Michigan Law Review

February, 1994

92 Mich. L. Rev. 925

Black Identity and Child Placement: The Best Interests of Black and Biracial Children

Kim Forde-Mazrui

Introduction

Transracial adoption[1]increased sharply in the 1950s and 1960s.[2] Many factors converged to cause this increase,[3]including a rise in the number of children in the placement system[4] and an insufficient number of minority homes in which to place minority children.[5] Beginning in 1972, however, transracial adoptions were drastically curtailed in favor of racial matching.[6] This reversal was caused in large part by the National Association of Black Social Workers (NABSW), which came out strongly against transracial adoption.[7] The organization's 1972 position paper stated:

The National Association of Black Social Workers has taken a vehement stand against the placement of Black children in white homes for any reason. We affirm the inviolable position of Black children in Black families where they belong physically, psychologically and culturally in order that they receive the total sense of themselves and develop a sound projection of their future. . . .

. . . Black children in white homes are cut off from the healthy development of themselves as Black people, which development is the normal expectation and only true humanistic goal.

Identity grows on the three levels of all human development; the physical, psychological and cultural and the nurturing of self identity is a prime function of the family. The incongruence of a white family performing this function for a Black child is easily recognized. The physical factor stands to maintain that child's difference from his family. There is no chance of his resembling any relative. One's physical identity with his own is of great significance . . . .

. . . In our society, the developmental needs of Black children are significantly different from those of white children. Black children are taught, from an early age, highly sophisticated coping techniques to deal with racist practices perpetrated by individuals and institutions. . . . Only a Black family can transmit the emotional and sensitive subtleties of perception and reaction essential for a Black child's survival in a racist society. Our society is distinctly black or white and characterized by white racism at every level. We repudiate the fallacious and fantasied reasoning of some that whites adopting Black children will alter that basic character.[8]

The NABSW advances two arguments for the position that transracial placement is contrary to a Black[9]child's interests. First, it argues that a Black child needs to be raised by Black parents in order to develop a positive racial identity.[10] Second, the NABSW argues that a Black child needs Black parents in order to develop skills for coping with a racist society.[11] The NABSW argues that, because of these concerns, transracial adoption should be abolished.[12] Other, less adamant opponents of transracial placement would allow it in certain circumstances but argue that same-race placement should be favored.[13]

The NABSW also opposes placing biracial children with white parents.[14] The NABSW argues that society and those around such children will treat them as Black and, consequently, these children also need to identify positively as Black and cope with racial prejudice. Therefore, the NABSW concludes, when an adoption or custody proceeding concerns a biracial child, a court or adoption agency should favor placing the child with Black parents. The NABSW is not only concerned with the child's interest; it also argues that transracial placement threatens the cultural interests of Black people as a group. The association claims that, by raising Black children to affiliate with the dominant culture, transracial placement removes these children from Black culture and dislocates them from the Black community. In this way, the NABSW argues, transracial placement constitutes "cultural genocide."[15]

Arguments such as those by the NABSW have influenced the practice of state adoption agencies and the reasoning of courts confronting the issue of race in child-placement decisions.[16] As a result, courts and adoption agencies often practice a policy of racial matching whereby they strive to place Black children with Black parents and discourage placement with white parents. Courts also practice racial matching in child custody disputes between parents, preferring to place the biracial child with the Black parent when the parents divorce.[17]

The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children. The principle that guides this Note's analysis is that racial matching is justified only if such a policy better serves the interests of Black children than a policy in which race is not a factor in a child-placement determination. This Note also questions whether racial matching serves the interests of biracial children and those of Black people as a cultural group.

This Note does not focus on the equal protection concerns raised by the use of race in child placement. This is not to suggest that the Constitution is not implicated or important. Rather, by concentrating on the interests of Black children, this Note recognizes that, unless and until Congress[18] or the Supreme Court[19] forbids the consideration of race in child placement,²⁰ many courts and agencies will continue to view the issue only with reference to the best-interests standard.[21]

Part I of this Note examines caselaw regarding the permissible use of race in child custody and adoption proceedings and finds that many courts permit the consideration of race in placing a Black child. Part I further finds that courts and agencies view a biracial child as Black and, consequently, favor placing a biracial child with her Black parent after a custody dispute and with Black parents in the adoption context. Part II considers various ways in which the use of race in the placement process harms Black children. Part II concludes that, even assuming that transracial placement entails risks, the harms of racial matching – both in the adoption and custody context – counsel against race-conscious placement. Part III evaluates the assumptions underlying the NABSW's position against transracial placement. It first considers the interests of Black children generally and concludes that not only is there insufficient evidence that transracial placement harms Black children, but transracial placement may also carry its own benefits over inracial placement. Part III then focuses on biracial children and finds that additional reasons support the abandonment of Black-preferred placement for these children. Finally, Part III considers the interests of Black people as a group. Contrary to the position of NABSW, this Part argues that transracial placement does not threaten Black culture and may in fact contribute to Black culture's ability to survive and adapt.

This Note concludes that, in light of the harm caused by racial matching and the benefits offered by transracial placement, the use of race in the child-placement process is not justified. Courts and agencies should instead limit child-placement determinations to nonracial criteria. Alternatively, if courts or agencies insist on considering race, the perceived risks involved in transracial placement, the costs of racial matching, and the benefits of transracial placement should inform their decisions.

I. Caselaw Concerning Race in Child Custody and Adoption

When considering the placement of a child, the states generally charge courts with protecting the best interests of the child.[22] The courts have great discretion over the factors to consider and the weight to attribute to each.[23] Many courts consider race when placing a child. The issue of race in child placement arises primarily in three situations: (1) when a divorced parent sues to gain custody because the custodial parent remarries interracially; (2) when parents of different races both seek custody following divorce; and (3) when a Black child is placed for adoption.

This Part examines caselaw regarding the permissible use of race in these child custody and adoption proceedings. It does not attempt to review all available caselaw, but only to illustrate a typical approach taken by courts that engage in racial matching. Section I.A considers the issue of race in custody-modification proceedings based on the interracial remarriage of a white child's custodial parent. Although this type of case is not the focus of this Note, it is the only context in which the Supreme Court has considered the use of race in child placement. This section concludes that the Supreme Court's holding in Palmore v. Sidoti,[24] while limiting the use of race in custody modifications, did not clearly foreclose its consideration in such proceedings. Moreover, Palmore has left unresolved the issue of race in adoption and custody determinations other than when a white parent remarries interracially.

Section I.B examines cases involving Black children in the adoption context and concludes that, while race may not be the sole or controlling placement factor, many jurisdictions allow or require courts and agencies to consider race when placing Black children. Section I.C looks specifically at custody and adoption cases involving biracial children. It concludes that most courts addressing the placement of biracial children find that such children should be placed with Black parents.

A. Custody Modification Based on the Interracial Remarriage of the Custodial Parent

The Supreme Court addressed the use of race in child placement in Palmore v. Sidoti.[25] Melanie Sidoti, a three-year-old white girl, was placed with her mother when her white parents divorced in 1980.[26] Subsequently, Melanie and her mother began to live with a Black man whom her mother eventually married.[27] Sixteen months following Melanie's placement with her mother, her father sought a change of custody based on "changed conditions."[28] In particular, her father objected to the interracial marriage of Melanie's mother.[29] The Florida trial court entered an order transferring custody of the child to the father. The trial court relied exclusively on the interracial marriage,[30] which, that court concluded, would subject the child to racial hostility.[31]

The U.S. Supreme Court reversed. Writing for a unanimous Court, Chief Justice Burger recognized the importance of protecting the best interests of the child.[32] He further acknowledged that "there is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin."[33] Nonetheless, the Court stated, equal protection forbids a court from considering "the reality of private biases and the possible injury they might inflict" in removing a child from the custody of her biological parent.[34] Therefore, the Court held, Melanie should have remained with her mother.

Palmore seemingly made clear that courts may not base custody decisions on the existence of an interracial marriage.[35] Read narrowly, however, the Court's holding – that race may not be the sole factor in a decision to remove a child from her natural mother[36] – does not clarify whether race can play a role in some child-placement contexts. For example, the Supreme Court of Kentucky in Holt v. Chenault³⁷ held that, although the trial court may not consider societal hostility toward a white mother's interracial remarriage, the "child's emotional reaction to her mother's marital circumstances may enter into deciding what is in the best interest of the child."³⁸ Thus the decision in Palmore did not clearly forbid the consideration of a parent's interracial remarriage when the child, rather than the community at large, objects to the marriage. In other child-placement contexts, such as adoption proceedings and custody disputes between parents of different races – contexts in which additional issues of the child's racial identity and coping skills arise – Palmore provides even less guidance.

