The Multiethnic Placement Act and the Troubling Persistence of Race Matching

• Author: Ralph Richard Banks
• Pages: 271-290

THE MULTIETHNIC PLACEMENT ACT AND THE

TROUBLING PERSISTENCE OF RACE MATCHING

RALPH RICHARD BANKS*

I. INTRODUCTION

Prior to the pas sage of the Mult iethnic Placement Act (MEPA) in

1994,1 no federal statute restricted state officials’ rel iance on race in the

placement of children for adoption or foster care.2 Nor had f ederal courts

interpreted the equal protection clause to prohibit social workers’

consideration of r ace.3

Social work poli cy and practice was ani mated by the sen se t hat

children belonged with parents from their o wn raci al grou p.4 Some

jurisdictions created a formal presumption in favor of same race

placement.5 Others simply accorded social workers the discretion to take

Copyright © 2009, Ralph Ri chard Banks

* Jackson Eli Reynolds Prof essor of Law, S tanford Law School. I would like to thank

Molly Claflin for considerable help in converting my conferenc e pre sentation into this

article and Mary Ann Rund ell for assistance during the editorial process.

1 Pub. L. No. 103-38 2, 108 Stat. 4056 (codified as amended at 42 U.S.C. § 6 22 (2006)).

See generally JOAN HEIFETZ HOLLINGER & THE AM. BAR ASS'N CTR. ON CHILDREN & T HE

LAW, NAT'L RES. CTR. ON LEGAL & COURT ISSUES, A GUIDE TO THE MUL TIETHNIC

PLACEMENT ACT OF 1994 AS AMENDED BY THE INTERETHNIC ADOPTION PROVISIONS OF 1996

(1998), available at http://www.acf.hhs.gov/program s/cb/pubs/mepa94/index.htm

[hereinafter A GUIDE TO THE MULTIETHNI C PLACEMENT ACT OF 1994].

2 See SUSAN LIVINGSTON SMIT H ET AL., THE EVAN B. DONALDSON ADOPT ION INSTITUTE,

FINDING FAMILIES FOR AFRICAN AME RICAN CHILDREN: THE ROLE OF RACE & LAW IN

ADOPTION FROM FOSTER CARE 12–14 (2008), available at http://www.adoptionins titute.org/

publications/MEPApaper20 080527.pdf [herein after FINDING FAMILIES FOR AFRI CAN

AMERICAN CHILDREN].

3 See, e.g., Douglas R. Es ten, Comment , Transra cial Adop tion and The Multiethnic

Placement Act of 1994, 68 TEMP. L. REV. 1941 , 1960 n.136 (1995) (noting that adoption

placements based o n race would seem to violate th e Equal Protection Clause, but listing

federal cases where the con stitutional provision was not violated).

4 See FINDING FAMILIES FOR AFRICAN AMERICAN CHILDREN, sup ra note 2, at 13.

5 Id. at 13–14; see Mary E. Hansen & Danie l Pollack, Transracial Adoption of Black

Children: An Economic Analysis 5 (Berkeley Elec. Pr ess, Working Paper No. 1942, 2007),

available at http://law.bep ress.com/expresso/eps/1942 (“In the earl y 1980s at least six states

[Arizona, Co lorado, Ok lahoma, Pennsylvania, South Dakota, and Washing ton] s till

permitted race to be a relevant factor in adoption . . . . These states b elieved that race was

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272 CAPITAL UNIV ERSITY LAW REVIEW [38:271

account of race, which many did. 6 The emphasis on racial commonality

was one exp ression of th e more gene ral assumption that children should be

placed in a f amily as si milar as poss ible to the biological fa mily into which

the child was born .7

MEPA was Congress’ respons e t o criticism that the widespread

preference for p lacing black children with b lack parents—a pra ctice known

as race matching—had exacerbated the di sproportionate representation of

black child ren among those awaiti ng adopti on from fo ster care.8 Critics of

race matching contended that social workers commit ted to the practice

would decl ine to place a child across racial li nes even if it meant the child

would remain in foster care without a permanent family.9 In some cases,

white foster p arents with whom a black child h ad lived were denied the

opportunity t o adopt the child.10

As originally enacted , MEPA prohib ited officials from delay ing or

denying the placement of a child “solely on the basis of race.”11 Thi s

important enough in adoptive p lacement that the race of at least o ne part of the adoption

triad (child, b irth parents, and adoptiv e parents) must be inclu ded in the petition for

adoption or reported as part of the finding in a cou rt-ordered or statu te-mandated

investigation.”) (emphasis added) (citations omitted).

6 See Hansen & Pollack, supra not e 5, at 5.

7 See, e.g ., ELI ZABETH BARTHOLET, FAMILY BONDS: ADOPTION, INFERTILITY, AND THE

NEW WORLD OF CHILD PRODUCTION 93 (19 93); Elizabeth Bartholet, Where Do Black

Children Belong? The Politics of Race Matching in Adoption, 139 U. PA. L. REV. 1163,

1187 (1991). It is important to recognize that at this poin t in history, not all stat es even

allowed person s of different r aces to marry. See Loving v. Virginia, 388 U.S. 1, 6 (1967).

Not until the Loving decision were anti-misc egenation laws struck down. See id. at 12.

Therefore, a policy o f placing minority children wi th white parents would have b een

progressive at best, and sho ckingly radical in some parts of the country.

8 See, e.g., MADELYN FREUNDLICH, THE EVAN B. DONALDSON ADOPTION INSTITUTE,

THE FUTURE OF ADOPTION FOR CHILDREN IN FOSTER CARE: DEMOGRAPHICS IN A CHANGING

SOCIO-POLITICAL ENVIRONMENT (1998 ) ( stating that by 1994, there were nearly half a

million children in foster care), a vailable at http://www.adop tioninstitute.org/policy/polfos.

html. Black children waited longer than children of other races awaiting adoption. See

Hansen & Pollack, supra note 5, at 17–18. See Bartholet, sup ra note 7, at 1186–87, for a

discussion about how race m atching works.

9 See, e.g., Bartholet, sup ra note 7, at 1193–94.

10 See, e.g., Cindi Andrews, Ra ce Obstructed Adoptions: U.S. Civil Rights R eport

Savages County, State Pra ctices, CINCINNATI ENQUIRER, October 26, 2003, at A1, A18.

11 Multiethnic P lacement Act of 1994, Pub. L. No. 103-382, 108 Stat. 4 056 (199 4)

(codified at 42 U.S.C. § 5115a(a)(1)(A)–(B) (1994), repealed by Removal of Barriers to

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