Faculty Bibliography
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The case against the Indian Child Welfare Act, which requires that children be kept within their communities of origin.
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This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
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This article describes the rapidly growing homeschooling phenomenon, and the threat it poses to children and society. Homeschooling activists have in recent decades largely succeeded in their deregulation campaign, overwhelming legislators with aggressive advocacy. As a result, parents can now keep their children at home in the name of homeschooling free from any real scrutiny as to whether or how they are educating their children. Many homeschool precisely because they want to isolate their children from ideas and values central to our democracy. Many promote racial segregation and female subservience. Many question science. Many are determined to keep their children from exposure to views that might enable autonomous choice about their future lives. Abusive parents can keep their children at home free from the risk that teachers will see the signs of abuse and report them to child protection services. Some homeschool precisely for this reason. This article calls for a radical transformation in the homeschooling regime, and a related rethinking of child rights and reframing of constitutional doctrine. It recommends a presumptive ban on homeschooling, with the burden on parents to demonstrate justification for permission to homeschool.
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Four feminist law professors at Harvard Law School have called on the U.S. Department of Education to revise the previous Administration’s policies on sexual harassment and sexual assault on campus. In a memo submitted to the Education Department yesterday, they set out an agenda of fairness for all students, accusers and accused. In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers. Janet Halley and Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were four of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.” Janet Halley said “The college process needs legitimacy to fully address campus sexual assault. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.” The professors submitted to the Education Department a memorandum entitled “Fairness for All Students under Title IX.”
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This article presents a critique of the self-styled liberal group that has dominated child welfare policy in recent decades, arguing that the group’s policy goals unduly favor parent over child interests, and that its self-serving research fails to provide policy-makers with an understanding of how the group’s favored policies put children at risk. The article analyzes the dominant group’s problematic approach in the three most significant movements of recent decades -- intensive family preservation services, racial disproportionality, and differential response. It calls on true liberals to reject this group’s leadership, to recognize children as one of the ultimate powerless constituencies needing representation, and to fight for policies that will better serve child interests. Finally it calls for a new research culture, enabling truly independent social science to flourish so that it can guide policy makers about the pros and cons of different policy choices in terms that include child interests.
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Elizabeth Bartholet, The Hague Convention: Pros, Cons, and Potential, in The Intercountry Adoption Debate: Dialogues Across Disciplines (Robert L. Ballard et al., eds., 2015).
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Elizabeth Bartholet, The International Adoption Cliff: Do Child Human Rights Matter?, in The Intercountry Adoption Debate: Dialogues Across Disciplines (Robert L. Ballard et al., eds., 2015).
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Differential Response represents the most important child welfare initiative of the day, with Differential Response programs rapidly expanding throughout the country. It is designed to radically change our child welfare system, diverting the great majority of Child Protective Services cases to an entirely voluntary system. This Article describes the serious risks Differential Response poses for children and the flawed research being used to promote it as “evidence based.” It puts the Differential Response movement in historical context as one of a series of extreme family preservation movements supported by a corrupt merger of advocacy with research. It argues for reform that would honor children’s rights, confront the problems of poverty underlying child maltreatment in a serious way, and expand rather than reduce the capacity of Child Protective Services to address child maltreatment. It calls for a change in the dynamics of child welfare research and policy so that we can avoid endlessly repeating history in ways harmful to child interests.
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Elizabeth Bartholet, Creating a Child-Friendly Child Welfare System: The Use and Misuse of Research, 13 Whittier J. Child & Fam. Advoc. 1 (2014).
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This article, a revised speech, contends that what we call the child welfare system is skewed in an adult-rights direction, and is often quite hostile to child interests. The field is characterized by an unusual amount of social science research, which should be helpful in guiding policy. However that research is similarly skewed in an adult-rights direction. This is largely because the same entities fund the research as fund policy advocacy, and they have promoted research designed to validate the kinds of family preservation policies they favor, policies that are often inconsistent with child best interests. We need to develop new mechanisms to fund the kind of truly independent research that would illuminate the child-best-interest issues, and enable policy-makers to design a truly child-friendly child welfare system.
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Elizabeth Bartholet & David Smolin, The Debate, in Intercountry Adoption: Policies, Practices, and Outcomes (Judith L. Gibbons & Karen Smith Rotabi, eds., 2012).
