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Stories Told and Untold: Confidentiality Laws and the Master Narrative of Child Welfare
No full textIn most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging consequences of confidentiality laws. Child welfare is characterized by a single, “master narrative,” or overarching description of conditions and phenomena that explains, or purports to explain, the field.1 The master narrative gathers the stories of child welfare and unifies them into a single, coherent, commonly-accepted image. It is the way child welfare issues are understood. In short, the master narrative of child welfare depicts foster care as a haven for “child-victims”2 savagely brutalized by “deviant,”3
“monstrous”4 parents. Notwithstanding this shared public understanding, however, most children in foster care are alleged to have experienced neglect—deprivation of food, clothing, shelter, education, or another necessity of life—not physical abuse. There is also a growing understanding that some children in foster care ought not to be there at all. In addition, research and experience indicate that many maltreated children would be better off if simply left at home—with those responsible for the maltreatment—rather than placed in foster care.5
In Part II of this Article, I explain the concept of the master narrative, and present research about agenda-setting and issue-framing. I then present contrasting stories of child welfare, the “master narrative,” and an alternative story. The former reflects widespread popular conceptions of children, parents, the foster care system, and the executive and judicial branches of government; the alternative story is told by weaving the stories of individual children and parents with data and findings by child welfare researchers. In Part III, I set forth current laws and court rules that regulate admission to and disclosure of child welfare court hearings and records. In this Part, I share stories of two foster youths who sought to tell their own stories, but were confronted with attempts to silence them. In Part IV, I argue that confidentiality laws perpetuate the disjunction between the widely-accepted master narrative of child welfare and the alternative story of child welfare. I argue that confidentiality laws harm children and their parents by silencing their voices and suppressing their stories
No Child Left Behind: Disincentives to Focus Instruction on Students Above the Passing Threshold
No full textAs a result of the No Child Left Behind Act (NCLB), schools place a great emphasis on standardized testing. Students at risk of failure are identified for additional instruction. This is aligned with the adequacy (versus equity) framework of school finance litigation, which seeks to bring the bottom up to a certain minimum level. Under the adequacy ideology, the focus is on achieving a minimum threshold of proficiency. In low performing schools where a high percentage of students are at risk of failing the test, a focus on the minimum creates disincentives to work with students performing at or above the testing expectations This is inappropriate because education functions in part as a positional good. We should not adopt education policies that function as ceilings on students\u27 achievement. The existing body of education law literature on NCLB has a large focus on low performing students, particularly in low performing schools. Existing literature argues either that NCLB reforms education for these students and school or it hurts them the most. There is little discussion about on level students who meet the testing expectations. These students do not trigger the red flags that the low performing students do, and as a result, they may get lost in the mix. This would be more pronounced in low performing schools, where most of the students may be at risk of failure. This Note argues that NCLB adversely affects students performing at or above testing expectations. To remedy this, we should use ideas from the equity framework of school finance litigation, which is comparative in nature, to learn from the problems of NCLB as we transition into Race to the Top and strive to maximize the potential of all students, including the on level students. School finance decisions since the 1960s have taken an equity or adequacy approach, or a combination of both approaches. The emphasis on standards based reform has intersected with school finance decisions, particularly since the enactment of NCLB. Existing literature analyzes whether this will help or hinder plaintiffs in school finance lawsuits. This Note intends to use the ideology of the equity and adequacy frameworks of school finance as lenses through which to view NCLB, particularly as it affects those students who meet the testing expectations in low performing schools. NCLB is a parallel to the adequacy ideology, setting goals at a minimum threshold of acceptability or proficiency. Such goals are inappropriate as educational policy and this Note proposes ideas from the equity ideology as a means of coping with NCLB. Part II provides background on the high stakes testing component of NCLB and an overview of some of the main criticisms of the law. Part III discusses the adequacy and equity frameworks of school finance litigation and how they intersect with NCLB. Part IV analyzes how using adequacy as a lens or framework can help demonstrate how NCLB creates disincentives to work with students who are above the passing mark. This analysis centers on low performing schools and argues that NCLB creates incentives to work with students on the threshold of passing to the exclusion of the on level students, which results in a ceiling on student achievement. Part V argues that focusing on a minimum level of acceptability is poor public policy and suggests possible solutions, relying on aspects of the equity ideology, and addresses the potential drawbacks of an equity-oriented approach. Part VI concludes the Note with specific examples of cases that have used equity-oriented approaches that may serve as a model for future decisions
Missing In Action: Prisoners Of War At Guantanamo Bay
No full textThe United States of America has presented a national and international image of fairness, justice, and humane treatment of others, while abiding by the laws to which it is bound. However, the reputation of the United States has been tarnished by its seemingly prolonged internment of detainees at Guantanamo Bay. After reports of torture, sexual degradation, and the refusal to apply prisoner of war status to any of the detainees the world is looking to the United States for answers and demanding changes to the current situation at Guantanamo Bay. This paper focuses on the lack of application of prisoner of war status, as provided for in the Geneva Convention, to Guantanamo Bay detainees. This paper also examines the United States Supreme Court decisions reviewing the extension of United States jurisdiction to the Guantanamo Bay detainees and other international treaties the United States is a party to that provide for the detainees\u27 rights to a fair trial
Matter of S-E-G-: The Final Nail in the Coffin for Gang-Related Asylum Claims?
