[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Notices]
[Pages 20271-20275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10155]



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[[Page 20272]]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Civil Rights
Administration for Children and Families


Policy Guidance on the Use of Race, Color or National Origin as 
Considerations in Adoption and Foster Care Placements

AGENCY: Office for Civil Rights; Administration for Children and 
Families; HHS.

ACTION: Policy guidance.

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SUMMARY: The United States Department of Health and Human Services 
(HHS) is publishing policy guidance on the use of race, color, or 
national origin as considerations in adoption and foster care 
placements.

DATES: The guidance is effective on April 25, 1995.

FOR FURTHER INFORMATION CONTACT: Carol Williams or Dan Lewis (ACF) at 
202-205-8618 or Ronald Copeland (OCR) at 202-619-0553; TDD: 1-800-537-
7697. Arrangements to receive the policy guidance in an alternative 
format may be made by contacting the named individuals.

SUPPLEMENTARY INFORMATION: The Improving America's Schools Act, Pub. L. 
No. 103-382, 108 Stat. 3518, contains the Multiethnic Placement Act of 
1994 (hereinafter referred to as ``the Act''). The Act directs the 
Secretary to publish guidance to concerned public and private agencies 
and entities with respect to compliance with the Act. Section 553, 108 
Stat. 4057 (to be codified at 42 U.S.C. Sec. 5115a). This guidance 
carries out that direction.
    The policy guidance is designed to assist agencies, which are 
involved in adoption or foster care placements and which receive 
Federal assistance, in complying with the Act, the U.S. Constitution 
and Title VI of the Civil Rights Act of 1964. The guidance provides, 
consistent with those laws, that an agency or entity that receives 
Federal financial assistance and is involved in adoption or foster care 
placements may not discriminate on the basis of the race, color or 
national origin of the adoptive or foster parent or the child involved. 
The guidance further specifies that the consideration of race, color, 
or national origin by agencies making placement determinations is 
permissible only when an adoption or foster care agency has made a 
narrowly tailored, individualized determination that the facts and 
circumstances of a particular case require the consideration of race, 
color, or national origin in order to advance the best interests of the 
child in need of placement.
    In addition to prohibiting discrimination in placements on the 
basis of race, color or national origin, the Act requires that agencies 
engage in diligent recruitment efforts to ensure that all children 
needing placement are served in a timely and adequate manner. The 
guidance sets forth a number of methods that agencies should utilize in 
order to develop an adequate pool of families capable of promoting each 
child's development and case goals.
    Covered agencies or entities must be in full compliance with the 
Act no later than six months after publication of this guidance or one 
year after the date of the enactment of this Act, whichever occurs 
first, i.e., October 21, 1995. Under limited circumstances outlined in 
the guidance, the Secretary of HHS may extend the compliance date for 
states able to demonstrate that they must amend state statutory law in 
order to change a particular practice that is inconsistent with the 
Act. The guidance explains in detail the vehicles for enforcement of 
the Act's prohibition against discrimination in adoption or foster care 
placement.
    The text of the guidance appears below.

    Dated: April 20, 1995.
Dennis Hayashi,
Director, Office for Civil Rights.
    Dated: April 20, 1995.
Mary Jo Bane,
Assistant Secretary, Administration for Children and Families.

Policy Guidance--Race, Color, or National Origin as Considerations in 
Adoption and Foster Care Placements

