring adoptive parents for children rather than plac- ing them in institutions. A family unit not only social- izes a child but provides a child with nurturance, a sense of security, and unconditional love. Unfortunately, there are hundreds of thousands of children in America who, for various reasons, are not with their biological families. These children are mostly nonwhite, minority children. Although the research literature suggests that, regardless of the race of the parents or children, all children do better in adoptive families than in institutions, there still seems to be a "concern" about placing children transracially.

Transracial adoption typically refers to a family in which a minority child (e.g., Asian American, Native Ameri- can, African American, or Latino) or a child with a mixed racial background is adopted by an Anglo-American couple. These adoptions account for about 15 percent of all adop-

tions in the United States annually. Due to world events, transracial adoption became more commonplace in the United States in the late 1940s. Children with mixed back- grounds came from Europe and Asia after World War II. After the Korean War, Korean American children and refu- gee Chinese children were adopted by Anglo-American cou- ples in the United States. Finding adoptive homes for Native American children followed. The movement to place Afri- can American children with Anglo-American families is the most recent evolution of transracial adoption.

The Multi-Ethnic Placement Act of 1994 and the 1996 amendments to that act forbade using race as a sole factor when determining if a family can adopt a child. The National Association of Black Social Workers (NABSW) strongly opposes transracial adoption because they believe the adopted child will have many problems dealing with his or her ethnic identity or ethnic community. Other organizations disagree and base their support of transracial

Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt 39

adoptions on the principle of adoption being in the best interest of the child. The only time a transracial adop- tion process can be delayed because of race is if mental health professionals determine the prospective adoptee is a special case and an intra-racial adoption is in that child's best interest. It should be noted that there is virtually no information related to the issue of minority families adopting white children. This has occurred, but only in rare instances over the generations. Although it is likely that the research literature would come to similar conclu- sions about the welfare of these adopted children, there is

a need for research on this type of transracial adoption as well. At this time it is not possible to say if society could embrace such adoptions without any "concern."

The following two sections describe the debate between restricting transracial adoptions and making transracial adoptions more commonplace via federal law. Despite the law, should race be a factor that is considered in adoption? Do you agree that attitudes and trends have changed and the controversy over transracial adoptions is no longer as large an issue as it was a decade or two ago?

Taking Sides: Clashing Views in Childhood and Society, 10e

YES < Ezra E. H. Griffith and Rachel L. Bergeron Cultural Stereotypes Die Hard:

The Case of Transracial Adoption

The adoption of black children by white families, com- monly referred to as transracial adoption in the lay and professional literature, is the subject of a debate that has persisted in American society for a long time. On one side of the divide are those who believe that black children are best raised by black families. On the other are the support- ers of the idea that race-matching in adoption does not necessarily serve the best interests of the child and that it promotes racial discrimination.

Coming as it does in the midst of myriad other dis- cussions in this country about black-white interactions, transracial adoption has occupied an important place in any debate about adoption policy. But in addition, as can be seen in language utilized by the Fifth Circuit Court in a 1977 case, there is a long-held belief that since family members resemble one another, it follows that members of constructed families should also look like each other so as to facilitate successful adoption outcomes. . . .

In utilizing this language, the court acknowledged that transracial adoption ran counter to the cultural beliefs that many people held about the construction of families. Still, the court concluded that while the difficul- ties attending transracial adoption justified the considera- tion of race as a relevant factor in adoption proceedings, race could not be the sole factor considered. With a bow to both sides in the transracial adoption debate, the argu- ment could only continue.

As the debate marches on, mental health profes- sionals are being asked to provide expert opinions about whether it would be preferable for a particular black child to be raised by a black family or by a family or adult of a different ethnic or racial group. There are, of course, differ- ent scenarios that may lead to the unfolding of these adop- tion disputes. For example, the question may arise when a black child is put up for adoption after having spent a number of months or years in an out-of-home placement. The lengthy wait of black children for an adoptive black family may understandably increase the likelihood of a transracial adoption. In another situation, the death of a biracial child's parents, one of whom was white and the other black, may lead to competition between the white and black grandparents for the right to raise the child. In a third possible context, the divorce of an interracial couple may result in a legal struggle for custody of the biracial

child, with race trumpeted at least as an important factor if not the crucial factor to be considered in the decision about who should raise the child. . . .

We have already alluded to two significant factors that have played a role in the evolution of adoption policy concerning black children, particularly with respect to the question of whether race-neutral approaches make sense and whether transracial adoption is good practice. One factor has been judicial decision-making. In a relatively recent review, Hollinger reminded us that, in general, racial classifications are invalidated unless they can survive the "strict scrutiny" test, which requires meeting a compel- ling governmental interest. Hollinger suggested that the "best-interest-of-the-child" standard commonly used in adoption practice would serve a substantial governmental interest. Such argumentation would allow the considera- tion of race as one element in an adoption evaluation. Fol- lowing this reasoning, while race-neutral adoption may be a lofty objective, the specific needs of a particular child could legally allow the consideration of race.

The second factor to influence the evolution of adoption policy in this arena has been the academic research on transracial adoption. This work has cumula- tively demonstrated that black children can thrive and develop strong racial identities when nurtured in families with white parents. Transracially adopted children also do well on standard measures of self-esteem, cognitive devel- opment, and educational achievement. However, neither judicial decision-making nor scholarly research has settled the debate on transracial adoption policy.

In this article, we focus on a third factor that emerged as another mechanism meant to deal with transracial adop- tions and the influential race-matching principle. These statutory efforts started with the Multiethnic Placement Act, which Hollinger stated "was enacted in 1994 amid spirited and sometimes contentious debate about transra- cial adoption and same-race placement policies." We will point out that even though the statutory attempts were meant to eliminate race as a controlling factor in the adop- tion process, their implementation has left room for ambi- guity regarding the role that race should play in adoption proceedings. Consequently, even though the statutes were intended to eliminate adoption delays and denials because of race-matching, they may have allowed the continued existence of a cultural stereotype—that black children

Griffith, Ezra E.H.; Bergeron, Rachel L. From The Journal of the American Academy of Psychiatry and the Law, vol. 34, no. 3,2006, pp. 303-314 (edited). Copyright © 2006 by American Academy of Psychiatry and the Law. Reprinted by permission via S&S Management Services, Inc.

41 Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

belong with black families—and may have facilitated its continued existence. This article is therefore principally about statutory attempts in the past decade to influence public policy concerning transracial adoption. Secondarily, we shall comment on potential implications of these devel- opments for the practice of adoption evaluations. . . .

Brief Review of Race-Matching in Adoption Feelings about who should raise a black child have run high in the United States for a long time. These feelings come from different groups for different reasons. Kennedy presented a number of historical cases to illustrate this. Among the cases he described, Kennedy told the early 1900s story of a white girl who was found residing with a black family. The authorities concluded that the child had been kidnapped and rescued her. They then placed her with a white family. When it was learned later that the child was black, she was returned to the black family because it was not proper for the black child to be living with a white family. This case, along with others described by Kennedy, is part of the fabric of American racism and racial separatist practices. Kennedy also pointed to the practice during slavery of considering "the human prod- ucts of interracial sexual unions" as unambiguously black and the mandate that they be reared within the black slave community as an attempt to undermine any possibility of interracial parenting.

