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Solangel Maldonado, Romantic Discrimination and Children, 9 Chicago-Kent Law Review 105 -133 (2017) (171 Footnotes Omitted)

SolangelMaldonadoIn recent years, social scientists have used online dating sites to study the role of race in the dating and marriage market. Their research has revealed a racialized and gendered hierarchy that disproportionately excludes African-American men and women and Asian-American men. For decades, other researchers have studied the risks and outcomes for children who grow up in single-parent homes as compared to children raised by married parents. This Essay explores how racial preferences in the dating market potentially affect the children of middle-class African-American mothers who lack or reject opportunities to marry. What is the relationship between racial preferences in the dating and marriage market and children's access to resources and opportunities? Do racial preferences in the dating and marriage market increase the likelihood that children of middle-class African-American mothers will be raised in homes with fewer resources and limited access to opportunities available to other children with similarly educated parents? If so, what, if anything, should the law do to minimize racial preferences' effects on children?

I. Racial Preferences in the Dating and Marriage Market

Americans' acceptance of interracial intimacy has increased dramatically in just one generation. In 1987, less than 50% of Americans approved of African-Americans and Whites dating. By 2013, 87% of all Americans, and 96% of 18-29 year olds, approved of marriages (not just dating) between African-Americans and Whites. Yet, despite our approval of interracial *106 relationships, most Americans marry individuals of their same race. One reason might be opportunity. We tend to date people we meet at school, work, or in our neighborhood, but residential and educational segregation and the lower positions racial and ethnic minorities occupy in most workplaces limit opportunities for members of different groups to interact socially as equals.

Racial preferences are another reason why the majority of cohabitating and married couples are of the same race. Just because a person approves of interracial relationships does not mean that she herself is willing to marry across the color line. A wealth of data from surveys, online dating, and speed dating studies show that when seeking an intimate partner, many individuals prefer someone of their same race. Racial preferences might also explain why some groups have higher intermarriage rates than others. Individuals who are open to dating interracially often have preferences for members of certain races to the exclusion of others. These preferences reveal a racial hierarchy in which Whites, including multiracial individuals who are part White (but not part Black), are deemed most desirable, African-Americans significantly less so, and other racial or ethnic minorities (specifically Asian-Americans, Latinos, and Native Americans) somewhere in the middle. This racial hierarchy is gendered with Asian-American men and African-American women least preferred in the interracial dating and marriage market.

About half of all Americans report that they have dated a person of a different race or ethnicity. Younger generations and racial and ethnic minorities are even more likely to have dated interracially. Yet, even among the younger generation we find racial differences in dating patterns. White college students are more likely to date Asian-Americans and Latinos than *107 to date African-Americans. African-American college students are also less likely than other racial or ethnic minorities to date interracially.

While the majority of individuals who date or cohabitate interracially ultimately do not marry a person of a different race, the rate of intermarriage has increased significantly since the Supreme Court declared in 1967 that laws prohibiting interracial marriage were unconstitutional. In 1960, just 2% of marriages in the United States were interracial. Fifty years later, in 2010, 15% of marriages celebrated that year were between spouses of different races or between Latinos and non-Latinos. Yet, race continues to influence our romantic choices. In a society where race did not play a role in intimate relationships, 44%, not just 15%, of recent marriages would be interracial.

Intermarriage patterns vary widely by race, color, and gender. The majority of American Indians (58%) marry out, primarily with Whites, as do *108 more than one-third of U.S.-born Asian-Americans and Latinos, and 17% of African-Americans. Multiracial individuals who are part White are significantly more likely than their mono-racial co-ethnics to have a White partner but here too marriage patterns vary by race. The majority of Asian/White and about half of Latino/White multiracial individuals have a White spouse or cohabitating partner. In contrast, the majority of African-American/White multiracial individuals partner with African-Americans.

Intermarriage patterns also vary by skin color. Lighter-skinned minorities are more likely than their darker-skinned counterparts to intermarry with Whites. For example, U.S.-born Latinos who identify as racially white on the U.S. Census are significantly more likely than their darker counter-parts to be married to non-Latino Whites. Skin tone plays a similar role in the intermarriage patterns of U.S.-born Asian-Americans. Dark-skinned minorities who intermarry with Whites are more likely than their lighter-skinned counterparts to be married to Whites who have attained less formal education than themselves--in other words, to marry “down” in terms of education.