B. Black Children and Transracial Adoption

The question of race also arises when agencies and courts place Black children for adoption. This section illustrates the approaches some courts have taken in deciding how much weight to place on race in a best-interests determination.³⁹ The cases demonstrate that, while courts differ in their approach to the proper role of race in adoption proceedings, many courts permit the consideration of race.⁴⁰

The use of race by state agencies and courts when placing a child raises questions concerning the rights of the children and prospective adoptive parents under the Equal Protection Clause.⁴¹ In re R.M.G.⁴² illustrates two approaches to addressing these concerns. A one-judge plurality held that consideration of race in adoption is subject to strict scrutiny; courts and agencies can only consider race if necessary to achieve a compelling government interest. In this case, a white foster couple raised a Black child for the first three years of her life. When the foster parents sought to adopt the child, the Black paternal grandmother challenged the adoption by claiming that, because the child was Black, she should be placed with her. The trial court removed the child from her home and placed her with the grandmother. The appellate court accepted the trial court's policy of preferring to match children with families of the same race. In looking out for the best interests of the child, the court held that race could have a determinative impact on child placement.⁴³

The concurring judge presented an alternative view that "saw no need to reach the constitutional issue of equal protection."⁴⁴ "We are . . . not faced with a statutory scheme separating persons solely on the basis of racial classifications or an affirmative action program allegedly giving preference on the basis of racial classifications."⁴⁵ He argued that a court does not infringe upon equal protection concerns when it considers race simply as one of many factors that bear on the child's best interests. He criticized the plurality and dissent's debate over the appropriateconstitutional scrutiny, observing that, "while my colleagues are quibbling about "strict scrutiny' and "intermediate scrutiny,' a little girl is reaching school age under the care of the only parents she has ever known."⁴⁶

While permitting the use of race in child placement, courts have ruled that race may not be the sole factor in placing a child for adoption. For example, the court in Compos v. McKeithen⁴⁷ invalidated a state statute that categorically prohibited transracial adoption.⁴⁸ Finding such a racial classification "constitutionally suspect," the court invalidated the law under the Equal Protection Clause,⁴⁹ determining that no permissible state objective existed because foster care or institutional life is not always preferable to transracial placement.⁵⁰ In dicta, the court left open a limited use of race. The court regarded "the difficulties inherent in interracial adoption as justifying consideration of race as a relevant factor in adoption, but not as justifying race as the determinative factor."⁵¹

The Fifth Circuit in Drummond v. Fulton County Department of Family & Children's Services⁵² also held that race cannot be determinative in the sense, as the Compos court seemed to say, that race cannot serve to deny a transracial placement automatically. The Drummond court did, however, permit race to determine a placement in the sense that, but for consideration of race, the placement would have been different. Timmy, a biracial child,⁵³ was placed with Robert and Mildred Drummond, a white foster couple, when he was one month old. Within a year, the Drummonds applied to adopt Timmy. The agency resisted. After Timmy had been in the Drummond home for nearly two years, the agency denied the Drummonds' petition because, although they did not have a Black home in which to place Timmy, they intended to find a Black home for him. The Drummonds brought suit alleging, in part, that the agency's consideration of race denied both Timmy and them equal protection. Although it found the Drummonds qualified in other respects, the trial court refused to enjoin the agency from removing Timmy from the Drummonds.

Sitting en banc, the Fifth Circuit upheld the trial court's decision to give substantial weight to race in removing Timmy. Because of the "difficulties inherent in interracial adoption," the court allowed the use of race to "avoid the potentially tragic possibility of placing a child in a home with parents who will not be able to cope with the child's problems."⁵⁴ In fact, the court held, race can be decisive "if it is the factor which tips the balance between two potential families, where it is not used automatically."⁵⁵ Thus, race can be the deciding factor in a close case.

C. Biracial Children and Custodial Placement

The issue of race also arises in custody disputes between the parents of a biracial child. Despite the historical hostility in the United States toward interracial marriages,⁵⁶ their frequency is increasing.⁵⁷ Consequently, the number of biracial children is also increasing.⁵⁸ As these children become the subject of custody and adoption proceedings, the issue of race presents itself more frequently. Courts must decide not only whether to consider race, but also which race to label the biracial child. Courts that have confronted this issue often conclude that a biracial child is better placed with Black parents.⁵⁹

An early case that addressed a biracial custody dispute is Ward v. Ward.⁶⁰ The Ward court granted custody of biracial daughters to their Black father instead of their white mother. The court stated that "these unfortunate girls, through no fault of their own, are the victims of a mixed marriage and a broken home. They will have a better opportunity to take their rightful place in society if they are brought up among their own people."⁶¹ Evidently, the court considered the biracial children's "own people" to be Black.⁶²

While Ward may be outdated in its language,⁶³ courts and placement agencies continue to subscribe to its assumption that courts should treat biracial children as Black. Farmer v. Farmer,⁶⁴ for example, involved a custody dispute between a white mother and a Black father. Although, due to other factors, the court granted custody to the white mother, it did consider the biracial heritage of the child. The court stated that "all agreed that the child of this interracial union, with evident black physical characteristics, however subtle, will be perceived by society at large as a black child. Such a child can be expected to endure identity problems, which can be exacerbated in her because of the mixed racial heritage."⁶⁵ The court concluded that a Black parent would better understand the identity problems of a biracial child than a white parent.

The Pennsylvania Supreme Court, in In re Davis,⁶⁶ actually held that the trial court erred by not taking race into account. In this case, white maternal grandparents sought custody of their biracial grandchild. The trial court awarded custody to Black foster parents primarily because they also had custody of the child's siblings. In reviewing the trial court testimony, the appellate court found that others would perceive the biracial child as Black and therefore the child should be placed in the Black foster home. The court held erroneous the trial court's failure to consider the harmful consequences of placing [936] the "black" child with white custodians.⁶⁷

When confronted with the placement of black or biracial children, many courts permit consideration of race to a certain degree. They intend these racial-matching policies to serve the best interests of the children. The next Part of this Note argues, however, that such policies injure the very children they are designed to protect.

II. The Psychological Costs of Considering Race in the Child-Placement Process

This Part examines the psychological costs to individual Black children when courts and agencies practice racial matching. The child-placement process consists of two dependent stages: the stage during which state adoption agencies alone handle the process and the stage during which parties request the courts to intervene. For custody disputes between divorcing parents, the judicial process usually represents the only stage in the placement process. Section II.A considers the initial stage, which only involves adoption agencies and prospective adoptive parents.

Racial-matching policies at this stage cause unnecessary delays in placing black and biracial children in permanent homes, and these delays, as a consequence, seriously decrease the children's chances of permanent placement. In addition, adoption agencies may take these children from white foster parents, who have cared for the children for months or years, in order to prevent the white parents from adopting them.

Section II.B considers the costs of racial matching in judicial proceedings concerning adoption and custody. Considering race causes two problems. First, courts tend to overemphasize the importance of race. Although courts profess to treat race as only one of many factors influencing their decisions, they often rely on race as the primary or dispositive basis for placement decisions. Second, by including race in a best-interests proceeding, courts encourage litigation over the issue of how the court should consider race. While litigation generally can be traumatic for children, litigation over racial identity particularly threatens the welfare of Black children. This Part concludes that, even if Black children derive some benefit from having courts and agencies take race into account, the attendant costs of the process to the children involved supports the exclusion of race as a placement consideration.

