Fall 1996, Volume XII, Number 1 Family Law Thinking and Teaching About Transracial Adoption by Twila L. Perry The fact that the controversy over transracial adoption is the topic of such intense interest is, in and of itself, intriguing. The number of children in this country who have ever been adopted transracially is extremely small. If we consider the critical issues confronting vast numbers of Black children in America today -- such as poverty, substandard housing, limited educational opportunities, and limited access to health services, it becomes clear that the subject of transracial adoption has received attention far disproportionate to the number of children whose lives are likely ever to be affected by it. In this essay, I will address three issues. First, why has so much attention been focused on the issue of transracial adoption? Second, is there a framework for talking about transracial adoption that does not depend upon choosing between the differing factual contentions and value preferences of supporters and opponents of the practice? Finally, how can teachers of family law approach the subject of transracial adoption in ways that further their students' understanding of family law and its relationship to larger issues concerning race in America? Why the Focus on Transracial Adoption? Transracial adoption is a "hot" topic for a number of reasons. One reason is simply that issues that affect children often inspire intense interest and emotion. Moreover, the general subject of adoption has received a great deal of attention in recent years. Another reason that transracial adoption inspires such interest is that it touches upon issues that are currently the subject of intense public debate. How much power should the state have to affect individual choices with respect to family life? How much assistance should the state provide to families in trouble before removing children from their parents? Most importantly, the subject of transracial adoption inspires interest because it implicates the ever troublesome issue of race in American society -- not simply race in the workplace or in public places, but race in that most intimate context of the family. The images transracial adoption invokes for many people can be jolting: a white woman changing the diapers of a Black baby, a white couple scrimping and saving to send their teenage son to college -- but in this case, the son is Black. Finally, in a time of racial tension, some people see transracial adoption as a harbinger of hope: if the different races can live together and love each other as members of the same family, surely there must be hope for the relationship between the races in the larger society. The subject of transracial adoption cuts across the areas of law, psychology, social work, and public policy. It raises complex legal and constitutional questions. In the 1984 case of Palmore v. Sidoti, 466 U.S. 429, for example, the United States Supreme Court held that it was unconstitutional to transfer custody of a white child from her mother to her father solely because the mother was living with a Black man. Palmore involved a custody dispute between parents; however, the implications of the case for the use of race in adoption are unclear. More recent developments have not settled the issue. Just this year, Congress enacted a new law [amending the Howard M. Metzenbaum Multiethnic Placement Act of 1994], which forbids agencies from denying or delaying the placement of a child for adoption on the basis of race or national origin. The new law, however, does not preclude the consideration of race in adoption if more than one family is available, and it does not make clear how much weight race can be given as a factor. Some of the issues in transracial adoption involve factual disputes on questions such as whether transracial adoption is necessary at all and whether enough is being done to recruit minority adoptive families. Other disputes involve value judgments. Thus, although many sociologists have concluded that Black children are not detrimentally affected by transracial adoption, people may differ on the question of what constitutes a healthy racial identity. A New Framework for Discussion Although these and other issues concerning transracial adoption are often hotly contested, what is sometimes missing in discussions of transracial adoption is an overall framework for analysis. A framework can be useful in discussing transracial adoption both at the micro level of individual adoptions, as well as the macro level of social policy. A framework I have developed for looking at transracial adoption involves analyzing the public and legal discourse surrounding the topic. This discourse can be viewed as coming from two very different perspectives. The first perspective I describe as a discourse of colorblind individualism. This discourse is based on optimism about the eradication of racism in America. It is also based on a belief in colorblindness as an ultimate societal goal. Finally, colorblind individualism is based on the idea that the individual should serve as the unit for analyzing rights and interests. A competing perspective, which I describe as color and community consciousness, is based on a more pessimistic view that racism will be an enduring component of American society at least for the foreseeable future, and that multiculturalism rather than color-blindness or assimilation is what is desirable. Under this view, in analyzing rights and interests, the group as well as the individual must be taken into account. Underlying this approach is the belief that there is an inextricable link between Blacks as individuals and Blacks as a group, and that analysis of issues involving race should reflect this connection. Thus, while in the transracial adoption controversy, colorblind individualists focus on the question of whether an individual Black child has a permanent home, proponents of color and community consciousness also focus on the implications of transracial adoption for Black people as a group. I have found the framework of colorblind individualism and color and community consciousness helpful in analyzing some of the contested issues in the transracial adoption controversy, such as autonomy and choice in the construction of a family, the relevance of race to parenting, and the question of whether, as some opponents have asserted, transracial adoption constitutes cultural genocide. For example, from the perspective of the colorblind individualist, an individual should be able to exercise autonomy of choice with respect to the creation