The marriage patterns of some groups are not only influenced by race, but also by gender. U.S.-born Asian-American women are almost five times more likely to intermarry than African-American women. African-American men are more than twice as likely as African-American women *109 to marry out. The opposite is true for Asian-American men who are half as likely as their female counterparts to intermarry.

Gays and lesbians are more likely than their heterosexual counterparts to have an intimate partner of a different race. Yet, the same racial patterns observed in different-sex relationships are apparent in same-sex relationships. Asian-Americans and Latinos in same- or different-sex relationships are significantly more likely than African-Americans to have a partner of a different race or ethnicity.

A. What Drives Interracial Marriage Patterns?

Most married couples do not randomly end up together but rather are the result of assortative mating--the tendency of people to date and marry individuals like themselves. We generally partner with people who are similar to us in terms of race, education, and socioeconomic status in part because we spend a lot of time with people with similar levels of education at school or at work. Our family members, friends, and neighbors also tend to be of the same race and similar socioeconomic status. Online dating studies suggest, however, that even when the pool of potential mates is not limited by whom we meet at school, work, the gym, or local bar, we still prefer to date people like ourselves. As one aptly-titled article noted, “In the End, People May Really Just Want to Date Themselves.”

*110 Dating and marriage outcomes are the result of both preferences and opportunities and thus cannot explain whether opportunity, preferences (and if so, whose preferences), or both, drive the different rates of interracial coupling. Researchers have addressed the limitations of dating and marriage outcomes by directly examining the preferences of individuals seeking a romantic partner. Studies that focus on stated preferences--what people say they want in a partner--generally ask date-seekers to identify the traits they seek in a romantic partner or examine the traits date-seekers have identified in a personal ad or online dating profile. Not surprisingly, individuals may not be completely truthful when describing the traits they seek in a partner because they fear they will be judged as superficial, elitist, or even racist. Moreover, even when we are completely honest, our stated preferences may not reflect our true preferences. As evolutionary psychologists have discovered, we often do not know what we really want in a mate.

To address the limitations of stated preferences, researchers have examined the revealed preferences of online date-seekers by observing how they respond when contacted by daters with certain traits. For example, Günter Hitsch and his colleagues examined the search behaviors of almost 22,000 heterosexual online daters. The date-seekers, who did not know that their behaviors would be observed by researchers, provided detailed profiles noting their age, gender, race, education, income, height, weight, marital status, political and religious affiliations, interest in dating someone *111 of a different ethnic background, and whether they were seeking a casual or long-term relationship. Many users also provided a photo which the researchers rated for physical attractiveness based on the opinions of objective observers. Date-seekers browsed other users' profiles and sent emails to individuals they might want to date.

Not surprisingly, online daters' search behaviors revealed a universal preference for physically attractive individuals with high incomes. However, women valued a man's income more highly than his physical appearance, and men ranked a woman's physical attractiveness above her income. Online daters' search behaviors also revealed strong racial preferences even when they did not state those preferences. For example, 55% of the women expressed no racial preferences in their profiles, but their revealed preferences--who they contacted and who they responded to when contacted--showed equally strong preferences as the women who had expressed a racial preference. In other words, 95% of female online daters in Hitsch's study had racial preferences even though only 41% stated those preferences in their profiles.

Other online dating studies have revealed racial preferences. They also reveal a racial hierarchy of preferences. For example, the majority of straight White men in an online dating study conducted by Cynthia Feliciano and her colleagues stated a racial preference. The majority also expressed*112 interest or willingness to date interracially. However, they were quite specific about which groups they were willing to date. About 50% of White men who stated a racial preference expressly excluded Asian-American women and similar numbers excluded Latina women. Yet, more than 90% refused to consider African-American women. The chart below illustrates this hierarchy.

It is no longer socially acceptable to express racial preferences in most contexts and it is illegal to act upon such preferences in settings such as education, employment, and housing. In fact, 84% of online daters in one study stated that they would not date someone “who has vocalized a strong negative bias toward a certain race of people.” Despite this strong anti-discrimination norm, studies have found a racial hierarchy in which White men rank African-American women significantly below Asian-American, Latina, or White women. This hierarchy is also reflected in straight White men's response rates when contacted by female online date-seekers. White men are most likely to respond to messages from White women and from multiracial Asian-American and Latina women who *113 are part White. They are less likely to respond to multiracial African-American/White women, and almost never respond to messages from African-American women.