A. Racial Matching by Adoption Agencies

Professor Elizabeth Bartholet has conducted extensive research into the prevailing practices of adoption agencies responsible for placing Black children.⁶⁸ Adoption agencies, according to Bartholet, typically practice racial-matching policies.⁶⁹ These policies cause delays in permanent placement.⁷⁰ Because Black children represent a disproportionately high number of children in need of homes,⁷¹ they wait up to twice as long for permanent homes as white children wait.⁷² In addition, a higher proportion of Black children are never placed.⁷³ An insufficient number of Black families are available for these waiting Black children, while many white families are available to adopt them.⁷⁴

By avoiding placement with white parents, racial-matching policies cause and exacerbate delays in the placement of Black children.⁷⁵ As Bartholet observes, if no same-race family is available, adoption agencies "typically . . . hold black children in foster or institutional care for significant periods of time after they are or could be free for adoption."⁷⁶ Adoption agencies often resist transracial placement due to procedural disincentives and political pressure,⁷⁷ even after mandated waiting periods for finding Black homes have expired.⁷⁸ Indeed, in many agencies, policies against transracial placement are virtually absolute.⁷⁹ Racial-matching policies especially delay the placement of Black children with special needs, including those who are older, disabled, or otherwise difficult to place.⁸⁰ In some cases, delays result in the denial of placement altogether.⁸¹

When agencies delay or deny permanent placement, children suffer:

The ravaging consequences of both institutionalization and successive foster care placements are well documented. A child deprived of an ongoing, stable relationship with a psychological parent is likely to lack the capacity to form deep emotional attachments or warm social relationships, and may well encounter difficulties functioning intellectually and maintaining physical stamina.⁸²

Thus, while the risks of transracial adoptions are largely speculative,⁸³ the costs of racial-matching policies – for the children they are intended to help – are real. Despite these children's urgent need for a home, adoption agencies prolong the wait in an attempt to find Black homes. Unfortunately, as one commentator notes, "a child who must forego parents, whatever their color, is victimized, not benefitted, by well-intentioned but misdirected attempts to promote racial pride."⁸⁴ Given these costs, agencies should abandon such attempts unless clearly warranted.⁸⁵

B. Racial Matching in the Judicial Process

This section considers the psychological costs to black and biracial children when the judiciary, as opposed to agencies, engages in racial matching. Section II.B.1 argues that courts tend to place more emphasis on race than the law purportedly permits. By overemphasizing race, a court's decision fails to consider adequately other important factors relating to the child's best interests. Section II.B.2 argues that the courts' willingness to consider race tends to encourage harmful litigation over a child's placement and her racial identity.

1. Judicial Overemphasis of Race

Courts that consider race in child-placement proceedings generally hold that race may be one of many factors forming the basis of a placement decision.⁸⁶ Often, however, race becomes the primary factor on which a court bases its decision.⁸⁷ Several reasons may explain the excessive weight courts give to race in child-placement proceedings.⁸⁸ One explanation stems from the subjective and discretionary nature of the best-interests standard.⁸⁹ Naturally, a judge will have personal views, biases, or prejudices regarding a historically controversial issue such as race.⁹⁰ By leaving the use of race and its relative weight to the discretion of the court, the best-interests standard allows the judge's own personal and cultural biases to influence her decision.⁹¹ In addition, judges may lack sufficient training to determine a child's best interests and, especially, to evaluate the risks posed by transracial placement.⁹² Assessing a child's needs and predicting a child's future are difficult tasks for professionals trained in childhood development, let alone a judge trained primarily in law. Race may provide judges with a convenient way to avoid a careful best-interests analysis. Whatever the reason, when courts consider race, they often ignore other important factors and thereby risk deciding cases contrary to the welfare of the child.⁹³

A court's focus on race in McLaughlin v. Pernsley,⁹⁴ for example, caused Raymond, a two-and-one- half-year-old Black boy, to suffer deep clinical depression. An adoption agency removed Raymond from his white foster parents with whom he had lived for two years. Raymond was transferred to a Black foster family. After the removal, Raymond fell into severe depression resulting from the disruption of his relationship with his white foster parents. A federal district court returned the child to the foster parents because it found that the state court had impermissibly removed Raymond solely on the basis of race.

Recall also the Drummond⁹⁵ case, in which the Fifth Circuit affirmed an agency's removal of Timmy, a two-year-old biracial child, from the home of the Drummonds, a white foster couple with whom Timmy had lived since he was one month old. Despite the trial court's findings that the Drummonds were qualified in all respects except race, that the Drummonds had cared for Timmy for two years, and that the agency had no Black home in which to place Timmy, the Fifth Circuit upheld the removal of Timmy on the basis of race in order to "avoid the potentially tragic possibility of placing a child in a home with parents who will not be able to cope with the child's problems."⁹⁶ The real tragedy, however, is that Timmy lost the only parents he ever knew and has since been placed in one foster home after another.⁹⁷

The New Mexico Supreme Court, in contrast, reversed a trial court decision that impermissibly overemphasized race in refusing to place a white child with an interracial couple. In Boone v. Boone,⁹⁸ a white couple divorced, and the mother retained custody of the children. The father sought custody on the ground that the mother was sexually involved with her fiancee, a Black man. The lower court granted the petition, finding that such a relationship "was immoral, a bad influence on the children, and an improper atmosphere to raise minor children."⁹⁹ Furthermore, the lower court continued, the children would "be better reared with members of their own race."¹⁰⁰

In reversing the lower court, the New Mexico Supreme Court found no evidence justifying a change of custody. A review of the record revealed undisputed evidence that the mother had provided the children with proper care. The children were well fed, well dressed, clean, and happy, and they had a good relationship with their Black stepfather.¹⁰¹ By failing to consider these factors and relying on race alone, the lower court failed to protect the welfare of the children. The Supreme Court also found that the lower court impermissibly punished the mother for exercising her constitutional right to marry a person of another race.¹⁰²

A case decided in the District of Columbia illustrates how judges can implicitly overemphasize race in the face of other important factors. In In re R.M.G.,¹⁰³ the trial court found the white foster parents and the Black grandmother to be comparably qualified to raise a Black girl¹⁰⁴ but granted custody to the grandmother because she was Black. Had race not been taken into account, however, it is difficult to explain how the trial court could have found the foster parents and the grandmother equally qualified. The child had never lived with the grandmother, while the foster parents had been the child's psychological parents for the first eighteen months of her life. In addition, the trial court found that the child had "bloomed enormously" due to the "love, affection and special efforts" of the foster parents.¹⁰⁵ As to the foster parents' capacity and willingness to foster a healthy racial identity in the child, the trial court found that the foster parents had bought preschool Black history and coloring books for their previously adopted child, a Black boy and had instituted an "affirmative program" of fostering a healthy racial identity with him.¹⁰⁶ By focusing on race, the trial court failed to give adequate consideration to these other findings.

In custody disputes between parents of different races, courts have also placed excessive weight on race. Fountaine v. Fountaine,¹⁰⁷ for example, involved a white mother and Black father. After the divorce, the father initially obtained custody. The mother again sought custody after remarrying. The father argued that, because he and the children shared Black characteristics, the children would adjust to life better if they remained with him. The judge denied the mother's petition, despite finding that "if a difference in color was not involved in the case he would not hesitate for "a moment in awarding custody to the mother.' "¹⁰⁸ The appellate court reversed on the basis that the trial court had relied solely on race.¹⁰⁹ Elsewhere, however, appellate courts have failed to correct trial courts' undue reliance on race.¹¹⁰ Moreover, there may have been countless cases in which race overwhelmingly determined the outcome, but the parties did not appeal. Consideration of race harmed, not served, the interests of many of these children.

