Posted By: Casey Clowes, Jon Drago, Vishal Dave, Lance Christainsen, and Grant Cragun
April 2, 2015
In response to public outcry for minority children left twiddling their thumbs in notoriously inept State systems as wards of the state, Congress passed the Multiethnic Placement Act of 1994 (“MEPA”). Nearly all Federal legislation has some effect on the States themselves or their citizens; but is that effect, even where intended, constitutional? There are two questions one must answer to make that determination. First, is MEPA within the powers of Congress to enact, and second, whether it violates any limitations on Congressional power? As to the former, the answer is yes, and to the latter the answer should be no (although subject to potential exceptions as you will see below). The reasons are more important than the answer because they give credence to numerous Congressional Acts.
Many changes in the national paradigm followed from the passage of the Civil Rights Act of 1964. Certain regulatory and administrative decisions that were typically understood as State prerogatives began to come under Congressional scrutiny. One such area concerned the status of minority children in each state’s respective adoption and foster-care systems. For many minority children, particularly black children, the prospect of being placed in a permanent home was noticeably lower than others similarly situated. The delayed decision making process that caused the lower placement percentage and longer wait times was attributed to what is known as “race matching.” This once common rationale, that children of a particular race “belong” with parents of the same race, harkens back to the pre-civil rights normative model. However, the race matching preference was not unique to the caucasian majority. Some African-American civil rights leaders also supported the merits of race matching, albeit for ostensibly different reasons. While these civil rights leaders were not satisfied with every state adoption policy, they were not entirely opposed to the States making race-based decisions for adoption and foster-care placement. (William & Mary Bill of Rights Journal). Whatever the reasons for such a position, it was the children that were ultimately suffering from that antiquated norm.
In sum, race matching prohibits otherwise qualified parents from adopting or providing foster care to children of dissimilar race. Notwithstanding any lingering opposition to multiracial adoption, the national constituency demanded a change to such discriminatory practices. In 1994, Senators Howard Metzenbaum and Carol Moseley-Braun introduced a bill to meet these demands. MEPA was designed to “to decrease the length of time that children wait to be adopted; to prevent discrimination in the placement of children on the basis of race, color, or national origin; and to facilitate the identification and recruitment of foster and adoptive parents who can meet children’s needs.”
MEPA achieves this goal by subjecting any state or private agency receiving Federal funds to potential loss of funding and suits for damages and/or injunctive orders for violating the terms of the Act . The major provisions of the Act sought to achieve the following:
- Prohibited State agencies and other entities that receive Federal funding and were involved in foster care or adoption placements from delaying, denying, or otherwise discriminating when making a foster care or adoption placement decision on the basis of the parent or child’s race, color, or national origin.
- Prohibited State agencies and other entities that received Federal funds and were involved in foster care or adoption placements from categorically denying any person the opportunity to become a foster or adoptive parent *solely on the basis of race, color, or national origin of the parent or the child
- Allowed an agency or entity to consider the cultural, ethnic, or racial background of a child and the capacity of an adoptive or foster parent to meet the needs of a child with that background when making a placement**
- Required States to develop plans for the recruitment of foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom families are needed.
- Made the failure to comply with MEPA a violation of title VI of the Civil Rights Act
*The word “solely” was removed from the Act by the 1996 amendment (see infra concerning Fourteenth Amendment)
**This provision of MEPA was removed from the original language (see infra concerning Fourteenth Amendment)
The Spending Power:
In United States v. Butler, the Supreme Court decided that the scope of Congress’ spending power granted by Article 1, section 8, clause 1 comports to Hamilton’s view of an independent power separate from its enumerated powers. In South Dakota v. Dole, Justice Rehnquist developed a test of limitations for conditions Congress places on States for the receipt of federal funding: spending must be in pursuit of the general welfare (Butler), Congress’ conditions on the States must be unambiguous, the conditions must be related to the federal interest in particular projects, and the conditional grant of federal funds must not be independently barred by another constitutional provision.