No full textIn July 2008, the Board of Immigration Appeals (BIA)1 affirmed an Immigration Judge’s (“IJ”) denial of asylum to three young Salvadoran siblings fleeing gang violence and threats. This decision affects the likelihood that other youth and their family members fleeing gang violence will gain protection in the United States. The reach of the BIA decision in Matter of S-E-G-2 stretches far beyond the facts of the actual case or gang cases in general and may shape the future of asylum based on membership in a particular social group. The BIA published Matter of S-E-G- as one of only 36 precedent decisions in 2008, making the decision binding on all IJs as well as the BIA itself.3 The decision is important, as it appears to elevate the notion of “social visibility” from a factor in the determination of a particular social group to a requirement. This article examines how Matter of S-E-Ghas affected the legal landscape with regard to asylum claims based on particular social group. Part I of this paper provides a brief background on the Central American gang problem. Part II briefly examines the state of the U.S. law on social group prior to S-E-G-. Part III summarizes the decision itself, analyzes the problematic elements of the decision, and provides an update as to the current status of the case. Part IV examines U.S. case law following S-E-G- in the Circuit Courts of Appeal. Part V presents an analysis of the potential impact of S-E-G- on other social group cases. Part VI explores recent Canadian jurisprudence on gang-related persecution claims, while the conclusion suggests how advocates and judges can move past S-E-G- to carefully consider gang-related cases
Admitting the Truth: The Effects of Affirmative Action, Legacy Preference and the Meritocratic Ideal on Students of Color in College Admissions
No full textAffirmative Action for the Rich sketches the origins of legacy preferences, examines the philosophical issues they raise, outlines the extent of their use today, studies their impact on university fundraising, and reviews their implications for civil rights. In addition, the book outlines two new theories challenging the legality of legacy preferences, examines how a judge might review those claims, and assesses public policy options for curtailing alumni preferences.The book includes chapters by Michael Lind of the New America Foundation; Peter Schmidt of the Chronicle of Higher Education; former Wall Street Journal reporter Daniel Golden; Chad Coffman of Winnemac Consulting, attorney Tara O\u27Neil, and student Brian Starr; John Brittain of the University of the District of Columbia Law School and attorney Eric Bloom; Carlton Larson of the University of California—Davis School of Law; attorneys Steve Shadowen and Sozi Tulante; Sixth Circuit Court Judge Boyce F. Martin Jr. and attorney Donya Khalili; and education writer Peter Sack
Imagining a More Humane Immigration Policy in the Age of Obama: The Use of Plenary Power to Halt the State Balkanization of Immigration Regulation
No full textThe first decade of the twenty-first century has been grim for immigrants to the United States—both legal and undocumented—and the lawyers and advocates who work on their behalf. Following the failure of comprehensive immigration reform at the federal level, states and municipalities have seen fit to take matters into their own hands and pass a patchwork of local ordinances, statutes, and ballot initiatives ostensibly designed to do what the federal government had failed to do—regulate the flow of immigration into their cities and towns. As the economy continues to spiral downward into what may very well be the next Great American depression, the impact of immigrants to the United States on our economy and the benefits and burdens of their presence continues to be the source of great debate. With the election of President Barack Obama—himself the son of an immigrant—immigrants’ rights advocates were hopeful that the new Administration would not only reject the George W. Bush Administration’s interpretation of immigration policy—which took a permissive view toward the ability of state and local governments to regulate immigration—but that the Obama Administration would also urge Congress to pass comprehensive immigration reform that reflects a more just and humane approach toward immigrants and their legal and social integration into our society overall. However, with the installation of former Arizona Governor Janet Napolitano as Secretary of Homeland Security, early indications are that the Obama Administration is embracing the immigration policies of the Bush Administration, with an emphasis on enforcement-only policies at the federal level and the continuing delegation of immigration regulation to state and local governments.
This Article argues for the reassertion of Congress’s plenary power to regulate immigration, and examines the possibilities for radical change in immigration policy that are presented to us as we close out the first decade of the twenty-first century and begin looking toward the next