2. Encouragement of Harmful Custody Litigation

Professor Twila L. Perry identifies another risk of considering race in placement proceedings: race may encourage divorcing parents to litigate over the custody and race of their biracial child.¹¹¹ Discretionary standards, as opposed to fixed rules, create incentives for parents to litigate custody.¹¹² "To the extent that race may be considered in the court's discretion, it will encourage the parties to litigate the custody issue."¹¹³ Custody litigation, in turn, often harms the child who is at the center of the dispute and may feel uncertainty and torn loyalties.¹¹⁴ Litigation also increases tension between the parents, thus decreasing the likelihood of postdivorce parental cooperation.¹¹⁵ Postdivorce cooperation is important for children in order for them to experience a positive relationship with both parents.¹¹⁶

A custody dispute may be even more traumatic for a biracial child than for a child born to parents of the same race. The parent who benefits fromconsiderations of race will likely attempt to focus the hearing on race.¹¹⁷ This action may create tension around the very issue over which the child is expected to have difficulty, her racial identity.¹¹⁸

The threat to parental cooperation after divorce is also particularly worrisome for a biracial child. Positive relationships with both parents are especially important for the child of an interracial marriage in order for her to have access to both her racial backgrounds.¹¹⁹ Therefore, by encouraging litigation over custody and race, consideration of race by courts may harm the biracial child by limiting her access to the noncustodial parent in the postdivorce period and thus depriving her of half her racial heritage.¹²⁰

This Part has argued that black and biracial children are harmed in various ways when courts and agencies practice racial matching. When practiced by adoption agencies, racial matching results in harmful delays for these children and jeopardizes their chances for permanent placement. In the judicial process, consideration of race impairs the courts' ability to consider all relevant factors appropriately and encourages litigation. Given these concrete harms suffered by black and biracial children, courts and agencies should abandon racial-matching policies unless the risks of transracial placement are clearly substantiated. The following Part argues that they are not.¹²¹

III. Questioning the Case Against Transracial Placement

Many empirical studies indicate that transracially placed Black children are as well adjusted as their inracially placed counterparts.¹²² The success of transracial placement revealed by these studies and the demonstrable harms of racial matching¹²³ seriously call into question the wisdom of resisting transracial placement. Although some studies report difficulties with transracial placement,¹²⁴ they are inconclusive.¹²⁵ Therefore, an evaluation of racial matching should examine the reasons for adopting such policies in the first place. Only if the perceived risks of transracial placement are substantiated, and such risks outweigh the demonstrable costs of racial-matching policies, should racial matching continue.

This Part critically evaluates the case against transracial placement. Section III.A questions the argument that racial matching is necessary to foster a positive racial identity in a Black child. Section III.B addresses and criticizes the argument that Black parents are better suited than white parents to teach a Black child skills for coping with racism. Section III.C focuses on biracial children and challenges the assumption that such children should be treated as Black and placed with Black parents. Finally, Section III.D considers the interests of Black culture and whether transracial placement frustrates those interests. This Part concludes that transracial placement does not harm black or biracial children or Black culture. Instead, this Part suggests that, in many ways, transracial placement may benefit Black children and Black culture.

A. Racial Identity

The NABSW argues that racial matching is necessary to foster a positive racial identity in Black children and to give these children the skills to cope with a racist society.¹²⁶ Assuming a positive racial identity is in a Black child's best interests, this section refutes the argument that same-race placement is necessary to accomplish this goal. Section III.A.1 discusses whether a Black child must identify with Black culture in order to maintain a positive racial identity. Section III.A.2 discusses whether a positive racial identity depends on the strength of racial identity - that is, the extent to which being Black dominates a child's identity. Both discussions consider the extent to which the race of the parents determines the racial identity of the child. This section concludes that transracial placement does not impair the healthy development of a Black child's racial identity or overall self-esteem.

1. Black Cultural Identity

Opponents of transracial placement argue that a Black child needs Black parents in order to develop an appropriate racial identity.¹²⁷ What is meant by the term racial identity, however, is ambiguous. It could mean simply that the child identifies as a Black person, or it could mean something more – namely, that the child identifies with Black culture.¹²⁸ It is the latter concept of Black identity as a cultural concept that the NABSW argues is in a Black child's best interests.¹²⁹ Assuming the existence of a Black-American culture,¹³⁰ two further questions arise: first, whether a Black child's interests are best served by identification with Black culture; and, second, whether Black parents are necessary to foster such an identity.

As to the first question, identification with Black culture has plausible benefits for Black children.¹³¹ First, by identifying with Black culture, a Black child may gain membership within the Black community and thereby receive support from others who share her Blackness and value it.¹³² Second, identifying with Black culture may benefit Black children because the culture itself embodies positive statements about being Black, and these statements enable the child to value her race. Therefore, by identifying with Black culture, a Black child will feel better about being Black because of the positive feelings engendered by the culture and the support received from other Black people who, as a result of the shared cultural affiliation, accept the Black child as a member of the group.

Certainly it is in a Black child's interest to feel positive about her racial identity. What is less clear, however, is whether identification with Black culture is coextensive with a positive racial identity. Being Black, at minimum, is having a physical characteristic.¹³³ There is no logical reason why a healthy attitude towards one's appearance requires identification with an entire cultural system; a child could feel good about being Black without identifying with Black culture. Indeed, this proposition is borne out by empirical data. Studies have found that transracially adopted Black children who identify less with Black culture nonetheless feel positive about being Black.¹³⁴

One risk for Black children who do not identify with Black culture is that they may feel less comfortable associating with other Black people.¹³⁵ If such children feel positive about their racial identity, however, why is association with other Black people necessary for the welfare of the individual Black child? In fact, greater association with white people may carry its own benefits.¹³⁶ Thus, a positive racial identity, which presumably is in a Black child's best interests, need not require identification with Black culture.

The second question is whether white parents are capable of fostering a Black cultural identity in a Black child. Racial-matching proponents argue that Black parents are better suited to foster an identity with Black culture.¹³⁷ Such an argument proceeds as follows: Black parents will transmit their own culture to their children. It may be difficult, if not impossible, for white parents to raise their children in a culture foreign to their own.¹³⁸ Therefore, a Black child should be placed with Black parents in order to foster an identity with Black culture.

Many white parents who adopt Black children, however, successfully teach these children Black culture and foster a sense of ethnic pride.¹³⁹ At the same time, not all Black families identify with Black culture, nor would they provide such a cultural setting for their children.¹⁴⁰ White parents can provide books and music about Black culture, encourage friendships with other Black children, and encourage participation in Black cultural activities.¹⁴¹ For those transracially placed Black children who do not identify with Black culture, the problem may be ignorance, rather than inability, on the parents' part regarding how to foster a Black cultural identity. Instead of refusing to place Black children with white parents, agencies could educate such parents about ways to teach the children Black culture.

Concededly, teaching their children Black culture may not be an easy task for all white parents. Many white parents may be unable¹⁴² or unwilling¹⁴³ to meet the challenge. The neighborhood or community in which white parents live may lack opportunities for the child to celebrate Black culture or to interact with other Black people.¹⁴⁴ In addition, if the child does not experience the benefits of Black cultural identity until later in life, white parents may not realize the importance of Black culture for the child. Moreover, although many white parents may make commendable efforts to teach their children Black culture, their children may not identify with Black culture to the full extent that a child would if immersed in a Black family and Black community.¹⁴⁵

As a general rule, then, Black parents may be more capable of transferring Black culture to Black adopted children. As discussed above, however, failing to identify with Black culture is not necessarily inconsistent with developing a positive racial identity. White parents should be able to teach a Black child to value her identity, including her race. Therefore, in terms of fostering a positive racial identity, albeit not necessarily with Black culture, white parents may equally serve the interests of Black children.

2. Strength of Racial Identity

Another question regarding racial identity is the extent to which a positive racial identity requires a strong racial identity. A child with a strong racial identity is one who places a high priority on her race as a component of her self-image. Put simply, a Black child with a strong racial identity views her race as a more important aspect of her identity than most of her other personal attributes or characteristics. This issue is important because studies show that many transracially adopted Black children place less significance on their race than inracially adopted Black children.¹⁴⁶ In a society that emphasizes race and often denigrates the Black race, a strong racial identity arguably enables a Black child's self-esteem to weather the messages of inferiority she receives from others. As with a Black cultural identity, a strong racial identity may be more likely to result from having Black parents rather than white.

The important question, however, is the extent to which the strength of a Black child's racial identity is in her best interests. In fact, the same studies that reveal a less race-conscious racial identity in transracial adoptees also show a comparable level of overall positive adjustment and self-esteem.¹⁴⁷ A child whose self-image is less dominated by her race may be just as happy as a child whose race is central to her being. A child's identity is multifaceted, with many attitudes, beliefs, and characteristics composing her self-image; it is unclear why the quality of a child's identity should depend on the emphasis placed on any particular trait.

To illustrate the point, compare two hypothetical people. When asked who they are, the first replies: "I am a husband and a father, a writer, a teacher, and a musician. I am also Black, a man, and a Methodist." The second person replies: "I am Black, and I am a doctor; I am a mother, a wife, and a Presbyterian. I also write poetry and sing in a choir." Does the second person necessarily have a healthier identity because race is a priority? Can one even conclude that the second person's racial identity is more positive? In fact, the first person may feel equally or more positive about being Black although he gives it less significance.

