Faculty Bibliography
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Due to infrequent and inconsistent testing, there is no reliable count of how many infants are exposed to substances in utero, yet recent data on drug use and child fatalities signal an unmitigated crisis. Efforts to limit responsibility of Child Protective Services (CPS) for substance-exposed infants, including laws to prevent doctors from conducting toxicology screenings when there is reasonable suspicion the infant was exposed, severely diminish the likelihood that the parent and child will receive necessary care. Plans of Safe Care, voluntary offers of services seen as a more compassionate alternative to CPS involvement, are not backed by any evidence of their actual efficacy in keeping children safe.
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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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The risk of repeat maltreatment at home is higher today, with the near-universal closing of schools, widespread stay-at-home orders, and the related isolation of families.
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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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Elizabeth Bartholet, Child's story underscores need for overhaul of DCF, Bos. Globe (Aug. 29, 2019).
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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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Elizabeth Bartholet, Advocating for the Child's Human Right to Family, 109 Adoption Advoc. 1 (2017).
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Intercountry adoption is about compassion, not politics.
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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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Elizabeth Bartholet & Paulo Barrozo, Amid Disaster, Haitian Orphans Find Homes, NPR (Jan. 21, 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.