White women's preferences also reveal a racial hierarchy. Almost 75% of straight White women in Feliciano's study expressed racial preferences and a majority of those (64%) preferred to date White men only. Although most White women excluded all non-White men, they were more than twice as likely to exclude African-American and Asian-American men as compared to Latino men.

Data from millions of online daters on Match (the most popular dating site in the U.S for the last 20 years), OkCupid, and Date Hookup confirm the racial hierarchy in the online dating market. Straight White women on these sites rated Asian-American and African-American men as significantly less attractive than the average man. This hierarchy is also reflected in White women's response rates when contacted by online date-seekers. Several studies conducted by Curington, Lin, and Lundquist revealed that White women respond mainly to White men and ignore messages from men of other races with one exception--multiracial men who are part White. While more than 90% of White women rejected Asian men as potential dates, they responded to messages from multiracial Asian/White men at similar rates as they did to messages from mono-racial White men. They also responded to Latino/White men and African-American/White men at higher rates than their mono-racial counterparts.

Online date-seekers have many preferences, including age, body type, education, income, and religion. But race ranks particularly high on their preferences. For example, while 59% of straight White men in Feliciano's study stated a racial preference, only 23% expressed a religious preference. For these men, a woman's race was more important than her education, religion, employment, marital status, or whether she smoked. Straight White date-seekers on the online dating site OkCupid revealed similarly strong preferences for Whites even when the system's algorithm determined that their best “match,” based on their responses to approximately 300 questions about their beliefs, needs, wants, and activities they enjoy, was a person of a different race.

College-educated minorities and Latinos/as are more likely to intermarry *114 than their less-educated counterparts, so one might assume that college-educated Americans as a group have weaker racial preferences. However, online dating studies suggest otherwise. Hitsch's study of heterosexual online daters discussed above found that the vast majority of White women, regardless of their level of education or income, have strong preferences for White men. Feliciano and her colleagues found that college-educated Whites are more likely than Whites with only a high school education to exclude African-Americans as romantic partners. And Lin and Lundquist found that racial preferences trumped educational preferences. College-educated Whites are more likely to contact and respond to messages from Whites without a college degree than to messages from African-Americans with a college degree. White men without a college degree received more messages than college-educated African-American and Asian-American men. College-educated African-American women received significantly fewer messages than women of other races with lower levels of educational attainment.

Racial minorities and Latinos are generally more willing than Whites to date interracially, yet their preferences reflect a similar racial hierarchy. For example, 70% of straight Asian-American and Latina women in an online dating study conducted by Belinda Robnett and Cynthia Feliciano expressed a racial preference and *115 overwhelmingly excluded minority men other than their co-ethics. The vast majority, however, were willing to date White men.

This racial hierarchy is also reflected in Asian-American and Latina women's response rates when contacted by online daters. They are most likely to respond to emails from White men and their multiracial co-ethnics who are part White (Asian-American/White men and Latino/White men) than to messages from their mono-racial co-ethnics. Surveys of college students' dating preferences have also found that many Latinos and Asian-Americans prefer Whites to other groups, including their own co-ethnics.

The preferences of straight Asian-American and Latino men also reflect a racial hierarchy. For example, Robnett and Feliciano found that over 60% of Asian-American and Latino men who expressed a racial preference were willing to date White women, but less than 20% were willing to date African-American women. Approximately 50% of Asian-American men were willing to date Latina women and similar numbers of Latino men were willing to date Asian-American women. The graphs below illustrate the preferences of straight Asian-American and Latino men.

While the preferences of Asian-Americans, Latinos/as, and Whites reflect a similar racial hierarchy, the stated preferences of African-American men and women do not follow this pattern. For example, African-Americans express stronger same-race preferences than Asian-Americans and Latinos and are three times as likely to expressly refuse to date individuals of other races. The majority also expressly exclude Whites as potential dates. The graph below illustrates the stated preferences of African-American online date-seekers.