Racial-matching proponents could argue that, in an ideal world, race need not have great significance but, in reality, contemporary American society not only places great significance on race, but is especially hostile toward the Black race. Under these circumstances, a Black child needs not only a positive racial identity, but one that is substantial enough to withstand the racism that characterizes much of mainstream ideology.

One method to cope with a personal characteristic disfavored by society, however, is to recognize its insignificance. When a child whose Black skin is one of her most valued attributes experiences racist treatment, she must struggle against the racism to preserve her self-esteem. If the racist message has any effect, the very center of her identity is maligned. When, on the other hand, a child's race is merely one of many characteristics and one of minor importance, she is less vulnerable to racial attacks. If the message of racial inferiority affects this child, it will certainly damage her self-esteem, but perhaps to a lesser extent because her race accounts for a smaller proportion of her self-image. Due to the minor role race plays in this child's identity, she has less to protect, less that can be damaged, and less to repair. Thus, although transracially placed Black children may in general identify less strongly as Black, or with Black culture, than inracially placed Black children, they may feel comparably positive about their race and overall self-esteem. In short, it is unclear whether transracial placement helps or harms the children's self-esteem and positive racial identity, and therefore courts and agencies should not consider these factors to counsel against transracial adoption.

B. Coping Skills

Opponents of transracial placement also argue that only Black parents can teach a Black child the "coping skills" necessary to survive in a racist society.¹⁴⁸ Although often advanced as separate issues, coping skills and racial identity are closely related. How well a Black child copes with society depends in large part on her feelings about her race. Thus, any discussion of coping skills necessarily involves questions of racial identity. Unlike the previous section, however, this section discusses how a child's racial identity bears on the child's ability to cope with the world outside. The question that courts and agencies should consider is whether Black parents are better able to teach a Black child how to cope with society. This Note divides coping skills into two related components: those that enable a child to achieve interpersonal and scholastic success and those that enable her to protect her self-esteem from potentially harmful interactions with others.

A child's achievement interests include interpersonal success and scholastic performance. In terms of interpersonal success, transracial placement may be harmful to the extent that transracial adoptees are less comfortable associating with other Black children than are inracial adoptees. On the other hand, transracial adoptees tend to associate more comfortably with white children.¹⁴⁹ Courts and agencies should not assume these interracial friendships are less fulfilling than same-race friendships. As such, transracially placed children fare as well as same-race placements with respect to the quality and amount of interpersonal relations in their lives. In fact, because white children are generally more numerous, they may fare better.

More remarkable are the scholastic benefits of transracial placement.¹⁵⁰ Rightly or wrongly, achievement in American society generally inures to those whose values and motivations track those of the dominant culture. Black people who identify, or at least comply, with the dominant or "white" culture generally achieve greater academic, career, and monetary success.¹⁵¹ Similarly, Black children who identify with dominant cultural values achieve better grades and score better on scholastic measurement tests.¹⁵² In contrast, many Black adults and Black children perceive academic and career ambitions as inimical to Black culture and, consequently, reject such ambitions in the name of ethnic loyalty.¹⁵³ Transracial adoptees are more likely to embrace the achievement goals of the dominant culture and, in turn, achieve greater success in school than inracially placed Black children. Therefore, in terms of coping with the demands of academic achievement, transracial placement is not only as good as, but arguably better than, same-race placement.

Opponents of transracial placement might respond that, for transracial adoptees, these children obtain white friends and academic achievement at the expense of their racial identity and self-esteem. A Black child who denies or hides her ethnic identity in order to feign or mimic the ways of white people rejects a part of herself, thus causing inner conflict, confusion, and self-hatred. Especially in a society defined by a pathology of racial discrimination, a Black child needs to connect with the Black community and celebrate her ethnic heritage. A child can learn these necessary coping skills from Black people who have experienced racism personally and struggled against demoralization. Only Black parents, the argument goes, can give Black children these skills, and, therefore, Black parents are in Black children's best interests.

The argument that adopting the dominant culture subjects a Black child to a feeling of racial self-rejection is supported by empirical research indicating that some high-achieving Black children who act in accordance with the dominant culture feel ambivalence toward Black culture.¹⁵⁴ A critical difference, however, between these children and transracial adoptees is that, for these children, the dominant culture is different from, and often contrary to, the culture of their home and neighborhood. For transracial adoptees, the culture of their home is identical or consistent with the dominant culture; "acting white" comes naturally and, consequently, so does interpersonal or academic success. Their interpersonal styles and behavioral patterns need not conflict with those of white and other mainstream children; the academic ideals of their families need not conflict with those of the educational system. Thus, identifying with the dominant culture can itself be a valuable coping skill that transracial adoptees can exercise without leaving their own culture at home.

If a transracial adoptee can identify with the culture of her white parents, one must question whether such an identity enables her to cope with racist attacks. White parents have not experienced the type of racial oppression suffered by Black Americans and, accordingly, have not needed to develop strategies for coping with such oppression.¹⁵⁵ Black Americans, on the other hand, have experienced racial discrimination; their culture, which is informed by this experience, teaches its members how to cope with it.¹⁵⁶ Black children can learn these coping skills from the culture and personal experience of Black parents but, according to this argument, black children raised by white parents will not learn the skills necessary to cope in a racist society.¹⁵⁷ This argument, while appealing, rests on a questionable premise. The argument assumes that a person must experience racism first hand, or at least must identify with the culture of people who have experienced it directly, in order to teach a child how to cope with it.¹⁵⁸ This lack of experience with racial oppression, however, need not prevent white parents from teaching coping skills to their Black children.

For several reasons, white parents can furnish a Black child with skills to cope with racism. First, the experience of white parents may benefit Black children by teaching these children to be less race conscious.¹⁵⁹ In American society, being white does not distinguish one from the majority of successful people and, consequently, a white person has less reason to focus on her race. Not surprisingly then, white parents tend to place less importance on the race of their Black adoptees than do Black adoptive parents.¹⁶⁰ In contrast, Black parents have learned the importance of their race in this society and can, in turn, teach their children to emphasize their race. But white parents, by deemphasizing race, may enable a Black child to cope better with racial attacks because the child may view the attacks less personally.¹⁶¹

Second, although white parents are unlikely to have experienced racial discrimination, they could teach their Black child to view a racial insult as one might view other insults. White people, as individuals, have not been spared maltreatment from others, and white parents routinely teach their children how to cope with insults from others. Black children can learn and use these skills to cope with a variety of offensive insults, including racist ones. For example, a person called "commie" for protesting Vietnam or a woman referred to as "girl" by her boss has some experience from which to empathize with her Black child who is called "nigger" at school. A person who stutters, limps, or cannot hear well also gains analogous experience that could benefit a Black child. Must a parent have worn glasses, been fat, worn braces, or been short in order to help her child who, while on the playground, is called "four eyes," "fatso," "tinsel teeth," or "shrimp"? Consider especially the coping skills that white parents employ when stigmatized for adopting Black children.¹⁶² Thus, the dominant culture and the personal experience of white parents provide them with a rich source of coping skills that they can teach to their Black children.

Finally, having white parents may enable a Black child to cope better with racism because, as a member of the dominant race, a white parent's repudiation of Black inferiority may seem more credible than the same message from a Black parent. Assume a Black child encounters a white person who tells her that she is inferior because of her race. To cope with the remark, the child needs to dismiss or disbelieve it in order to protect her self-esteem. The child should believe that her Blackness is not a mark of shame but rather a mark of beauty, or at least an incidental physical attribute. She can learn this belief or "coping skill" from her parents. A message of racial equality from a white parent carries a certain credibility over the same message from a Black parent because the Black parent has a greater personal interest in refuting white superiority than does the white parent. True, white parents have an interest in racial equality in order to protect their Black child. From the child's perspective, however, a Black parent might espouse racial equality for the parent's sake as well as for the child's sake; a white parent, by contrast, diminishes her own status relative to the Black race by advancing the equality of the races. Thus, a white parent's denial of Black inferiority may be more believable because it is less self-serving. At the least, a white parent's motive in denying racial inferiority will appear to be solely to support and show love for the child. Such a gesture might itself benefit the child. In this way, the race of white parents need not hinder their ability to help their Black child cope with racism and, arguably, may give them an advantage.

Although questions of racial and personality development do not lend themselves well to firm conclusions, the discussion of the preceding two sections has, consistent with available empirical data, raised serious questions concerning the wisdom of racial-matching policies. Both in terms of racial identity and coping skills, the ability of white parents to protect their Black child's interests is not clearly inferior to that of Black parents.

