Adoptee Rights: Suing the State that Denies One Access to the OBC

I am no law professor, but I get inspired in odd places. Rye and I were watching the History Channel the other night about the history of the Ku Klux Klan, and it actually inspired me.

How can the Klan Help Adoptees

I’m not completely sure, but follow my logic with me for a minute, will you? The show brought up the Civil Rights Act of 1871 and I immediately googled it ( Thanks IPhone) and was very intrigued.

From Wiki:

The Civil Rights Act of 1871 is a federal statute in force in the United States. Several of its provisions still exist today as codified statutes, but the most important still-existing provision is 42 U.S.C. § 1983. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux Klan by providing a civil remedy for abuses then being committed in the South. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts.

The document reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

For most of its history, the Act had very little effect. The legal community did not think the statute served as a check on state officials, and did not often litigate under the statute. However, this changed in 1961 when the Supreme Court of the United States decided Monroe v. Pape

This is where the Civil Rights Act of 1871 gets interesting:

I got very excited here because I read: Where a state law is been deemed in violating Civil Rights, then the FEDERAL GOVERNMENT must fix it.

In that case, the Court articulated three purposes that underlay the statute:
“1) ‘to override certain kinds of state laws’;
2) to provide ‘a remedy where state law was inadequate’;
3) to provide ‘a federal remedy where the state remedy, though adequate in theory, was not available in practice.'”
Blum & Urbonya, Section 1983 Litigation, p. 2 (Federal Judicial Center, 1998) (quoting Monroe v. Pape). Pape opened the door for renewed interest in Section 1983.

If we apply that to an adoptees civil right to access their legal documentation in form of their original birth certificate, then rather than fight each state, ( yea, I know I am doing it again) I say GO NATIONAL!

Wiki then goes on to say:

Now the statute stands as one of the most powerful authorities with which State and federal courts may protect those whose rights are deprived.
Section 1983 of the Civil Rights Act provides a way individuals can sue to redress violations of federally protected rights, like the First Amendment rights and the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Section 1983 can be used to enforce rights based on the federal constitution and federal statutes, such as the prohibition of public sector employment discrimination based on race, color, national origin, sex and religion.

I, of course, went digging further into the laws especially into the Section 1983 of the Civil Rights Act, the later civil rights that followed it and found all kinds of interesting things:

TITLE VI OF THE 1964 CIVIL RIGHTS ACT

Prevented discrimination by government agencies that receive federal funding. If an agency is found in violation of Title VI, that agency can lose its federal funding.

As President John F. Kennedy said in 1963:

Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.

If a recipient of federal assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance should either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal action. Aggrieved individuals may file administrative complaints with the federal agency that provides funds to a recipient, or the individuals may file suit for appropriate relief in federal court. Title VI itself prohibits intentional discrimination. However, most funding agencies have regulations implementing Title VI that prohibit recipient practices that have the effect of discrimination on the basis of race, color, or national origin.

So, if a STATE is in violation of Title VI in terms of adoptee rights, then could they not lose their federal Funding? Ouch, that might make them pay attention!
.Additionally, the Department has published an Investigation Procedures Manual to give practical advice on how to investigate Title VI complaints. Also available on the Coordination and Review Website are a host of other materials that may be helpful to those interested in ensuring effective enforcement of Title VI.

To assist federal agencies that provide financial assistance, the wide variety of recipients that receive such assistance, and the actual and potential beneficiaries of programs receiving federal assistance, the U.S. Department of Justice has published a Title VI Legal Manual. The Title VI Legal Manual sets out Title VI legal principles and standards

So that lead me to the US Department of Justice, where realizing that Title VI spoke in terms of employment; I wanted to find something that had to with Birth Certificates, and then really, the circumstances of ones birth which one has no control over, such as status as an adoptee!

So I find Federal Protections Against National Origin Discrimination:


Furthur on it says

Federal laws prohibit discrimination based on a person’s national origin, race, color, religion, disability, sex, and familial status. Laws prohibiting national origin discrimination make it illegal to discriminate because of a person’s birth place, ancestry, culture or language. This means people cannot be denied equal opportunity because they or their family are from another country, because they have a name or accent associated with a national origin group, because they participate in certain customs associated with a national origin group, or because they are married to or associate with people of a certain national origin.

Further on it says:

In some cases, the Division may only become involved if there is a “pattern or practice” of discrimination. A “pattern or practice” generally means that there is more than a single incident of discrimination, and that there is a policy or repeated conduct that is discriminatory.

I would say that 44 out of 50 states and 6 million adoptees is a “pattern or practice” of discrimination!

Then further down, still searching for a denial of documentation I see:


Which kind of leads me back to where I started with “law enforcement agencies ” such as state legislators.. who receive federal funding!

And then.. aha! What to do about it:

Complaints of individual discrimination can be filed with the Coordination and Review Section at:

 

These examples may be violations of the Equal Protection Clause of the United States Constitution. They may also be violations of the Omnibus Crime Control and Safe Streets Act of 1968. That law prohibits discrimination because of national origin, race, color, religion, or sex by a police department that gets federal funds through the U.S. Department of Justice. They may also violate Title VI of the Civil Rights Act of 1964, which prohibits discrimination by law enforcement agencies that receive any federal financial assistance, including asset forfeiture property.

 

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Coordination and Review Section, 1425
Washington, D.C. 20530

or contact the Coordination and Review Section at 1-888-848-5306.