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This paper summarizes what the author believes can be learned from the evidence presented at a conference co-sponsored by Harvard Law School’s Child Advocacy Program and Chapin Hall at the University of Chicago on what has generally been termed racial disproportionality in child welfare. The conference was designed to present some of the best available evidence analyzing the high representation of black children in foster care, and exploring policy implications. Some have contended that black/white maltreatment rates are similar, and accordingly that child welfare system bias is responsible for this high representation. However the evidence presented helped demonstrate that overall, higher rates of black contact with child welfare reflect differences in the underlying incidence of actual maltreatment. This paper incorporates material from a short Chapin Hall “Issue Brief”on the same topic co-authored with three others, but goes beyond that Issue Brief to provide a more complete description of the evidence, with links to the conference videos, powerpoints, and related papers. It describes in more detail the evidence both on high black maltreatment rates, and on the potential of certain targeted program to prevent maltreatment and to protect victimized children. It argues that the focus on alleged child welfare system bias with its emphasis on anti-racism training and on immediate reduction in the number of black children removed to foster care, diverts attention from the most significant problems facing black families and poses dangers to black children victimized by maltreatment. It concludes that reducing the number of children in care without reducing the prevalence of child maltreatment will endanger children, and that the work to facilitate real reform is much more challenging.
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Elizabeth Bartholet, International Adoption: The Human Rights Issues, in Baby Markets: Money and the New Politics of Creating Families (Michelle Goodwin, ed., 2010).
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This is the introduction to a special issue of articles on international adoption, summing up their relevance to the debate in the field. International adoption is in turmoil, with a dramatic reduction in recent years in the number of children placed in adoptive homes. These articles provide important new support for international adoption as an appropriate way to advance children’s rights and interests. And they provide information about ways to address any problems of corruption and abuse, without penalizing unparented children by denying them the homes they need.
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Permanency in the form that truly serves children’s best interests will often be found only in international adoption. Permanency in dysfunctional birth families, or in institutions or typical foster care, does not provide the nurturing parenting children require. This article focuses on the strategic thinking needed to advance international adoption as a solution for more of the world’s unparented children. It urges that we who believe in such adoption recognize the crisis today, but at the same time maintain belief in the future. International adoption is consistent with many important globalization trends – international trade and commerce, emigration and immigration, intermarriage between people from different racial, ethnic, and national groups. The article urges further that the relatively small and fragile group of adoption advocates work together, and reach out to new groups, including church organizations committed to the importance of providing true families for children. But at the same time it urges that they not compromise on principles key to child well-being, but fight for children’s right to international adoptive homes and their related right to early, permanent, and nurturing parenting, and reject the false romanticism surrounding birth and national heritage.
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Millions of infants and young children worldwide are desperately in need of nurturing homes. Many are living in institutions, and many on the streets, and almost all these children will either die in these situations, or if they survive, will emerge into adulthood so damaged by their childhood experience, and so deprived of parenting, educational and other essential childhood opportunities, that they will be unable to function in the worlds of family and work. International adoption could provide significant numbers of nurturing homes for these children. However current policy restricts international adoption, limiting its ability to provide such homes. Moreover most of the powerful organizations of the world that claim to represent children's rights and interests have joined with other forces opposing international adoption. This article argues that effective child advocacy is a challenge, given the fact that infants and young children are unable to voice their views or promote their interests, and the related risks that adults will use children to further various adult agendas. True empathy is required to imagine what children would want were they able to think rationally and make informed decisions. But if we were to imagine homeless children capable of making such decisions, then it seems obvious that they would choose international adoption given the horrors of institutional and street life, and the limited options for any kind of adequate home care in their countries of birth. Opposition to international adoption cannot be justified based on any best interest of the child principle, despite the claims of many children's rights organizations. Instead it is grounded in a group of commonly shared but deeply flawed ideas about children and the role of the state, and driven by adult agendas that are not truly informed by children's interests.
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This article discusses the human rights debate at the core of current controversy over international adoption. Many powerful children's human rights organizations, including UNICEF, take the position that such adoption should be restricted if not eliminated, based on ideas about heritage rights and the related significance of keeping children within their country of origin. They have had a major impact on policy in recent years, resulting in the closing down of international adoption from many countries. This article takes the position that children's most important human rights include the right to grow up in a nurturing family, and that international adoption is able to offer significant numbers of children the permanent homes they need and will not find in their countries of origin. It discusses the history and current trends in such adoption, recent legal developments, the politics and policy pros and cons, and reform directions for the future.
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Written by experts in the field, this authoritative and accessible volume is the first comprehensive introductory history of adoption and foster care in the U.S. from the colonial period to the present, giving particular attention to the ...
