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The Difference Difference Makes: Justine Wise Polier and Religious Matching in Twentieth-Century Child Adoption

Published online by Cambridge University Press:  18 June 2018

Ellen Herman
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Extract

During much of the twentieth Century, adoption has relied on the paradoxical theory that differences are managed best by denying their existence. According to the “matching” paradigm that has governed modern adoption, adults who acquire children born to others must look, feel, and behave as if they had given birth themselves. In spite of intensive efforts to erase distinction, distinction endures as an obvious characteristic of kinship outside of blood. The fact that adoption is a different way to make a family has profoundly shaped popular attitudes and professional policies. The fact that adoptive families are “made up” is surely one of the most interesting and important things about how such families come to be.

Type
Research Article
Information
Religion and American Culture , Volume 10 , Issue 1 , Winter 2000 , pp. 57 - 98
Copyright
Copyright © Center for the Study of Religion and American Culture 2000

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References

Notes

1. There has been relatively little historical writing on modern adoption because crucial documents—case records—have been legally inaccessible. One recent exception is Carp, E. Wayne, Family Matters: Secrecy and Disdosure in the History of Adoption (Cambridge: Harvard University Press, 1998)Google Scholar, which focuses on the politics of information rather than the problem of difference. In contrast, difference has been a central, controversial issue in perspectives on adoption written by legal analysts, social scientists, journalists, and participants. For example, see: Bartholet, Elizabeth, Family Bonds: Adoption and the Politics of Parenting (Boston: Houghton Mifflin, 1993)Google Scholar; Bates, J. Douglas, Gift Children: A Story of Race, Family, and Adoption in a Divided America (New York: Ticknor and Fields, 1993)Google Scholar; Kirk, H. David, Shared Fate: A Theory of Adoption and Mental Health (New York: Free Press of Glencoe, 1964)Google Scholar; Loux, Ann Kimble, The Limits of Hope: An Adoptive Mother's Story (Charlottesville: University Press of Virginia, 1997)Google Scholar; Modell, Judith S., Kinship with Strangers: Adoption and Interpretations of Kinship in American Culture (Berkeley: University of California Press, 1994)Google Scholar; and Wegar, Katarina, Adoption, Identity, and Kinship: The Debate over Sealed Birth Records (New Haven: Yale University Press, 1997)Google Scholar. On the process of self-construction, see Hacking, Ian, “Making Up People,” in Reconstructing Individualism: Autonomy, Individuality, and the Seif in Western Thought, ed. Heller, Thomas C., Sosna, Morton, and Wellbery, David E. (Stanford, Calif.: Stanford University Press, 1986), 222-36Google Scholar.

2. See Louise Waterman Wise, “Mothers in Name,” Survey 43 (March 20,1920): 779-80.

3. Fragment of letter from Polier's mother, Louise Wise, probably in 1917, Justine Wise Polier Papers [hereafter JWP], Schlesinger Library, Radcliffe College, box 20, folder 233, “Children lost, 1963-77.”

4. Justine Wise Polier to Riki Kosut, October 13, 1978, JWP, box 33, folder 417.

5. See Rachel Nash, “Justine Wise Polier: The Conscience of the Juvenile Court” (B.A. thesis, Harvard College, 1998), 123, citing a telephone interview with Polier 's son, Stephen Wise Tulin.

6. Justine Wise Polier quoted in Dennis R. Young, revised draft of a case study of Louise Wise Services (LWS) (January 1980), 5, JWP, box 33, folder 418.

7. Leslie Dunbar's remarks at Polier's memorial service, August 2, 1987, in my possession. My thanks to Rachel Nash for locating this document for me.

8. Transcript of oral history conducted by Thomas F. Soapes on September 14,1977, for the Franklin D. Roosevelt Library, JWP, box 1, folder 2.

9. Justine described Shad as “marvelously understanding and supportive of my work” and recalled that “we were always working together on all sorts of issues, in addition to our life with our children.” Gilbert, Lynn and Moore, Gaylen, Particular Passions: Talks with Women Who Have Shaped Our Times (New York: Clarkson N. Potter, 1981), 124-25Google Scholar.

Shad Polier was Justine's second husband. Her first was Lee Tulin, a professor of criminal law at Yale Law School whom she married while a Student there. Tulin died of leukemia in 1932, just a few years after their first child, Stephen Wise Tulin, was born. Justine and Shad had two more children, Jonathan Wise Polier and Trudy Festinger. Her daughter, Trudy, went on to become a significant child welfare advocate and adoption researcher in her own right.