Yet, in contrast to their stated preferences, the revealed preferences of straight African-American men and women suggest that they may be more willing to date Whites than indicated by their stated preferences. One online dating study conducted by Mendelsohn and his colleagues found that African-Americans were ten times more likely to contact Whites than Whites were to contact them. That study and others have also found that African-Americans are more likely to respond to messages from Whites and from multiracial African-American/White individuals than messages from African-Americans.

These studies demonstrate an undeniable racial hierarchy in the dating market. Daters' preferences for multiracial persons who are part White over mono-racial minorities further reveal a hierarchy that values light skin and European appearance. These studies also suggest that while partial Whiteness can elevate Asian-Americans and Latina women to White status, it does not have the same power for African-American women. For example, Asian-American, Latino, and White men rated online profiles and photographs of multiracial African- *118 American/White women as significantly more attractive than mono-racial African-American women but as less attractive than women of other races.

The preferences revealed by these studies are consistent across daters of different ages, incomes, education, geographic location (including urban v. rural dwellers), and self-identification as liberal or conservative. Speed dating studies and surveys of college students' preferences have found a similar racial hierarchy. For example, 381 college students at a public university in California completed an anonymous questionnaire that asked them to describe the traits they desire in a romantic partner, whether they were willing to date someone of a different race, and if so, to rank their preferred racial or ethnic groups and explain their reasons for their rankings. All of the non-Black male students who expressed racial preferences ranked African-American women last but White students were significantly less likely than Asian-American or Latino students to report any racial preferences or to expressly exclude African-Americans. However, students' explanations for their preferences reveal a racialized and gendered hierarchy fueled by Western notions of beauty, stereotypes, and family and societal disapproval. Students' most commonly stated reasons for excluding African-Americans or ranking them last included lack of physical attraction, cultural differences, perceived aggressive personality or behavior, and social disapproval. Rates of exclusion varied by gender. Heterosexual White male students were more than twice as likely as their female counterparts (67% v. 30%) to exclude African-Americans as potential dates. Asian-American males were also more likely than females to exclude African-Americans as potential dates. Men were more than twice as likely as women to cite lack of physical attraction (such as skin tone, hair texture, and body type) as reasons for excluding African-Americans as potential dates.

As noted earlier, all daters prefer physically attractive partners. Beauty may be in the eye of the beholder but throughout most of the Western world, a light complexion and phenotypically European features, such as straight hair and a *119 narrow nose, are perceived as most attractive, especially for women. These physical features are deemed desirable not only by Whites but also by African-Americans and other minority groups. As scholars have asserted, light “skin tone is also a form of social capital that grants access to ... marriage to higher status men.” One need only name a few African-American female celebrities considered universally beautiful (such as Beyonc‚ Knowles, Halle Berry, and Alicia Keys) to conclude that women with lighter skin and more Eurocentric features are perceived as most attractive.

Gendered and racialized stereotypes affect how individuals are perceived in the dating market. For example, one study found that White men who expressed a body type preference were more likely to exclude African-American women as dates, presumably because they associated African-American women with a particular body type. Another study found that the more highly a man valued femininity, the higher the likelihood that he would express interest in dating Asian-American women but not African-American woman. Several studies have found *120 that Americans perceive Asian-Americans to be more feminine than other groups, and African-Americans to be more masculine. They also associate dark skin with masculinity. Given the importance that men place on a partner's physical appearance, and the value all races place on light skin on women, it is not surprising that lighter-skinned women are higher in the racial hierarchy of the dating market.

Societal notions of masculinity and femininity are reflected in stereotypes and media portrayals of minority groups. Asian-American women are depicted as hyper-feminine, Asian-American men are portrayed as effeminate and asexual, and African-American men are depicted as hyper-masculine. Although the media is beginning to portray African-American women as desirable partners, historically, cultural depictions of Black women have generally been limited to images of matronly caregivers, sexually immoral, or emasculating, angry women.

Gender differences in the racial hierarchy are also apparent when one examines stereotypes about different groups' personalities and behaviors. Although straight women (and gay men) reject African-American men at high rates, African-American women are excluded at even higher rates. Studies show that while both men and women rely on stereotypes about African-Americans' “aggressive personality” as a reason for excluding them as dates, straight men are significantly more likely than straight women to do so. Their stated reasons reflect cultural assumptions about African-American women as emasculating, domineering, and angry and African-American men as dangerous. While the stereotype of African-American men as hyper-masculine and sexually aggressive fuels the perception *121 that they are threatening and dangerous, these are also traits that some straight women (and gay men) find appealing.

