During the spring of 1995, the Institute for Justice filed a class action lawsuit in Austin, Texas, challenging the state's practice of "racematching" in adoption placements. The Institute, a public interest law firm, represented Lou Ann and Scott Mullen, veteran foster parents who had tried to adopt their foster son Matthew and his brother Joseph. Despite a state statute forbidding social workers from using race to delay, deny, or otherwise discriminate in adoption, the Texas Department of Protective and Regulatory Services (DPRS) refused to let the Mullens adopt the boys.

The lawsuit arose after the Mullens had been consistently rejected as adoptive parents to then-two-year-old Matthew, an African American boy that they had raised since birth. Scott Mullen is white and Lou Ann is Native American. They had reared children of all races, the majority of whom are black. After the Mullens' futile requests to adopt Matthew, DPRS removed him from the Mullens' home. They placed him in an African American home, where his brother Joseph had also been placed after removal from a different foster home. Within several weeks, the adoptive family rejected the boys, returning them to DPRS custody. DPRS immediately placed the boys in another African American home, this time only as a foster placement--despite the fact that the Mullens had clearly expressed their desire to adopt. At that point, teamed with Harvard law professors Elizabeth Bartholet,1 Randall Kennedy, and Laurence Tribe, the Institute for Justice stepped in.

After investigating the Mullens' case and the state of interracial adoption generally in Texas, we filed a class action alleging that DPRS' racematching practices violate the equal protection guarantees of the U.S. Constitution and the Constitution of Texas. The lawsuit did not seek an order granting the Mullens' adoption. Because Matthew and Joseph and the proposed class of minority children awaiting adoption are all minors, the Mullens agreed to act as "next friends" of the minor plaintiffs. Since the Institute also sought enforcement of the state's adoption anti-discrimination statute, we had to file the case in state court. Within days after the Institute filed suit, DPRS experienced a "litigation revelation," withdrawing its prior resistance to the Mullens and allowing them to adopt Matthew and Joseph. The Mullens nevertheless insisted on forging ahead with the class action "so that no other children have to go through what Matthew and Joseph have been through."

In early 1996, Judge Scott McCown of the Travis County District Court in Austin held hearings on our motion for class certification. From the time of our first appearance before him, it was clear that although this judge seemed smart, he could not contain his bias toward the Institute. And indeed, his ruling denying class certification beautifully demonstrates the point.

At the first class certification hearing, Judge McCown stated he had no trouble finding that the Institute had satisfied the first three elements for certification (numerosity, commonality, and typicality), but he was troubled by the claims of representational adequacy. He asked the parties for further briefing on the issue. IJ took that opportunity to propose in addition to the Mullens as next friends, a "committee of next friends," which included individuals who have adopted interracially or who have tried unsuccessfully to do so. Our proposed committee included Dr. Harris Hopkins and his wife, African American parents whom DPRS rejected for the adoption of three Hispanic foster children, despite the fact that the Hopkins' were recognized as "Adoptive Parents of the Year."

During oral argument, the court stated that it had "no doubt" that DPRS has used race improperly in adoption placements, and that it probably continues to do so. Judge McCown nevertheless denied class certification in a hostile twelve page opinion, relying on two bases: the Mullens' adequacy and the adequacy of the Institute for Justice. First, the Judge declared the Mullens inadequate representatives of the plaintiff class. Although the Mullens have an outstanding record of caring for children of all races, ages, and special needs, the racial composition of the proposed class led Judge McCown to conclude that the Mullens cannot "see or explain the point of view of African-American and Mexican-American children who have been taken from their parents and are awaiting adoption." The court rejected the next friends committee outright, finding them "more of the same sort of person" as the Mullens. Even the African American Dr. Hopkins was rejected by the court as "more of the same."

This rationale astounds, given that the issue at the heart of the case is whether racial classification inherently assures one's ability or inability to speak for the best interest of a child. Although Judge McCown claimed not to know the answer as it pertains to the merits of this case, he certainly pontificated about it in his ruling on adequate representation.

Judge McCown also aimed and fired squarely at the Institute for Justice. He characterized the Institute's libertarian mission of both restricting the power of the regulatory welfare state, and demonstrating the negative and harmful effects of racial classifications, as a "serious conflict of interest with the class." He declared that "the Institute is not concerned about minority children, it is concerned about minority classifications . . . . These [lawyers] are `cause' lawyers and their cause is not abused and neglected minority children." That is, because the Institute espouses different views of the morality and legality of racial classifications--and one, incidentally, anathema to Judge McCown's2--it cannot possibly represent the best interests of non-white children.

Currently the ruling stands. Because of a recent change in the state's adoption law, the plaintiffs did not take an interlocutory appeal. With class certification denied, however, plaintiffs will proceed to trial on their individual claims, namely for a declaration that the harm they suffered violated equal protection and for an injunction that DPRS discontinue racematching.

The case in Texas exemplifies the Institute's nationwide efforts to eliminate racematching in adoption, a practice that leaves minority children languishing in foster care twice as long, on average, than their white peers, who more readily find adoptive homes. This, despite the fact that all the empirical evidence on interracial adoptees shows that these individuals grow up to be well-adjusted individuals with a healthy sense of racial identity and self-esteem. Significantly, no empirical research demonstrates that interracial adoption results in any type of psychological or emotional harm to the adoptees, despite strong and militant opposition to the practice. As Harvard law professor Randall Kennedy noted, "What parentless children need are not `white,' `black,' `yellow,' `brown,' or `red' parents but loving parents."


   1. Professor Bartholet has authored the most thorough investigation of racematching nationwide, including cogent analysis of the constitutionality of the practice. See "Where Do Black Children Belong? The Politics of Racematching in Adoption," 139 U. Pa. L. Rev. 1163 (1991) and a shorter, more recent version of the same title in Reconstruction, v. 4, pp. 22-53 (1992).
   2. Judge McCown delivered his coup de grace in the last paragraph of what we can aptly refer to as his opinion: "The court is convinced that if the plaintiff class members had the capacity to act in their own interest, they would strongly object to these next friends and these lawyers. Imposing these next friends and lawyers upon them would deny the class due process and perhaps ultimately justice itself." Apparently, although himself a white man, and contrary to his findings about the adequacy of the Mullens, Judge McCown is able to speak for what African-American and Mexican-American children would want.

Donna G. Matias is a staff attorney at the Institute for Justice, a Washington, D.C.-based public interest law firm.