The arguments in this and the previous section should not imply that placement with white parents is necessarily better than placement with Black parents; both offer benefits.¹⁶³ These arguments are intended to demonstrate the lack of justification for racial matching, not the superiority of transracial placement. In addition, a white preference would cause similar psychological costs that children currently suffer from racial matching in the adoption process¹⁶⁴ and in custody proceedings.¹⁶⁵ If courts and placement agencies are to fulfill their duty to serve the best interests of Black children, they should consider the benefits of transracial placement. If such benefits are at least comparable to those of Black-parent placement, this fact undermines the basis for favoring Black placement. Nor is a shift to a transracial preference policy warranted. By ignoring race when placing a Black child, courts and agencies would avoid the concrete harms of current policies without subjecting the child to substantiated risks. Thus, when placing a Black child, courts and agencies should not favor Black placement over white.

C. The Interests of Biracial Children

The NABSW argues that biracial children should be treated as completely black and, accordingly, should not be placed with white parents.¹⁶⁶ Consistent with this view, courts and adoption agencies usually categorize biracial children as black when considering placement.¹⁶⁷ The primary justification for this treatment is that, in the eyes of American society, a biracial child is black¹⁶⁸ and, therefore, must identify positively with being black and must be able to cope with discrimination toward her as a black person.¹⁶⁹ This section challenges the presumption that biracial children should be treated as black and placed with black parents.¹⁷⁰

If society treats biracial children as black, any risks to biracial children from being placed with white parents are at least as questionable as the risks for black children. To the extent that biracial and black children differ, avoiding "trans"-racial¹⁷¹ placement of biracial children is even less justifiable. A biracial child is as white as she is black and thus "bears a legitimate claim to membership in both groups."¹⁷² The racial duality of such a child suggests that her interests may be best served, or at least comparably served, by a positive identification with both of her cultural heritages, both to the same extent.¹⁷³ Indeed, many biracial persons identify themselves as neither black or white, but ratheras "mixed."¹⁷⁴

By treating a biracial child as black, the courts decide first, that the biracial child should identify herself as one and only one race, and second, that this race should be black. For a biracial child, who needs exposure to both racial backgrounds¹⁷⁵ and who needs to accept both cultural heritages,¹⁷⁶ choosing an all-black identity may contribute to a certain degree of identity confusion¹⁷⁷ and self-rejection.¹⁷⁸

Although American society has historically defined biracial people as black,¹⁷⁹ it is questionable whether black people, as a rule, view biracial people in this way. In fact, biracial children can experience rejection and alienation from black people as well as from white people.¹⁸⁰ At school, black and white students may jeer biracial children for "trying to 'be something they're not' or for thinking of themselves as being 'better than other blacks' because of having a white parent."¹⁸¹ At home, black and white family members may reject biracial children because they view them as the product of accident or poor judgment.¹⁸² In placing a biracial child, courts and adoption agencies ought to recognize that either alternative – placing her with black parents or white parents – may cause difficulties for the child, both by denying her access to one culture and by subjecting her to alienation from the culture within which she is placed. In either event, placing a biracial child in a black home will not necessarily prevent her from experiencing "social marginality."¹⁸³

In addition, a biracial child may gain certain benefits from white parents. A biracial child has an interest in identifying positively with her mixed heritage. While black parents who adopt biracial children usually perceive the children as black, white adoptive parents tend to view their biracial children as mixed.¹⁸⁴ Thus, a biracial child with white parents may be more likely to identify as mixed than one placed with black parents.¹⁸⁵ By accepting her multiracial heritage, a biracial child may have a better chance to accept herself as a whole.¹⁸⁶

Furthermore, by learning the dominant culture, a biracial child placed in a white home may experience less racist hostility in life than a biracial child raised in a black home. Opponents of transracial adoption argue that black children need to cope with a racist society.¹⁸⁷ The racist attitudes of people toward the child may harm the child and thus are relevant to the question of the child's interests. Presumably, if the attitudes of others were less hostile, there would be less danger to the biracial child's psyche. Persons harboring prejudices toward Black people and Black culture likely would feel less hostile toward a biracial person who exhibited traits and values associated with the dominant culture. White parents can acculturate a biracial child to the dominant culture. Thus, such a child will probably encounter less racism and less prejudice-based obstacles to opportunities and advancement.¹⁸⁸ In this way, a biracial child may have less need for coping skills if placed with white parents.

Studies of biracial adolescents indicate that those who identify more completely with the dominant culture tend to be more achievement oriented and attain greater academic success.¹⁸⁹ On the other hand, feigning white culture when one identifies with Black culture is unhealthy and represents the "pathos of stigma."¹⁹⁰ If a child internally identifies with white culture, however, behaving in accordance with it does not represent pretense. For a biracial child especially, identifying with white culture need not be pathological. Thus, learning and exhibiting dominant culture traits, which may result more often when children are raised by white parents, represents a type of coping skill by which biracial children can achieve success without self-rejection.¹⁹¹

In sum, biracial children have a legitimate genetic and psychological claim to both their black and white heritage. The need for biracial children to identify positively with Black culture suggests the desirability of placing them with black parents. The equally legitimate need to identify positively with white culture, however, speaks in favor of placing biracial children with white parents. Two further considerations undermine the policy of favoring Black placement for biracial children. First, although biracial children are generally viewed as black by society at large, they are not always accepted as black by black people. Second, placing biracial children with white parents may afford certain benefits over placing them with Black parents. They are more likely to identify with their mixed heritage rather than as black alone. In at least this way, the biracial child may accept herself more completely. Furthermore, with respect to coping skills in a racist society, biracial children may acquire beneficial skills from white parents. Thus, for biracial children, placement with white parents is, on balance, as much in their interests as placement with black parents.

D. The Interests of Black People as a Group

The NABSW has described transracial placement as a form of "cultural genocide."¹⁹² Black people as a cultural group, it argues, have an interest in making decisions concerning Black people and in preserving Black people as a distinct cultural group.¹⁹³ Transracially placed Black children, the NABSW fears, will not identify as Black in the sense of identifying with Black culture.¹⁹⁴ Rather, these children will assimilate into the dominant culture and, by so doing, contribute to the dilution and decline of Black cultural existence.¹⁹⁵ In order to preserve Black culture, Black children should be placed only into Black homes where they can join and strengthen the Black community. This cultural genocide argument is the focus of this section.

1. The Necessity and Legitimacy of Preserving Black Culture Through Child Placement

If Black people have an interest in preserving Black culture, two questions arise. First, does transracial placement jeopardize Black culture? Second, should courts and agencies use child placement to preserve Black culture? Unless both questions have affirmative answers, courts and agencies should not consider Black cultural interests when placing a child.

Although cultural interests need not affect,¹⁹⁶ or may even conflict with,¹⁹⁷ the interests of individual children, cultural interests have influenced the child-placement process. By enacting the Indian Child Welfare Act of 1978,¹⁹⁸ for example, Congress recognized a substantial interest in preserving Native-American culture and accorded significant rights to Native-American communities to determine the placement of Native-American children. Similarly, commentators have argued, giving weight to Black cultural interests is justified in the child-placement context as a means to preserve Black culture.¹⁹⁹

Professor Margaret Howard argues, however, that Native-American culture is at a significantly greater risk of extinction than Black culture.²⁰⁰ The rate at which agencies have placed Native-American children in mainstream society is so great that it has truly threatened the continued existence of Native Americans as a distinct ethnic group.²⁰¹ In contrast, the number of transracial placements of Black children is insignificant.²⁰² Thus, transracial placement does not similarly jeopardize the interests of Black people in their continued existence as a cultural group.²⁰³ This argument does not mean that Black culture is free from risk, nor that Black culture is unworthy of preservation. The point is simply that the enemy of Black culture is not transracial placement.²⁰⁴

Even if transracial placement did threaten Black culture, the best-interests standard does not permit courts and agencies to advance cultural interests at the expense of an individual child's interests. The cultural genocide argument is premised on an understanding that cultural interests are inconsistent with, or at least go beyond, an individual Black child's interests.²⁰⁵ If cultural interests were no different than those of the individual child, courts and agencies would already protect Black culture under the best-interests standard without having to address group interests in a child-placement determination. Considering cultural interests undermines the child's interests. In some cases, a court could forgo a transracial placement that is in a child's best interests because of its concern for cultural interests. To compromise a child's welfare in the name of culture, especially when the cultural benefit is slight or nonexistent, is inimical to the purpose of child placement and violates the best-interests standard mandated by law.²⁰⁶

Furthermore, even if the law allowed courts and agencies to balance cultural interests against the child's interests in placement proceedings, the child's interests would substantially outweigh cultural interests. A child whose placement is delayed suffers immediate, concrete, and probably irreparable harm. Black culture, by contrast, if harmed at all, suffers the minute and diffuse harm that results when a de minimis number of Black children are placed in white homes. Therefore, advancing cultural interests in the child-placement process compromises the interests of individual Black children and is not necessary for Black cultural preservation.