Whites have not been the only ones to support the stance of race-matching—the belief that black or white children belong with their own group. In 1972, the National Association of Black Social Workers (NABSW) stated unambiguously that white families should never be allowed to adopt black children. The NABSW opposed transracial adoption for two main reasons: the Association claimed that transracial adoption prevents black children from forming a strong racial identity, and it prevents them from developing survival skills necessary to deal with a racist society.

Since its 1972 statement, the NABSW has remained steadfast in its opposition to transracial adoption. In testi- mony before the Senate Committee on Labor and Human Resources in 1985, the President of the NABSW reiterated the Association's position and stated that the NABSW viewed the placement of black children in white homes as a hostile act against the black community, considering it a blatant form of race and cultural genocide.

In 1991, the NABSW reaffirmed its position that black children should not be placed with white parents under any circumstances, stating that even the most loving and skilled white parent could not avoid doing irreparable harm to an African-American child. In its 1994 position paper on the preservation of African-American families, the NABSW indicated that, in placement decisions regard- ing a black child, priority should be given to adoption by biological relatives and then to black families. Transracial

adoption "should only be considered after documented evidence of unsuccessful same race placements has been reviewed and supported by appropriate representatives of the African American community." . . .

Race-matching has been and remains an influential and controversial concept regarding how best to construct adoptive families. Matching, in general, has been a clas- sic principle of adoption practice, governing non-relative adoptions for much of the 20th century. Its goal was to create families in which the adoptive parents looked as though they could be the adopted child's biological par- ents. Matching potential adoptive parents and children on as many physical, emotional, and cultural characteristics as possible was seen as a way of insuring against adop- tive failure. It was not uncommon for potential adoptive parents to be denied the possibility of adoption if their hair and eye color did not match those of a child in need of adoption. Differences among family members in con- structed families were seen as threats to the integration of an adopted child and the child's identification with the adoptive parents. Race, along with religion, was consid- ered the most important characteristic to be matched, and it continued to be important even as the matching con- cept regarding other characteristics began to shift. . . .

Matching, of course, continued to influence child placement decisions outside of adoption agencies, as evi- denced by the comments of the Drummond court. Fol- lowing that court's decision, the general rule has been that trial courts may consider race as a factor in adoption pro- ceedings as long as race is not the sole determinant.

Statutory Attempts at Remedies ... The Black Social Workers had a quick and striking effect on transracial adoption policy. Following the appearance of the paper, adoption agencies, both public and private, either implemented race-matching approaches or used the NABSW position to justify already existing race-matching policies. As a result, the number of transracial adop- tions were estimated to drop significantly-39 percent within one year of the publication of the NABSW state- ment. Although robust data were lacking, it was thought that the number and length of stay of black children in out-of-home placements increased as social workers and other foster care and adoption professionals, believing that same-race placements were in the best interest of the child, searched for same-race foster and adoptive parents. Agencies and their workers had considerable discretion in deciding the role race played in placement decisions. States, while generally requiring that foster care and adop- tion decisions be made in the best interest of the child, varied in their directions regarding the extent to which race, culture, and ethnicity should be taken into account in making the best-interest determination.

While race-matching policies were not the sole determinant of increasing numbers of black children in institutions and out-of-home placements, there was

42 Taking Sides: Clashing Views in Childhood and Society, 10e

growing concern that such policies, with their focus on same-race placement and their exclusion of consideration of loving, permanent interracial homes, kept black chil- dren from being adopted. Because he was concerned that race had become the determining factor in adoption place- ments and that children were languishing in foster care homes and institutions, Senator Howard Metzenbaum introduced legislation to prohibit the use of race as the sole determinant of placement. Senator Metzenbaum believed that same-race adoption was the preferable option for a child, but he also believed that transracial placement was far preferable to a child's remaining in foster care when an appropriate same-race placement was not available.

Multiethnic Placement Act Congress passed the Howard Metzenbaum Multiethnic Placement Act (MEPA) and President Clinton signed it into law on October 20, 1994. MEPA's main goals were to decrease the length of time children had to wait to be adopted; to prevent discrimination based on race in the placement of children into adoptive or foster homes; and to recruit culturally diverse and minority adoptive and fos- ter families who could meet the needs of children needing placement. In passing MEPA, Congress was concerned that many children, especially those from minority groups, were spending lengthy periods in foster care awaiting adoption placements. Congress found, within the param- eters of available data, that nearly 500,000 children were in foster care in the United States; tens of thousands of these children were waiting for adoption; two years and eight months was the median length of time children waited to be adopted; and minority children often waited twice as long as other children to be adopted.

Under MEPA, an agency or entity receiving federal funds could not use race as the sole factor in denying any person the opportunity to become an adoptive or foster parent. Furthermore, an agency could not use race as a single factor to delay or deny the placement of a child in an adoptive or foster care family or to otherwise discrimi- nate in making a placement decision. However, an agency could consider a child's racial, cultural, and ethnic back- ground as one of several factors—not the sole factor—used to determine the best interests of the child. . . .

So, under MEPA, agencies could consider a child's race, ethnicity, or culture as one of a number of factors used to determine the best interests of the child, as long as it was not the sole factor considered, and they could con- sider the ability of prospective parents to meet the needs of a child of a given race, ethnicity, or culture.

Following the passage of MEPA, the Department of Health and Human Services (DHHS), Office of Civil Rights, provided policy guidance to assist agencies receiving fed- eral financial assistance in complying with MEPA. The guidance permitted agencies receiving federal assistance to consider race, culture, or ethnicity as factors in making placement decisions to the extent allowed by MEPA, the

U.S. Constitution and Title VI of the Civil Rights Act of 1964.

Under the Equal Protection Clause of the Fourteenth Amendment, laws or practices drawing distinctions on the basis of race are inherently suspect and subject to strict scrutiny analysis. To pass such analysis, classifications or practices based on race have to be narrowly tailored to meet a compelling state interest. The Supreme Court has not specifically addressed the question of transracial adop- tion. It has considered race as a factor in a child place- ment decision in the context of a custody dispute between two white biological parents when the mother, who had custody of the child, began living with a black man, whom she later married. The Court found the goal of granting custody on the basis of the best interests of the child to be "indisputably a substantial government interest for pur- poses of the Equal Protection Clause." The DHHS guid- ance on the use of race, color or national origin as factors in adoption and foster care placements addressed the rel- evant constitutional issues and indicated that the only compelling state interest in the context of child placement decisions is protecting the best interests of the child who is to be placed. So, under MEPA, consideration of race or ethnicity was permitted as long as it was narrowly tailored to advance a specific child's best interests. Agencies receiv- ing federal funds could consider race and ethnicity when making placement decisions only if the agency made a narrowly tailored, individualized determination that the facts and circumstances of a particular case required the contemplation of race or ethnicity to advance the best interests of the child in need of placement. Agencies could not assume that race, ethnicity, or culture was at issue in every case and make general policies that applied to all children. The guidance also specifically prohibited policies that established periods during which same-race searches were conducted, created placement preference hierarchies based on race, ethnicity, or culture, required social work- ers to justify transracial placement decisions or resulted in delayed placements to find a family of a particular race, ethnicity, or culture.