Many college students in the California public university study expressed concern that family members and society in general would not approve if they dated African-Americans. Another study of White college students' racial attitudes similarly found that they feared family and societal disapproval if they married interracially. Interestingly, Asian-Americans and Latinos/as were significantly more likely than Whites to cite social disapproval as a reason to exclude African-Americans as romantic partners. The frequency of these concerns varied by gender. Asian-American and Latina students were significantly more likely than their male counterparts to express concern that parents, friends, and strangers would disapprove and they feared they would be discriminated against if they dated African-American men. These concerns are not unfounded. Interracial couples face greater opposition and disapproval from family members and society than same-race couples.

Parents' objections to their children's interracial relationships confirm the racial hierarchy apparent in the dating market. Asian-American, Latino, and White parents all express greater objections to their children intermarrying with African-Americans as compared to other groups. They express fear that society will discriminate against their adult children and mixed-race grandchildren, and also express concern about the racial identity and psychological well-being of mixed-race grandchildren. Although not always expressly stated or acknowledged, parents also fear their own potential loss of status. One study found that Latino parents express disapproval of intimacy with African-Americans even before their *122 children start dating because they fear jeopardizing the family's status in the racial hierarchy. Other studies have found that White parents are similarly concerned about the loss of status for the family, especially when the child marries an African-American partner.

Parents' objections to children's interracial relationships reflect not only a racialized hierarchy, but also a gendered one. Their reactions to the relationship depend not only on the race of the child's partner but also the gender. Families are much more likely to express strong disapproval when daughters (as compared to sons) date or marry out. For example, White women in interracial relationships experience greater disapproval than White men dating minority women or minority men dating White women. Latino parents are similarly more likely to express opposition when daughters (as compared to sons) date African-Americans.

Societal disapproval of interracial relationships also depends on the race and gender of the minority spouse. Numerous commentators have noted greater objections from both African-Americans and Whites to relationships between African-American men and White women as compared to relationships between African-American women and White men. In fact, a 2005 Gallup poll found that while 72% of Whites approve of a White man dating an African-American woman, only 65% approve of an African-American man dating a White woman. White women married to Asian-American men also experience greater objections from *123 both the White and Asian-American communities than Asian-American women married to White men.

Racial preferences are problematic for many reasons. They undermine our commitment to anti-discrimination and perpetuate social distance between groups. They also affect marriage outcomes. The two groups least preferred by online daters--African-American women and Asian-American men--are also the groups with the lowest rates of intermarriage. For African-American women, racial preferences affect not only their rate of intermarriage, but their likelihood of marrying at all and raising a child without a co-parent.

Marriage rates and non-marital birth rates vary significantly by education. College-educated women are more likely to marry than women with lower levels of formal education. They are also significantly less likely to have children outside of marriage. However, African-American women are much less likely to marry than women of other races and are also more likely than women of other races to have non-marital children and to raise them in single-parent households. While two-parent households are not superior to single-parent households, in the United States children raised by single parents are less advantaged in myriad ways, even when the single-parent has financial resources. The next section will briefly describe these relative disadvantages.

II. Romantic Preferences' Effects on Children

For most of U.S. history, non-marital children suffered significant legal and societal discrimination. Most, although not all, of the legal disabilities have been eliminated as a result of U.S. Supreme Court decisions striking down laws denying non-marital children the same rights enjoyed by marital children. Societal disapproval of non-marital families has also decreased as children are increasingly raised by cohabitating or single parents. Despite these changes, non-marital children *124 are disadvantaged relative to their marital counterparts in many ways. First, as I have described in prior work, the law continues to places heavier burdens on non-marital children in a number of areas, including parental support for college, intestate succession, and paternal transmission of U.S. citizenship. Second, non-marital children continue to experience societal disapproval. The majority of Americans, including African-Americans and Latinos, believe that non-marital childbearing is a significant social problem and that unmarried women should not have children Although the majority of non-marital children do not receive government benefits, society presumes that they will rely on public assistance for their support which contributes to their stigmatization. Non-marital African-American children face greater disapproval than White children, especially when they are poor.