2. Defining Black Culture: Why Are Transracially Placed Children Less "Black"?

The NABSW is concerned that transracially placed Black children will be raised to have "white minds."²⁰⁷ As a corollary, there must be a distinct "Black mind." What this Black identity entails, however, is far from clear. Indeed, whether Black people comprise an identifiable cohesive culture or share a set of common values is questionable. To the extent that Black people do have common interests, why do transraciallyplaced Blacks not share such interests?

Black people do not comprise a discrete culture.²⁰⁸ Rather, the Black community is diverse in terms of the practices and values of the people within it. Black people are spread across geographic and class lines.²⁰⁹ Black people do not share a common language, a unifying religion, or a representative leadership.²¹⁰ On significant social and political issues, such as transracial adoption, there is no consensus among Black people.²¹¹ As one commentator observes, " "each black person responds differently to her socialization and experience in terms of being black.' "²¹²

Despite this diversity, the NABSW, as if speaking for all Black people, charge that Blacks with white parents are less Black, indeed, that they are white. Such a position is consistent with other Black voices who seek to define the "correct" Black identity to the exclusion of others.²¹³ The "white" Blacks often include those who strive for individual achievement and aspire to career positions traditionally reserved for the dominant class.²¹⁴ These Black people, however, are not less Black and need not reject their racial heritage, although they often reject the "form of social fascism"²¹⁵ by which other Blacks impugn their racial identity as less than authentic simply because they seek lifestyles traditionally reserved for whites. Indeed, it is the attitude on the part of some Blacks who call into question the Black identity of those who "make it" that is counterproductive to the condition of Black people.²¹⁶ Being Black should not limit career aspirations or require a particular political viewpoint.²¹⁷ Accordingly, Black children placed with white parents, many of whom will join the ranks of the middle class, are Black nonetheless.

As to biracial children raised by white parents, the NABSW position appears paradoxical. Although half-white, such children are black; at the same time, due to their "white" upbringing, such children are white. How does such a child, raised by at least one parent who is a racial "match," most likely her mother,²¹⁸ simultaneously lose her whiteness on the outside and betray her blackness on the inside? It seems it is the NABSW position that creates the risk of racial confusion for biracial children.

The diversity of Black people's attitudes toward Black identity may be inevitable when the commonality of Black people primarily depends on a physical feature rather than adherence to a particular religious doctrine,²¹⁹ political platform, or other agenda or interest. Whatever the reason, the claim that transracially placed Black children do not have a Black identity is suspect. Indeed, such racial stereotyping is akin to that which led to the oppression of Black people.²²⁰ In any event, the NABSW's efforts to define Blackness, an "essentially adult agenda of promoting racial separation,"²²¹ has no place in the child-placement process. If, as this Note suggests, skin color is separate from cultural affiliation, a black or biracial child placed in a white home can learn the culture of her white parents while maintaining a realistic and healthy view toward her racial identity.

3. Benefits of Transracial Placement for Black People and Society

Assuming Black people have a cohesive culture and assuming transracial placement has a significant influence on it, transracial placement does not necessarily harm Black culture. In fact, Black people, and American society as a whole, may benefit from transracial placement. Black people as a group may benefit from transracial placement in at least two respects: career success and social integration.

Transracial placement may help Black people achieve career success. Black-American culture has developed in a society that has denied Black people educational and career opportunities. Deprived of these opportunities, Black people, as a group, are less experienced in meeting the challenges of school and the American marketplace. Furthermore, in the face of majority oppression, Black people have reason [965] to reject the values represented in the dominant culture.²²² Informed by this experience, Black culture may be less well suited to academic and career achievement in mainstream society. Transracial placement can aid in reversing this trend by creating opportunities for Black children to learn the skills and values with which to achieve academic and career advancement.

Transracial placement may also reduce racism by increasing understanding through integration. Transracial placement helps to bridge the gap between Black and white people and may reduce racial tension and the discriminatory obstacles to opportunities that Black people continue to encounter in American society.²²³ A Black child who is raised by white parents tends to be more understanding of white people and culture. A transracially placed child, and a biracial child in particular, is in the best position to see the commonality between Black and white people and the irrationality of racial barriers to communication, respect, and understanding.²²⁴ Similarly, by exposing white people to a Black child, transracial placement can increase the understanding and sensitivity of white people toward Blacks. By reducing racial prejudice, Black people – including Black children – have greater choice in what they pursue and accomplish and have less need for the coping skills argued for by the NABSW.

Furthermore, Black people need not obtain these benefits at the expense of Black cultural preservation. The skills and values necessary for individual achievement should be free from culture; a Black person who succeeds is still Black.²²⁵ As Black people attain greater achievement, Black culture can incorporate this experience and, by so doing, adapt to the challenges of modern America. Thus, with the help of transracial placement, Black culture can undo the effects of racial discrimination and not only survive, but flourish.²²⁶ Society also benefits by improving the condition of Black people. The productive participation of Black people in the economy promotes the prosperity of the United States. In addition, Black prosperity should reduce the societal burden of Black poverty and crime. Moreover, reducing racial tension should promote positive interracial relations whereby we can celebrate, rather than fear, cultural diversity. Thus, if interests other than those of the particular child are to enter child-placement decisions, courts and agencies should recognize that transracial placement may serve interests as legitimate for Black people as those purportedly served by same-race placement. In addition, transracial placement offers benefits for society as a whole. For these reasons, given the plausible and reported successes of transracial placements in contrast to the high costs of racial-matching policies in adoption proceedings²²⁷ and custody disputes,²²⁸ courts and agencies should not consider race when placing a black or biracial child.

Conclusion

States rightfully charge courts and placement agencies with safeguarding the best interests of the child. By engaging in racial matching, however, courts and agencies cause serious harm to Black children. These children remain in institutional or foster care while white parents are available. The children become hard to place by virtue of their increased age and adjustment problems relating to the amount of time under state care. In the judicial process, courts tend to place excessive emphasis on race. The discretionary nature of the race factor also encourages harmful litigation

over child custody and racial identity. If courts and agencies did not consider race in placing Black children, they would eliminate or greatly minimize these harms. Therefore, if courts and agencies are to protect the best interests of Black children, the consideration of race is justifiable only if the risks of transracial placement outweigh the concrete harms of racial matching. As this Note has argued, however, transracial placement is an equally attractive alternative to inracial placement for black and biracial children, and race-neutral placement is a far better alternative to the costs of racial matching. This Note has also considered the argument that the preservation of Black culture justifies racial matching. It is doubtful whether transracial placement threatens Black culture and, even if it did, the best-interests standard requires cultural interests to yield to the interests of the individual child in a child-placement proceeding. This Note has also argued that transracial adoptees are no less Black than other Black children. Finally, if transracial placement does affect the nature of Black culture, it may in fact contribute positively to the development of Black people and Black culture. The use of race in the child-placement process may be well intentioned, but such policies lack both empirical and reasoned justification. Therefore, courts and agencies should ignore the race of a child when making placement decisions. Instead, courts and agencies should place Black children as soon as possible in the arms – whatever color – of loving and capable parents. As one court recognized, if these "children are raised in a happy and stable home, they will be able to cope with prejudice and hopefully learn that people are unique individuals who should be judged as such."²²⁹

 FOOTNOTES

¹ This Note uses the term transracial adoption to refer to adoptions of Black children by white parents. See infra note 9 for an explanation for the capitalization of the term Black.