Background

    On October 20, 1994, President Clinton signed the ``Improving 
America's Schools Act of 1994,'' Public Law 103-382, which includes 
among other provisions, Section 551, titled ``The Multiethnic Placement 
Act of 1944'' (MEPA).
    The purposes of that Act are: 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.
    To accomplish these goals the Act identifies specific impermissible 
activities by an agency or entity (agency) which receives Federal 
assistance and is involved in adoption or foster care placements. The 
law prohibits such agencies from ``categorically denying to any person 
the opportunity to become an adoptive or foster parent solely on the 
basis of the race, color, or national origin of the adoptive or foster 
parent or the child'' and ``from delaying or denying the placement of a 
child solely on the basis of race, color, or national origin of the 
adoptive or foster parent or parents involved.'' Under the Act, these 
prohibitions also apply to the failure to seek termination of parental 
rights or otherwise make a child legally available for adoption.
    The law does permit an agency to consider, in determining whether a 
placement is in a child's best interests, ``the child's cultural, 
ethnic, and racial background and the capacity of prospective foster or 
adoptive parents to meet the needs of a child of this background.'' If 
an agency chooses to include this factor among those to be considered 
in making placement decisions, it must be considered in conjunction 
with other factors relevant to the child's best interests and must not 
be used in a manner that delays the placement decision.
    The Act also seeks to ensure that agencies engage in active 
recruitment of potential foster and adoptive parents who reflect the 
racial and ethnic diversity of the children needing placement. Section 
554 of the Act amends Section 422(b) and Part A of Title XI of the 
Social Security Act. The amendment specifies the following requirements 
for child welfare services programs: ``[Each plan for child welfare 
services under this part shall . . .] (9) provide for the diligent 
recruitment of potential foster and adoptive families that reflect the 
ethnic and racial diversity of children in the State for whom foster 
and adoptive homes are needed.''
    The Multiethnic Placement Act is to be viewed in conjunction with 
Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits 
recipients of Federal financial assistance from discriminating based on 
race, color, or national origin in their programs and activities and 
from operating their programs in ways that have the effect of 
discriminating on the basis of race, color, or national origin.
    The Administration for Children and Families (ACF) and the Office 
for Civil Rights (OCR) in the Department of Health and Human Services 
(HHS) have the responsibility for implementing these laws. OCR has the 
responsibility to enforce compliance with Title VI and its implementing 
regulation (45 CFR part 80), as well as other civil rights laws. ACF 
administers programs of Federal financial assistance to child 
[[Page 20273]] welfare agencies and has responsibility to enforce 
compliance with the laws authorizing this assistance.
    Private, as well as public, adoption and foster care agencies often 
receive Federal financial assistance, through State Block Grant 
programs, programs under Title IV-E of the Social Security Act, and 
discretionary grants. The assistance may reach an agency directly, or 
indirectly as a subrecipient of other agencies. Receipt of such 
assistance obligates recipients to comply with Title VI and other civil 
rights laws and regulations and with the requirements of the Social 
Security Act. Further, the Civil Rights Restoration Act of 1987 confers 
jurisdiction over entities any part of which receive any Federal funds.
    This guidance is being issued jointly by ACF and OCR, pursuant to 
Section 553(a) of MEPA, to enable affected agencies to conform their 
laws, rules, and practices to the requirements of the Multiethnic 
Placement Act and Title VI.

Discussion

A. Race, Culture, or Ethnicity as a Factor in Selecting Placements
1. Impermissible Activities
    In enacting MEPA, Congress was concerned that many children, in 
particular those from minority groups, were spending lengthy periods of 
time in foster care awaiting placement in adoptive homes.\1\ At 
present, there are over twenty thousand children who are legally free 
for adoption but who are not in preadoptive homes. While there is no 
definitive study indicating how long children who are adoptable must 
wait until placement, the available data indicate the average wait may 
be as long as two years after the time that a child is legally free for 
adoption, and that minority children spend, on average, twice as long 
as non-minority children before they are placed. Both the number of 
children needing placements and the length of time they await placement 
increase substantially when those children awaiting termination of 
parental rights are taken into account.