The DHHS policy guidance did address MEPA's per- missible consideration of the racial, cultural, or ethnic background of a child and the capacity of the prospective foster or adoptive parents to meet the needs of a child of this background as one of a number of factors in the best- interest-of-the-child determination. The guidance allowed agencies to assess the ability of a specific potential adop- tive family to meet a specific child's needs related to his or her racial, ethnic, or cultural background, as long as the assessment was done in the context of an individualized assessment. . . .

However, agencies were not allowed to make deci- sions based on general assumptions regarding the needs of children of a specific race, ethnicity, or culture or about the ability of prospective parents of a specific race, ethnic- ity, or culture to care or nurture the identity of a child of a different race, ethnicity, or culture.

43 Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

To increase the pool of potential foster or adoptive parents, MEPA also required states to develop plans for the recruitment of potential foster and adoptive families that reflected the ethnic and racial diversity of the chil- dren needing placement. The recruitment efforts had to be focused on providing all eligible children with the oppor- tunity for placement and on providing all qualified mem- bers of the community with an opportunity to become an adoptive or foster parent. As a result, while MEPA sought in a reasonable way to recruit a broad racial and cultural spectrum of adoptive families, the law was at the same time underlining the idea that there was something spe- cial about a black child's being raised by a black family.

Those who objected to the permissive considera- tion of race in MEPA asserted that it allowed agencies to continue to delay adoptions of minority children based on race concerns. They also argued that race-matching policies could and did continue under MEPA. Social workers could, for example, use race as a factor to sup- port a finding that a transracial adoption was not in a given child's best interest. Supporters of MEPA reached their own conclusion that it did not accomplish its goal of speeding up the adoption process and moving greater numbers of minority children into foster care or adoption placements and that the permissive con- sideration of race allowed agencies legitimately to con- tinue race-matching to deny or delay the placement of minority children with white adoptive parents. Senator Metzenbaum himself agreed with this conclusion about MEPA and worked for its repeal. As we shall see later, the arguments and counterarguments about the effec- tiveness of MEPA were being made in the absence of robust data.

The Interethnic Adoption Provisions MEPA was repealed when on August 20, 1996, President Clinton signed the Small Business Job Protection Act of 1996. Section 1808 of the Act was entitled "Removal of Barriers to Interethnic Adoption" (The Interethnic Adop- tion Provisions; IEP). MEPA's permissible consideration provision was removed and its language changed... .

Under the IEP, states were still required to "provide for the diligent recruitment of potential foster and adop- tive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed."

Failure to comply with MEPA was a violation of Title VI of the Civil Rights Act of 1964; failure to comply with the IEP is also a violation of Title VI. Under MEPA, an agency receiving federal assistance that discriminated in its child placement decisions on the basis of race and failed to comply with the Act could forfeit its federal assist- ance and an aggrieved individual had the right to bring an action seeking equitable relief in federal court or could file a complaint with the Office of Civil Rights. The IEP added enforcement provisions that specified graduated

fiscal sanctions to be imposed by DHHS against states found to be in violation of the law and gave any indi- vidual aggrieved by a violation the right to bring an action against the state or other entity in federal court.

The Department of Health and Human Services issued two documents to provide practical guidance for complying with the IEP: a memorandum and a document in question-and-answer format. According to the guid- ance, Congress, in passing the IEP, clarified its intent to eliminate delays in adoption or foster care placements when they were in any way avoidable. Race and ethnic- ity could not be used as the basis for any denial of place- ment nor used as a reason to delay a foster care or adoptive placement. The repeal of MEPA's "permissible considera- tion" provision was seen as confirming that strict scrutiny was the appropriate standard for consideration of race or ethnicity in adoption and foster care placements. DHHS argued that it had never taken the position that MEPA's permissible consideration language allowed agencies to take race into account routinely in making placement decisions because such a view would be inconsistent with a strict scrutiny standard. It reaffirmed that any decision to consider race as a necessary element in a placement decision has to be based on concerns arising out of the circumstances of the particular situation. . . .

The guidance again made clear that the best interest of the child is the standard to be used in making place- ment decisions. So, according to the guidance, the IEP prohibits the routine practice of taking race and ethnicity into consideration ("Public agencies may not routinely consider race, national origin, and ethnicity in making placement decisions"), but it allows for the consideration of race, national origin, and ethnicity in certain specific situations ("Any consideration of these factors must be done on an individualized basis where special circum- stances indicate that their consideration is warranted"). Once again, such language seems to suggest that, in cer- tain contexts, the adoptive child may well benefit from placement in a same-race family.

The DHHS guidance seemed to frame the possibil- ity for adoption agencies to continue the practice of race- matching. For example, while warning that assessment of a prospective parent's ability to serve as a foster or adop- tive parent must not act as a racial or ethnic screen and indicating that considerations of race must not be routine in the assessment function, the guidance conceded that an important aspect of good social work is an individual- ized assessment of a prospective parent's ability to be an adoptive or foster parent. Thus, it allows for discussions with prospective adoptive or foster care parents about their feelings, preferences, and capacities regarding caring for a child of a particular race or ethnicity. . . .

Discussion In considering the best interests of a child who is being placed for adoption, DHHS is suggesting that there could

Taking Sides: Clashing Views in Childhood and Society, 10e 44

be special circumstances uniquely individualized to the child that require consideration of ethnicity and race of the potential adoptive parents. Presumably this should

not be done routinely and should not be seen as serving as a proxy for a consistent and mundane contemplation

of ethnicity or race in the adoption context. Undoubt- edly, what constitutes special circumstances in the prac- tices of any given adoption agency is likely to be a matter of interpretation. While agencies can readily assert what their routine practices are, much may turn on how vigor- ously supervised are the claims that special circumstances exist with respect to a particular black child that dictate consideration of ethnicity and race in that child's case. As a practical result, while it appears no one is now allowed to claim that every black child needs a black family, it may still be reasonable and practicable to claim that a black child requires adoption by a black family, as dictated by consideration of the best interests of that child. For exam- ple, Kennedy has raised the possibility that an older child might say he or she wanted to be adopted only by a black family. Such a context could indeed make it difficult for the child's wish to be refused outright, without any con- sideration whatsoever.