In contrast to Butler, a low-level threat of loss was not seen to be coercion in Dole. This test was made more stringent in National Federation of Independent Business v. Sebelius; conditions cannot involve such a threat of loss as to be coercive (holding that loss of 100% of federal Medicaid funding is coercive). The Court has not established a bright line rule defining when a threat of loss becomes so excessive so as to be coercive, but we do know that a five percent loss, as in Dole, is not coercive unlike a complete loss, as in Sebelius, which is coercive.
The federal funding conditions for receiving any federal funding in MEPA include: 1) prohibiting one from the opportunity to become an adoptive or foster parent on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, 2) prohibiting a child from being delayed or denied placement for adoption or into a foster home on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, and 3) requiring states to recruit foster and adoptive parents who reflect the racial and ethnic diversity of the state’s children in need of foster and adoptive homes. The failure to comply with these provisions would likely meet the initial four-part test set out in Dole, but applying the condition to existing programs would likely fail the later requirement set out by Sebelius:
1) Spending to decrease the amount of time before children are adopted and promote the recruitment of foster and adoptive parents is within the pursuit of the general welfare.
2) The conditions of the prohibitions are unambiguous.
3) Prohibiting discrimination in the adoption and foster care processes and requiring agencies to recruit potential parents who reflect the diversity of the state’s children in need of a home are sufficiently related to the federal interest in decreasing the amount of time children are left waiting for placement.
4) These conditional grants are not barred by an independent constitutional provision.
5) The threat of a complete loss would likely be seen as coercive, even though states have a choice in accepting funding, to existing funding sources (like Medicaid funding in Sebelius), but not new sources of funding.
The Fourteenth Amendment notwithstanding, Congress has the power to make federal funding conditional. The states are not entitled to funding for child welfare, but when they accept that federal funding voluntarily they are subject to the conditions expressed in the Act. The limits that might be imposed upon Congress are determined by the effect it has on the State.
MEPA applies to all entities involved in adoptive or foster care placements that receive federal funding either directly, through a subgrant from a state, county, or other agency, or from another federal program. If challenged today, a complete loss of funds might be coercive under rule of Sebilius for funding sources that existed before MEPA and were then affected by the act. Congress might be able to avoid conditions on federal funding from being seen as coercive if they are applied to new funding sources rather than existing funding sources. For new sources of funding, the conditions set out by MEPA would be allowed under the spending power.
10th Amendment and the Federal Mandate:
While Congress cannot compel the states to enact a federal regulatory program under the Tenth Amendment (Printz v. United States), Congress may apply conditions on federal funding (South Dakota v. Dole.)
Regarding the Act’s diligent recruitment provision, an argument toward unconstitutionality is rooted within the 10th amendment. According to New York v. United States, Congress may not compel a state to perform federally administrative functions. In particular, as seen in Printz v. United States, Congress was not permitted to impose the administrative tasks of background checks onto the state (albeit temporary) while a federal database was being constructed. Opponents to the diligent recruitment component will argue that similar to the Brady rule, commandeering the state department, forcing foster organizations in individual states to bear a burden on recruitment is beyond the constitutional scope of Congress. However, proponents of the diligent recruitment composition will counter that the recruitment initiative is distinguishable from Printz because the recruitment was already a procedure that states had already been generally implementing, and MEPA simply added a component to their recruitment effort. Unlike Printz, where the sheriff’s department was not previously conducting background checks and contributing toward a local database, the various state foster organizations have had systems in place to recruit potential adoptive parents. This is not an unfunded mandate.
This bill also gives a private right of action that allows individuals, who have been discriminated against as in adoption placement, to sue a private entity or the State in Federal District Court. This has the effect of waiving the state’s sovereign immunity found in the Eleventh Amendment. There is, not surprisingly, some debate over the application of the Eleventh Amendment. Generally speaking, Congress can waive state sovereign immunity under the enforcement power found in section 5 of the Fourteenth Amendment; although, many limitations have been placed on Congress’ discretion to do so. See Board of Trustees v. Garrett (holding that Congress does not have section 5 power to bar states from discriminating against employees with disabilities); see also U.S. v. Morrison. Be that as it may, Congress does have the right to abrogate state sovereign immunity in many instances as long as it does so expressly and unambiguously, tailors the remedy to be congruent and proportional to the harm, and aims the regulation at state action. Nevada Dept. of HR v. Hibbs. This particular provision bans private entities that receive federal funding from using race in placement determinations. This might seem to be beyond the language of the Fourteenth Amendment (“nor shall any state”) but the private entities in this case are acting under the aegis of the state, also known as acting under the “color of law.” Thus, because the private right of action waiving State immunity is clearly stated in the Act, and done so pursuant the Fourteenth Amendment, it does not exceed the strictures of sovereign immunity under the Eleventh Amendment.
“Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.” The Thirteenth Amendment formally abolished slavery, but has also been used to outlaw badges and incidents of slavery. In Jones v. Mayer, Congress’ power under section 2 “to enforce this article by appropriate legislation” was extended to racial discrimination in private housing matters because racial discrimination is a “lingering effect of the system of African slavery.” Similarly, discriminating against potential parents and children in the foster care and adoption processes on the basis of race may also be viewed as a relic of slavery and prohibiting this behavior and providing a remedy is within Congress’ powers under the Thirteenth Amendment.
14th Amendment and the Enforcement Power:
The Enforcement Clause of Section 5 of the Fourteenth Amendment provides the vehicle for legislation intended to prevent the state from denying “any person . . . the equal protection of the laws.” Under a Supreme Court’s interpretation of the scope of that equal protection clause, there must be more than a rational basis for the correction or prevention harm. The remedy and the preventative measures must be “congruent and proportional” to the violation or potential violation of a right recognized by the Court. (City of Boerne v. Flores). According to Professor Ann Estin of The University of Iowa College of Law, “[b]ecause the Supreme Court has articulated due process and equal protection concerns in a wide variety of family law contexts, many types of family-based legislation could fall within the scope of Congress’s Section 5 power.” It follows that potential parents and current wards of the state needing to find a permanent home cannot be discriminated against in the application of state adoption laws.
Several changes to the MEPA were made in 1996 when Congress passed the Removal of Barriers Interethnic Adoption Act (IEP). Most notably the amendment removed the word “solely” from the statutory language of the second provision, removed the language of the third provision (to clarify its meaning), and added both the fourth (dealt with separately below) and fifth provisions.
The second provision may be the clearest example of a proper subject for legislative preemption and correction under the Fourteenth Amendment. This is true even in light of the change in language which precludes any consideration of race in the denial of adoptive or foster-parent opportunity. However, even though Congress has the power to create legislation eliminating the consideration of race, there is always the exception that such consideration may be appropriate where it passes the test of “strict scrutiny.” According to the William & Mary Bill of Rights Journal, when MEPA was initially passed it granted adoption agencies limited authority to consider the racial background in regards to children. Ultimately, Congress’ 1996 amendment removed that third provision of MEPA’s original language in order to make clear the appropriate standard for evaluating race, color, or national origin in placement decisions also one of “strict scrutiny.” Under this standard, the Department of Health and Human Safety (“DHHS”) forbids adoption placement decisions “on the basis of race or ethnicity except in the very limited circumstances where such a consideration would . . . achieve a compelling governmental interest.” According to DHHS guidance, the only compelling governmental interest in which Courts will permit racial or ethnic considerations in the adoption process is one concerning the “‘best interests’ of the child who is to be placed.” Both provisions, as they apply now, seem squarely within Congress’ Section Five power under the Fourteenth Amendment.
The addition of the fifth provision, the “failure to comply” provision, authorizes that failure to comply with the law is a violation of Title VI of the Civil Rights Act of 1964. According to the Department of Justice, Title VI comports with the Fourteenth Amendment. It “adopts or follows the Fourteenth Amendment’s standard of proof for intentional discrimination.” The Civil Rights Act of 1964 “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.” Federal funding agencies have regulations that implement Title VI to prohibit recipients from discriminating based on race, color, or national origin. The Department of Justice also states that, under Title VI, a federal agency can enforce compliance by “a refusal to grant or continue assistance.” Since this right is expressly given, under MEPA, the federal government can refuse to continue funding the respective agencies that fail to comply with MEPA under Title VI. Since Title VI adopts the Fourteenth Amendment’s standard of proof for intentional discrimination, the Fourteenth Amendment does not prohibit the “failure to comply” provision.
