Foster care was always separate and unequal. The City of Philadelphia is now at the center of a U.S. Supreme Court case that may determine whether the legacy of separate and unequal foster care will remain. At issue: Can a foster care agency with state financial support deny adults identifying as LGBTQ from serving as foster parents?

From the beginning, orphanages in the U.S. were established by religious organizations to take care of their own. Over time, state sanctioned practices to segregate children based on race, ethnicity, or religion were the hallmark of child welfare practice. Today, debates about whether government-funded agencies can deny opportunities for LGBTQ parents to foster may sound entirely novel, but the roots of discrimination in foster care go deep. As the number of states legislating against LGBTQ foster parents grows, along with a federal rule likely to broaden the impact, the U.S. Supreme Court is expected to resolve the question: Will separate and unequal prevail?

Looking far back into the historical record, early efforts to care for maltreated and abandoned children in the U.S. emphasized group care, rather than placing children with individual families. But these orphanages centered on the care of a single racial, ethnic, national origin, or religious group.

Prior to the Civil War, African American children in the North were routinely excluded from white-majority orphanages. A few orphanages were established by members of the African American community for Black children, notably in New York and in Philadelphia, but the resources available to care for these children were minimal, given the limited assets of the African American community.

As the U.S. territories grew, so did support for institutions that separated children based on race, national origin, or religion. Early orphanages in California, for example, were established only for Chinese or for Japanese children. Most orphanages were separate and unequal even into the late twentieth century.

Over time, congregate care arrangements were largely supplanted by foster homes. But state sanctioned discrimination hardly abated. In a landmark court case of the 1970s, Wilder v. Bernstein, New York City was sued over its discriminatory foster care practices based on race and religion. The plaintiffs contended that publicly-contracted Catholic and Jewish agencies engaged in routine discrimination against children of color.

The contemporary discussion has shifted to LGBTQ families, but the outcome is the same. How does a decision about adults have implications for children’s unequal outcomes? Close to half-a-million children live in out-of-home care in the U.S. In almost half of the states, the number of children needing foster care outstrips the supply of available foster homes. Restricting who is allowed to serve — not based on the quality of care they provide, but based on a characteristic such as sexual orientation — reduces the pool of qualified caregivers and leaves social workers with limited and often poor quality options for children’s care.

The children in care also come from a wide range of backgrounds and bring unique needs to care that require sensitive parenting. Some evidence suggests that the proportion of adolescents in foster care who are LGBTQ is 1.5 to 2 times greater than in the general population. These youth need adult caregivers who are thoughtful about their identity and their needs; denying adults who might be uniquely positioned to provide responsive care further reduces the likelihood that these youth will enjoy a quality foster care experience.

Today’s debates follow a long pattern of discrimination in foster care, denying children equal opportunities based on race, religion, national origin, and now sexual orientation. The debate is consequential. When children are placed in foster care as dependents of the court, they become the public’s responsibility; their care is a public trust; we pay for and support the substitute care children receive, but currently we pay for discrimination.

The historical legacy of separate and unequal was always wrong. We owe our children a correction to the historical record going forward.

Jill Duerr Berrick is the Zellerbach Family Foundation Professor of Social Welfare at the University of California, Berkeley.