The color of desire: fulfilling adoptive parents' racial preferences through discriminatory state action.

• Author: Banks, R. Richard

CONTENTS

1. Critiquing Race-Based Adoption Policy: An Asymmetrical Inquiry

   A. A Race-Matching Critique That Undermines

   Facilitative Accommodation

1. Ubiquity and Potency of Racial Preferences

2. Nonracialist Vision of Family and Intimate Connection

3. Public Law and Private Values

4. Application of the Antidiscrimination Norm to Adoption

   B. Affirmation of Racial Autonomy

   2. Constitutional Critique of Facilitative Accommodation

   A. Overview of the Adoption Process

   B. Current State of Adoption Law

   C. Challenging Facilitative Accommodation

1. Harm of Facilitative Accommodation

2. Strict Scrutiny of Facilitative Racial Classification?

3. Application of Strict Scrutiny

4. Liberty, Privacy, and Personhood Defenses

   D. Summary

   3. Sources of the Anomaly

   A. Individualism: An Interpretive Prism

1. Individualism and State Action

2. Individualism and Racial Preferences

   B. Definition and Identification of Race-Based Claims

   4. Modeling Race Politics

      A. Contemporary Basis of Race-Based Claims

      B. Historical Origins of Contemporary Race-Based Claims

      C. Modeling Race Politics

      D. Race Politics and Racial Inequality

   5. Strict Nonaccommodation: A Proposal in Opposition to Racial Preferences

      A. Purposes of Preference Eradication

      B. Mechanics and Substance of Strict Nonaccommodation

      C. Best-Interests-of-the-Child Standard

      D. Constitutionality of Strict Nonaccommodation

      E. Nature of Adoptive Parents' Preferences

      F. Feasibility of Nonaccommodation

1. Political Will

2. Inevitability of Racial Preferences

3. Parental Resistance

4. Beyond the Feasibility of Nonaccommodation

   6. Conclusion

      Power is at its peak when it is least visible, when it shapes preferences,

      arranges agendas, and excludes serious challenges from discussion or

      even imagination.(1)

      The role of race in adoption has been an intensely and widely debated topic during the past decade, attracting the attention of legal scholars,(2) social scientists,(3) journalists,(4) and politicians.(5) The allure of the race-and-adoption controversy is quite understandable. Adoption policy, which implicates our most deeply held beliefs and values about family, community, and identity, impacts the lives of tens of thousands of children in need of adoption and untold numbers of adults who might seek to adopt.(6) Race remains perhaps the central dilemma of American society, constantly debated but never resolved.

      The intense and protracted race-and-adoption controversy has centered on the practice of race matching.(7) Race-matching policies require that children be matched to adoptive parents on the basis of race;(8) black children are placed only with black parents and white children only with white parents. Voices in the race-and-adoption debate range from those who strongly support race matching(9) to those who strongly support transracial adoption.(10) Race-matching proponents argue that it is in a black child's best interest to be placed with a black family(11) and that placing black children without regard to race therefore subverts the best-interests-of-the-child standard, the guiding principle of child welfare policy.(12) Proponents of transracial adoption, in contrast, argue that adoption agencies should accord less importance to race and should be willing to match children and parents across racial lines.(13) They claim that race-matching efforts harm black children by denying or delaying their adoptive placement.(14) They also note that race matching represents race-based state action, which is presumptively unconstitutional.(15)

      Both proponents of race matching and proponents of transracial adoption contend that their chosen policy is best for the children involved. Yet the best-interests-of-the-child standard is of remarkably little use in defining the role of race in adoption. The meaning of the standard with respect to race is itself a matter of race politics insofar as different determinations regarding the significance of race in adoptive placement reflect divergent ideological visions of the "proper" role of racial identity in socialization. As long as ideological differences remain significant, so will varied interpretations of the best-interests-of-the-child standard.