    \1\MEPA applies to decisions regarding both foster care and 
adoption placements. In discussions regarding the bill, members of 
Congress focused primarily on problems related to adoption 
decisions.
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    MEPA reflects Congress' judgment that children are harmed when 
placements are delayed for a period longer than is necessary to find 
qualified families. The legislation seeks to eliminate barriers that 
delay or prevent the placement of children into qualified homes. In 
particular, it focuses on the possibility that policies with respect to 
matching children with families of the same race, culture, or ethnicity 
may result in delaying, or even preventing, the adoption of children by 
qualified families. It also is designed to ensure that every effort is 
made to develop a large and diverse pool of potential foster and 
adoptive families, so that all children can be quickly placed in homes 
that meet their needs.
    In developing this guidance, the department recognizes that states 
seek to achieve a variety of goals when making foster or adoptive 
placements. For example, in making a foster care placement, agencies 
generally are concerned with finding a home that the child can easily 
fit into, that minimizes the number of adjustments that the child, 
already facing a difficult situation, must face, and that is capable of 
meeting any special physical, psychological, or educational needs of 
the child. In making adoption placements, agencies seek to find homes 
that will maximize the current and future well-being of the child. They 
evaluate whether the particular prospective parents are equipped to 
raise the child, both in terms of their capacity and interests to meet 
the individual needs of the particular child, and the capacity of the 
child to benefit from membership in a particular family.
    Among the factors that many state statutes, regulations, or policy 
manuals now specify as being relevant to placement decisions are the 
racial, ethnic, and cultural background of the child. Some states 
specify an order of preference for placements, which make placement in 
a family of the same race, culture, or ethnicity as the child a 
preferred category. Some states prescribe set periods of time in which 
agencies must try to place a child with a family of the same race, 
culture, or ethnicity before the children can be placed with a family 
of a different race, culture, or ethnicity. Some states have a general 
preference for same race or ethnicity placements, although they do not 
specify a placement order or a search period. And some states indicate 
that children should be placed with families of the same race or 
ethnicity provided that this is consistent with the best interests of 
the child.
    Establishing standards for making foster care and adoption 
placement decisions, and determining the factors that are relevant in 
deciding whether a particular placement meets the standards, generally 
are matters of state law and policy. Agencies which receive Federal 
assistance, however, may use race, culture, or ethnicity as factors in 
making placement decisions only insofar as the Constitution, MEPA, and 
Title VI permit.
    In the context of child placement decisions, the United States 
Constitution and Title VI forbid decision making on the basis of race 
or ethnicity unless the consideration advances a compelling 
governmental interest. The only compelling governmental interest, in 
this context, is protecting the ``best interests'' of the child who is 
to be placed. Moreover, the consideration must be narrowly tailored to 
advancing the child's interests and must be made as an individualized 
determination for each child. An adoption agency may take race into 
account only if it has made an individualized determination that the 
facts and circumstances of the specific case require the consideration 
of race in order to advance the best interests of the specific child. 
Any placement policy that takes race or ethnicity into account is 
subject to strict scrutiny by the courts to determine whether it 
satisfies these tests. Palmore v. Sidoti, 466 U.S. 429 (1984).
    A number of practices currently followed by some agencies clearly 
violate MEPA or Title VI. These include statutes or policies that:
    <bullet> Establish time periods during which only a same race/
ethnicity search will occur;
    <bullet> Establish orders of placement preferences based on race, 
culture, or ethnicity;
    <bullet> Require caseworkers to specially justify transracial 
placements; or
    <bullet> Otherwise have the effect of delaying placements, either 
before or after termination of parental rights, in order to find a 
family of a particular race, culture, or ethnicity.
    Other rules, policies, or practices that do not meet the 
constitutional strict scrutiny test would also be illegal.
2. Permissible Considerations
    MEPA does specifically allow, but not require, agencies to consider 
``the child's cultural, ethnic, and racial background and the capacity 
of prospective foster or adoptive parents to meet the needs of a child 
of this background'' as one of the factors in determining whether a 
particular placement is in a child's best interests.
    When an agency chooses to use this factor, it must be on an 
individualized basis. Agencies that provide professional adoption 
services usually involve prospective parents in an educative family 
assessment process designed to increase the likelihood of successful 
placements. This process includes providing potential adoptive parents 
with an understanding of the special needs of adoptive children, such 
as how children react to separation and [[Page 20274]] maltreatment and 
the significance of the biological family to a child. Adoption 
specialists also assess the strengths and weaknesses of prospective 
parents. They help them decide whether adoption is the right thing for 
them and identify the kind of child the family thinks it can parent. 
Approved families are profiled, as are the waiting children.
    When a child becomes available for adoption, the pool of families 
is reviewed to see if there is an available family suitable for the 
specific child.\2\ Where possible, a number of families are identified 
and the agency conducts a case conference to determine which family is 
most suitable. The goal is to find the family which has the greatest 
ability to meet the child's psychological needs.\3\ The child is 
discussed with the family, and decisions are made about the placement 
of the specific child with the family. This process helps prevent 
unsuccessful placements, and promotes the interest of children in 
finding permanent homes.

