Table of Contents

Nancy E. Dowd & Teresa Drake
Introduction: Early Childhood Symposium

Early childhood is a critical time in development when equality can be sustained, or inequality can take root. As a developmental period, it is marked by rapid neurological development, and thus the period from birth to three is a foundation for all future development. In early childhood, children’s critical need is developmental support through nurturing and responsive interactions in everyday activities and routines. Differences commonly emerge linked to the differences in children’s immediate ecologies. As the contributions to this symposium underscore, one of the major impacts on ecologies is income inequality, and in particular, poverty. While it is not the only factor contributing to early inequalities among children, it is certainly a major one. In addition, some children are subject to various traumas in their early years that create additional developmental hurdles. This symposium is an effort to break ground on these critical issues. Early childhood has been an area largely neglected by law. Here, we start the conversation about the role of law, as well as the intersecting roles of other disciplines, in developing new policies, whether designed to remove barriers and stumbling blocks, or to embrace a level of support and insure its provision to every child. The contributions by legal scholars as well as medical, public health, and early education scholars, demonstrate the broad questions that must be addressed—they provide a starting point that we hope others will follow.
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Margaret Beale Spencer
Developmental and Intersectional Insights About Diverse Children’s Identity (Plenary Speech)

These are difficult times for our nation which are expected to continue given changing demographics and the fact that too many young children are not provided a fair start. On the one hand—acknowledged or not—everyone represents a vulnerability status (i.e., possess both risks and protective factors). However—as a nation—and irrespective of vulnerability status, all children embody the sources of our own economic and social viability; thus, their less than fair treatment has consequences. And at the same time, it is imperative to state more specifically that if we cannot support all children simply because it is the right thing to do, then we need to weigh in because we are afraid to do anything less. Today’s young children will be of age to make decisions about our own quality of life as we experience the inevitability of old age—so if we cannot maximize their development because it is right, we should do it because we are fearful. When we invest in them, we are really investing in ourselves. Our joint presence here today to collaborate and pool conceptual resources to make all children resilient and supported is both humane as well as the economically and socially smart thing to do. In the remarks to be shared today, my intent is to offer the conceptual shortcomings which hinder scholarly contributions important to contemporary policies and practices.
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Barbara Bennett Woodhouse
Advocating for Every Child’s Right to a Fair Start: The Key Roles of Comparative and International Law

I have spent the last decade doing research in comparative children’s law and policy, using the ecological model created by famed sociologist Urie Bronfenbrenner. The ecological model studies the lives of children by placing the child in a larger social context. The purpose of my research has been to explore and begin to explain differences from nation to nation in the well-being of children. Just as there are rich families and poor families in every region and every nation, there are rich nations and poor nations around the globe. In family law, we require that parents provide a standard of living to their children commensurate with their station in life and appropriate to the parents’ income. Why is this not the case among nations? Why do some children have a standard of living that is shockingly low in comparison with their nation’s Gross Domestic Product (GDP)? Why do some children enter school far behind their age level peers in terms of cognitive, physical and social development?
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Laura A. Rosenbury
Toward a New Law of Early Childhood?

Family law in the United States has long subsumed early childhood within the doctrines of parental rights and family privacy. Recent scholarship critiques that move, highlighting ways that law might better support children under the age of five and their families. This development is promising so long as scholars do not exclusively focus on young children’s dependency, thereby reinforcing the traditional framework governing the legal regulation of children. This Essay proposes an alternative approach, one rooted in young children’s interests beyond dependency and the responsibilities and rights that flow therefrom.
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Maxine Eichner
The Free-Market Family and Children’s Caretaking

How can market societies like our own best ensure that children get the circumstances they need to flourish? It turns out that there are two different reining visions of the role government should play when it comes to public policies that support families, each of which dominates the public policies in different countries. The first of these, which I’ll call “free-market policy,” expects that families do best when they arrange for what they need privately through the market. The second, which I’ll call “pro-family policy,” is premised on the view that government should work together with families to support the conditions that children need. This essay considers which of these two systems does best at getting children the circumstances they need to develop well.
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Patricia Snyder & Maureen Conroy
Core Constructs in Federal Statutes for Young Children With or At Risk for Disabilities and Their Families: Implications for Comprehensive Early Childhood Policies and Systems

