Person:

Bartholet, Elizabeth

This article takes seriously the idea of intergenerational justice for children, and takes as starting premises that child interests count as equivalent to adult, and that we owe justice not just to existing children but also to the next generation. It argues that intergenerational justice demands a major restructuring of policies throughout the world governing adoption, reproduction, and child welfare. We now encourage the reproduction of more children than we can care for, provide limited child welfare enabling poor parents to care for their children, and discourage adoption of existing children who need homes. These policies are perverse, unfair not just to children but adults as well. Societies that damage their children will have to live with those children when they grow up, children at high risk for crime, substance abuse, unemployment, poverty and for mistreating the next generation. We need to reverse the perverse. We need to change the pronatalist and anti-contraception policies that encourage the reproduction of children who won’t be born healthy or receive nurturing care, and we need to encourage adoption both domestic and international.

An intergenerational justice perspective requires that we look at the condition of the existing generation of children and those to be born in the future. Many millions of the existing generation of children are now in trouble and at high risk of never fulfilling their human potential. These children are in turn unlikely, if they live to produce children, to be capable of providing the nurturing parenting that the next generation will need.

The article’s starting premises are that we should count child interests as of equivalent value to adult interests and that we do owe justice not just to the existing generation of children but to the next generations as well. Justice to the next generations means encouraging the creation of children who will have a good chance to enjoy the pleasures of life, children who will be born healthy and will be brought up by nurturing parents. Given these premises, there is much wrong with current reality and related policy.

We now encourage the reproduction of more children than we can care for, provide limited child welfare enabling poor parents to better care for their children, and discourage adoption both domestic and international. We should reverse these policies. We should change the pronatalist and anti-contraception policies that encourage the reproduction of children who won’t likely be born healthy or receive nurturing care. We should provide child welfare so that poor parents who want to keep and raise their children can do so. We should encourage adoption, both domestic and international.

Differential Response (DR) represents the most important child welfare initiative of the day, with DR programs rapidly expanding throughout the country. It would radically change our child welfare system, diverting the great majority of Child Protective Services (CPS) cases to an entirely voluntary system. This article describes the serious risks DR poses for children, and the flawed research being used to promote DR as “evidence-based.” It puts the DR 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 CPS to address child maltreatment. It calls for a change in the dynamics of child welfare research and policy so that we can avoid history endlessly repeating itself.

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.

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 public education and 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. 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.

The Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of Sisters left us a mixed legacy, one part blessing and one part curse. Many would agree on this but differ on which part is blessing and which part curse. In my view the blessing is the doctrine of substantive due process protecting personal liberty. The Court did not use this language in these cases, but it did rule that the states’ attempts to interfere with parent rights in those cases violated the 14th Amendment to the U.S. Constitution, and the Court made it clear that in future cases the state would bear a heavy burden to justify any such attempts. In later cases, the Court looked back to Meyer and Pierce as the foundational law when it created important reproductive freedom and relationship rights—the right to contraception and abortion, the rights to sex and marriage for same-sex couples. In my view the curse is the doctrine of parent rights, given the Court’s failure to create any comparable rights for children. More on this later, but first a word on legacy.

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.”