    \2\Among the child-related factors often considered are:
    <bullet> The child's current functioning and behaviors;
    <bullet> The medical, educational and developmental needs of the 
child;
    <bullet> The child's history and past experience;
    <bullet> The child's cultural and racial identity needs;
    <bullet> The child's interests and talents;
    <bullet> The child's attachments to current caretakers.
    \3\Among the factors that agencies consider in assessing a 
prospective parent's suitability to care for a particular child are:
    <bullet> Ability to form relationships and to bond with the 
specific child;
    <bullet> The ability to help the child integrate into the 
family;
    <bullet> The ability to accept the child's background and help 
the child cope with her or his past;
    <bullet> The ability to accept the behavior and personality of 
the specific child;
    <bullet> The ability to validate the child's cultural, racial 
and ethnic background;
    <bullet> The ability to meet the child's particular educational, 
developmental or psychological needs.
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    To the extent that an agency looks at a child's race, ethnicity, or 
cultural background in making placement decisions, it must do so in a 
manner consistent with the mode of individualized decision-making that 
characterizes the general placement process for all children. 
Specifically, in recruiting placements for each child, the agency must 
focus on that child's particular needs and the capacities of the 
particular prospective parent(s).
    In making individualized decisions, agencies may examine the 
capacity of the prospective parent(s) to meet the child's psychological 
needs that are related to the child's racial, ethnic, or cultural 
background. This may include assessing the attitudes of prospective 
parents that relate to their capacity to nurture a child of a 
particular background. Agencies are not prohibited from discussing with 
prospective adoptive and foster parents their feelings, capacities and 
preferences regarding caring for a child of a particular race or 
ethnicity, just as they discuss issues related to other 
characteristics, such as sex, age, or disability; nor are they 
prohibited from considering the expressed preference of the prospective 
parents as one of several factors in making placement decisions.
    Agencies may consider the ability of prospective parents to cope 
with the particular consequences of the child's developmental history 
and to promote the development of a positive sense of self, which often 
has been compromised by maltreatment and separations. An agency also 
may assess a family's ability to nurture, support, and reinforce the 
racial, ethnic, or cultural identity of the child and to help the child 
cope with any forms of discrimination the child may encounter. When an 
agency is making a choice among a pool of generally qualified families, 
it may consider whether a placement with one family is more likely to 
benefit a child, in the ways described above or in other ways that the 
agency considers relevant to the child's best interest.
    Under the law, application of the ``best interests'' test would 
permit race or ethnicity to be taken into account in certain narrow 
situations. For example, for children who have lived in one racial, 
ethnic, or cultural community, the agency may assess the child's 
ability to make the transition to another community. A child may have a 
strong sense of identity with a particular racial, ethnic, or cultural 
community that should not be disrupted. This is not a universally 
applicable consideration. For instance, it is doubtful that infants or 
young children will have developed such needs. Ultimately, however, the 
determination must be individualized. Another example would be when a 
prospective parent has demonstrated an inability to care for, or 
nurture self-esteem in, a child of a different race or ethnicity. In 
making such determinations, an adoption agency may not rely on 
generalizations about the identity needs of children of a particular 
race or ethnicity or on generalizations about the abilities of 
prospective parents of one race or ethnicity to care for, or nurture 
the sense of identity of, a child of another race, culture, or 
ethnicity. Nor may an agency presume from the race or ethnicity of the 
prospective parents that those parents would be unable to maintain the 
child's ties to another racial, ethnic, or cultural community.
B. Recruitment Efforts
    As recognized in the Multiethnic Placement Act, in order to achieve 
timely and appropriate placement of all children, placement agencies 
need an adequate pool of families capable of promoting each child's 
development and case goals. This requires that each agency's 
recruitment process focuses on developing a pool of potential foster 
and adoptive parents willing and able to foster or adopt the children 
needing placement. The failure to conduct recruitment in a manner that 
seeks to provide all children with the opportunity for placement, and 
all qualified members of the community an opportunity to adopt, is 
inconsistent with the goals of MEPA and could create circumstances 
which would constitute a violation of Title VI.
    An adequate recruitment process has a number of features. 
Recruitment efforts should be designed to provide to potential foster 
and adoptive parents throughout the community information about the 
characteristics and needs of the available children, the nature of the 
foster care and adoption processes, and the supports available to 
foster and adoptive families.
    Both general and targeted recruiting are important. Reaching all 
members of the community requires use of general media--radio, 
television, and print. In addition, information should be disseminated 
to targeted communities through community organizations, such as 
religious institutions and neighborhood centers. The dissemination of 
information is strengthened when agencies develop partnerships with 
groups from the communities from which children come, to help identify 
and support potential foster and adoptive families and to conduct 
activities which make the waiting children more visible.
    To meet MEPA's diligent efforts requirements, an agency should have 
a comprehensive recruitment plan that includes:
    <bullet> A description of the characteristics of waiting children;
    <bullet> Specific strategies to reach all parts of the community;
    <bullet> Diverse methods of disseminating both general and child 
specific information;
    <bullet> Strategies for assuring that all prospective parents have 
access to the home study process, including location and hours of 
services that facilitate access by all members of the community;
    <bullet> Strategies for training staff to work with diverse 
cultural, racial, and economic communities; [[Page 20275]] 
    <bullet> Strategies for dealing with linguistic barriers;
    <bullet> Non-discriminatory fee structures; and
    <bullet> Procedures for a timely search for prospective parents for 
a waiting child, including the use of exchanges and other interagency 
efforts, provided that such procedures must insure that placement of a 
child in an appropriate household is not delayed by the search for a 
same race or ethnic placement.
    Agencies receiving Federal funds may not use standards related to 
income, age, education, family structure, and size or ownership of 
housing, which exclude groups of prospective parents on the basis of 
race, color, or national origin, where those standards are arbitrary or 
unnecessary or where less exclusionary standards are available.