Such reasoning is articulated starting from the point of view of the child. Giving consideration to the inter- ests of the potential adoptive parent is another matter. In other words, what should we consider about the adoptive parent's interest in raising black children and the parent's ability to do so? The opinions about this matter remain divided. Kennedy and Bartholet have proposed that pro-

spective adoptive parents be allowed to state a preference for adopting a child from a particular ethnic group. This is, in their view, permissible race-matching that ultimately serves the best interests of the child. After all, what would be the use of forcing a family to adopt a child they really did not want? In addition, both authors also have argued that state intervention in such racial selectivity in the for- mation of families would be akin to imposing race-based rules on the creation of married couples. However, Banks has opposed this accommodationist stance, where in practice adoption agencies would simply show prospec- tive adoptive parents only the class of ethnic children the adoptive parent was interested in adopting. Banks thought this merely perpetuated the status quo, as white adoptive parents had little interest in black children. This would result in black children's continuing to languish in out-of- home placements, and their time spent awaiting adoption would remain prolonged.

Kennedy and Bartholet were permissive in their atti- tude toward the racial selectivity of prospective adoptive parents, respecting parents' choice to construct families as they wish.

There has been and continues to be strong support for the belief that black children belong with black adop-

tive parents. It is not only the NABSW, which has called for the repeal of the IEP, that has taken this position. For example, in a 1998 letter to the Secretary of the Depart-

ment of Health and Human Services, a former executive director of the Child Welfare League of America strongly disagreed with the DHHS's interpretation of MEPA/IEP, stating that prohibiting any consideration of race in adop- tive and foster care placement decisions contradicts best- practice standards in child welfare....

The CWLA, in its most recent Standards of Excellence for Adoption Services (2000), reiterated its belief that race is to be considered in all adoptions and that placement with parents of the same race is the first choice for any child. Other placements should be considered only after a vigor- ous search for parents of the same race has failed. . . .

In its most recent policy statement on foster care and adoption (2003), the National Association of Social Work- ers also reiterated its position that consideration of race should play a central role in placement decisions. . . .

Others have espoused the view that inracial adoption is the preferred option for a black child because black fam- ilies inherently possess the competence to raise children with strong black identities and the ability to cope with racism. While questions of cultural competence to raise a black child often arise about prospective white adoptive parents, no such questions are posed about prospective black adoptive parents. The competence of black families to raise black children is regularly referred to as though black families are culturally identical or homogeneous and all are equally competent to raise black children and equip them to live in our society. We may all think about black cultural competence as though it is a one-dimensional concept. Indeed, we may all be referring simply to stere-

otypical indicators of what we think it means to be black. We may be referring to our own personal preferences for the stereotypic activities of black people: involvement in a black church; participation in a community center where black-focused programs are operating; viewing movies with a clearly black theme; reading literature authored by blacks. What is rarely considered is that some black fami- lies are drawn to rap music, others to jazz greats, and still others to traditional classical music. Indeed, some families obviously manage to exhibit an interest in all these genres of music. With respect, therefore, to even these stereotyped indicators of what it means to be black, black families vary in the degree of their attachment to the indicators. This is to say that blacks differ in their level of commitment to the salience of black-oriented culture in their individual and family lives. As a result, there is considerable cultural heterogeneity among black families. Such variability may well lead to differences in black families' ways of coping with racism.

To date, the statutory attempts to deal with transra- cial adoptions have not been considered as spectacularly successful, especially in the case of MEPA. Nevertheless, efforts have been made to limit the routine consideration of race and ethnicity in adoption, with the result that

black children may be remaining for shorter periods in undesirable out-of-home placements. (National data are not yet able to demonstrate clear trends.) However, DHHS

45 Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

guidance still permits consideration of race and ethnicity in specific cases, with the apparent concession that some black children may need a black family for the realization of the child's best interests.

The burden is on forensic psychiatrists and other mental health professionals who perform adoption eval- uations to point out cogently and logically two points: first, whether race is a factor that is relevant in the adop- tion evaluation; and second, whether there is something unique or particular about that adoption context that requires race to be considered. It will require special argu- mentation for the evaluator to claim that a particular black child could benefit more from placement with a black family than with a non-black family. As stated earlier, the evidence is clear that black children can do well in transra- cial placements. The pointed objective, therefore, in future evaluations will be to show that a particular black child has such unique and special needs that he or she deserves particular consideration for placement in a black family. It will be interesting to see whether our forensic colleagues, in striving for objectivity, will consider the factor of race in their evaluations only when something unique about

that particular adoption context cries out for race to be considered so that the best-interest-of-the-child standard can be met. It seems clear that forensic professionals must be careful not to state that they routinely consider race in their adoption evaluations unless they intend to argue clinically that race is always relevant. And even then, they should be cautious about not articulating a general prefer- ence for inracial over transracial adoptions.

Despite federal statutory attempts to remove race as a controlling factor in adoption and foster care placement decisions, the debate over transracial adoption is not over. Indeed, strains of the debate are evidenced in the statutes and their implementation guidelines and the argument continues among our mental health colleagues. . . .

EZRA E. H. GRIFFITH is deputy chair of clinical affairs and a professor of psychiatry and African American studies at Yale University, School of Medicine.

RACHEL L. BERGERON is an assistant clinical professor of psychiatry at Yale University, School of Medicine.

Taking Sides: Clashing Views in Childhood and Society, 10e 46

Elizabeth Bartholet and Diane H. Schetky 0

Commentary: Cultural Stereotypes Can and Do Die: It's Time to Move on with

Transracial Adoption

Ezra Griffith and Rachel Bergeron write in their article, "Cultural Stereotypes Die Hard: The Case of Transracial Adoption," that the controversy that has long surrounded transracial adoption is ongoing and that the law is signifi- cantly ambiguous. Accordingly, they say that psychiatrists and other mental health professionals are faced with a challenge in deciding on the role that race should play in adoption evaluations for purposes of foster and adoptive placement decisions.

I agree that the controversy is ongoing, but think that the law is much clearer than Griffith and Bergeron indicate and that it provides adequate guidance as to the very limited role that race is allowed to play. However, because of the ongoing controversy, many players in the child welfare system are committed to law resistance and law evasion. The challenge for mental health professionals is to decide how to respond to conflicting pressures and whether to use their professional skills to assist in good faith implementation of the law or in efforts to undermine the law. The challenge is a real one, because those com- mitted to undermining the law do so in the name of the ever popular best-interests-of-the-child principle, arguing that best practices require consideration of race in place- ment decisions. However, in my view the choice should be clear, not simply because the law exists, but because the law takes the right position—right both for children and for the larger society.

Griffith and Bergeron acknowledge that, after a period in which race-matching was common and court- made law allowed at least some regular use of race in the placement process, the U.S. Congress passed laws govern- ing these matters: the 1994 Multiethnic Placement Act and the 1996 amendments to that Act (here referred to collectively as MEPA and, when it is important to distin- guish between the original 1994 Act and the amended Act, referred to as MEPA I and MEPA II, respectively). However they say that these laws "may still leave the door open to continued race-matching. . . ." They go on to say:

[E]ven though the statutory attempts were meant to eliminate race as a controlling factor in the adoption process, their implementation has left

room for ambiguity regarding the role that race should play in adoption proceedings. Conse- quently, even though the statutes were intended to eliminate adoption delays and denials because of race-matching, they may have allowed the continued existence of a cultural stereotype—that black children belong with black families—and may have facilitated its continued existence.