10. Horace Kallen to Mr. [Morris B.] Abram, January 19, 1973, JWP, box 1, folder 6.

11. “A Battling Judge Retires to Aid Minority Children,’ New York Times, February 3, 1973, JWP, box 1, folder 6; Gilbert and Moore, Particular Passions, 121; Justine Wise Polier to Mitchell I. Ginsberg, January 29, 1973, JWP, box 1, folder 6. The Children's Defense Fund was founded in 1973.

12. Freedman, Estelle B., Maternal Justice: Miriam Van Waters and the Female Reform Tradition, 1887-1974 (Chicago: University of Chicago Press, 1996)Google Scholar; transcript of oral history done for the Columbia University Oral History Collection, 3-4, JWP, box 1, folder 3.

13. Nash, “Justine Wise Polier,”

14. Wise, “Mothers in Name,” 780; “Jurist to Preside at Happy Meeting,” New York Times, June 5, 1955, JWP, box 1, folder 12.

15. The overhaul of the adoption process since the late 1960's has often featured reinterpretation of “enlightened” policies as corrupt and deceitful. This pattern is illustrated by an LWS case that has recently received national attention. Baby Michael was adopted in 1965 and died in 1994, after repeated suicide attempts. Both of his birthparents had been mental patients, but, in 1965, nurture was considered much more important than nature, and LWS did not share this fact with the couple who adopted him. In 1991, the family sued LWS for “wrongful adoption,” the first such case in New York. See Lisa Belkin, “What the Jumans Didn't Know about Michael,” New York Times Magazine, March 14, 1999, 42–19.

16. As late as the 1960's, LWS Director Florence Brown was still trying to get rabbis to encourage the adoption of mixed-race Jewish babies, but she knew it was an uphill battle. “It was unfortunate that these children, who technically are Jewish, could not remain Jewish.” Florence Brown to Justine W. Polier, April 9, 1965, JWP, box 33, folder 415. Statistical reports show that, between 1953 and 1960, LWS succeeded in placing very few children of Jewish mothers and Negro fathers in Jewish homes. It was only a little more successful in finding Jewish adopters for the children of Jewish mothers and Puerto Rican or “Asiatic” fathers. See “MOTHERS—White Jewish,” Shad Polier Papers [hereafter SP], American Jewish Historical Society, Waltham, Massachusetts, and New York, New York, box 1, folder: “Torres, background information.” Even in the case of Puerto Rican fathers, LWS found that Jewish couples would not accept the children. Carl Schoenberg to Shad Polier, September 27, 1963, SP, box 7, folder: “Adoption Legislation, 1965, Louise Wise Services.”

17. By 1978, LWS estimated that 84 percent of the children it served were nonwhite. “DRAFT, Louise Wise Services—It's History of Change,” dated 1978, JWP, box 18, folder 208; “Background Material on Louise Wise Services,” January 29, 1974, JWP, box 33, folder 417.

18. See Hollinger, Joan H., “Introduction to Adoption Law and Practice,” in Adoption Law and Practice, vol. 1, ed. Hollinger, Joan H. (New York: Matthew Bender, 1994), 24–47.Google Scholar

19. Boston Pilot, July 19, 1851, quoted in Walton, Susan S., To Preserve the Faith: Catholic Charities in Boston, 1870-1930 (New York: Garland Publishing, 1993), 48 Google Scholar; O'Grady, John, Catholic Charities in the United States: History and Problems (Washington, D.C: National Conference of Catholic Charities, 1930), 420 Google Scholar.

20. See Francis E. Lane, “American Charities and the Child of the Immigrant: A Study of Typical Child Caring Institutions in New York and Massachusetts between the Years 1845 and 1880” (Ph.D. diss., Catholic University, 1932), esp. chap. 7 (repr., New York: Arno Press, 1974).

21. See V. Rev. James Sullivan, “Instinational Care of Children,” Proceedings, First National Conference of Catholic Charities (September 25-28,1910): 285.

22. O'Grady, Catholic Charities in the United States, 435.

23. Boston Pilot, October 26, 1850, quoted in Walton, To Preserve the Faith, 46; Sixteenth Report of the St. Vincent de Paul Society, quoted in Lane, “American Charities and the Child of the Immigrant,” 126.

24. See Walton, To Preserve the Faith, 66-69. Internal divisions and fiercely local loyalties are also stressed in Oates, Mary J., The Catholic Philanthropie Tradition in America (Bloomington: Indiana University Press, 1995)Google Scholar.

25. See Weisbrod, Carol, “Family, Church, and State: An Essay on Constitutionalism and Religious Authority,” Journal of Family Law 26, no. 4 (1987-1988): 741-70Google Scholar. Weisbrod argues that the history of American pluralism has been “filled with competing sovereignties and sources of law” in which “religious groups may view themselves as a source of authority at least equal to the State” (745).