Enforcement

    As provided in Section 553(d)(1) of MEPA, covered agencies or 
entities are required to comply with the Act no later than six months 
after publication of this guidance or one year after the date of the 
enactment of this Act, whichever occurs first, i.e., October 21, 1995. 
Pursuant to Section 553(d)(2) of MEPA, if a state demonstrates to the 
satisfaction of the Secretary of HHS that it is necessary to amend 
state statutory law in order to change a particular practice that is 
inconsistent with MEPA, the Secretary may extend the compliance date 
for the state a reasonable number of days after the close of the first 
state legislative session beginning after April 25, 1995. In 
determining whether to extend the compliance date, the Secretary will 
take into account the constitutional standards described in Part A of 
this guidance. Because states need not enforce unconstitutional 
provisions of their laws, statutory amendments are not an essential 
precondition to coming into compliance with respect to any such 
provisions.
    HHS emphasizes voluntary compliance with the law and recognizes 
that covered agencies may want further guidance on their obligations 
under these laws. Accordingly, HHS is offering technical assistance to 
any covered agency seeking to better understand and more fully comply 
with the Multiethnic Placement Act. Organizations wishing to be 
provided with technical assistance on compliance with the 
nondiscrimination provisions of MEPA should contact Ronald Copeland of 
OCR at 202-619-0553. Organizations wishing to be provided with 
technical assistance regarding required recruitment efforts should 
contact Carol Williams or Dan Lewis of the Administration on Children 
and Families at 202-205-8618.
    The Multiethnic Placement Act provides two vehicles for enforcement 
of its prohibition against discrimination in adoption or foster care 
placement. First, pursuant to Section 553(b), any individual who is 
aggrieved by an action he or she believes constitutes discrimination in 
violation of the Act has the right to bring an action seeking equitable 
relief in a United States district court of appropriate jurisdiction. 
Second, the Act provides that noncompliance with the prohibition is 
deemed a violation of Title VI.
    OCR has published regulations to effectuate the provisions of Title 
VI. 45 CFR part 80. Any individual may file a complaint with OCR 
alleging that an adoption or foster care organization funded by HHS 
makes placement decisions in violation of the Multiethnic Placement Act 
and Title VI. OCR may also initiate compliance reviews to determine 
whether violations have occurred. If OCR determines that an adoption or 
foster care organization makes discriminatory placement decisions, OCR 
will first seek voluntary compliance with the law. Should attempts at 
voluntary compliance prove unsuccessful, OCR will take further steps to 
enforce the law.
    These steps may involve referring the matter to the Department of 
Justice with a recommendation that appropriate court proceedings be 
brought. HHS may also initiate administrative proceedings leading to 
the termination of the offending agency's Federal financial assistance. 
These proceedings include the opportunity for a covered agency or 
entity to have a hearing on any OCR findings made against it. 45 CFR 
80.8.
    At any point in the complaint investigation process or during the 
pendency of fund termination proceedings, organizations may agree to 
come into voluntary compliance with the law. OCR will work closely with 
organizations to develop necessary remedial actions, such as training 
of staff in the requirements of Title VI and MEPA, to ensure that their 
efforts at compliance are successful.
    When a state fails to develop an adequate recruitment plan and 
expedite the placement of children consistent with MEPA, the Secretary 
through ACF and OCR will provide technical assistance to the state in 
the development of the plan and where necessary resolve through 
corrective action major compliance issues. When these efforts fail the 
Secretary will make a determination of appropriate proportional 
penalties.

[FR Doc. 95-10155 Filed 4-24-95; 8:45 am]
BILLING CODE 4150-04-M