Washington, D.C. —Two-year-old Matthew O., and his six-year-old brother, Joseph, are among the estimated 500,000 children in foster care nationwide. They remain in foster care despite the fact that there is a loving couple who would adopt them today. What is preventing their adoption? Matthew and Joseph are African-American and the adoptive parents who want to provide them with a loving home aren’t.
Of the half-million children waiting in foster care, more than 30 percent are black, 14 percent are Hispanic, and roughly five percent are of other, non-white background, according to a 1993 American Public Welfare Association report. Further, the same report shows that black children awaiting adoption constitute approximately 40 percent of all children awaiting adoptive homes, although blacks represent only about 12.3 percent of the general population. Statistics from the National Adoption Center, which maintains a register of “hard-to-place” children and waiting families, reveal that approximately 67 percent of such children are black and 26 percent are white. Yet 67 percent of the waiting families are white and 31 percent are black. One study of children awaiting adoption revealed that minority children wait twice as long for an adoptive home as their white peers, and minority placement rates are 20 percent lower than non-minority placement rates.
On April 13, 1995, the Institute for Justice launched a nationwide challenge to “race matching” by state agencies to establish a rule of law that racial discrimination in adoptions is unconstitutional. Its first two test cases are in Texas and Tennessee.
“Until government is denied the power to discriminate in adoption decisions, we will see lengthy delays in adoptions solely on the basis of the skin color of innocent children,” declared Clint Bolick, the Institute’s litigation director.
Most, if not all, child welfare experts agree that the most important factor in a child’s well-being is an ongoing, stable relationship with a parent figure: adoption unquestionably is preferable to foster care or other temporary arrangements. Moreover, a study comparing interracial adoptees to white children adopted by white families concludes that the most important factor in a child’s well-being is the age at which he or she was adopted.
“Even where the law explicitly outlaws using race as a criteria for matching adoptive children with parents, social workers flagrantly flout the law and delay the adoption of kids by months and years, and sometimes deny adoption opportunities altogether because of the child’s race,” said Donna Matias, a staff attorney with the Institute for Justice.
In Austin, Texas, the Institute filed a class action lawsuit against the Texas Department of Protective and Regulatory Services (DPRS) the state agency charged with protecting abandoned and neglected children. The Institute represents Matthew and Joseph, the two foster children that Lou Ann and Scott Mullen have been trying to adopt. Matthew and Joseph will represent a class of non-white children in DPRS custody who are delayed or denied adoptive placements in qualified homes, contrary to a Texas statute prohibiting the use of race to delay or deny adoptive placements. The law, adopted in 1993, is perhaps the most sweeping prohibition of the use of race to discriminate in adoptive placements. Yet social workers ignore it and continue race matching. The Institute will seek enforcement of the Texas statute and will challenge race matching on the grounds that it violates the equal protection guarantees of the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the Texas Constitution.
In Memphis, Tennessee, the Institute joins as co-counsel in an ongoing federal class action, Reisman v. Tennessee Dept. of Human Services. In Reisman, the plaintiff class of minority children in the custody of the Tennessee Department of Human Services (DHS) challenges the use of racial classifications in the adoptive placement process. Ben and Laurel Reisman are a Caucasian couple who successfully challenged DHS’ practice of considering only non-white applicants for its mixed race children, even if the child was part Caucasian. As a result, the Reismans were able to adopt their biracial daughter, Cady. In the current lawsuit, brought on behalf of all children in DHS custody, the Reismans allege that the state is creating separate pools of prospective adoptive families and children in need of homes by impermissibly using race as a criterion. Moreover, by creating separate pools, the state and its agents use different standards to determine the fitness of a family for an adoptive placement.
The Reismans challenge DHS action under the Fourteenth Amendment of the United States Constitution. In addition, because DHS has now argued that the federal Multiethnic Placement Act permits it to use race in adoption decisions, the Reismans challenge the constitutionality of the Act under the equal protection guarantee of the Fifth Amendment of the United States Constitution.
Meanwhile, the Institute is investigating other cases toward the possibility of filing additional lawsuits in other states, including California.
Joining the Institute as co-counsel in Texas will be Harvard Law Professors Elizabeth Bartholet, Randall Kennedy, and Laurence H. Tribe. Additionally, local counsel in Austin, Texas, is Don R. Willett of Haynes and Boone. In Tennessee, the Institute will join as co-counsel with attorney Hayden Lait of Byrd & Cobb in Memphis, Tennessee, who successfully conducted the earlier Reisman litigation and filed the present lawsuit in December 1993.
This lawsuit is part of the Institute for Justice’s mission to challenge excesses of the Regulatory Welfare State. The Institute advances a rule of law under which individuals control their destinies as free and responsible members of society. Through strategic litigation, training, and outreach, the Institute secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by Chip Mellor and Bolick.