26. Justine Wise Polier to Lawrence B. Buttenweiser, January 29, 1974, JWP, box 21, folder 254; Gilbert and Moore, Particular Passions, 122.

27. Edmond J. Butler, “Standards of Child Pladng and Supervision,” in U.S. Children's Bureau, Standards of Child Weifare: A Report of the Children's Bureau Conferences, May and June 1919, Conference Series No. 1, Bureau Publication No. 60 (Washington, D.C.: Government Printing Office, 1919), 356. Butler was Executive Secretary of the Catholic Home Bureau in New York.

28. See Ellen Herman, “The Radical Rationalization of Modern Adoption,” unpublished MS, partially presented as “Making Adoption Modern: The Child Weifare League of America and the Standardization of Kinship Design, 1915,” American Society for Legal History, Seattle Washington, October 1998.

29. See “Religious Weifare of Children in Family Homes,” Catholic Charities Review 6 (September 1922): 222.

30. See Brian Paul Gill, “The Jurisprudence of Good Parenting: The Selection of Adoptive Parents, 1894-1964” (Ph.D. diss., University of California, Berkeley, 1997), chap. 3. Gill offers an insightful analysis of how the rationale for religious matching evolved from compatibility to sameness. He found no evidence that the contract-like “promises to perform” were ever legally enforced.

31. See Parker, Ida R., “Adoption,” Social Work Year Book 2 (New York: Russell Sage Foundation, 1933), 24 Google Scholar. By the early 1950's, more than forty states had passed laws mandating a social investigation. See Getz, Clyde, “Adoption,” Social Work Year Book 12 (New York: American Association of Social Workers, 1954), 26–27 Google Scholar.

32. “Minimum Standards for Boarding and. Permanent Homes,” Children's Bureau, State Board of Control, St. Paul, Minn., adopted September 2, 1924, 12, Child Weifare League of America Papers [hereafter CWLA], Social Weifare History Archives, University of Minnesota (SW55), box 44, folder 4.

33. U.S. Children's Bureau, The Work of Child-Placing Agencies, Bureau Publication No. 171 (Washington, D.C.: Government Printing Office, 1927), 64-65.

34. Gill, “The Jurisprudence of Good Parenting,” chaps. 2-4.

35. The phrase “when practicable” was typically included in State laws.

36. Purinton v. Jamrock (1907) 195 Massachusetts Reports 199.

37. See Walton, To Preserve the Faith, 56.

38. Ibid., 130.

39. Matter of Korte (1912) 78 Miscellaneous Reports New York 278, 280.

40. Matter of Vardinakis (1936) 160 Miscellaneous Reports New York 17.

41. “Court Splits Up Faith-Torn Family,’ New York Times, August 19, 1936, JWP, box 1, folder 10.

42. Newspaper quoted in transcript of oral history done for the Columbia University Oral History Collection, 15, JWP, box 1, folder 3. Polier also relates this story in Polier, Justine Wise, Juvenile Justice in Double Jeopardy: The Distanced Community and Vengeful Retribution (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1989), 131 Google Scholar.

43. A Campaign of Calumny: The New York Charities Investigation (New York: America Press, 1916), 66.

44. Examples include Matter of Santos (1951) 278 Appellate Division Reports, Supreme Court New York 373; Matter of Santos (1951) 279 Appellate Division, Supreme Court New York 578; Matter of Santos (1951) 304 Court of Appeals New York 483; Petition of Goldman (1954) 331 Massachusetts Reports 647; Ellis v. McCoy (1955) 332 Massachusetts 254; Ellis v. Doherty (1956) 332 Massachusetts 466. The Santos case involved the adoption of two older sisters who were believed to be Jewish but later turned out to have been baptized as infants. The Goldman and Ellis cases both involved the knowing adoption of infants born to Catholic birth mothers.

Cases like the Goldman case cited above, in which Catholic birth mothers explicitly and voluntarily agreed to transreligious placements, prompted the church to modify its earlier position that parental rights to determine children's religion were absolute. In the 1950's, the church intervened in a number of cases to oppose Catholic birth parents who freely chose to ignore the matching mandate. For example, see Cooper v. Hinrichs (1957) 10 Illinois Reports 2d Series 269; Matter of Maxwell (1958) 4 New York Reports 2d Series 429.