² Margaret Howard, Transracial Adoption: Analysis of the Best Interests Standard, 59 Notre Dame L. Rev. 503, 505-16 (1984); see also infra notes 3-5 and accompanying text. The number of transracial adoptions tripled between 1968 and 1971. Twila L. Perry, Race and Child Placement: The Best Interests Test and the Cost of Discretion, 29 J. Fam. L. 51, 109 n.199 (1991).

³ Professor Howard identifies seven factors contributing to the rise in transracial placement: (1) a rise in the number of children entering the child-placement system due to increased awareness and reporting of child abuse, Howard, supra note 2, at 505; (2) a growing awareness of foster care deficiencies, id. at 505-06; (3) empirical data revealing the dangers of maternal and stable-family deprivation, id. at 506-09; (4) a dramatic decline of healthy white infants available for adoption, id. at 509-10; (5) a reduced adherence to the policy of "matching" children with adoptive parents to whom they might have been born, id. at 510-13; (6) an insufficient number of minority homes available for minority children, id. at 513-14; and (7) an increasing societal acceptance of integration, which contributed to willingness of white parents to adopt Black children. Id. at 514-16.

⁴ Id. at 505.

⁵ Id. at 513-14.

⁶ Elizabeth Bartholet, Where Do Black Children Belong? The Politics of Race Matching in Adoption, 139 U. Pa. L. Rev. 1163, 1179 (1991) ("In 1972 this brief era of relative openness came to an abrupt end."). In this Note, racial matching refers to the practice of preferring to place Black children with Black parents rather than white parents. Racial matching may result in avoiding placement with white parents even when Black parents are not immediately available.

⁷ Id. at 1181 ("Adoption agency bureaucrats moved swiftly to accommodate the position taken by the NABSW."). Howard writes, "in 1972 the National Association of Black Social Workers (NABSW) condemned transracial adoption in terms so militant that transracial adoption fell by 39 percent in a single year." Howard, supra note 2, at 517. The NABSW's position against transracial adoption contributed significantly to the decline of the practice. James S. Bowen, Cultural Convergences and Divergences: The Nexus Between Putative Afro-American Family Values and the Best Interests of the Child, 26 J. Fam. L. 487, 502 (1988).

⁸ National Assn. of Black Social Workers, Position Paper (Summer 1973) hereinafter Position Paper I.

⁹ This Note capitalizes the term Black when referring broadly to people classified as Black in the United States, including biracial children and people with any Black ancestry. See infra note 169. This Note does not capitalize black when referring specifically to children born to two Black parents in order to distinguish them from biracial children. This distinction is necessary because racial-matching policies do not distinguish between black and biracial children; therefore, when evaluating such policies, one should use the same racial referent. When, however, this Note specifically addresses the placement of children born to one white parent and one Black parent, these biracial children are distinguished from black children born to two Black parents. For other articles capitalizing the term Black, see Bowen, supra note 7; Kimberle W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1332 n.2 (1988) ("Blacks like Asians, Latinos, and other "minorities,' constitute a specific cultural group and thus require denotation as a proper noun."); John D. Gregory, Juvenile Court Jurisdiction over Noncriminal Misbehavior: The Argument Against Abolition, 39 Ohio St. L.J. 242, 266 (1978); Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, in 7 Signs: J. Women in Culture & Socy. 515, 516 (1982); Perry, supra note 2, at 52 n.6.

¹⁰ Position Paper I, supra note 8.

¹¹ Id.; Shari O'Brien, Race in Adoption Proceedings: The Pernicious Factor, 21 Tulsa L.J. 485, 494 (1986).

¹² See supra text accompanying note 8.

¹³ E.g., Bowen, supra note 7, at 529, 533. Although he argues that race should always be a factor in child-placement determinations, id. at 522, Professor Bowen would favor transracial placement over lengthy institutional care, especially when the Black adoptee is older, disabled, or otherwise hard to place. Id. at 511.

Professor Twila Perry writes:

To the extent that the NABSW would support keeping a child in an institution when a permanent home is available, or would support removal of a child from a home where she has formed strong bonds with her caretakers to place her in a home with adults of the same race, the position of that organization is too extreme. However, the view that emphasis should be placed on finding Black homes for Black children is proper and reasonable, and consistent with the view of other experts that where possible, Black children should be placed in Black homes.

Perry, supra note 2, at 113-14.

¹⁴ See Bowen, supra note 7, at 505 n.88. This Note uses the term biracial to refer to children born to one white and one Black parent. See supra note 9 for an explanation of terminology and capitalization.

¹⁵ Joan Mahoney, The Black Baby Doll: Transracial Adoption and Cultural Preservation, 59 UMKC L. Rev. 487, 501 n.85 (1991); see also Joyce A. Ladner, Mixed Families: Adopting Across Racial Boundaries 76-77 (Anchor Books 1978) (1977) ("Some supporters of the NABSW view transracial placement as a "genocidal plot' designed to destroy the black race.").

¹⁶ Professor Carl Schneider describes the NABSW's position as "another formulation of the racial-matching argument." Carl E. Schneider, Family Law ch.13 (1991) (unpublished manuscript, on file with author). Several courts have adopted this reasoning. The Supreme Court of Pennsylvania, for example, in affirming the placement of a biracial child with Black foster parents instead of white grandparents, explicitly referred to the position of the National Association of Black Social Workers. In re Davis, 465 A.2d 614, 622 (Pa. 1983).

Similarly, in In re R.M.G., 454 A.2d 776, 791 (D.C. 1982), the court stressed the importance of evaluating "how each family's race is likely to affect the child's development of a sense of identity, including racial identity." In defining identity, the court included "survival skills that enable the child to cope with the world outside the family." 454 A.2d at 787 (citation omitted). In Drummond v. Fulton County Dept. of Family & Children's Servs., 563 F.2d 1200, 1205 (5th Cir. 1977), cert. denied, 437 U.S. 910 (1978), the court referred generally to the professional literature as stressing the importance of having parents that could cope with problems of racial identity.

¹⁷ See infra section I.C.

¹⁸ Senators Carol Moseley-Braun (D-Ill.) and Howard Metzenbaum (D-Ohio) have recently introduced a bill that would prohibit any agency receiving federal funds from denying or delaying the placement of a child on account of race, color, or national origin. See S.1224, 103d Cong., 1st Sess. (1993). Representative Luis V. Gutierrez (D-Ill.) has introduced a similar bill in the House that would prohibit delay or denial of placement on such grounds only if a "matching" parent is not available. See H.R. 3307, 103d Cong., 1st Sess. (1993). The NABSW has also advocated enactment of "National Black Heritage Child Welfare Act," which would mandate preferences for placing minority children in minority homes. Bartholet, supra note 6, at 1182 n.43 (citing Natl. Assn. of Black Soc. Workers, Inc., Preserving Black Families: Research and Action Beyond the Rhetoric 49 (1986)).

¹⁹ Arguably, the Court has forbidden the use of race in child placement. See Palmore v. Sidoti, 466 U.S. 429 (1984), discussed infra notes 24-36 and accompanying text. Read narrowly, however, Palmore only forbids a court from removing a child from her biological parent solely because of the risks of societal hostility to the parent's interracial marriage. See infra section I.A.

²⁰ The term child placement refers to adoption proceedings and child custody determinations.

²¹ See infra note 23 and accompanying text.

²² For a list of state child-placement statutes setting forth the best-interests standard and the criteria by which courts should apply it, see Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., Summer 1975, at 226, 236-37 nn.45-47; see also Palmore, 466 U.S. at 433 ("In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved.") (citation omitted); Compos v. McKeithen, 341 F. Supp. 264, 267 (E.D. La. 1972) ("In all jurisdictions the welfare and best interests of the child are paramount in both adoption and custody proceedings."); cf. Bartholet, supra note 6, at 1237 ("Adoption laws throughout this country provide that agencies are to make children's interests paramount in placement decisions.").

²³ See Mnookin, supra note 22, at 233. Factors relevant to a child's best interests include the need for a permanent home, continuity of relationships, Perry, supra note 2, at 84, and the ability of the parents to provide care and education. In re R.M.G., 454 A.2d 776, 794 (D.C. 1982) (Mack, J., concurring).

²⁴ 466 U.S. 429 (1984).

²⁵ 466 U.S. at 429.

²⁶ 466 U.S. at 430.

²⁷ 466 U.S. at 430.

²⁸ 466 U.S. at 430. As one commentator states:

Although the standard for modifying custody varies from state to state, the