This diligent recruitment requirement is unique in that it is the only provision that creates a “mandate,” or in other words, an affirmative duty. Accordingly, this provision will be treated separately.
MEPA’s recruitment requirement, diligent recruitment, is aimed toward this notion that adoptive parents of the same race are ideal matches for the corresponding children. Whether the reasons align with cultural conformity, ease-of-transition, or general appeals to comfort, this diligent recruitment imposition is constitutional. There is no bar on any parents of any race to decide to adopt another child making a multiracial family; rather this is a movement toward increasing the availability of families for adoption. Similar to the way Affirmative Action movements appeal toward the 14th amendment and are inherently designed by legislators to provide opportunities for certain races, this MEPA recruitment initiative is analogous. Furthermore, Congressional authority to implement diligent recruitment is rooted within the Spending Clause and general welfare.
The diligent recruitment encompasses more than seeking parents that are of the same color or creed. It is a systematic approach to finding the “best” suitors for children. Among others, states have implemented procedures for categorizing children’s characteristics, sibling goals, and educational demands. The general term is “relationship mining” where in-relation to youths, potential parents are generally targeted to meet the child’s specific needs. Another major consideration for this MEPA requirement is the understanding of linguistics. Language and dialect barriers can have a significant impact on a child’s comfort level and success in their foster parent’s home.
As discussed earlier, Federal statutes inherently govern certain parts of states, the major evaluation is: whether the power Congress is utilizing is rooted within Article I delegation within the Constitution or whether it is a power delegated to the states. The basic framework regarding the constitutionality of this requirement is as follows:
- The Legislative agenda is pursuant to the Spending Clause (Article I Section 8).
- The Necessary and Proper Clause of Article I Section 8 allow the implementation of legislation to protect the Spending Clause
The 14th amendment is scripted to protect against discrimination, provide equal protection under law, and has often been invoked to defend Affirmative Action. The Spending clause allows imposition of legislation for the purpose of “general welfare”. General welfare in terms of adoption is to decrease the length of time children wait to be adopted and to decrease the amount of children that are left without permanent homes.
As seen in Gonzales v. Raich, the Supreme Court reverted to the United States v. Darby, Ends/Means and Aggregate test. As seen in McCulloch v. Maryland, enumerate powers extend to Congress to do as a “necessary and proper” means of carrying out its delegated powers. Essentially, the court will scrutinize whether the means chosen by Congress are adequately related to legislative ends and does Congress have the congressional pretext to reach those ends.
The first step is to look toward the ends attempted to reach.
The legislative purpose of MEPA is:
1) To decrease the length of time that children is awaiting adoption;
This is an inherent overarching goal. Providing amenities to children such as education, food, and the care of companionship and friendship offered through homes is a priority. The more efficiently children can be placed into ideal foster families; the overall goal of this act is met. Verdict = Not an Overreach of Congressional Authority
2) To prevent discrimination in the placement of children on the basis of race, color, or national origin; and
This is a direct extrapolation from the 14th amendment. The 14th amendment is designed to eliminate discrimination and provide equal protection of the law to all its citizens. From the recruitment perspective, if an adoptive parent(s) are found to be ideal, race or ethnicity will NOT BE used as a barrier. Verdict = Not an overreach of Congressional Authority
3) To facilitate the identification and recruitment of foster and adoptive parents who can meet the needs of the children.”
This component can be looked at in two ways. First, this is a targeting of certain ethnicities as adoptive parents and therefore in a zero-sum game, this reflects in a decrease of non-race aligning parents. Therefore, this targeting of ideal foster parents with regard to ethnicity would be a violation of non-race aligning foster parent’s 14th amendment rights. Simply stated, the race-aligning parents have a better opportunity to become adoptive parents than the other.
For example, if Michael and Meghan, two white parents, are not being targeted as ideal parents for a black child, then they can claim that because they are white, they are not being afforded the same opportunity to adopt the child as a black parent and therefore that is a violation of their 14th amendment rights. However, this argument is not persuasive. Adoption analysis of parents is NOT a zero-sum game. Rather it is an evolving discussion of analysis that although uses race as a component in reaching to potential targets is not solely for the purpose of race targeting. Race is used as a preliminary, but not dispositive component of adoption.