Griffith and Bergeron accurately describe how MEPA I allowed the use of race as one factor in placement, so long as it was not used categorically to determine placement or to delay or deny placement:

An agency . . . may consider the cultural, ethnic, or racial background of the child and the capac- ity of the prospective foster or adoptive parents to meet the needs of a child of this background as one of a number of factors used to determine the best interests of a child.

And they describe how MEPA II removed that sec- tion of the law, and made related amendments designed to limit the use of race. They note that the U.S. Department of Health and Human Services (DHHS), the MEPA enforce- ment agency, interprets the law to require strict scrutiny as the standard by which to judge use of race in place- ments and quote one of the guidance memoranda issued by DHHS. . . .

But they conclude that the DHHS guidance "seemed to frame the possibility for adoption agencies to continue the practice of race-matching," and "allows for discussions with prospective adoptive or foster care parents about their feelings, preferences, and capacities regarding caring for a child of a particular race or ethnicity." They go on to cite the positions of the National Association of Black Social Workers, the Child Welfare League of America, the National Association of Social Workers, and some others, all arguing for a systematic preference for race-matching.

While Griffith and Bergeron raise some questions about the wisdom of assumptions made by race-matching proponents that all blacks will be culturally competent to raise black children in a way that no whites will be, they conclude with a message that seems to emphasize

Bartholet, Elizabeth; Schetky, Diane H. From The Journal of the American Academy of Psychiatry and the Law, vol. 34, no. 3, 2006, pp. 315-323 (excerpts). Copyright © 2006 by American Academy of Psychiatry and the Law. Reprinted by permission via S&S Management Services, Inc.

47 Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

the difficulty of the challenge faced by mental health pro- fessionals in deciding just how much weight to give race in their placement evaluations. They state that MEPA has not been considered "spectacularly successful," and that DHHS guidance permits some consideration of race in spe- cific cases. . . .

In their final two paragraphs Griffith and Bergeron cite the Adoption and Race Work Group, assembled by the Stuart Foundation, as evidence of the ongoing debate within the mental health community, noting its con- clusion that "race should not be ignored when making placement decisions and that children's best interests are served—all else being equal—when they are placed with families of the same racial, ethnic, and cultural back- ground as their own."

There are several problems with the message that this article by Griffith and Bergeron sends to their col- leagues. First, the law is much clearer than they indicate. MEPA II did, as they point out, eliminate the provision in MEPA I that had allowed race as a permissible considera- tion. MEPA H also eliminated related language indicating that some use of race might be permissible—language in MEPA I forbidding agencies to "categorically deny" place- ment, or delay or deny placement "solely" on the basis of race—and substituted language that tracked the language of other civil rights statutes, simply prohibiting discrimi- nation. As I discuss elsewhere:

The intent to remove race as a factor in place- ment decisions could hardly have been made more clear. The legislative history showed that the race-as-permissible-factor provision was removed precisely because it had been identified as deeply problematic. The simple antidiscrimination lan- guage substituted had been consistently inter- preted in the context of other civil rights laws as forbidding any consideration of race as a factor in decision-making, with the increasingly lim- ited exception accorded formal affirmative action plans.

While it is true that DHHS issued a 1997 Guidance Memorandum allowing consideration of race in some cir- cumstances, that Guidance makes clear that race cannot be used in the normal course but only in exceedingly rare situations. . . .

Moreover, when the Guidance states that use of race in placement is governed by the strict scrutiny standard, it invokes a standard known in the legal world as condemn- ing as unconstitutional under the Federal Constitution almost all race-conscious policies.

MEPA's prohibition of racial matching is contro- versial within the child welfare world, with some argu- ing for its repeal and others for "interpretations" that would allow for race-matching in blatant disregard for the clear meaning of the law. The positions taken by the Child Welfare League of America, the National Asso- ciation of Social Workers, and the National Association

of Black Social Workers, cited by Griffith and Bergeron, illustrate these organizations' disagreement with the law. The Report issued by the Stuart Foundation's Adop- tion and Race Work Group, relied on by Griffith and Bergeron in their concluding paragraphs, illustrates the commitment by many who disagree with the law to evade its restrictions. As I wrote when asked for my com- ments on this Group's preliminary draft report, which became the final report with no significant changes in tone or substance:

From start to finish [the Report] reads like a justifi- cation for the present race-matching system, and an argument for continuing to implement essen- tial features of that system in a way designed to satisfy the letter but not the spirit of [MEPA]. . . .

The general thrust of the Report in terms of policy direction, together with its specific Recom- mendations, read to me like the advice prepared by clever lawyers whose goal it is to help the client avoid the clear spirit of the law. The general idea seems to be to tell those in a position to make and implement policy, that this is a bad law, based on a misunderstanding of the needs of black chil- dren, but that since it is less than crystal clear, it will be possible to retool and reshape current poli- cies and practices so that they look quite different but accomplish much the same thing.

The fact that there is ongoing controversy about and resistance to this law matters. Law is not self-enforcing. It relies on people, nonprofit organizations, and govern- ment entities to demand enforcement.

However, just as controversy affects law, so law also affects controversy. The fact that federal law now states that race-matching is equivalent to race discrimination matters in a nation that has committed itself in signifi- cant ways to the proposition that race discrimination is wrong. Moreover this particular law mandates powerful penalties, specifying an automatic reduction of a set per- centage of the federal funds provided to each state for fos- ter and adoption purposes, for any finding of violation. This changes the risk assessment enterprise for typically risk-averse bureaucrats. Acting illegally can get you into trouble, especially if millions of dollars of financial penal- ties are at stake. While in the years after MEPA's passage I was one of the most vocal critics of the absence of MEPA enforcement activity, as the years went by I began to get the sense in my travels around the country speaking on these issues that social work practice was adjusting, albeit slowly, to MEPA's demands.

The dramatic new development is on the enforcement front. The U.S. Department of Health and Human Services (DHHS), designated as the enforcement agency for MEPA, has finally moved beyond the tough-sounding words that it issued providing interpretive guidance, to take action— action in the form of decisions finding states in violation of the law and imposing the financial penalties mandated