of a family. This would mean, of course, that the state should have no more power to limit the ability of whites to adopt Black children than it has to restrict or forbid interracial marriages. On the other hand, from the perspective based on color and community consciousness, the question of family autonomy is inseparable from the dismal economic and social conditions that affect the ability of many Black people to form and sustain families. Similarly, proponents of colorblind individualism argue that the fact that parents and children are of different races is of little significance in the parenting process. Proponents of color and community consciousness, on the other hand, argue that Black parents play a unique role in preparing Black children to meet the racism they will inevitably encounter in the world outside the home. They further argue that advocates of transracial adoption underestimate the way in which racial differences can complicate the parent-child relationship. Finally, proponents of colorblind individualism often argue that the number of Black children transracially adopted is so small that the charge of cultural genocide raises a false issue. In contrast, color and community consciousness adherents argue that cultural genocide also refers to the effect of depriving an individual of the experience of his or her own culture. They contend that this loss of cultural ties has two results: unhappiness and alienation for the individual, and the potential loss to the minority community of a person who might otherwise have used his or her skills for the community's benefit. An advantage of looking at transracial adoption from the competing perspectives of colorblind individualism and color and community consciousness is that it obviates the need to resolve the disagreements about facts and values that often characterize arguments between supporters and opponents of the practice. The framework can also be helpful in understanding the ways in which the controversy over transracial adoption is a microcosm of larger disputes concerning the issue of race in America. How to Teach about Transracial Adoption? In the current racially tense environment in this country, teaching the subject of transracial adoption poses a considerable challenge. The underlying issues in the controversy go to the core of people's feelings and beliefs about important issues: how much does race matter in the day-to-day lives of individuals? When should race matter and when should it not matter in terms of public policy? Any frank consideration of these issues is likely to lead to discussions of such sensitive issues as affirmative action, and the question of why race figures so powerfully in people's personal choices concerning social and family relationships. There are probably two "nightmare scenarios" that might make a teacher reluctant to attempt a class session on transracial adoption. In the first scenario, the teacher introduces the topic and the response is silence: despite deep interest in the subject, the students are reluctant to engage in discussion. In the other "nightmare scenario," an intense, emotional discussion of transracial adoption creates tensions between class members that affects the atmosphere of the class for the rest of the semester. It should be kept in mind that transracial adoption need not and should not be approached as an awkward and isolated subject. Indeed, a discussion of transracial adoption toward the end of the semester can provide a wonderful opportunity to revisit and reinforce many topics that may have been addressed in other parts of the family law course. For example, the question of whether foster parents should be given preference to adopt minority foster children already in their care requires the students to revisit controversies concerning attachment theory and theories of psychological parenthood. The topics of open adoption, federal-state relationships, and the unfortunate contrast between the goals and the realities of the foster-care system are also integral to a full discussion of transracial adoption. The subject also provides an opportunity to raise issues that are important in feminist theory. What is the nature of mothering, and what is the relevance of race in that process? I do not mean to suggest that the subject of transracial adoption is best approached from a perspective of neutrality. Indeed, I have found, unfortunately, that all too often, advocates of transracial adoption have promoted a troubling discourse which reinforces negative images of Black families and encourages the erroneous impression that transracial adoption is the solution to the problem of large numbers of minority children in foster care. There is a serious question whether the focus on the narrow issue of transracial adoption has been at the expense of a commitment to improving the circumstances that confront the vast majority of Black children. There is no question that teaching the subject of transracial adoption is not easy. The issues are complex and potentially volatile. However, a successful discussion can provide students with an opportunity to increase their understanding of different doctrines and policy issues in family law, as well as their understanding of the complex cultural and political issues that inevitably arise in a diverse society. Twila L. Perry is Associate Professor of Law at Rutgers University Law Center, Newark, NJ 07102. Bibliography Bartholet, Elizabeth (1991) Where Do Black Children Belong? The Politics of Race Matching in Transracial Adoption. 139 University of Pennsylvania Law Review 1163. Bowen, James (1988) Cultural Convergences and Divergences: The Nexus Between Putative Afro-American Family Values and the Best Interest of the Child. 26 Journal of Family Law 487. Howard, Margaret (1984) Transracial Adoption: Analysis of The Best Interests Standard. 59 Notre Dame Law Review 503. Howe, Ruth Arlene (1995) Redefining the Transracial Adoption Controversy. 2 Duke Journal of Gender Law & Policy 131. Perry, Twila L. (1993-94) The Transracial Adoption Controversy: An Analysis of Discourse and Subordination. 21 New York University Review of Law and Social Change 33. ________ (1990-91) Race and Child Placement: The Best Interests Test and the Costs of Discretion. 29 Journal of Family Law 51. Fall 1996 Issue Home | At Century's End | Philosophy & Family Law | Family Law & Policy Transracial Adoption | Transracial Adoption: Conversation | Book Review | Family Violence Teaching Gender Issues | Domestic Violence | Mini-Grant Awards Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues