A Guide to The Multiethnic Placement Act of 1994
As Amended by the Interethnic Adoption Provisions of 1996

Chapter 3: Common Questions About MEPA-IEP

1. Since the Constitution and Title VI already prohibit discrimination, what difference will MEPA-IEP make?

   Although the Constitution and Title VI bar discriminatory practices by states and publicly funded entities, many states and child welfare agencies nonetheless assumed that it was lawful to prefer racially and ethnically-matched foster care and adoptive placements for children. MEPA-IEP has made it clear that such preferences are illegal.

   In enacting MEPA-IEP, Congress was concerned about widespread reports that children were being harmed by being removed from stable foster placements simply in order to be placed with someone else of the same race or national origin whom they had never met.

   Reports also suggested that growing numbers of children were being denied a permanent adoptive placement because of efforts, often futile, to find a racially or ethnically matching adoptive home. For example, some agencies required specific waiting periods to search for a same race placement or required social workers to justify a transracial placement.

   Minority children, particularly African-American children, were the most likely to experience lengthy delays in placement and to have fewer opportunities to be adopted as they grew older. Despite differences of opinion about whether these delays were caused primarily by unfair exclusion of minority individuals from being considered as foster or adoptive parents, or by unfair exclusion of whites who sought transracial placements, or by some combination of these and other factors, child welfare experts agreed that something had to be done to prevent the adverse effects on minority children of placement delays and "foster care drift."

   MEPA-IEP can assist states and agencies to remove the vestiges of unlawful discriminatory practices by providing technical assistance through OCR and ACF staff. This assistance will continue to be available to help states review their statutes and administrative codes and to help agencies develop procedures that reflect good social work principles and promote the best interests of children in out-of-home care.

   By requiring diligent recruitment of foster and adoptive parents who reflect the ethnic and racial diversity of children in state care, MEPA-IEP also aims to expand the pool of qualified parents who can meet the needs of children awaiting homes, including those whose specific and well-documented needs may justify an effort to achieve a same-race placement.

2. What are the differences between MEPA, as originally enacted, and the 1996 Interethnic Adoption Provisions?

   The Interethnic Adoption Provisions (IEP) make several important changes to MEPA which clarify the kinds of discriminatory placement activities that are prohibited and, as explained in Chapter 2(7)(a)(3), add sanctions under title IV-E for violations of MEPA-IEP.

   To clarify that the routine consideration of a child’s or prospective parents’s race color, or national origin is impermissible, the IEP amends the basic MEPA prohibitions as follows:

   ...neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placements may--

   1. deny to any person the opportunity to become an adoptive or foster parent, on the basis of the race, color, or national origin of the person, or of the child involved or

   2. delay or deny the placement of a child for adoption or into foster care on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved. [language deleted from original MEPA is indicated with strikeouts]

   In addition, the IEP repeals a section of MEPA that permitted agencies to determine a child’s best interests by considering, as one of a number of factors, "the child’s cultural, ethnic, and racial background and the capacity of the prospective foster or adoptive parents to meet the needs of a child from this background." The deletion of the words "categorically" and "solely" from the Act’s prohibitions and the repeal of the permissible considerations make it clear that the standard for the use of race, color, national origin in foster care and adoptive placements is strict scrutiny. Even where a placement decision is not based on a prohibited categorical consideration, other actions that delay or deny placements on the basis of race, color, or national origin are prohibited. According to the 1997 and 1998 Guidance, agencies may not routinely assume that children have needs related to their race, color, or national origin. Nor may agencies routinely evaluate the ability of prospective foster and adoptive parents to meet such needs.

   As amended by IEP, MEPA does not prohibit agencies from the nondiscriminatory consideration of a child’s cultural background and experience in making an individualized placement decision. However, the 1998 Guidance warns against the use of "culture as a proxy for race, color, or national origin." Any routine use of "cultural assessments" of children’s needs or prospective parent’s capacities would be suspect if it had the effect of circumventing the law’s prohibition against the routine consideration of race, color, national origin.

3. Can race ever be taken into consideration in making placements? When?

   On rare occasions, the distinctive needs of an individual child may warrant consideration of the child’s race, color, or national origin. Any consideration of these factors must pass the strict scrutiny test: Is it necessary to take into account the child’s needs related to race, color, or national origin in order to make a placement that serves this particular child’s best interest? If it appears that the child does have these distinctive needs, caseworkers should document their response to the following questions:

   • What are the child’s special or distinctive needs based on race, color, or national origin? Why is it in the child’s best interests to take these needs into account?