45. “DRAFT”: “A Memorandum Concerning Child Adoption across Religious Lines: Background for Discussion of a Policy for Jewish Religious Bodies and Jewish Community Relations Agencies, Based on Presentations by Judge Justine Wise Polier and Florence Brown at a Meeting of the Executive Committee of the National Community Relations Advisory Council,” 2, JWP, box 18, folder 207. See the final version of this document in Jewish Community Relations Council of Greater Boston Records [hereafter JCRCGB], American Jewish Historical Society, Waltham, Massachusetts, and New York, New York, box 42, folder: “Adoption, 8/55-12/55.”

46. See Jessie P Condit to Ellen Potter, November 25,1941, U.S. Children's Bureau Papers [hereafter USCB], box 165, folder: 7-3-1-1; Ruth Brenner to Mary Ruth Colby, June 25, 1942, and Ruth Brenner to Mary Ruth Colby, July 23, 1942, USCB, box 169, folder 7-3-3-4; Mary Ruth Colby to Howard Hopkirk, November 5, 1942, USCB, box 169, folder 7-3-3-4; and Alan Kohn, “Demand for Babies to Adopt Far Exceeds Small Supply,” National Jewish Post, August 19, 1955, JCRCGB, box 42, folder: “Adoption 8/55-12/55.”

47. Wise, “Mothers in Name,’ 780; Justine Wise Polier, quoted in Dennis R. Young, revised draft of a case study of LWS (January 1980), 3, JWP, box 33, folder 418; Boston Children's Aid Society, Fifty-First Annual Report, 1915, 13, Simmons College Archives, Charities Collection (see also Minnie F. Low to Julia Lathrop, June 3,1921, USCB, box 211, folder: 7-3-4-2).

48. See undated note about Orthodox Jewish attacks on adoption, JWP, box 18, folder 207; and Duker, Abraham G., “Jewish Attitudes to Child Adoption,’ in A Study of Adoption Practice, vol. 2, ed. Schapiro, Michael (New York: Child Weifare League of America, 1956), 134-50Google Scholar.

49. Quoted in “Conversion-by-the-Sword Immoral in all Adoptions,” Pilot (July 6,1955), in JCRCGB, box 42, folder: “Adoption, 1/55-7/55.”

50. See “DRAFT”: “A Memorandum Concerning Child Adoption across Religious Lines,” 2-3; Mary Beth Weinstein, “The Markets—Black and Gray—in Babies,” New York Times Magazine, November 27, 1955, 16; Sheila K. Johnson, “The Business in Babies,” New York Times Magazine, August 17, 1975, 11, 62; and Düker, “Jewish Attitudes to Child Adoption,” 134-50.

51. See fragment describing 1956 case of L.D., JWP, box 28, folder 356. The record does not indicate how this case was resolved.

52. Polier, Justine Wise, “Adoption and Law,” Pediatrics 20 (August 1957): 374 Google Scholar.

53. She told this story repeatedly. See, for example, “Adoption II,” 1-2, JWP, box 18, folder 207; “Adoption Black Practices Must Be Outlawed,” Annual Meeting of Spence-Chapin Adoption Service, January 9,1947, 5, JWP, box 45, folder 558; and untitled draft describing risks of commercial adoption, August 1947, JWP, box 45, folder 558.

54. For a critique of professional apathy, alienation, and retreat from public commitments that came late in her life, see “Professional Abuse of Children,” American Orthopsychiatric Association, 52nd Annual Meeting, March 22, 1975, JWP, box 47, folder 591.

55. For example, see her defense of matching for intelligence and appearance in “Adoption I,” 2-3, n.d. but probably 1947, JWP, box 18, folder 60.

56. Polier, Justine Wise, “Attitudes and Contradictions in Our Culture,” Child Welfare 39 (November 1960): 1–7 Google Scholar.

57. Polier, “Professional Abuse of Children,’ 2.

58. “Memorandum on Rules of Judge and Probation Department in Adoption Cases in the Family Court,” attached to letter to Hon. Florence M. Kelley, September 4, 1963, 2, JWP, box 46, folder 574. This document can also be found in SP, box 7, folder: “Adoption Legislation, 1964, Louise Wise Services.”

59. Polier, Justine Wise, “Religion and Child-Care Services,” Social Service Review 30 (June 1956): 135 Google Scholar.

60. See Arno Dosch, “Not Enough Babies to Go Around,” Cosmopolitan, September 1910, 434. Polier referred to a System early in the Century that designated foundlings as either Catholic or Protestant depending upon the time of day they were picked up, but I have been unable to verify the truthfulness of this claim. See “DRAFT, Louise Wise Services—It's History of Change,” 1.