      Both supporters and opponents of race matching often assume that putting an end to the practice would make adoption policy colorblind.(16) The race-and-adoption debate, then, is framed as a contest between those who believe that race-conscious state action (race matching) furthers the interests of black children, and those who believe that colorblind state action (transracial adoption) does so. Contrary to the assumptions that underlie the debate, however, race matching is not the only form of race-based state action that structures the adoption process.

      Adoption agencies' classification of children on the basis of race(17) facilitates and promotes the exercise of racial preferences by prospective adoptive parents.(18) I term this practice "facilitative accommodation."(19) When engaged in by public agencies, facilitative accommodation, like race matching, is an instance of race-based state action. In both cases, adoption agencies racially classify children. Through race matching, the state mandates the placement of children with parents on the basis of race. Through facilitative accommodation, the state's racial classification promotes the race-based decisionmaking of prospective adoptive parents by framing the choice of a child in terms of race, encouraging parents to consider children based on the ascribed characteristic of race rather than individually. In both cases, a court, in finalizing the adoption, validates the actions of the adoption agency.

      As a result of facilitative accommodation policies, most black children in need of adoption are categorically denied, on the basis of race, the opportunity to be considered individually for adoption by the majority of prospective adoptive parents.(20) This could not occur were it not for current policies of facilitative accommodation.(21) The racial classification on which facilitative accommodation practices rely is the type of harm prohibited by the Equal Protection Clause.(22)

      Worse, facilitative accommodation reinforces and legitimizes the type of race-consciousness that produces unjustified racial inequality, both in adoption and throughout American society. Adoptive parents' racial preferences dramatically diminish the pool of potential parents available to black children relative to that available to white children. The pool of parents available to black children is also of lower average quality than that available to white children, in part because many of those whites who adopt black children do so because they are considered by agencies to be among the least desirable parents for white children. The severity of the social inequality produced by adoptive parents' preferences is made starkly clear by a fact too often accepted as inevitable, albeit lamentable, rather than as a predictable outcome of our own preference-promoting policies: Black children are simply worth less than white children.

      Yet not one legal analyst has argued that public adoption agencies(23) cannot (as matter of law) or should not (as a matter of policy) promote adoptive parents' racial preferences through facilitative accommodation.(24) This is especially noteworthy in the case of proponents of transracial adoption,(25) many of whose criticisms of race matching are applicable to facilitative accommodation as well. Moreover, consideration of facilitative accommodation follows logically from consideration of race matching (that is, once one determines that the state should not place children on the basis of race, one must consider whether it should encourage parents to choose children based on race). Yet a federal statute that prohibits race matching by adoption agencies that receive federal funding says nothing about accommodation.(26)

      Thus, current adoption policy allows both facilitative accommodation and the exercise of the racial preferences that it presupposes. The asymmetry in the scholarly and public policy analysis of these two instances of race-based adoption policy is the anomaly that propels this Article.

      Analysts assume that adoptive parents' racial preferences cannot or should not be altered and accept without question that parents should be able to choose the race of the children they adopt.(27) Yet there are alternatives to facilitative accommodation.(28) The alternative that this Article embraces challenges white same-race preferences, in adoption and elsewhere. I propose a strict nonaccommodation policy that not only ends current practices of facilitative accommodation, but ultimately seeks to rid adoption of the racial preferences that systematically produce racial inequality in contemporary American society. This approach assumes that personal racial preferences are not natural, but rather are products of the ways in which legal rules and social policy have shaped racial identity and race-consciousness. Strict nonaccommodation is part of the broader project of confronting the white same-race preferences that create racial inequality in contemporary American society and reorienting our national debate about racial inequality.

      My goal is to recast racial preferences as expressions of social phenomena rather than merely individual choices. Only if racial preferences are denaturalized can they be seen as something other than self-evidently innocuous and individual choices, as the embodiments of the same sentiments and sensibilities that give rise to racial inequality in a variety of contexts. White adoptive parents' racial preferences for white children are emblematic of the race-consciousness that serves as the linchpin of racial inequality.

      This Article therefore pursues two related lines of inquiry. First, it examines the substantive policy issues implicated by the race-and-adoption debate. Second, it treats the controversy as a case study in the law and politics...