   • Can the child’s needs related to race, color, or national origin be taken into account without delaying placement and placing the child at risk of other harms?

   • Can these needs be met by a prospective foster or adoptive parent who does not share the child’s racial or ethnic background?

   • Can these needs be met only by a same race/ethnic placement? If so, is some delay justified in order to search for a parent of the same race or ethnicity, if an appropriate person is not available in the agency’s current files?

   • In a foster care placement, can the child’s special needs be taken into account without denying the child an opportunity to be cared for in a readily available foster home?

   • What are the child’s other important needs?

   Even when the facts of the particular case allow some consideration related to race, color, or national origin, this consideration should not predominate. Among other needs to be considered and typically to be given the most weight are: the child’s age, ties to siblings and other relatives, health or physical condition, educational, cognitive, and psychological needs, and cultural needs, including religious, linguistic, dietary, musical, or athletic needs. In addition, the child may have personal preferences that he or she can articulate and discuss.

   MEPA-IEP encourages child welfare workers to make decisions on the basis of the individualized needs of each child, and renders suspect any placement decision based on stereotypical thinking or untested generalizations about what children need. From now on, it should be clear that any use of race, color, or ethnicity is subject to the strict scrutiny standard of review, and that the use of racial or ethnic factors is permitted, only in exceptional circumstances where the special or distinctive needs of a child require it and where those needs can be documented or substantiated.

   Consider the following example: A six year old girl in foster care has been attending a school where she is regularly teased because of her race. She is deeply distressed about this and cries inconsolably whenever the teasing occurs. This child needs a foster parent who can enroll her in another school where the teasing is less likely to occur or can work with staff and other parents at her current school to improve the situation there. The foster parent has to help the child understand that the teasing is inappropriate and not a reaction to anything she did that was objectionable.

   While this child has a specific race-based need, the caseworker cannot assume that the only way to meet this need is through a same-race placement. It is an issue to discuss with the foster parent (or a prospective foster parent), regardless of their race. Simply being from the same racial background does not ensure that a particular individual will do any better in helping the child cope with the atmosphere in school than an individual from a different racial background.

   Consider another example: A three year old boy born in Honduras and present in this country for less than six months is suddenly removed from his parents who have allegedly beaten him. His verbal skills are age appropriate but he only speaks and understands Spanish. He needs immediate foster care, preferably in a home where Spanish is spoken. He should not be further traumatized by placing him with caregivers who cannot speak Spanish. Although this child will eventually need to learn English, his immediate needs call for finding a foster parent who speaks Spanish. It would not be appropriate to limit the search to someone from Honduras or some other Latin American country. The placement should be made on the basis of the child’s demonstrable cultural needs, and not on the basis of the child’s national origin.

4. Can state law or policy include a preference for racial or ethnic matching so long as no child or prospective parent is precluded from being considered for placement on the basis of their race, color, or national origin?

   MEPA-IEP does not allow state laws or policies to be based on blanket preferences for racial or ethnic matching. General or categorical policies that do not derive from the needs of a specific child are not consistent with the kinds of individualized decisions required by MEPA-IEP. Statutes or policies that establish orders of preference based on race, color, or ethnicity or that require caseworkers to justify departures from these preferences violate MEPA-IEP and Title VI.

5. Can agencies honor the preferences of a birth parent based on race, color, or national origin?

   Because agencies subject to MEPA-IEP may not deny or delay placements on the basis of race, color, or national origin, they cannot honor a biological parent's preferences for placing the child in a family with a similar racial or ethnic background.

6. Does MEPA-IEP prevent States from having a preference for placing a child with a relative?

   MEPA-IEP does not prohibit a preference for placing a child with relatives, if the placement is in the best interest of the child and not in conflict with the requirement that the child’s health and safety be the paramount concern in child placement decisions.

   In 1996, Congress added a section to the title IV-E State Plan requirements that States are to consider giving preference to an adult relative over a non-related foster or adoptive parent, provided that the relative meets all relevant state child protection standards. Many states include preferences for relatives in their foster care or adoptive placement statutes or administrative regulations. Nonetheless, caseworkers should not use general preferences for placing children with relatives as a device for evading MEPA-IEP. All placement decisions should be specific to the needs of the individual child.

   Generalizations about the wisdom of placing with a relative, even when a relative has not yet been located or evaluated should not necessarily result in removing a child from the child’s current placement. For example, caseworkers should exercise caution before removing a child from a stable, long-term, transracial fost-adopt home in order to make a racially-matched placement with a relative the child may have never met. To avoid this situation, caseworkers should attempt to locate all relatives who might serve as a child’s caregiver as promptly as possible whenever a child is likely to require out-of-home care.

7. Does MEPA-IEP apply to white children?

   MEPA-IEP applies to all children regardless of race or ethnicity. For example, if a worker determines an African American family can best meet the needs of a white child, denying the child that placement on account of race would be illegal.

8. How does MEPA-IEP apply to infants?

   MEPA-IEP applies regardless of the age of the child. The 1995 and 1997 Guidances suggest that the age of the child may be a factor in determining the effect of race or ethnicity on the best interest of the child. For example, an older child may have a strong sense of identity with a particular racial or ethnic community; an infant may not have developed such needs. However, the Guidances emphasize that each decision must be individualized. Further, the 1998 Guidance notes that, regardless of age, racial or ethnic factors can seldom determine where a child will be placed.

9. How should biracial/bicultural and multiracial/multicultural children be treated?

   MEPA-IEP requires that all children be treated equally, without regard to their racial or ethnic characteristics. If a child has a mixed racial ethnic heritage, that heritage does not have to be ignored when assessing the child’s needs, but it cannot become the basis for a placement decision except in those exceptional or distinctive circumstances that would apply to making a placement decision for any other child based on race, color, or national origin.

   Nevertheless, in order to comply with the Indian Child Welfare Act (ICWA), children entering the child welfare system who may have some Native American heritage should have their existing or potential tribal affiliations ascertained immediately so that ICWA notice, jurisdictional, and placement requirements can be followed. Because ICWA is not based on a child’s race as such, but on the child’s cultural and political ties to a quasi-sovereign federally recognized Indian tribe, ICWA is not affected by MEPA-IEP. This means that a child with a certain quantum of "Indian blood" may or may not be subject to ICWA. Caseworkers generally have to rely on tribal determinations whether or not the child is a tribal member or eligible for membership.

10. Does MEPA-IEP apply to private agencies and independent adoptions?

    MEPA-IEP applies to all agencies and entities receiving federal assistance directly or as a subrecipient from another entity. Agencies or entities that do not receive federal assistance are not covered by MEPA-IEP unless a federally assisted agency is also involved in their placement decisions. However, these entities may be covered by other statutes or policies prohibiting discrimination.

11. Can agencies conduct targeted recruitment?

    MEPA-IEP requires diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children who need homes. Therefore, states must develop strategies that reach the communities of these families. At the same time, states and other entities must ensure that they do not deny anyone the opportunity to adopt or foster a child on the basis of race, color or national origin.

    The 1995 federal Guidance discussed targeted recruitment efforts as part of a comprehensive strategy aimed at reaching all segments of the community. The 1995 Guidance provides that information should be disseminated to targeted communities through organizations such as churches and neighborhood centers. It further suggests agencies develop partnerships with community groups that can help spread the word about waiting children and identify and support prospective adoptive and foster parents.

    In addition, the 1998 Guidance states that targeted recruiting cannot be the exclusive means for a state to identify families for particular categories of children. For example, while a state may contract with a private agency to make public announcements in Spanish to recruit Hispanic foster and adoptive parents, the state may not rely exclusively on that private agency to place Hispanic children. Rather, in identifying a potential pool of foster or adoptive parents for a child, the state must consider individuals listed with agencies that recruit parents from all ethnic groups.

12. Do prospective adoptive parents have the right to adopt a particular child?

    Under MEPA-IEP, individuals cannot be denied an opportunity to be considered as a potential adoptive parent. They have a right to an assessment of their suitability as adoptive parents which is not based on discriminatory criteria. If accepted into the pool of qualified applicants for an agency, a state, or an interstate exchange, they have a right to be considered as a possible adoptive parent for children for whom they have expressed an interest, and whose needs they believe they can meet. However, neither they nor anyone else has an absolute right to adopt a particular child.

    When foster parents seek to adopt a child who has been in their care for a significant period of time, the child’s attachment to them and the child’s need for permanence may suggest that they are the most appropriate parents for the child. Nonetheless, this decision must be based on the agency’s and the court’s assessment of the child’s best interests and not on an alleged "right" of the foster parents to adopt this child.

13. What funds are available to implement MEPA-IEP?

    Implementation of MEPA-IEP is an administrative cost of implementing federal foster care mandates. States are entitled to claim MEPA-IEP implementation expenses as part of their administrative costs under title IV-E. Discretionary funds for innovative projects, such as recruitment programs, are also available under the Adoption Opportunities Program authorized by the Child Abuse Prevention and Treatment Act.

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