61. Excerpts from “Procedure on Foundlings and Abandoned Children,” attached to letter from Department of Weifare, Henry L. McCarthy to Maurice Hexter (Federation of Jewish Philanthropies), November 16, 1951, JWP, box 28, folder 357.

62. “Memorandum on Religious Allocation of Foundlings in New York City,” January 29, 1951, 3, JWP, box 45, folder 562.

63. Ibid.

64. Samuel Schneierson and Herman Block (of the Jewish Child Care Association) to Maurice B. Hexter (of the Federation of Jewish Philanthropies), January 3, 1951, 2, JWP, box 28, folder 357; memo from Florence Brown to Judge Polier, October 25,1950, JWP, box 28, folder 357.

65. “Memorandum on Religious Allocation of Foundlings in New York City,” 4.

66. It is unclear from the record whether it was Polier, her mother, or both who heard this comment. David Petegorsky (Director, American Jewish Congress) to Rabbi Joseph Soloveitchik, December 13, 1950, 2, JWP, box 28, folder 357, implies that it was Polier herself. “Memorandum on Religious Allocation of Foundlings in New York City,” 4, documents her mother reporting a similar comment by an unnamed public official. “DRAFT, Louise Wise Services—It's History of Change,” 1, also reports that Commissioner McDonald made the comment to Louise Waterman Wise.

67. Memo from Florence Brown to Judge Polier, October 25, 1950, JWP, box 28, folder 357.

68. “Memorandum on Religious Allocation of Foundlings in New York City,” 4.

69. See Rabbi Joseph Soloveitchik to David Petegorsky, December 30, 1950, JWP, box 28, folder 357. Not surprisingly, Polier sought and obtained approval from liberal rabbis. Orthodox rabbis, however, were “practically unanimouse [sic] in their view that the adoption of non-Jewish children by Jews is strictly against Jewish Law.” See Kohn, “Demand for Babies to Adopt Far Exceeds Small Supply.”

70. “Memorandum on Religious Allocation of Foundlings in New York City,” 5; memo from Florence Brown to Judge Polier, November 29, 1950, JWP, box 28, folder 357.

71. Excerpts from “Procedure on Foundlings and Abandoned Children,” attached to letter from McCarthy to Hexter. See also Crystal M. Potter memo, February 27, 1952, SP, box 1, folder: “Matter of Torres, Children's records.”

72. Minutes of the Meeting of the Functional Committee on Family and Children's Services, December 8, 1950, JWP, box 28, folder 357.

73. “Memorandum on Religious Allocation of Foundlings in New York City,” 6.

74. Justine Wise Polier quoted in Dennis R. Young, revised draft of a case study of LWS (January 1980), 18, JWP, box 33, folder 418. Polier also reports that, following the foundling controversy, “4 very dark foundlings were assigned” to LWS. “DRAFT, Louise Wise Services—It's History of Change,” 2.

75. See Shad Polier to Maximilian Moss, March 29, 1960, 2, SP, box 1, folder: “Matter of Norma Torres, correspondence, 1960-1962.”

76. Memo from Gerda Sacks to Mrs. Brown, August 22, 1960, SP, box 1, folder: “Matter of Torres, court documents.” This memo discusses a foundling initially designated as “Jewish” whose Puerto Rican birth mother was found one month later. Because the mother was Catholic, the baby's religion was changed, he was removed from a Jewish agency, and he was transferred to a Catholic Institution whose staff doubted whether the baby could be placed.

77. “Report of Foundling,” Certin'cate No. 156-59-644920, July 1, 1959, and City of New York, Department of Weif are, Bureau of Child Weifare, “Allocation Referral to Child Care Agency,” January 21, 1959, SP, box 1, folder: “Matter of Torres, Children's records.”

78. Memo from Florence Brown to Mr. Polier, January 15, 1960, 1, SP, box 1, folder: “Matter of Norma Torres, correspondence, 1960-1962.”

79. LWS, “Report on Norma Forges—(Torres),” June 29, 1961, SP, box 1, folder: “Matter of Norma Torres, correspondence, 1960-1962”; memo from Brown to Mr. Polier, January 15, 1960, 6; memo from Florence Brown to Shad Polier, March 18, 1960, 2, SP, box 1, folder: “Matter of Norma Torres, correspondence, 1960-1962.”

80. Note attached to memo from Brown to Mr. Polier, January 15, 1960; Shad Polier to Florence Brown, October 23, 1962, 2, SP, box 1, folder: “Matter of Norma Torres, correspondence, 1960-1962.”

81. See John Wicklein, “Religious Rule on Adoption Bars Many Couples in State,” New York Times, October 11, 1959, JCRCGB, box 42, folder: “Adoption 1958”; and Shad Polier letter, December 28, 1959, 4, JCRCGB, box 42, folder: “Adoption 1958.”