The second approach, is that the diligent recruitment initiative is not a discriminatory measure, but rather a means to provide more opportunities for children AND potential parents. This aligns with the Spending clause in terms of general welfare. The earlier provision of MEPA has already outlawed the use of race as a barrier for parents to create an multiracial family via adoption. This initiative is rooted in the fundamental notion that not all prospective children are adopted. According to the Cain Institute, in 2012, around the world there are a total of 17.9 million orphans who are either homeless or living in orphanages. “These children are at risk for disease, malnutrition,” lack of education and even death. In the United States, in 2012, 397,122 children were living without permanent homes. Only about a fourth, 101,666 of these children are still eligible for adoption, However, a third of them must wait at least 3 years in foster care or a quasi-orphanage before being adopted.
|Children without Permanent Homes – provided by Cain Institute|
|Homeless Children or Children living in Orphanages (World)||17.9 Million|
|Homeless Children or Children living in Orphanages (US)||397,122|
|Children eligible for adoption||101,666|
|Percentage of children without permanent homes who must wait at least 3 years in orphanages before adoption||32%|
In a simplistic supply versus demand analysis, there is a shortage of adoptive parents for the massive amount of children without permanent homes. Therefore, there is a cognizable Congressional need or cause of action for this. The current equilibrium shows that congress can find it necessary to invoke Legislation to protect these children and close the gap. The means that Congress employs must then be evaluated to determine whether they were proper and congruent to these legislative goals.
With the understanding that this diligent recruitment component is not a means for discrimination, rather a means toward increasing the pool of potential permanent homes, Congress’s implementation of this recruitment drive is well within their constitutional authority. Data provided by the U.S Department of Health and Human Services, show that the amount of children waiting for adoption has declined steadily within the last 10 years.
|Trends in Foster Care and Adoption – provided by US Department of Health and Human Services|
|Race/Ethnicity||FY 2002||FY 2012||Δ%|
|Black or African American||192,859||101,938||-47.1%|
The number of children in foster care from 2002 to 2013 has decreased by 23.7%. Nearly one out of every four children who had previously gone without a permanent home, now have a permanent home. Black and African American children without homes has decreased nearly by half (47.3%) and some of that success must be attributed to the diligent recruitment initiative of MEPA. Asian children without permanent homes have decreased by 33.3%. This reduction in non-white foster children compared to white reduction (17.7%) demonstrate two things: 1. The MEPA is reducing the amount of children without permanent homes and 2. The recruitment efforts to increase the pool for non-white foster parents have increased dramatically within the last decade.
Overall, the ends have met the means and in regard to the 14th amendment and the Article I Section 8 necessary and proper clause, the diligent recruitment component of MEPA is constitutional.
In conclusion, enacting MEPA was within the scope of congressional power. MEPA’s enactment was a proper legislative use of its spending power. Also, applying a condition to federal funding does not violate the Tenth Amendment. likewise, creating a private right of action does not exceed the structures of sovereign immunity under the Eleventh Amendment. Furthermore, providing a remedy to those who have been discriminated against in the foster care and adoption process on the basis of race is within Congress’ powers under the Thirteenth Amendment, and banning discrimination in the foster care and adoption processes was within Congress’ powers under the enforcement power of the Fourteenth Amendment.
Policy drives politics. To learn more about how a community responds to anti-adoption statements from an Alabama Official, click below:
On a personal level, the implications of mixed-race families extend beyond policy. If you want to learn more about certain community reactions to multiracial adoption click below:
There is today, as with all major legislation, a mixed reaction on the effectiveness of the legislation. Some people view MEPA as having effectively taken race out of the equation, while others are more skeptical:
- New York Times Article: “In Adoptions, Take Race out of the Equation”
- Huffington Post Article: “Foster Care’s Web of Policies, Problems, and a Promise Keeps Kids In Waiting
- Time Article: “Should Race be a Factor in Adoptions?”