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

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. POL’Y & 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:

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