Publicly funded services and supports for children from birth to age 5, with or at risk for disabilities, and their families have been guided by a complex web of federal and related state statutes, as well as their associated implementing regulations or policy statements. These statutes and implementing regulations generally are identified with one of four primary early childhood program sectors: (1) health, mental health, and nutrition; (2) early education and learning, including special needs/early intervention; and (3) family support. Historically, these programs generally operated independently and under separate authority. This resulted in services and supports that were often fragmented and unevenly accessible or available to infants, toddlers, and preschool children with or at risk for disabilities and their families. Moreover, services and supports often were only available or were only provided in segregated settings (i.e., settings in which only young children with disabilities or with identified risk factors were served).
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Clare Huntington
A Promising Start for Early Childhood Development and the Law

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law—early childhood development and the law—would achieve these goals, sparking debate within law, bringing a legal perspective to interdisciplinary research, and involving legal scholars in policy debates about supporting early childhood development. As I elaborate below, this symposium and the preceding national summit are promising steps in the creation of this new subdiscipline, highlighting the theoretical and practical benefits of this focused inquiry and generating a research agenda. Drawing on this momentum, this essay also identifies the next steps for building the subdiscipline, with the ultimate goal of reorienting the legal system to nurture early childhood development.
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Nancy Dowd
Radical ACEs: Building Resilience and Triggering Structural Change

Children’s developmental equality is critical to their opportunity and lifetime success. If we are to dismantle hierarchies among children, we must dismantle barriers placed in their way as well as insure affirmative support so that each child achieves their full developmental potential. The Adverse Childhood Experiences (ACEs) framework identifies factors that create hurdles, not necessarily insurmountable, to children’s development. A higher ACEs number translates into geometrically increased challenges for individual children. Identifying ACEs, if used simply to count obstacles for children, does not contribute to the goal of children’s equality. Indeed, counting ACEs may have the converse effect, if identifying factors supports a story of deviancy and incapability, to stigmatize those children with high ACEs counts. In this essay I consider whether ACEs could have radical potential, as a framework for dismantling the causes of developmental hurdles. I consider both whether current, immediate uses of ACEs can facilitate broad solutions, as well as whether ACEs data can be used to trigger legal or policy responses to change structural conditions that generate ACEs.
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Shani M. King, Hannah Ayasse, Alyssa Mikytuck, Rachel F. Barr, Jennifer F. Woolard, & Terry Harrak
The Intersection of Juvenile Justice and Early Childhood: How to Maximize Family Engagement

There are currently 1.1 million parents who are incarcerated. This translates into between 2.3 million and 1.5 million children who have incarcerated parents. While the absolute number of children with incarcerated parents has risen sharply in the last decade, the percentage of children with incarcerated parents has remained relatively constant, at about 57%. There are many ways to think about the effects of incarceration on children. One way to think about it is not as a discrete time period, but as a process that unfolds over time, and includes various stages—including arrest and initial separation from the parent, unavailability of the parent during the period of incarceration, and the effect of reunification of the parent after incarceration. Furthermore, in thinking about the impact of incarceration on children, it is important to consider that these are indeed children; they are going through various developmental stages that worsen the initial trauma and uncertainty associated with abrupt parental loss, new caregiving arrangements, separation from siblings, and changes in schools and friendship networks.
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Daniel L. Hatcher
Stop Foster Care Agencies From Taking Children’s Resources

Like a novel from the grave of Charles Dickens, foster care agencies are partnering with companies to search for children who are disabled or have dead parents—in order to take their money for state revenue. The agencies are monetizing vulnerable children. Largely unknown to the public, states and their contractors have carried out the strategies for years: targeting children who might be determined disabled or whose parents have died, applying for federal disability (Supplemental Security Income – “SSI”) and survivor (Old Age, Survivors and Disability Insurance Program – “OASDI”) benefits on their behalf, and then taking control of the children’s money as representative payee. Often, the children never see the money and receive no benefit. By taking foster children’s resources to reimburse state costs, foster care agencies are forcing children to pay for their own care when the agencies and states are already legally obligated to do so. Further, if a parent or relative serves as representative payee and uses a child’s disability or survivor benefits to help with expenses for a child’s care, the child is better off because more funds are available to help in the household where the child lives. When foster care agencies take resources from children, the children receive no benefit; their money is used to provide neither them nor their foster care home more assistance. Rather, the agencies ignore their fiduciary obligations and route the funds to government coffers—while the contractors also take a cut.
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Scott A. Rivkees
Protecting the First 1000 Days of a Child’s Life and the 280 Days Before

