North Carolina Adoption Assistance Eligibility: An Equal Protection Violation?

Adoption assistance was initially a creature of federal law (P.L. 96-272—the Adoption Assistance and Child Welfare Act of 1980) to encourage the adoption of special needs children and remove the financial disincentives to adoption for the families. Once federally authorized, the states were left to set forth the framework by which this money (provided through federal Title IV-E dollars) was to be accessed and spent. In North Carolina, adoption assistance is statutorily provided by for by N.C. Gen. Stat. 108A-49-50.1, which collectively governs the minimum rate of adoption assistance, the goals for guiding the distribution of money, and the basis for eligibility.


While the purpose of the program is straight forward –to encourage the adoption of certain hard-to-place children- the specific criterion for eligibility adopted by the Social Services Commission gives some pause for concern. According to the North Carolina Department of Health and Human Services, children eligible only include the following :

• Children with special needs, such as physical, mental, and emotional disabilities
• Sibling groups and teenagers
• Minority children, especially African American males

As it stands, two equally situated children in two equally situated prospective adoptive families may get two different outcomes when it comes to adoption assistance if only one factor separates the two, namely, the issue of whether one of the children is a member of a minority group or not.

Doesn’t the 14^th Amendment have something to say about the race-based distribution of public benefits?

Certainly the argument for the government will assert  that an important governmental objective is being served by promoting the adoption of minority children and that the guidelines set forth by the Social Services Commission are designed to promote that goal. But that is only part of the necessary argument. Not only should a program which  treats racial groups unequally advance an important governmental objective but must do so in a way that is narrowly tailored to meet this objective. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978).  The implication of “narrow tailoring”  means, on a minimal practical level, that in advancing the important government purpose of encouraging minority group member adoptions, non-minority groups must not be impermissibly burdened.

The obligation of establishing that an important objective is being advanced and that the means for doing so are narrowly tailored falls with the government. See FEC v. Wis Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007). The question to ask is this: how can a system of eligibility for adoption assistance in North Carolina demonstrate its eligibility criteria are narrowly tailored when it placed significant obstacles in the way of non-minority groups to receive adoption assistance while giving assistance carte blanche to minority groups? That’s something for Attorney General Roy Cooper to actively consider in his spare moments.

North Carolina’s adoption criteria are found at  http://www.ncdhhs.gov/dss/adoption/