48

Taking Sides: Clashing Views in Childhood and Society, 10e

by MEPA for such violations. Griffith and Bergeron make no mention of this development, but it seems likely to have a major impact on child welfare agencies nation- wide and accordingly seems likely to change the context in which mental health professionals will work in mak- ing placement evaluations and the pressures on them with respect to the race factor. The first such enforcement decision involved Hamilton County, Ohio. In 2003, after a four-and-one-half-year investigation, DHHS's Office for Civil Rights (OCR) issued a Letter of Findings, conclud- ing that Hamilton County and Ohio had violated MEPA as well as Title VI of the 1964 Civil Rights Act (42 U.S.C. Sec. 2000(d)), and DHHS's Administration for Children and Families (ACF) issued a Penalty Letter imposing a $1.8 million penalty. In its extensive Letter of Findings, DHHS confirmed that under MEPA as well as Title VI, strict scrutiny is the standard, and child welfare workers have extremely little discretion to consider race in the place- ment process. DHHS found that MEPA prohibits any regu- lar consideration of race in the normal course, any regular consideration of race in the context of a transracial place- ment, and any differential consideration of transracial as compared with same-race placements. Moreover, the Let- ter stated that MEPA prohibits the variety of policies and practices used to assess transracial placements with a view toward the prospective parents' apparent ability to appro- priately nurture the racial heritage of other-race children. More specifically, DHHS found illegal administrative rules requiring that: (1) home-studies of prospective adoptive parents seeking "transracial/transcultural" placements include a determination of whether a prospective parent is able to "value, respect, appreciate and educate a child regarding a child's racial, ethnic and cultural heritage, background and language and . . . to integrate the child's culture into normal daily living patterns"; (2) assessments be made of the racial composition of the neighborhood in which prospective families live; and (3) prospective parents prepare a plan for meeting a child's "transracial/ transcultural needs." DHHS stated that, in enacting MEPA II, Congress "removed the bases for arguments that MEPA permitted the routine consideration of race, color, or national origin in foster or adoptive placement, and that MEPA prohibited only delays or denials that were categori- cal in nature." In the consideration of particular Hamil- ton County cases, DHHS regularly faulted child welfare workers for demanding that home-studies reflect a child's cultural needs, asking for additional information on racial issues, and inquiring into and relying on prospective par- ents' statements about their racial attitudes (e.g., intention to raise the child in a "color-blind" manner), the degree of contact they had with the African-American community, the level of racial integration in their neighborhood or school system, their plans to address a child's cultural her- itage, their level of realism about dealing with a transracial placement, the adequacy of their training in areas like hair care, their unrealistic expectations about racial tolerance, their apparent ability to parent a child of another race,

their willingness to relocate to a more integrated com- munity, their apparent ability to provide a child with an understanding of his heritage, and their readiness for tran- sracial placement.

In rejecting one of Ohio's defenses, based on alleg- edly inadequate advice on the operation of MEPA, DHHS found that the guidance issued in the form of various memoranda from 1995 through 1998 was fully adequate in clarifying the prohibition against any special require- ments related to transracial placements.

The subsequent DHHS decision imposing the $1.8 million penalty took issue additionally with Ohio's apparent attempt to circumvent the law by a new admin- istrative rule providing that an agency determination that race should be considered would trigger a referral for an opinion from an outside licensed professional (psychiatrist, clinical psychologist, social worker, or professional clinical counselor). The professional was to be required to provide an "individual assessment of this child that describes the child's special or distinctive needs based on his/her race, color, or national origin and whether it is in the child's best interest to take these needs into account in placing this child for foster care or adoption." DHHS faulted the process for signaling to the professional that the agency thinks race should be a factor, for the professional's lack of training regarding the legal limitations on considering race and for asking the professional whether race should be considered, while failing to require any finding by the professional: "that there is a compelling need to consider race; that such consideration is strictly required to serve the best interests of the child; and that no race-neutral alternatives exist." DHHS also noted that Ohio had indi- cated its desire for state approval to obtain opinions from professionals known to be opposed to transracial adop- tions. DHHS concluded that the rule was "readily suscepti- ble to being used to foster illegal discrimination."

In 2005, DHHS made a second enforcement deci- sion, involving South Carolina, with OCR issuing a Let- ter of Findings concluding that the state's Department of Social Services had violated both MEPA and Title VI, and ACF issuing a Penalty Letter imposing a penalty of $107,481. In its Letter of Findings in this case, DHHS again emphasized that strict scrutiny is the standard and that the law forbids any regular consideration of race, allow- ing its consideration only on rare occasions and even then only to the degree it can be demonstrated to be absolutely necessary. DHHS found illegal South Carolina's practice of treating prospective parent racial preferences with greater deference than other preferences: "By treating race differ- ently from all other parental preferences . . . [the agency] establishes its own system based on racial preference. .. ." DHHS also found illegal the agency's practice of defer- ring to birth parents' racial preferences, stating that the law requires agencies to make placement decisions "inde- pendent of the biological parent's race, color or national origin preference." Furthermore, DHHS found illegal the agency's practice of treating transracial adoptions with

Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

49

greater scrutiny, faulting, for example, the inquiries into prospective parents' ability to adopt transracially, and ability to nurture a child of a different race, as well as inquiries into the racial makeup of such parents' friends, neighborhoods, and available schools. And finally, DHHS found to be illegal various other ways in which the agency took race into consideration, including use of race as a "tie-breaking" factor, matching for skin tone, and use of young children's racial preferences—"the routine defer- ence to and wide range of reasons given for . . . following the same-race preferences of young children undermines any claim that these placement decisions are truly indi- vidualized." In addition, DHHS made findings of viola- tions in several individual cases, including that of a black couple interested in adopting a Hispanic child, in which the agency was faulted for inquiry into the couple's ability to meet the child's cultural needs. DHHS specified that any acceptable corrective action plan by the state would have to include, inter nlin, support and encouragement for par- ents interested in adopting transracially, the creation of progressive disciplinary action, including termination, for staff continuing to use race improperly, the development of whistle-blower protection for staff who reported the use of race by others, and monitoring and reporting require- ments designed to ensure future compliance with the law. The ACF Penalty Letter noted that, having reviewed and concurred in the OCR's Letter of Findings, it was imposing the penalty mandated by MEPA.

While these are the only cases in which Letters of Findings and Penalty Letters have been issued, DHHS's OCR has engaged in compliance efforts in several other cases, resulting in agreements by various state agencies to modify their practices in accord with OCR's demands. In addition DHHS's ACF has through various policy state- ments reenforced its commitment to rigorous enforce- ment of MEPA.

DHHS's recent enforcement action constitutes a shot across the bow for all state agencies involved in foster and adoptive placement throughout the nation. The opinions in the two cases in which financial penalties were imposed are as clear as they can be that, at the highest ranks, DHHS believes that MEPA and the various MEPA-related guid- ance memoranda that DHHS has issued mean that race cannot lawfully be taken into account in any routine way in placement decisions, that it is only in the exceptional cases that race can be considered, and even then that authorities will have to be very careful to demonstrate that compelling necessity demands such consideration, consistent with the strict scrutiny standard.

While DHHS guidance had in my view made all this clear previously, the fact that OCR has now taken enforcement action finding MEPA violations, with ACF imposing financial penalties, raises the stakes in a way that agency directors and agency workers will not be able to ignore. Penalties for MEPA violations are man- dated under the law, and they are very severe, reducing by set percentages the federal funds on which states are

absolutely dependent to run their child welfare systems. A 1997 DHHS Guidance Memorandum noted that in some states MEPA's penalties could range up to more than $3.6 million in a given quarter and could increase to the $7 to $10 million range for continued noncompli- ance. State agencies act at their peril in ignoring this law. So, too, do agency workers, since their supervisors are not likely to be pleased with action that puts the state's child welfare budget at risk.