82. See “FOUNDLINGS, 1952-1960,” SP, box 1, folder: “Torres, background information.”

83. Memo from Brown to Shad Polier, March 18,1960, 2.

84. Rabbi Herschel Levin to Justine Wise Polier, March 17, 1965, JWP, box 33, folder 415.

85. See “Contributions from Federation, July 1969-June 1976,” JWP, box 33, folder 417; and “Memorandum on Louise Wise Services,” 1978, 8, 11, JWP, box 18, folder 208. By 1978-1979, LWS was receiving less than $60,000 from the Federation out of a total budget of almost $2 million.

86. Memo from Florence Brown to Justine Wise Polier, April 6,1965, JWP, box 33, folder 415. LWS described itself as “a maverick group” and acknowledged that “it has taken controversial positions on matters of principle which have caused irritation and anger among some establishment leaders.” See “Memorandum on Louise Wise Services,” 1978, 7.

87. Justine Polier to John Haynes Holmes (Minister of the Community Church of New York), April 29,1941,1, JWP, box 28, folder 356.

88. For example, consider the case of eleven-year-old Barbara Porr from the mid-1950's. Barbara was committed to a nonsectarian agency by Polier, where she received appropriate Services that Polier did not believe were available elsewhere. Because this was an out-of-religion placement—Barbara and her mother had both been baptized—the city requested an explanation from Polier as to why the girl had not been sent to a Catholic Institution, asked Catholic Charities to approve Barbara's placement before it would accept Polier's decision, and withheld reimbursement to the nonsectarian agency in question, Leake and Watts Children's Home. Polier was outraged by the display of religious control over allegedly public Services, all the more so because Barbara's mother wanted her daughter placed at Leake and Watts where, ironically, the girl received far more Catholic religious instruction than she ever had at home. Polier was also disturbed by the violation of confidentiality of court records evident in this case. See Justine Wise Polier to Shad Polier, July 30, 1956; Justine Wise Polier to Henry McCarthy, July 30, 1956; Memorandum: Re: Barbara Porr, July 24,1956; note dated April 4,1956; James Dumpson to Justine Wise Polier, June 19, 1956; all found in SP, box 7, folder: “Child Adoption Placement, correspondence.”

89. Memorandum to the Mayor, July 19, 1938, “New York Facilities for Colored Children,” JWP, box 22, folder 256. This document contains data on the racial gap in children's Services for both institutional and family placements.

90. Case cited in Nash, “Justine Wise Polier,” 67.

91. Justine Wise Polier to James R. Dumpson, July 7,1959, JWP, box 22, folder 259 (see also memo and court transcript on this case in JWP, box 19, folder 228); memorandum to the Mayor, July 19, 1938, “New York Facilities for Colored Children,” 3, JWP, box 22, folder 258. For examples of cases in which Negro children were deemed unplaceable, see “Cases in the Manhattan Children's Court—7/5/38-7/18/38, JWP, box 22, folder 256. For a statistical profile of the shortage of Services to nonwhite children, see Weifare Council of New York City, “Memorandum: Care of New York City Children Away from Their Own Homes,” March 19, 1939, esp. 11, JWP, box 19, folder 218.

92. See Margaret Robinson to Judge Polier, December 14, 1966, JWP, box 19, folder 228; and W. Holliday to Judge Justine W. Polier, December 14, 1966, JWP, box 19, folder 228.

93. See New York City Commission for the Foster Care of Children, Staff Statement on Proposed Adoption Service in the Department of Weifare, January 7,1955, JWP, box 18, folder 207.

94. Polier, “Religion and Child-Care Services,” 134.

95. Memo from Justine Wise Polier to Alvin Schorr, March 18, 1975, JWP, box 22, folder 255. The minutes of the meeting at which the proposed new public Service was discussed reveals that Catholic officials, who knew that the new adoption unit would be concerned chiefly with nonwhite chil-dren, were opposed to the possibility that any white Catholic children might be included in the Service. See Regular Meeting of the New York City Commission for the Foster Care of Children, February 24, 1955, 5, JWP, box 18, folder 207.

96. Rev. John J. Lennon, “Private Child Care Facilities as a Part of the Pattern of American Community Life,’ Catholic Charities Review 33 (January 1949): 5.

