Structuring Families, Structuring Race

R.A. Lenhardt

For the book symposium on Clare Huntington, Failure  to Flourish: How Family Law Undermines Family Relationships(Oxford University Press, 2014)

  

Several years ago, I invited a lawyer and social worker from the Bronx Defenders’ family defense unit to speak to my family law class.  In outlining their work defending indigent parents accused of child neglect or abuse in New York City, the two women, both white, described their own, personal experiences with the child welfare system upon becoming new mothers.  The speaker trained as a social worker -- who lived in a predominantly poor and minority neighborhood in the Bronx – described receiving an unscheduled, but under policies then pertaining to her neighborhood, apparently standard visit from a government social worker soon after she delivered her first child.  The social worker inspected this woman’s apartment, checked the cabinets for food, and interrogated her about potential drug use and future plans for childcare, but offered little in the way of affirmative support.  In contrast, the speaker trained as a lawyer -- who lived in an affluent, predominantly white area of Brooklyn – did not get so much as an email upon bringing her baby home from the hospital for the first time.  She was relieved to escape the intense scrutiny leveled at her colleague, not to mention many of the clients she represented.  At the same time, though, this woman observed that her odds of securing support in acclimating to motherhood were significantly decreased because the racial character and income profile of the neighborhood in which she lived marked her as a presumptively “good” parent.

Clare Huntington’s excellent new book, Failure to Flourish: How Law Undermines Family Relationships directly addresses one of the key criticisms of family law implied in the story just conveyed.  After cogently charting the multiple ways in which government involves itself in the lives of families, the book makes a compelling case that, inter alia, the structures and systems of family law – broad policies and practices stretching from matters of adoption to zoning that Huntington calls “structural family law” -- are too often punitive and do too little to support the effective functioning of families.  In doing so, however, Huntington’s analysis overlooks equally important criticism communicated in my guest speakers’ presentation: that family law also structures conceptions, norms, and even the experience of race, and does so in ways that disadvantages racial minorities.  The surprise visits to residences in low-income, predominantly minority areas of New York City, but not to affluent white neighborhoods, described lay bare the troubling ways in which race and poverty intersect in the lives of families.

No one should read this post to suggest that Failure to Flourish -- which is both beautifully written and wonderfully interdisciplinary in its approach -- somehow ignores matters of race.  In fact, Huntington takes care to acknowledge family law’s “uneven application” in the area of race and devotes substantial attention to the stressors that race and class place on the “fragile families” at the center of important research now being conducted by Sara McLanahan and others.  In the end, however, Huntington’s analysis tracks that in other recent family law texts by considering primarily only how family law systems and structures reflect racial inequality.  Family law scholarship does not yet do enough to explore how structural family law also functions to shape such inequality, not to mention race itself.  It fails to acknowledge the extent to which family law has long been a key site of racial formation in the United States, an essential tool in the creation and maintenance of racial categories and meaning.

This omission has serious consequences for how we evaluate and understand the operation of family law systems.  For example, in trying to advance equal marriage rights for LGBT couples, advocates regularly cast legal marriage as uniformly citizenship enhancing.  But, as the research by Katherine Franke cited in Failure to Flourish notes, such arguments largely rest on a faulty understanding of Reconstruction history.  In truth, legal marriage, in addition to allowing for the affirmance of loving relationships never formally recognized during slavery, subjected freed persons to intense regulation by states determined to regain absolute control of their labor and to determine the structure of their familial, intimate, and gender arrangements.  Further, as I argue in a forthcoming article, such arguments overlook entirely the effect of legal marriage on Blacks and others outside of this period.  In the case of the groups that I study -- Native Americans, Asian Americans, Puerto Ricans, and African Americans -- marriage has very often functioned as a mechanism for racial subordination and caste. 

Family law scholars need to begin to internalize the ways in which family law structures race, as well as families.  Doing so would have several immediate benefits.

First, it would permit us to better make sense of the past and our current context, where family demographics and forms are undergoing dramatic changes.  For example, current work largely conceives of the rise of assisted reproductive technology (“ART”) as a problem for law primarily only where the regulation of relevant technology and the recognition, rights, and responsibilities of donor families and others are concerned.  But this is only part of the picture.  As the wrongful birth and breach of warranty lawsuit recently filed against a Chicago-area sperm bank for allegedly providing a white, lesbian couple with sperm from an African American donor rather than the white donor they carefully selected suggests, ART implicates many other issues.  It warrants further scholarly exploration of matters concerning deeply embedded norms of family monoraciality; the problems interracial families still confront daily in our society; and the risks of reifying notions of biological race, among other things. 

Second, attending to structural race would make it possible to diagnose with greater accuracy the ways in which structural family law and decision making by family law officials undermines families.   Consider Failure to Flourish’s discussion of the misguided policy of requiring currently incarcerated fathers to pay child support adopted by some states.  As Huntington notes, this punitive practice demoralizes fathers; saddles them with debt that they can never hope to repay; often has collateral consequences that impede employment upon release from prison; and often further alienates men from their families.  Given that African American and Latino men are disproportionately represented in prison populations, however, these policies are even more problematic than Failure to Flourish allows.  Inevitably, they also work to amplify the racially stigmatic meanings already associated with men of color – meanings that, as the tragic events in Ferguson and St. Louis, Missouri recently underscored, greatly inform the kind of reception that they receive in their local communities.  Already presumed dangerous, African American men, in particular, become cast as even more uniquely and pathologically flawed than the controversial Moynihan Report suggested nearly fifty years ago, unable to care for their families and constitutionally uninterested in doing so.   

Finally, an appreciation of structural race’s operation in the family law context could inform the kinds of solutions that we adopt to strengthen families in the 21^st Century.  To be clear, I would not modify the list of legal and policy initiatives that comprise the blueprint for reform that Huntington sets out in Failure to Flourish, which I thought infinitely sound, even inspired.  But I would expand the universe of justifications offered for its adoption.  Huntington, refusing to accept the myth of family autonomy, rightfully focuses on society’s need to have stable, healthy, functioning families, particularly where children are involved.  I would, however, also emphasize the citizenship capacity of such reforms and the need of communities long denied belonging to secure it.  Legal recognition of cohabiting couples could, as Huntington notes, bring greater economic security and stability to fragile families of color – especially African Americans, who live, love, and parent outside of traditional marriage more than any other group.  Just as importantly, though, legal recognition of this sort could accord them greater respect and acceptance in the broader community by destigmatizing the structure of their care networks and intimate arrangements. 

Presently, the structural concerns about race and family that I have identified fall into a kind of netherworld.  Civil rights leaders, presumably for strategic reasons, decided long ago to treat them as fundamentally private matters and to focus on matters such as education, housing, and employment instead.  And, as previously noted, family law scholars and advocates have yet to engage them fully.  With the publication of books such as Failure to Flourish, however, I am optimistic that this can change. Huntington’s attention to the structural dimensions of the government’s involvement in families – whether it be zoning laws or child care policies -- provides a useful frame through which the issues of race and equality that I have identified here and in prior work might also begin to be examined.

Professor Lenhardt, Fordham Law School, can be reached at rlenhardtatlaw.fordham.edu.