Should the law require state child‐welfare authorities to treat black children differently from white children? Lawmakers in Minnesota may soon vote on a bill to do just that. The Minnesota African American Family Preservation Act’s sponsors say it will address racial disparities in the state’s foster‐care system. African‐American and mixed‐race children are substantially more likely than white children to be reported to child‐protective services.
Minnesota legislators modeled their bill on the 1978 federal Indian Child Welfare Act, or ICWA. At the time ICWA was passed, powerful state child‐welfare agencies, often answerable only to themselves, were removing as many as 3 in 10 children from Indian homes. These children tended to be placed with white families even if nonabusive homes with relatives were available. The ICWA took the power to place a child away from the states and gave it to the tribes. It also made it harder to terminate Indian parental rights and prescribed that Indian children should be placed in Indian homes whenever possible.
The ICWA is the subject of a constitutional challenge in the Fifth U.S. Circuit Court of Appeals. The challengers in that case are a white adoptive couple from Texas who contend the ICWA denies children and families equal protection of the law by treating them differently because of their race. Several Indian tribes, 21 state attorneys general, and the Native American Rights Fund counter that the ICWA doesn’t hand out rights on the basis of race, color or lineage—categories that would trigger strict scrutiny under the Constitution’s Equal Protection Clause—but instead based on membership or eligibility for membership in an Indian tribe, a political classification that may heavily overlap with race but isn’t identical to it.
The Minnesota bill’s provisions, which apply only to African‐Americans, would require state agencies to make active efforts to place black children with relatives, and prevent the termination of parental rights based solely on failure to comply with a previous plan. A new African‐American Child Well‐Being Department would be staffed by full‐time state employees who “shall be of African‐American heritage.”
These proposals are unconstitutional. They would draw blunt lines between Americans based on race, which the Equal Protection Clause explicitly forbids.
The bill proposes to define an “African American child” as a “child of African descent or heritage, including a child of two or more races who has at least one parent of African descent or heritage.” It isn’t clear from this wording whether that would establish a rule triggered by a 50% match in genetic testing, a “one drop” rule, or something in between.
Explicit racial classifications of this sort aren’t truly remedial. While a black family treated unfairly last year may deserve redress, bestowing legally favored status on an entirely different black family this year isn’t the way to do that. Since the 1930s, courts applying the “strict scrutiny” test have nearly always struck down such racial classifications in the law. Among the questions courts ask in these cases is whether a law could have been written to address the problem in a less discriminatory way.
Which brings us to the most puzzling thing about the Minnesota African American Family Preservation Act: If state child‐services agencies wield too much power to break up families—and maybe they do—why not revamp the law to protect all parents and children, of whatever race, from government interventions of this sort? If it’s good practice not to put children into foster care without checking out the possibility of an extended‐family placement, or to “strictly limit” the termination of parental rights, why wouldn’t that also be a good idea for American children of Vietnamese, Guatemalan, Syrian or Irish descent?
This has always been one of the mysteries of the ICWA. Groups like the Child Welfare League of America laud the ICWA’s restrictions on child removal as embodying the “gold standard” of family protection. If that’s their view, and not simply a reflection of their wish to be on the right side of a social‐justice issue, they should be keen to extend those same protections to families of other ethnicities.
Segregating child‐welfare institutions by race would not be constitutional. Perhaps the sponsors of the Minnesota bill will consider rescuing the constitutionality of their ideas by making them universal.