Non-marital children are disadvantaged in virtually every measure, with consequences that extend into adulthood. Numerous studies have shown that children who grow up in a single-parent home or with cohabitating parents are more likely than children raised by married parents to be poor, underachieve *125 academically, become teen parents, abuse drugs, engage in delinquent behavior, experience behavioral problems, and earn lower wages as adults. They are also less likely to attend college or receive financial support as children or as adults. Researchers cannot completely explain the reasons for these poorer outcomes, but many argue that fewer resources--rather than growing up in a home with two married parents--are the source of these disadvantages. Indeed, the law's preference for marital childbearing and the legal benefits it grants to married couples may explain the differences in outcomes. With the possible exception of academic achievement, these outcomes disproportionately affect African-American and Latino children who are more likely to be raised in single-parent families. While a close relationship with both parents may reduce these risks, divorced and non-marital fathers disengage from their children at alarmingly high rates.

*126 Marriage is not the solution to the potential disadvantages experienced by non-marital and disproportionately African-American and Latino children. These disadvantages are the result of social inequality, lack of resources, residential segregation, and an educational system that fails children in poor and minority neighborhoods. Yet, the advantages and opportunities available to marital children are increasingly significant and have created a divide of haves versus have nots along marital lines. Low-income and working class individuals (who are disproportionately African-American or Latino/a) increasingly postpone or forego marriage but not childbearing. As a result, single and cohabitating parents are disproportionately poor and have few resources to invest in their children. In contrast, college-educated individuals postpone marriage and childbearing until they are financially stable. This latter group invests more resources in their children than prior generations ever have. Assortative mating has magnified the inequality between marital and non-marital children as highly educated and successful individuals marry and have children with highly educated and successful partners, leaving low-income individuals to create “fragile families.”

While the class inequality exacerbated by assortative mating is troubling, this Essay focuses on the racial inequality created by preferences in the dating and marriage market. Consequently, it focuses on the dating market for college-educated African-American women since their children are most affected by racial preferences in the marriage market. While racial preferences may also disadvantage the children of low-income African-American mothers, their children are much more disadvantaged by poverty, family instability, and lack of access to adequate schools and safe neighborhoods--problems that will not be remedied by eliminating racial preferences in the romantic marketplace.

The number of children affected by racial preferences in the dating and marriage market is small as compared to the number of African-American children in “fragile families.” These children are amongst the most privileged, as their mothers are college-educated and likely to be financially stable. These children are also likely to attend quality schools and to reside in desirable neighborhoods. Given their relative privilege, one might ask whether it is worthwhile to explore how racial preferences limit their access to resources and opportunities when so many children have significantly fewer advantages. I contend that it is. When we examine opportunities for children, we should not focus only on the most disadvantaged *127 children but should also address barriers that prevent all children from taking advantage of opportunities available to a select few. For example, it is not enough for all children to attend adequate schools if some children have opportunities to attend superior schools because of their race. Similarly, it is troubling if children of college-educated Asian-Americans mothers have greater access to resources and opportunities than the children of college-educated African-American women, if those advantages are the result of racial preferences.

In the United States, marriage has historically been a mechanism for women's economic security. Even today, some women rely on marriage as a tool for economic security and upward mobility. Historically, marriage has not provided these economic benefits to African-American women who married African-American men, as the earnings of African-American men have always been much lower than those of White men. This remains true today, as African-American women are twice as likely as their male counterparts to graduate from college and almost three times as likely to obtain a post-graduate degree. However, minority women who intermarry with White men enjoy significantly higher family incomes and wealth than those who marry in. For example, in 2010, the median family income of White/Latino/a marriages was $57,900 as compared to $35,578 for Latino/Latina marriages. Asian-Americans who intermarried with Whites earned higher combined incomes than all other couples--same-race or interracial. Minority women who intermarry with Whites live in wealthier neighborhoods and are more likely to have access to intergenerational transfers of wealth than minority women in same-race marriages.