97. Untitled document, dated 1938?, about the racial discrimination practiced by sectarian child-caring agencies, JWP, box 22, folder 256; Confidential, “Summary of Discussion at Home of Mr. Walter Frank on Monday, May 27,1940,” JWP, box 22, folder 257; Justine Wise Polier to Mrs. Lash and a list of others, May 11, 1951, JWP, box 22, folder 259; “Meeting to Discuss Possible Community Action Regarding Increased Foster Care Provisions,” May 23, 1951, SP, box 8, “Racial Discrimination in Placement of Children.”

98. See City of New York, “Report on the Enforcement of the Race Discrimination Amendment by Division of Child Weifare, Department of Public Weifare,” attached to letter dated October 14, 1942, JWP, box 22, folder 258.

99. See “The Placement of Negro Children by Protestant ChildCaring Agencies, 1940-1951,” January 8,1952, JWP, box 22, folder 259.

100. Regular Meeting of the New York City Commission for the Foster Care of Children, February 24,1955, 6; “Proposal of the Advisory Committee to the Division of Foster Home Care for Adoption Service in the Department of Weifare,’ November 1954, 1, JWP, box 18, folder 207; press release from New York Department of Weifare announcing the first placement by the city's first public adoption program, January 15, 1957, 1, JWP, box 18, folder 206.

101. The other original plaintiffs were Rosemary Allette, Karen Davis, Thomas Edwards, Sharlene McQueen, and Sharon Rodwell. Several other child plaintiffs were added later in the suit: Barry Parker, Robin Herbert, Shedrick Roberts, and Christopher Torian. Kenneth Clark, Richard Cloward, Mildred Davis, and Howard Moody—all prominent figures involved in social welfare and civil rights causes—also joined the children as plaintiffs. They challenged the constitutionality of the expenditure of public funds in their capacity as taxpayers. (My thanks to Martin Guggenheim for locating the original complaint for me.)

102. Memo from Polier to Schorr, March 18, 1975, 1.

103. There is quite a bit of literature on this important case. One of the best Single overviews was written by an attorney who was involved in the case at the very beginning but dropped out shortly afterward. See Martin Guggenheim, “The Second Circuit Review—1988-1989 Term: First Amendment: State-Supported Foster Care: The Interplay between the Prohibition of Establishing Religion and the Free Exercise Rights of Parents and Children: Wilder v. Bernstein,’ Brooklyn Law Review 56 (Summer 1990): 603.

104. See Wilder v. Sugarman (1974) 385 F. Supp. 1013 [Wilder I]; Wilder v. Sugarman (1977) 73 Civ. 2644; Wilder v. Bernstein (1980) 499 F. Supp. 980 [Wilder II]; Wilder v. Bernstein (1986) 645 F. Supp. 1292 [Wilder III]; Wilder v. Bernstein (1988) 848 F. 2d 1338 [final appeal].

105. The power to withdraw their Services was signifkant, and private sectarian agencies made it clear early on that they did not appreciate the “adversary atmosphere” or “massive uncertainty” that the case had generated. They suggested, in no uncertain terms, that it would be “unrealistic and imprudent” for the city to imagine that it could adequately provide for the thousands of children in foster care. See “Statement of Concerns of Voluntary Child Caring Agencies for Meeting with His Honor, the Mayor,” February 10, 1975,1-2, JWP, box 22, folder 255.

106. Wilder v. Bernstein (1986) 645 F. Supp. 1305. The terms of the settlement, as well as detailed discussion of them, can be found here.

107. Wilder has recently reappeared in court. In 1993, the plaintiffs, represented by the ACLU Children's Rights Project, charged the city with circumventing Wilder's placement framework in its kinship care program. See Deborah Pines, “Panel Extends Foster Children Benefits Decree,” New York Law Journal 213, no. 36 (February 24,1995): 1, 4; and Wilder v. Bernstein 78 Civ. 957.

108. For example, see Justine Wise Polier to Rabbi Arthur Hertzberg, July 25,1973, JWP, box 21, folder 251.

109. See Justine Wise Polier Statement to the Executive Board of the Federation of Jewish Philanthropies, JWP, box 21, folder 254.

110. Federation of Jewish Philanthropies of New York, memo from Ad Hoc Committee on the Role of Federation in the Wilder v. Sugarman case to Members of the Executive Committee, DRAFT, dated December 5, 1973, 3, JWP, box 21, folder 252; memo from Federation of Jewish Philanthropies of New York to Members of the Executive Committee, November 20, 1973, 4, JWP, box 21, folder 252; Federation of Jewish Philanthropies of New York, memo from Ad Hoc Committee on the Role of Federation in the Wilder v. Sugarman case to Members of the Executive Committee, DRAFT, dated December 5, 1973, 6; Justine Wise Polier to Lawrence Buttenweiser, January 29, 1974, JWP, box 21, folder 254.

