If 'Past is Prologue': Toward the Development of a New 'Freedom Suit' for the Remediation of Foster Care Disproportionalities Among African-American Children

Author:Gloria Ann Whittico
Position:Assistant Professor, Regent University School of Law. I would like to thank Lynne Marie Kohm, Professor and John Brown McCarty Professor of Family Law, Regent University School of Law, and Denise St. Clair, Executive Director of the newly-renamed Family and Youth Law Center, formerly known as the National Center for Adoption Law and Policy, and...
Pages:407-434
SUMMARY

Through the lens of legal history, the case law of freed mothers suing to regain legal and custodial rights to their children in antebellum Missouri becomes a philosophical point of departure for consideration by the contemporary attorney and policy maker. The case–by–case details of the valiant struggles of these women reveal the challenges faced by those Missouri families and demonstrate how... (see full summary)

 
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IF “PAST IS PROLOGUE”1: TOWARD THE
DEVELOPMENT OF A NEW “FREEDOM SUIT”
FOR THE REMEDIATION OF FOSTER CARE
DISPROPORTIONALITIES AMONG
AFRICAN-AMERICAN CHILDREN
GLORIA ANN WHITTICO*
I. INTRODUCTION
Under the “peculiar institution” of American chattel slavery, the
enslaved family found itself at the mercy of economic forces that
threatened to forever shatter precious familial bonds and ties of kinship.2
The dire circumstances under which these families lived are well
documented.3 However, as the United States began its westward expansion
during the early nineteenth century, these circumstances were both
punctuated and elucidated by hope born of the rule of law.4 A ray of light
Copyright © 2015, Gloria Ann Whittico.
1 “Whereof what’s past is prologue, what to come in yours and my discharge.”
WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 2, at 250–51 (David Lindley upd. ed.,
Cambridge Univ. Press 2013) (1610–11).
* Assistant Professor, Regent University School of Law. I would like to thank Lynne
Marie Kohm, Professor and John Brown McCarty Professor of Family Law, Regent
University School of Law, and Denise St. Clair, Executive Director of the newly-renamed
Family and Youth Law Center, formerly known as the National Center for Adoption Law
and Policy, and Adam Pertman, President of the National Center on Adoption and
Permanency.
2 Loïc Wacquant, The New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto, 4
THEORETICAL CRIMINOLOGY 377, 378 (2000) (“Not one but several ‘peculiar institutions’
have operated to define, confine, and control African-Americans in the history of the
United States. The first is chattel slavery as the pivot of the plantation economy and
inceptive matrix of racial division from the coloni al era to the Civil War.”). See also Kurt
Mundorff, Children as Chattel: Invoking the Thirteenth Amendment to Reform Child
Welfare, 1 CARDOZO PUB. L. POLY & ETHICS J. 131, 168–69 (2003).
3 See generally Tristan L. Tolman, The Effects of Slavery and Emancipation on African-
American Families and Family History Research, CROSSROADS J., Mar. 2011, at 6–17
(providing a detailed discussion concerning the impact of slavery on African-American
families).
4 See generally W. Sherman Rogers, The Black Quest for Economi c Liberty: Legal,
Historical, and Related Considerations, 48 HOW. L.J. 1 (2004) (extensively describing the
role of law in charting the economic circumstances of African-Americans in their journey
from slavery to freedom).
408 CAPITAL UNIVERSITY LAW REVIEW [43:407
emanated from approximately three hundred “freedom suits” brought by
slaves in the courts of the state of Missouri,5 perhaps the best known being
the United States Supreme Court’s decision in Dred Scott v. Sandford.6
These “freedom suits,” filed between 1840 and 1861, were based upon a
statute providing enslaved persons with what may have been
unprecedented access to the courts.7 Twenty-three of these cases were
brought by enslaved mothers who, once having gained their own freedom,
subsequently returned to court to petition for the freedom of their enslaved
children based upon the legal doctrine of partus sequitur ventrem.8 These
women were mothers who had lost or feared losing “custody” of their
children9 through slave trading, because families were separated by cruel
5 David Thomas Konig, The Long Road to Dred Scott: Personhood and the Rule of Law
in the Trial Court Records of St. Louis Slave Freedom Suits, 75 UMKC L. REV. 53, 53
(2006). See also History of Freedom Suits in Missouri, ST. LOUIS CIRCUIT COURT
HISTORICAL RECORDS PROJECT, http://stlcourtrecords.wustl.edu/about-freedom-suits-
history.php (last visited Jan. 5, 2015) [hereinafter ST. LOUIS PROJECT].
6 60 U.S. 393 (1857).
7 ST. LOUIS PROJECT, supra note 5.
8 See generally Gloria Ann Whittico, “A Woman’s Pride and a Mother’s Love”: The
Missouri Freedom Suits and the Lengths and Limits of Justice, FREEDOM CENTER J.,
(forthcoming 2015).
9 Id. Economist and social historian Colin Heywood has explored the dynamics of the
enslaved family from the perspective of the chil d:
[G]ruelling days working in the fields left slave mothers in the
American South with little time or energy for their children. Jennie
Webb informed a researcher, ‘All my childhood life, I can never
remember seeing my pa or ma gwine to wuk or coming in from wuk in
de daylight, as dey went to de fiel’s fo’ day an’ wukked till after dark. It
wuz, wuk, wuk, all de time.’ In addition, these slave mothers faced the
peculiarly debilitating circumstances of plantation life for close family
relationships: rivalry from the all-powerful masters and mistresses for
the affections of their children, and the constant threat of separation
through being sold on to different owners.
COLIN HEYWOOD, A HISTORY OF CHILDHOOD: CHILDREN AND CHILDHOOD IN THE WEST
FROM MEDIEVAL TO MODERN TIMES 85 (2001) (citations omitted). It can be argued that the
protection of children is one of the most basic of our cultural and moral values. Brian
Simmons, Child Welfare Ethics and Values: Participants Guide, CAL. SOC. WORK EDUC.
CENTER 7 (2003), http://calswec.berkeley.edu/files/uploads/pdf/CalSWEC/Participant_
Ethics_Values.pdf. The value of childhood is embodied in the following Biblical account:
(continued)

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