Intimacy and Racial Equality: The Limits of Antidiscrimination
R. Richard Banks
Stanford Law School
Harvard Civil Rights-Civil Liberties Law Review, Forthcoming
This Review Essay considers Randall Kennedy's engaging and provocative book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption. Kennedy mines a wide variety of historical and contemporary sources to assemble a collection of captivating and illuminating accounts of interracial intimacy from slavery to the present. Throughout, Kennedy advocates individual autonomy in racial matters, unconstrained by historical patterns, the demands of the group, or the coercion of the state.
I focus in particular on Kennedy's analysis of the issue of race and adoption, the only area in which state policy about interracial intimacy remains unsettled. Kennedy identifies two distinct forms of racial discrimination that pervade the adoption process. Social workers match children to parents on the basis of race (a practice known as race matching), and adoptive parents select children on the basis of race. Kennedy would prohibit the use of race by social workers, but not by adoptive parents. He distinguishes these two forms of discrimination on both substantive and pragmatic grounds. He views the use of race by social workers as illegitimate state discrimination, and by adoptive parents as a morally justifiable assertion of individual autonomy. Moreover, he argues that as a practical matter, the interests of children are best served by permitting discrimination by adoptive parents yet prohibiting discrimination by social workers.
While I do not find particularly compelling Kennedy's substantive justification for permitting adoptive parents to discriminate racially, I share the substantive bases of his opposition to racial discrimination by social workers. Kennedy correctly terms race matching a form of "superstition." However, Kennedy's single-minded emphasis on ending race matching by social workers unjustifiably sleights the pragmatic considerations central to his rejection of prohibition of parental preferences. The same sorts of pragmatic concerns that weigh against prohibition of discrimination by adoptive parents also counsel caution in efforts to eliminate discrimination by social workers. In both cases, vigorous enforcement of the antidiscrimination principle might not meaningfully benefit children. Given the uncertain practical benefits of attempting to rid the adoption process of either type of discrimination, efforts to aid children should consider a variety of alternative means of furthering their interests.
Number of Pages in PDF File: 24
Keywords: Family Law, Public Law, and Antidiscrimination
Date posted: August 7, 2003