The children of White/non-White marriages tend to enjoy greater access to safe neighborhoods, high quality schools, economic resources, and intergenerational transfers of wealth than the children of minority couples. They also enjoy the intangible benefits of access to networks that rarely include minorities. For example, a child who resides in a wealthier neighborhood with high quality schools-- *128 neighborhoods that are disproportionately White--may have greater access to coveted internships and academic opportunities not available is less privileged neighborhoods and schools. Some of these opportunities are formal--the school in the wealthier neighborhood may have more guidance counselors who search for opportunities and help students secure them. Other opportunities are informal and can only be described as networks or as one single mother described “access to power.” These networks help individuals obtain jobs, internships, and clients, opportunities that are not available to individuals outside the network.

Racial preferences limit the pool of potential partners available to African-American women and reduce the likelihood that their children will be raised in financially secure, two-parent homes and have access to the resources and opportunities available to the children of interracial marriages. When highly educated and financially successful men--who are disproportionately White or Asian-American--exclude African-American women as potential romantic and ultimately marriage partners, African-American women may end up marrying men with lower levels of educational attainment and income. Those marriages will not only have fewer resources, but are also at higher risk of divorce. Consequently, the children of those marriages may be more likely to grow up with fewer resources and to spend part of their childhood in a single parent home.

One might not be sympathetic to an African-American college-educated woman who rejects a same-race partner with an average income because she would prefer a higher income partner. But African-American women are not rejecting same-race partners with average incomes. They are rejecting partners with low incomes or no income at all. The pool of employed African-American men is so thin that African-American women may find it difficult to find a same-race partner who is employed period. For example, one recent study reported that there are *129 “51 employed young black men for every 100 young black women,” ages 25-34. In contrast, “[a]mong never-married white, Hispanic and Asian American young adults, the ratio of employed men to women is roughly equal--100 men for every 100 women.” The pool is even more limited for African-American women seeking a college-educated same-race partner as African-American women graduate from college at twice the rate of their male counterparts. Successful African-American men are more likely than African-American women to intermarry, thereby decreasing the pool of marriageable African-American men available to African-American women.

Given the limited pool of marriageable African-American men, some middle class African-American women will not find a same-race partner. Their own racial preferences for African-American men and those of non-Black men for non-Black women, further limit African-American women's opportunities to marry. Indeed, African-American women are more than three times as likely as white women to never marry. Given their limited prospects for marriage, the African-American community's greater acceptance of non-marital childbearing, and society's increased acceptance of single-parent families, it is not surprising that some *130 college-educated African-American women choose to raise a child without a spouse.

The children of college-educated African-American “single mothers by choice” are unlikely to experience the increased risk of poor outcomes faced by children of low-income single mothers. However, they are unlikely to enjoy all of the advantages of children raised by two college-educated parents. First, most families need two-incomes to maintain a home in a desirable neighborhood with high quality schools, and access to extracurricular and cultural activities that are increasingly necessary for children to compete when applying to college or summer internships. Second, most families need two incomes to save for a child's college education. Single parents, even those who are financially stable, are less likely than married parents to be able to afford to pay for a child's college education. Third, single parents “have no one with whom to share the financial, logistical, or emotional burdens of being a parent.” As a result, single mothers, albeit privileged single mothers, will likely have fewer resources--financial, emotional, and time--to expend on their children and cultivate opportunities for their success. Finally, single parents, and by extension their children, may be excluded from networks that married parents inhabit. Given the single-mother hierarchy, African-American single mothers are more likely than White single mothers to be excluded from these networks. As one divorced woman observed “as an African-American woman - even with an Ivy League education and a middle-class income - [she] was still subject to the stereotypical perception of ‘the black single mother’.”

*131 For many college-educated single mothers, an increased pool of marriageable men would not have altered their decision to raise a child without a partner despite the challenges discussed above. However, at least some women who are raising children alone might have preferred to do so with a partner had they found the “right” partner. There are many reasons individuals do not find a marriage partner, but African-American women face greater challenges due to a limited pool of marriageable African-American men and racial preferences that decrease their likelihood of partnering with men of other races as college-educated Asian-American and Latina women often do. As a result, the children of college-educated African-American women are unlikely to have access to the benefits available to the children of similarly educated Asian-American and Latina women. What, if anything, should the law do to help children who are not disadvantaged relative to the most vulnerable African-American families, but are less advantaged than the children of two parent families? Before we attempt to answer this question, we should first explore the law's role in shaping racial preferences.