Some will no doubt continue to resist and evade the law, but I predict that such conduct will diminish over time as the law becomes more established in people's minds as simply part of the nation's basic civil rights com- mitment. While some have called for MEPA's repeal there has been no significant move in this direction.

My hope is that mental health professionals will join ranks with those interested in following the law in good faith, rather than with those interested in evading its mandate. I say this not simply because MEPA is the law, but because I believe it is a good law, one that serves the interests both of children and of the larger society. Griffith and Bergeron note that black children "can" do well in white families, but I believe the social science evidence provides much stronger support for MEPA than that. By now, there is a significant body of studies on transracial adoptees, many of which are good, controlled studies, comparing them to same-race adoptees. My review of these studies and that of others besides me, reveals no evidence that any harm comes to children by virtue of their placement across color lines. By contrast, there is much evidence that harm comes to children in foster or institutional care when they are delayed in adoptive place- ment or denied adoption altogether, and there is much evidence that race-matching policies result in such delay and denial. In addition, there is evidence that even when child welfare systems purport to use race as only one fac- tor in decision-making, rather than as a categorical factor justifying delay and/or denial of adoptive placement, race ends up being used in ways that result in just such delay and denial. This latter was, of course, the main reason Congress amended MEPA I to eliminate race as a permis- sible consideration—Senator Metzenbaum, the law's spon- sor, became convinced that MEPA I was not succeeding in eliminating the categorical use of race because its permis- sion to use race as one factor was being abused, something that many of us who supported MEPA II had thought was inevitable, based on experience.

So, it seems to me clear that MEPA serves the interests of children, by helping black children in particular to find placements in loving homes of whatever color as promptly as possible. MEPA also seems to me to serve the interests of the larger society, by combating in a small but signifi- cant way the notion that race should divide people. Race- matching is the direct descendant of white supremacy and of black separatism. For the state to promote the formation of same-race families and discourage the formation of inter- racial families, as it does when it endorses race-matching,

50 Taking Sides: Clashing Views in Childhood and Society, 10e

is wrong in my view for the same reasons that barriers to interracial marriage were wrong. The U.S. Supreme Court struck down those marriage barriers in 1967 in Loving v. Virginia. Congress took an important step in passing MEPA II to bring our nation's child welfare policies in line with the rest of our civil rights regimen. This law makes the statement that while race, of course, does matter in myriad ways in our society, it does not and should not define peo- ple's capacity to love each other.

Commentary: Transracial Adoption—Changing Trends and Attitudes . . . The increase in transracial adoptions of African- American children in the United States arose in response to the paucity of white babies available for adoption and pressures on public agencies to free children in foster care for adoption. The majority of single teenage mothers now choose to keep their babies. There is increased use of kin- ship care or adoption, and heightened use of birth control, all of which result in fewer newborn babies being available for adoption. In my state of Maine, the rate of teenage pregnancies has plummeted and is now one of the lowest in the nation. The option of seeking infants from abroad is fraught with uncertainty—concerns about health prob- lems and attachment disorders, delays, expenses, and poli- cies regarding adoptions by foreigners that keep shifting in many nations. Yet another attraction for parents con- sidering adopting African-American babies is the shorter waiting period.

In many parts of the United States and other coun- tries, communities have become more accepting of racially mixed families. In as much as African-American children tend to stay longer in out-of-home care than do white children, freeing them for adoption by white fami- lies became a means of alleviating this situation. In the 1990s, public agencies were under a mandate to hasten the exit of children from foster care into permanent care and the Adoption and Safe Families Act of 1995 offered incentives to states that increased adoption of children in foster care. This, combined with the Multiethnic Place- ment Act, resulted in a dramatic decrease in the number of children in foster care and those awaiting adoption. As of 2001, 14 percent of all adoptions were transracial, although most of them were international adoptions.

As noted by Griffith and Bergeron, the pendulum of statutes regarding transracial adoptions has been swinging like the chapper of a ringing bell. The common thread that runs throughout these debates and dialogues is the con- cept of adhering to the child's best interests. This guide- post dates back to a 1925 decision by judge Cardozo who first coined the term best interests. Goldstein et al. would

later elaborate on this concept in their book, Beyond the Best Interests of the Child, in which they applied psycho- analytic concepts to the resolution of custody disputes. The best-interest standard has held up well over time and continues to be used by courts in determining child cus- tody determinations. Most states further delineate a list of factors to be considered in making custody recommenda- tions to the court.

Caseworkers and forensic mental health profession- als have always had to be mindful of their potential biases in making custody recommendations. Such biases might pertain to potential adoptive parents' socioeconomic sta- tus, education, lifestyle, or sexual orientation. The issue of transracial adoptions may bring out even stronger feelings that threaten the objectivity of those making recommen- dations and final decisions about adoptions. Resistance to transracial adoptions is reminiscent of the opposition to adoption by same-sex couples. There used to be great concern that children adopted into these families would be stigmatized, proselytized into the gay lifestyle, and deprived of adequate role models. Some professionals in child welfare were adamantly opposed on moral grounds. And yet, follow-up studies have consistently shown that children raised by same-sex couples are no different from children raised by heterosexual parents. Eventually, adop- tion agencies began to see same-sex couples as a valuable resource for hard-to-place children such as those with AIDs or other serious medical or mental problems and older children with histories of failed adoptions. With time, society has become more accepting of these alterna- tive families and their children. These families have, in turn, demonstrated their parenting skills with some of the most challenging children.

Griffith and Bergeron raise the question of the impor- tance of African-American culture in the adoptee's life. I recall many years ago testifying in the Northwest regard- ing the placement of a child who was part Native American and part Latino. Strong arguments were put forth on the importance of preserving his Native-American heritage, yet no one was arguing for his Latino heritage. Concern for the well-being of African-American children unable to be returned to their birth parents is a relatively new phe- nomenon. Certainly, few people advocated for them or for white children in the mid-20th century when it was not unusual for children to languish in foster care for up to five years and then be too old or too emotionally damaged to be deemed adoptable. The hue and cry of professionals opposed to transracial adoption was in part related to fears that African-American children raised by whites would not be able to defend themselves against prejudice in a racist society. However, one must also ask whether life in the impermanence of foster care with multiple placements and the risk of further abuse or neglect better prepare them to live in a racist society. Of note, private adoption agen- cies began placing African-American children with white families long before public agencies did so, as the costs of recruiting African-American families was too high. The

51 Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

numbers were small, but there was little protest and some- how this practice passed under the radar screen.

Norris and Ferguson note that the 1960s and 1970s saw the decimation of many minority families due to substance abuse, incarceration, the HIV epidemic, higher mortality rates, and unemployment due to racism. The net result of these forces was more children of color in foster care. In addition, African-American families often failed to meet the criteria for adoption eligibility. The Adoption Assistance and Child Welfare Act of 1980 provided some relief to families that could not afford to adopt. Simon conducted a 20-year study of 200 white parents and their predominantly African-American adopted children and found that most of the children were happy with their racial identity and racial awareness and happy with them- selves. Twenty percent of the group studied experienced some problems in their preteen and adolescent years. This is not a very high percentage, considering the problems faced by most teens and, in particular, adopted teens who have a more difficult time coming to terms with their identity as they approach this phase of development.