111. Polier, “Attitudes and Contradictions in Our Culture,” 1-2.

112. See Hollinger, David A., Postethnic America: Beyond Multiculturalism (New York: Basic Books, 1995)Google Scholar.

113. National Association of Black Social Workers Statement, 1972, in Children and Youth in America: A Documentary History, ed. Robert H. Bremner, vol. 3:1933-1972, Parts 1-4 (Cambridge: Harvard University Press, 1974): 777, 779-80, 777.

114. Judy Klemesrud, “Furor Over Whites Adopting Blacks,’ New York Times, April 12, 1972, 38.

115. See Opportunity, “Adoption of Black Children in 1969,” International Social Service, American Branch Papers, Social Weifare History Archives, University of Minnesota, box 26, folder: “Oregon—Adoption,” Opportunity was a project of the Boys and Girls Aid Society of Oregon, and it conducted perhaps the only national statistical survey of transracial placements of African American children when they were at their height in the late 1960's and early 1970's. The survey for 1969 (based on responses from 342 agencies around the country) found that a total of 4,336 African American children had been adopted in 1969. Of these, 1,447 (33 percent) were transracial adoptions, a significant increase over 1968.

116. See NCCC, “Round Table Discussion of Current Adoption Practices, October 1941,” 4, National Conference of Catholic Charities/Catholic Charities USA Papers [hereafter NCCC Papers], Archives of the Catholic University of America, box 88, folder: “Committee on Adoptions, 1944 (3)”; NCCC, “Transcript of Discussion at Meeting of Committee on Adoptions, Gramercy Park Hotel, NYC, June 24 and 25,1944”, 2-3, NCCC Papers, box 88, folder: “Committee on Adoptions, Meeting Transcripts, June 24, 25, 1944”; “Whether or Not to Place Children into Adoptive Homes Where One Parent Is Not a Catholic?” study made by Father Rastatter, October 9,1947,1, NCCC Papers, box 88, folder: “Adoption Practices and Procedures, Miscellaneous Correspondence, 1945-1946”; and Draft of “Adoption Study,” marked June 1956, 61, NCCC Papers, box 89, folder: “Adoption Study Drafts (1).”

117. See Kennedy, Randall, “Orphans of Separatism: The Painful Politics of Transracial Adoption,” American Prospect 17 (Spring 1994): 38–45 Google Scholar.

118. See Joan Heifetz Hollinger, “Beyond the Best Interests of the Tribe: The Indian Child Weifare Act and the Adoption of Indian Children,” University of Detroit Law Review 66, no. 3 (Spring 1989): 451-501.

119. See “The Indian Adoption Project—1958 through 1967, Report of Its Accomplishments, Evaluation and Recommendations for Adoption Services to Indian Children,” submitted by Arnold Lyslo, April 1, 1968, CWLA (SW55), box 16, folder 2. See also Arnold Lyslo, “Adoptive Placement of American Indian Children with Non-Indian Families,” in Readings in Adoption, ed. I. Evelyn Smith (New York: Philosophical Library, 1963), 231-36. LWS placed a total of 46 children out of the national total of 395. New York received significantly more of these children than any other State, 74 in total. The states that “exported” the most children were Arizona and South Dakota. The CWLA's Indian Adoption Project terminated in 1967. Native American adoptions were incorporated into the National Adoption Resource Exchange (NARE, later renamed ARENA, the Adoption Resource Exchange of North America). The Indian Adoption Project was, in essence, the first national project designed to assist in the placement of hard-to-place children, a model extended to other children through NARE and ARENA as well as through State adoption exchanges.

120. 'The Indian Adoption Project—1958 through 1967,’ submitted by Lyslo, 6.

121. Ruth-Arlene W. Howe, “Redefining the Transracial Adoption Controversy,” Duke Journal of Gender Law and Policy 2, no. 1 (Spring 1995): 136. See also Howe, Ruth-Arlene W., “Transracial Adoption (TRA): Old Prejudices and Discrimination Float under a New Halo,” Boston University Public Interest Law Journal 6 (Winter 1997): 409-72Google Scholar, in which Howe argues that the State has a compelling interest in protecting the collective racial identity of African Americans. For a critique of race-matching that is indeed individualistic, see Kennedy, “Orphans of Separatism,” 38-45. For a critique of race-matching as “illegal and unconstitutional,” see Bartholet, Elizabeth, “Where Do Black Children Belong? The Politics of Race-Matching in Adoption,’ in Family Matters: Readings on Family Lives and the Law, ed. Minow, Martha (New York: New Press, 1993): 66–95 Google Scholar.