III. Law's Role in Shaping Racial Preferences

“The heart [may] want[] what it wants” but racial preferences are not shaped in a vacuum. They are influenced by historical and current social and legal norms. The law's explicit role in shaping romantic preferences is extensive. States prohibited marriages between African-Americans and Whites as early as the seventeenth century through the enactment of laws banishing or enslaving Whites who married Black slaves. Although most states did not prohibit interracial sex, these laws signaled that African-Americans were not appropriate romantic partners.

After the Civil War, many more states enacted anti-miscegenation laws. Forty-one states prohibited marriages between Whites and African-Americans at some point. Southern states segregated Whites and non-Whites in public spaces and the federal government maintained segregated offices and military units. The courts enforced laws, private covenants, and practices that denied African-Americans housing and employment opportunities available to Whites. These *132 practices limited opportunities for interracial contact and reinforced social distance between African-Americans and Whites.

The law's explicit regulation of interracial intimacy ended in 1967 with the U.S. Supreme Court's decision in Loving v. Virginia. The federal government also passed legislation prohibiting racial discrimination in employment and housing and attempted to enforce the Supreme Court's decision in Brown v. Board of Education mandating desegregation of schools. Despite these reforms, the legal policies that facilitated race discrimination until the 1960s continue to shape our racial preferences today. Racially restrictive covenants, redlining, and racial steering created the racially segregated neighborhoods and schools that anti-discrimination laws have failed to integrate. These practices, which continue today despite laws prohibiting them, also created the disparity in wealth between African-Americans and Whites that make it impossible for most African-Americans to acquire property in these neighborhoods today. These structural inequalities limit opportunities for African-Americans and Whites to interact as equals and consider members of the other group as potential romantic partners.

The law has also contributed to the dearth of marriageable African-American men. Failing schools and a racialized criminal justice system have led to the mass incarceration of African-American men and rendered them virtually employable and unmarriageable after their release, leaving African-American women to raise children alone (or pursue relationships with men of other races).

The law's active role in facilitating discrimination and its failure to remedy the continuing effects of its discriminatory policies would support state intervention to ensure that African-American children's access to resources and opportunities are not limited by racial preferences that the law helped shape or reinforce. However, even if the law had not played an active role in shaping our romantic preferences, the state's interest in eradicating disadvantages deriving from racial discrimination would warrant intervention to provide children affected by racial preferences with similar opportunities as other children.

Determining how the state should support these children is no easy task given limited resources especially when these children already have greater access to resources and opportunities than significantly disadvantaged children such as those in “fragile families.” At minimum, however, the recognition that despite their relative advantages, racial preferences may disadvantage the children of college educated African-American mothers suggests that the state should support all families *133 regardless of family form. This might be as simple as celebrating all families--married, divorced, blended, cohabitating, and single-parent--and eliminating the message that marital families are superior. Instead of the federal Healthy Marriage Initiative which funds projects that seek to encourage marriage before childbearing, and signals that marital families are superior to other family forms, the federal government should fund a Healthy Families Initiative. A Healthy Families Initiative should, like the current Healthy Marriage Initiative, be part of the federal government's “strategy to enhance child well-being.” However, instead of funding “public advertising campaigns on the value of healthy marriages” as the federal government does now, a Healthy Families Initiative would fund campaigns on the value of healthy families and parent-child relationships. These reforms would redirect funds away from programs seeking to promote marriage (and which have been unsuccessful) and towards programs that support parents regardless of their family structure. The name change alone would signal that all families are valued.

IV. Conclusion

This Essay's focus on the relative disadvantages experienced by the children of privileged--college educated African-American single mothers--might seem trivial given the significant poverty, family instability, and risk of poor outcomes faced by the much larger number of African-American children in fragile families. However, racial inequality affecting one child is still one too many. Further, the stigmatization of single-parent families, especially if African-American, negatively impacts all children in non-marital families regardless of their parents' income and education. A Healthy Families Initiative would benefit the children of college-educated single mothers by signaling that their families are no less normative than marital families. It would also direct resources to the families that need them most to secure their children's well-being rather than making support dependent on marriage.


Joseph M. Lynch Professor of Law, Seton Hall University School of Law.