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This paper looks at our new technological ability to determine genetic paternity, in the context of legal and social developments related to the family, and tries to come up with some guidelines for figuring out how to decide parentage in the modern era. Many claim that since DNA tests mean we can now easily tell who the genetic father is, we should make that man the legal father and release any other who might be playing that role from parental responsibility. However the trend in law over recent decades has been in the direction of reducing the role that biology plays in determining parentage, with the law giving increasing deference to existing social parenting relationships and to the intent to create such relationships as factors to take into account when parentage is contested. This paper assesses the importance of the genetic link to parenting, considers it in comparison to a variety of other factors relevant to parenting, and sets out some guiding principles for choosing among possible parents, principles designed to serve children's interests in stable, nurturing, parenting relationships.
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This article, originally delivered as a speech, sums up problems and progress in four key areas of central importance to dealing with child abuse and neglect. The article focuses on law and policy in the United States, noting that the U.S. seems to be joining the rest of the world in moving, however haltingly, in a more child-friendly direction. We have developed some early home visitation programs, designed to help fragile families at risk for abuse and neglect - programs which have demonstrated impressive success in preventing maltreatment, and are receiving increasing public and private support throughout the nation. We have passed national legislation - the Multiethnic Placement Act or MEPA - designed to eliminate the race matching of children in need of homes with prospective parents, which served to delay and deny adoptive placement for many minority race children. We have passed other national legislation - the Adoption and Safe Families Act or ASFA - designed to facilitate the adoptive placement of children previously held for extended periods in foster care, and to balance the prior emphasis on family preservation with a new emphasis on children's interests in growing up in a nurturing home. We have begun to confront the problem of parental substance abuse, creating family drug courts and initiating other reforms designed to ensure that either parents engage successfully in substance abuse treatment so that they can adequately parent their children, or otherwise the children move on to adoptive placement. The article emphasizes that controversy surrounds all these reform moves, and that progress in a child-friendly direction depends on the energy and commitment of child advocates.
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Argues that the current system of adoption in the United States is not in the best interest of the children.
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In the only book to make sense of the worlds of adoption and fertility treatment, Bartholet combines moving personal narrative with compelling policy analysis.
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This article is adapted from the introduction to the author's recent book Nobody's Children: Abuse and Neglect, Foster Drift and the Adoption Alternative. It challenges the accepted orthodoxy in the child welfare world that views children as "belonging" in an essential sense to their kinship and their racial groups, and that locks them into inadequate biological and foster homes. It calls for application to abuse and neglect issues, lessons learned from the battered women's movement, and questions why family preservation ideology still reigns supreme when children rather than adult women are involved. It assesses promising new developments in the policy world, and warns of the pitfalls that threaten real progress. It argues that the entire community should take responsibility for all its children, and advocates that we take seriously for the first time in our nation's history the adoption option.
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Elizabeth Bartholet, International Adoption: Propriety, Prospects, and Pragmatics, 13 J. Am. Acad. Matrimonial Law. 181 (1996).
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It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more particularly, adoption in relation to reproduction. By reproduction I mean three different things: (1) traditional reproduction, or the production of a child through normal intercourse between one man and one woman; (2) infertility treatment, or the use of medical technology to assist a man and a woman to produce a child using his sperm and her egg and womb; and (3) a variety of child producing and parenting arrangements that I have collectively termed "technologic adoption." By the latter, I mean arrangements that result in the social equivalent of either step-parent adoptions or full adoptions, where the child is produced in order to be raised by one or more parents who will not be genetically or biologically related. I am referring to such practices as donor insemination, surrogacy, both in its "traditional" and gestational form, egg donation or sale, and embryo donation or sale.
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Some twenty-five years ago a trial court in Virginia upheld the state ban on interracial marriage, reasoning that God created different races and, accordingly, that it was natural to maintain racial purity, and unnatural to engage in racial mixing. 1 At that time, many other state laws banned both interracial marriage and transracial adoption. In Loving v. Virginia, 2 the United States Supreme Court struck down the Virginia antimiscegenation law, reversing the trial court's decision and holding that it was unconstitutional for states to mandate racial separatism in the family. Later, in Palmore v. Sidoti, 3 the Court ruled that it was unconstitutional to transfer custody of a white child from mother to father solely because the mother was living with a black man. While the Court acknowledged that it might not be in the child's best interests to live in a transracial family, it held that the equal protection doctrine prevented consideration of the race of a potential parent in making custody decisions. In the 1960s and 1970s, the courts in this country outlawed formal state bans on transracial adoption, finding them similarly inconsistent with the equal protection doctrine. There has been a similar development in South Africa today, where the ban on transracial adoption has just recently been lifted as part of the move to abolish apartheid. But in the United States a strange thing happened in 1972. The National Black Social Workers Association (NABSW) issued a statement calling for a new ban on transracial adoption.
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