The problems faced by children in transracial fami- lies should be approached on a developmental level. Ethnoracial awareness does not begin until sometime between the ages of three and five years. My eldest son who, at age three, would insist that our African-American nanny was part of our family and shared our last name brought this point home to me. One day, he was look- ing out the window at the park across the street and said excitedly, "Mommy, look! There are three black people out there!" Thinking he finally was beginning to note racial differences, I looked out the window and saw three nuns walking in their black habits. As adopted children become aware that their color is different from that of their par- ents, this might actually facilitate conversations about adoption earlier than in homogenous families, and there is less likely to be secrecy about the adoption.

As noted, problems with racial identity may not surface until adoptees enter their preteen and adolescent years. White families who welcome African-American children into their homes to play with their children may become less welcoming once their children are of dating age. African Americans raised in predominantly white communities may have difficulty fitting in with other African Americans once they leave home. I treated an African-American teenager from an affluent white com- munity where she was well accepted in her predominantly white high school. She related how difficult she found it relating to the African-American students at her college who viewed her as an "Oreo": black on the outside and white inside. She commented on how she had felt like

neither fish nor fowl in her new environment. Although not adopted, she faced dilemmas similar to those faced by adoptees who grew up in cultures where they are very much in the minority.

For many years, adoption agencies tried to match children with families who shared similar physical attributes. This effort coincided with secrecy about adop- tion, the shame of infertility, and even the need to pro- tect a child from knowledge of his illegitimacy. Families now speak more openly of adoption and even practice open adoptions. My brother was carefully matched to my family's phenotype, but aside from both of us being tall and Anglo-Saxon in appearance, we have little in com- mon. Biological siblings may look very different from one another and even their parents. Why must there be so much emphasis on sameness? Rainbow families have demonstrated that there is much more to being family than external appearances. Diversity might actually facili- tate individuation and separation in children.

Cultural competence and capacity are routinely screened for in white parents wishing to adopt African- American children. In addition, there are many books and Web sites available to help these parents, once they have been approved to adopt, on how best to raise children of a different race and preserve their cultural roots. There is much emphasis on the need for adoptive parents to expose their adopted children to their African-American culture. While I do not take issue with this, I think there is a much broader need to instill appreciation of African-American culture among all school children and their parents. Toler- ance, understanding, and respect should be taught early and reinforced at home. The magazine Teaching Tolerance published by the Southern Poverty Law Center has had significant impact on our school systems in this regard. Our culture is rapidly changing, and the fear that African Americans in white families will not be able to handle discrimination seems like an outdated notion. The onus should not be put on adoptees to learn to deal with dis- crimination but rather on society to end discrimination. African-American children in white families may play an important role in helping other children and their parents overcome racial stereotypes.

ELIZABETH BARTHOLET is the Morris Wasserstein Public Interest Professor of Law and faculty director of the Child Advocacy Program at the Harvard Law School.

DIANE H. SCHETKY is a forensic child and adolescent psy- chiatrist and clinical professor of psychiatry at the Maine Medical Center.

52 Taking Sides: Clashing Views in Childhood and Society, 10e

EXPLORING THE ISSUE

Do Federal Laws Make Transracial Adoptions More Commonplace?

Critical Thinking and Reflection 1. Griffith and Bergeron believe that transracial adoption should be less commonplace because more and more

children are being considered "special cases." Define what makes a child a special case and why it would be harmful for children in these special cases to be adopted transracially.

2. Bartholet suggests that by allowing race as a factor in adoptions, American society is allowing racial discrimi- nations, which our country has been fighting to eliminate. Support or refute this statement and explain why making reference to content from the articles.

3. Take a stance, pro or con, regarding transracial adoption. Explain your position citing evidence from either the Griffith and Bergeron or the Bartholet selections to support your position.

Is There Common Ground? The Multiethnic Placement Act is intended to provide an effective support for transracial adoption. It seeks to elimi- nate the consideration of race in the placement of chil- dren except in exceptional cases. Legislation such as this is intended to protect the interests of adoptees and their pro- spective parents. However, do prospective parents usually prefer children of their own race? Or, are adopting parents pleased to have a child—of any race—to love and rear? Do you believe, as suggested in the NO selection, that as respect for all minority cultures and tolerance for diversity continue to pervade our society, the need for "best inter- est" legislation such as this act may become unnecessary? Will our society ever evolve to the degree that there would never be extenuating circumstances in which children placed for adoption need to be adopted by parents of the same race?

There are many children in need of adoption, and most are minority children. The goal of adoption is to get children out of institutions and orphanages and into lov- ing and caring homes. The vast majority of the literature on transracial adoption finds little to suggest that it harms children when they are adopted by parents of a different race. The National Association of Black Social Workers (NABSW) seems to be the ones who are most vociferous in denouncing transracial adoption. Is this a form of dis- crimination, to prevent Anglo-Americans from adopting a minority child who is of a different race?

Although the efficacy of transracial adoption has been well established in the research literature, the contro- versy continues as to whether or not it should be widely practiced. Many feel that the issue should be laid to rest— once and for all—because children thrive more effectively in adoptive homes than in institutions. And, there are sim- ply not enough same-race minority families to adopt chil- dren of the given race. Others suggest that although we as a society make overtures to being nondiscriminating, the

practice still occurs in adoptions despite the law. Also, in some cases, people believe it is necessary to consider race in placing children. It seems clear that those on either side of the issue would agree, however, on two fundamental goals: (1) to decrease the amount of children in institu- tions and orphanages and (2) to place children in adoptive homes that will best meet their physical and emotional needs. The problem seems to be in the differing points of view as to how to best achieve these goals.

Create Central www.mhhe.com/createcentral

Additional Resources Child Welfare Information Gateway. Transracial and

Transcultural Adoptions. Retrieved on April 7, 2011, from www.childwelfare.gov/pubs/f_trans.cfm This website defines and discusses reasons for transracial adoptions and expert opinions on their impact on children.

Issues in Transracial Adoption. Retrieved on April 7, 2011, from http://userpages.umbc.edu/-mmcman1/ This website discusses the various issues that must be taken into consideration when considering transracial adoptions.

Morrison, A. (2004) Transracial Adoption: The Pros and Cons and the Parents' Perspective. Harvard BlackLetter Law Journal, 20, pp. 163-202. Retrieved on April 7, 2011, from www.law.harvard.edu/students /orgs/b1j/vol20/morrison.pdf This is an article posted online that discusses some of the pros and cons of transracial adoptions, as well as the parents' perspectives on these types of adoptions.

t.

•

r.

Do Federal Laws Make Transracial Adoptions More Commonplace? by Vaillancourt

53

Internet References . . . Adoptive Families

www.adoptivefamilies.com/transracial-adoption.php

The Adoption History Project. Retrieved on April 7, 2011

This website describes the history of transracial adop- tions in America.

http://pages.uoregon.edu/adoption/topics /transracialadoption.htm