December 21, 1998
The Honorable Donna E. Shalala
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201-0004
Dear Secretary Shalala:
I write in reference to the Multiethnic Placement Act of 1994 as amended by the Interethnic Adoption Provisions of 1996 (MEPA/IEP). We are in complete disagreement with the Department of Health and Human Service’s interpretation of MEPA/IEP as effectively disallowing any consideration of race in adoptive and foster care placement decisions. This policy directly contradicts what we know to be best practice in child welfare, and we strongly urge the Administration to modify its position in order to avoid an inadvertent disservice to children in need of families.
When Congress first considered MEPA in 1994, the Child Welfare League of America (CWLA) expressed concern about its impact on child welfare practice. While we certainly agree with the principle underlying MEPA – that a child’s placement with an adoptive family should not be delayed or denied based on race – we were concerned that MEPA would be interpreted as devaluing (or undervaluing) the importance of race and culture in a child’s life. We advocated for the inclusion of language – ultimately adopted in Section 553 of the MEPA – that explicitly allowed agencies to consider the cultural, ethnic or racial background of the child. We were also extremely concerned that MEPA would undermine much needed efforts to recruit more persons of color to be adoptive parents. Accordingly, we advocated for the language in MEPA that requires agencies to recruit diligently families that reflect the ethnic and racial diversity of children in need of foster or adoptive homes.
Our concern grew when Congress amended MEPA by passing the Interethnic Placement Provisions in 1996. We believed that the deletion of language specifically permitting the consideration of race in placement decisions sent an even stronger message, incorrectly, that issues of race and culture do not matter in children’s lives. We assumed, however, that with the IEP amendments, Congress was merely trying to strengthen its message of nondiscrimination.
We’ve grown increasingly troubled, though, as we’ve received the series of guidance memoranda from HHS on the implementation of the 1996 amendments. When the latest guidance, issued by the Administration for Children and Families (ACF) on May II, 1998, clearly stated that “
In passing MEPA, Congress intended to facilitate the process of finding adoptive families for children who need them. Unfortunately, Congress failed to state expressly in the 1996 amendments that race should remain a factor to be considered by child welfare professionals in making placement decisions. To declare, however, as HHS has, that this Congressional silence precludes child welfare professionals from considering ethnic or cultural needs – even where such a consideration would not delay or deny a placement – is to go much further than what Congress intended and, more importantly, substantially decreases the odds that children will be placed with the best possible families.
As the Administration’s representative on this issue, we had hoped that HHS would use its substantial regulatory latitude to construe MEPA/IEP in a way that promotes what CWLA and HHS know to be good policy. We were thus dismayed by HHS’s issuance of an interpretive guidance – never released for public notice and comment that actually expands the most troubling aspects of MEPA/IEP in a way that granted the proponents of its most negative version a victory they could not achieve in Congress.
We also note that while MEPA promotes transracial adoption as a means of achieving permanent families for waiting children, it is not likely, in and of itself, to improve the lives of many children in the child welfare system. The population most likely to be assisted by MEPA are couples desiring to adopt infants, for whom there is no shortage of adoptive families. Whether or not they are allowed to adopt transracially, these couples are not likely to adopt from the public child welfare agency pool of children waiting for families: children who are older, in sibling groups, or have special mental or physical health care needs.
For more than 50 years, CWLA has developed nationally recognized standards which have guided sound child welfare practice in America. CWLA standards for adoption and foster care services clearly state that best practice requires consideration of race:
4.5 Ethnicity and Race
Children in need of adoption have a right to be placed into a family that reflects their ethnicity or race. Children should not have their adoption denied or significantly delayed, however, when adoptive parents of other ethnic or racial groups are available.
Agencies have a responsibility to aggressively recruit families for children of appropriate ethnic and racial background. This is best accomplished with consistent and vigorous recruitment programs by agencies in which staff and board members reflect the same minority ethnic and racial groups as the clients they serve.
In any adoption plan, however, the best interest of the child should be paramount. If aggressive, ongoing recruitment efforts are unsuccessful in finding families of the same ethnicity or culture, other families should be considered.
Assessment and preparation of children for such an adoption arrangement should consider the importance of ethnicity and culture to them and their past living experiences and identifications, and should show an awareness of and sensitivity to the ethnic and cultural resources that may be available to them after placement.
Child Welfare League of America Standards of Excellence for Family Foster Care Services, 1995
These standards – calling for the explicit consideration of race in adoption and foster care placement decisions – reflect the best thinking of child welfare experts from across the country.
Child welfare workers seeking to make adoptive and foster care placements must consider the needs every child has for safety, security, stability, nurturance and permanence. Considerations of race, ethnicity and cultural heritage are a necessary part of this assessment and decision-making process – and can play a crucial role in assessing the ability of prospective families to meet children’s needs for stability and security.
Race and culture matter in everyone’s life. How can we say that race and culture shouldn’t matter to children when we know how prominently it figures into our own identity and sense of self. Poor children of color deserve the same rights to racial and cultural identity as everyone else in this country.
Social science research both supports and negates the importance of racial and ethnic matching in placement decisions. Without reliable data that produce consistent findings on interethnic adoptions, decision-making does not lend itself to HHS’s apparent conclusion: a dismissal of the relevance of racial and ethnic considerations in the placement of children.
We support the core notion of MEPA: a child’s opportunity for a family should never be delayed or denied based on race. But in interpreting MEPA/IEP as forbidding any consideration of race in making placement decisions, HHS has gone much farther than necessary. To say, as HHS has said, that even where two potential families are equal in all respects except for race, child welfare professionals cannot deliberately choose he family that is the same race as the child is simply not in the best interest of children.
We also sympathize with parents seeking to adopt who may have been denied based on inability to meet the cultural needs of a child. However, we are committed to the notion that adoption and foster care are principally services for children – and that the needs of adults must necessarily occupy a lesser position.
By its wording, MEPA/IEP does not forbid consideration of race. Therefore, we strongly urge HHS to reevaluate its position and adopt an interpretation of the law that allows for consideration of race – as long as that consideration does not delay or deny a child’s placement into a family. We also ask that HHS modify its unnecessarily aggressive enforcement efforts against public and private child welfare agencies that are following what they know to be in the best interest of the children and families they serve.
David S. Liederman
The President Kweisi Mfume
National Association for the Advancement of Colored People
First Lady Hillary Rodham Clinton
Assistant Secretary Administration for Children and Families
Hugh B. Price
National Urban League
Bruce N. Reed
Director and Assistant to the President
Domestic Policy Council
Josephine A.V. Allen
National Association of Social Workers
Council of Latino Executives
Congressional Black Caucus Members
Jestina L. Richardson
Congressional Hispanic Caucus Members Black Administrators in Child Welfare
Congressional Children’s Caucus Members