Complaints of individual discrimination may also be filed with the Office of Justice Programs at Office for Civil Rights, Office of Justice Programs, U.S. Department of Justice, Washington, D.C. 20531, or contact Office of Justice Programs at (202) 307-0690.


The Special Litigation Section investigates and litigates complaints that a police department has a pattern or practice of discriminating on the basis of national origin. To file a complaint, contact the Special Litigation Section at (202) 514-6255 or write to:


U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Special Litigation Section
Washington, D.C. 20530

Now I just spent a good time poking about and right now, the issue I have is that I can’t find it anywhere in the US Constitution that states we all have a right to our birth certificates; Probably because when the founding fathers designed the Constitution and gave us those rights, there weren’t any birth certificates to care about!

I did however find this: On the Proof of Citizenship from the BRENNAN CENTER at NYU which states;

• Proof of citizenship requirements are an invitation to discrimination.
• Blocking eligible voters who cannot show documentation violates the Constitution and federal law.
• States should not implement burdensome proof of citizenship requirements.

Of course,even though the US and Somalia being the only two countries in the world which have not ratified the Convention, one could also go back and argue that the UN’s Convention on the Rights of a Child, most especially articles 7 and 8 say:

Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular, where the child would otherwise be Stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view tospeedily re-establishing his or her identity.

So, I am thinking.. what if a bunch of adoptees just happened to file complaints with the U.S. Department of Justice Civil Rights Division against the state that is discriminating against them based on their familial status?

I mean, what if?

What if an Adoptee Discrimination case was actually brought against such states?

You know you have the stories of real tangible things you were denied because your amended birth certificate was “weird” looking? What if those states were SUED and then, they would HAVE to LOSE their FEDERAL FUNDING!

You know what? We would see those laws turned pretty dern quick.

Money talks!

And please…. if any one single lawyer or law student or anyone with a moral care or concern in their body was interested in this.. please talk to me. I can hook you up with the adoptees right quick!

Share on Facebook

About the Author

Claudia Corrigan DArcy
Claudia Corrigan D’Arcy has been online and involved in the adoption community since early in 2001. Blogging since 2005, her website Musings of the Lame has become a much needed road map for many mothers who relinquished, adoptees who long to be heard, and adoptive parents who seek understanding. She is also an activist and avid supporter of Adoptee Rights and fights for nationwide birth certificate access for all adoptees with the Adoptee Rights Coalition. Besides here on Musings of the Lame, her writings on adoption issue have been published in The New York Times, BlogHer, Divine Caroline, Adoption Today Magazine, Adoption Constellation Magazine, Adopt-a-tude.com, Lost Mothers, Grown in my Heart, Adoption Voice Magazine, and many others. She has been interviewed by Dan Rather, Montel Williams and appeared on Huffington Post regarding adoption as well as presented at various adoption conferences, other radio and print interviews over the years. She resides in New York’s Hudson Valley with her husband, Rye, children, and various pets.

6 Comments on "Adoptee Rights: Suing the State that Denies One Access to the OBC"

  1. Do you mind if I repost this to my FB page? I don’t know if we all have the same friends, and I’d love to get this out there!

    Hmmm…I might just know a lawyer…

  2. Yes, yes,yes!!!!It might be your answer.You need legal advice and a class action don’t you? It might clear the decks.
    I’m not American but have been so concerned for you all not having your rights and pondering how on earth you’re going to get them without going for cases in each State.
    I so hope something comes of this, so many of you are suffering badly form not having access to your birth information, it’s so archaic but maybe this is the way.
    Best wishes,drop by sometime.

  3. I have considered suing the state of TN. When their records access law was passed and then petitioned in the court, TN Supreme Court found that there is no First Mother fundamental right to secrecy or to supress the OBC of an adopted adult. HOWEVER—that let the law come to pass….INCLUDING the disclosure veto in the law for adoptees under certain circumstances of birth as well as the legally enforceable contact veto registry. If I had been vetoed, you be I would have sued the state. I will absolutely file a complaint. Thank you for this post.

  4. How do these two court cases fit into things:

    (1) In 1975, an adoptee rights
    group called “Yesterday’s Children” filed a federal class action suit to open
    records, claiming Constitutional rights under the First, Fifth, Sixth, and
    Fourteenth Amendments were violated – they lost with the court deciding it was a
    state issue not a constitutional issue.

    (2) in 1977, ALMA filed a lawsuit
    in the New York courts to open records in NY state. They lost.

    It looks to me like the lawsuit route has been tried already, with the court deciding that there is no such thing as ‘adoptee rights’ as a civil right.

  5. I’m right there with you Claud. I totally think it can and should be a national directive. I mean, we can sue states, etc, but lets also keep the federal government on the radar. 🙂

  6. ALMA’s lawsuit was different. They did not bring up these facts.

    I say it’s worth a try – or at least running by a an attorney familiar with federal law.

    I have also long suggested suing the state that issued FALSE ID – which is clearly a violation of the law.

    AND… we should hold demonstrations in each locale on July 28 – National Adoptee Rights Day: adoptees, with ABC in hand turning themselves in to the police for being in possession of FALSE ID. Send out press release ahead of time. Let the press know that you are prepared to go to jail if necessary! It will get their attention! Wear matching adoptee rights shits from your group, Cafe Press or EqualAccess4Adoptees.org !!!

    The gays are making inroads and having success because they march in NUMBERS and are very visible!!

Comments are closed.

Want to Change the World?

Sign Up for the Adoption Army! "Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has." - Margaret Mead