Abundant evidence shows that the first 1000 days of a child’s life set the stage for the many wonderful years that follow. One can wind back the hands of the developmental clock by another 280 days to include embryonic and fetal life, a period when fetal programming of adult health takes place. During these biologically complex and vital times, considerable social, medical, economic, and policy support are needed, which if lacking, may cause unfortunate consequences. The first 1000 days of a child’s life are a time of dynamic brain development and organ maturation. Over the first 1000 days after birth, the brain increases to nearly adult size and proper wiring of the central nervous system takes place. Reflecting progressive biology, this period is marked by behavior evolution, spanning from when an infant is totally dependent on the parent to when the infant matures into an independent and verbal child. This process is a blend of progressive biological maturation that is dependent upon nutrition and medical care, along with behavioral shaping and intellectual stimulation. Highlighting the need for proper policy, each of these factors is influenced by state and federal laws.
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Joanna L. Grossman
The Seeds of Early Childhood

The image of newborn babies wrapped in identical blankets, lying side by side in hospital bassinets, one indistinguishable from the next, is both familiar and pervasive. It’s a sweet image that suggests the commonality of the life cycle. The irresistible inference is that those babies—all babies—leave life’s starting line together. Each is safe, clean, nurtured, and swaddled, under the watchful eye of a mother, perhaps a father, and an array of medical providers. But the reality is quite different. And while focusing on early childhood—those crucial years from zero to five—is necessary and long overdue, we need to train our lens to earlier points in time as well in order to understand the inequality, racism, and poverty that cements different life trajectories for children before they even start kindergarten. Even the hospital nursery is not a level playing field.
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Susan Nittrouer
Ending the Lottery

In the biography of Warren Buffet, titled The Snowball, Buffett contends that he won the “ovarian lottery” by being born in the United States. There are multiple examples of interviews and presentations in which Mr. Buffett explains his notion of the ovarian lottery, dating back as far as 1997 stakeholders’ meetings. In these presentations, Mr. Buffett invites members of the audience to imagine that they are about to be born, in 24 hours. Being in that situation, he explains, you do not know whether you will be born black or white, male or female, in North America or Afghanistan. You must, as all other beings on the brink of birth must do, draw a ticket at random. That ticket will determine the situation into which you will be born, and so determine your future, as well as the futures of your children and your grandchildren. This idea of the inescapable imposition of a random fate arises because so much is predicated on the conditions of one’s birth: societal expectations associated with your race or gender; opportunities afforded or denied to you because of your nation of birth; constraints on behavior related to your culture or religion; and so on. Although provocative, this idea needs some amending, because the lottery does not begin at the time of birth, but much, much earlier.
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Jodi Siegel, Chelsea Dunn, Carolyn Carter, & Rachel Coleman
Benefits of Pediatric Medical-Legal Partnerships

A child with severe asthma will have difficulty improving medically if he continues to live in an apartment with black mold. A child with mental health problems resulting from physical abuse will face medical hurdles until she is placed in a safe home. A child with a disability will not progress sufficiently without receiving appropriate educational services. These are but a few examples of what have become known as health-harming legal needs. Legal representation can force a landlord to provide safe housing, ensure that abusers are removed from the child’s home, and compel schools to provide appropriate education and other services. Other common health-harming legal needs include problems with Medicaid, public benefits, and employment. Through a team collaboration, called Medical-Legal Partnerships (MLPs), lawyers, doctors, nurses and social workers work together to resolve the legal and medical issues a child and her family faces, and obtain improved health and well-being outcomes.
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Katharine Silbaugh
Environmental Determinism: Functional Egalitarian Spaces Promote Functional Egalitarian Practices

Egalitarian, place-based thinking belongs at the table when considering approaches to improving early childhood. Places connect people’s lives. They also generate patterns that organize, and can re-organize, our social order and behavior.1 Places can spark and support the development of self-governance and cultivate a political voice grounded in the needs of the same community that place generates. Whether considered as community schools, community centers, or more ambitiously, community housing developments designed to include services that meet the needs of residents, the spatial dimensions of early childhood policy require explicit consideration.
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June Carbone
The Fight to Expand Education—Two Centuries Apart

The United States emerged as a power on the world scene at the beginning of the twentieth century as the best educated country in the world. It did so by leading the world in the embrace of free secondary education. This embrace occurred because of something more than the conviction that expanded educational opportunities made sensible public policy. It also occurred because of the construction of political coalitions committed to greater equality and to a cultural transformation in women’s roles. Today, the United States is no longer the best educated country in the world. Where it has fallen behind is in early childhood. Despite a scholarly consensus that early childhood experiences influence a child’s lifelong development and that investment in early childhood offers a bigger return on dollars spent than almost any other form of social spending, the United States is falling behind in mandating paid parental leave, providing access to high quality childcare, and insuring universal early childhood education. The investment in early childhood is the equivalent of the earlier fight for free secondary education, and it is not a fight that the United States is winning. This essay will examine the similarities and differences between the movements for free secondary education in the nineteenth century and the fight for early childhood education in the twenty-first century.
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