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Sep 20, 2009 - Emory University School of Law. Public Law & Legal Theory Research Paper Series. Research Paper No. 10-95. A WORLD FIT FOR ...

Emory University School of Law Public Law & Legal Theory Research Paper Series Research Paper No. 10-95

A WORLD FIT FOR CHILDREN IS A WORLD FIT FOR EVERYONE: ECOGENERISM, FEMINISM, AND VULNERABILITY

Barbara Bennett Woodhouse

This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection.

Electronic copy available at: http://ssrn.com/abstract=1564937

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ARTICLE A WORLD FIT FOR CHILDREN IS A WORLD FIT FOR EVERYONE: ECOGENERISM, FEMINISM, AND VULNERABILITY *

Barbara Bennett Woodhouse TABLE OF CONTENTS I.

INTRODUCTION: THE UNIVERSALITY OF VULNERABILITY .................................... 818

II.

THE EVOLUTION OF GENERISM AND ECOGENERISM .......... 820

III.

THINKING ABOUT EARLY CHILDHOOD ............................... 824

IV.

THE GAP BETWEEN REALITY AND U.S. POLICIES ............... 827

V.

COMPARING THE UNITED STATES AND PEER NATIONS ...... 833

VI.

HOW AMERICAN POLICIES FAIL BOTH CHILDREN AND THEIR MOTHERS ............................. 838

* L. Q. C. Lamar Chair in Law and Co-director of the Barton Child Law and Policy Clinic, Emory University; David H. Levin Chair in Family Law (Emeritus), Fredrick G. Levin College of Law, University of Florida. Special thanks to Stephanie Bates Galligan, UF Law ‘10, for her able research assistance. Thanks as well to colleagues who attended the January 30, 2009, symposium, co-sponsored by Seoul National University and Emory University, for their contributions to an earlier version of this paper published under the title Individualism and Early Childhood in the U.S.: How Culture and Tradition Have Impeded Evidence-Based Reforms, 8 J. KOREAN L. 135 (2008). For insights into Italian law and policy, I am grateful to Dr. Elena Urso and the distinguished participants in the symposium on early childhood held on March 13, 2009, in Florence, Italy and co-sponsored by the Universita’ di Firenze and the University of Florida. Finally, deepest thanks to the convenors of the Houston Symposium on Feminism and Child-Centered Jurisprudence and to the able students of the Houston Law Review who contributed so much to this Article.

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VII. COMPARING ITALY AND THE UNITED STATES ..................... 843 VIII. INDIVIDUALISM AND ITS NEGATIVE IMPACT ON CHILDREN AND THEIR CAREGIVERS ............................. 849 IX.

HISTORICAL ANTECEDENTS: HEAD START AND THE VETO OF THE 1971 COMPREHENSIVE CHILD DEVELOPMENT ACT ................................................ 855

X.

THE CONTINUING CULTURAL INFLUENCE OF INDIVIDUALISM ON WOMEN AND CHILDREN DURING EARLY CHILDHOOD ............................. 859

XI.

TOWARDS A MORE ECOLOGICAL PARADIGM THAT SEES THE CONNECTIONS BETWEEN WOMEN’S AND CHILDREN’S LIVES ...................................... 860

XII. FEMINISM, ECOGENERISM, AND THE FERTILITY PARADOX ............................................ 862 I.

INTRODUCTION: THE UNIVERSALITY OF VULNERABILITY

“A World Fit for Children” is the title of a report delivered to the U.N. General Assembly’s Special Session on Children in 2002.1 The report was the fruit of three days of discussions and debates carried out by over 400 youth delegates aged ten to eighteen (also referred to as the “U-18s”) representing children from all of the nations of the world.2 In their report, the children identified many threats to their well-being, from the degradation of the natural environment, to the HIV epidemic, to war and hunger,3 each of which is also a threat to women and, indeed, to humans everywhere. The U-18s were not engaged in special pleading on behalf of children, but on behalf of all who inhabit the planet. These U-18s played an integral role in the 2002 U.N. Special Session, and their message transcends the politics of

1. UNITED NATIONS CHILDREN’S FUND (UNICEF), A WORLD FIT FOR CHILDREN (2008), available at http://www.unicef.org/adolescence/files/A_World_Fit_for_Children_ 072808.pdf. The Special Session had been scheduled for the third week of September 2001. After the attacks of September 11th, the Special Session was rescheduled for May 2002; thus, delegates were assembling in the shadow of the World Trade Center bombings and the war in Afghanistan. 2. UNITED NATIONS CHILDREN’S FUND (UNICEF), A WORLD FIT FOR US 4 (2007), available at http://www.unicef.org/worldfitforchildren/files/A_World_Fit_for_Us.pdf (reflecting on progress made and the challenges remaining since the 2002 assembly). 3. A WORLD FIT FOR CHILDREN, supra note 1, at 66–71.

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division to make a statement about our shared vulnerability and our shared strength. This Article is premised on the notion that building a world in which children flourish is integral to the project of building a world in which women flourish, and vice versa. By meeting the needs of children and their caregivers, we build an environment in which all can flourish. In my prior writings, inspired by the work of feminists, and especially the Feminism and Legal Theory Project,4 I developed a 5 Inspired by child-centered theory called “generism.” environmental, physical, and social science, I have refined this theory under the more descriptive title of “ecogenerism.”6 In this Article I am claiming that feminism and generism or ecogenerism are mutually complementary and compatible approaches to a broad range of concerns that threaten shared values of human flourishing. Feminist theory, and especially the branch called “intersectionality,” challenges inequality and systematic marginalization of others besides women.7 Likewise, generist theory does not cease to be generist theory when it challenges the oppression of others besides children. Generism also does not cease to be generism when it addresses the devaluation of persons other than children. I will argue that systematic devaluations of women and children are deeply interconnected and need to be addressed together. My premise is not novel. Political analysts already lump all manner of things that matter to children—decent schools, safe streets, quality and affordable health care and day care—under the somewhat patronizing rubric of “women’s issues.” Human rights documents already demonstrate that the concerns of

4. For a brief history of the Feminism and Legal Theory Project, from its founding in 1984 by path-breaking scholar Martha Albertson Fineman, to its 25th anniversary celebration in 2008, see Feminism and Legal Theory Project Homepage, http://www.law.emory.edu/academics/academic-programs/feminism-legal-theory.html (last visited Sept. 18, 2009). 5. See generally Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 CARDOZO L. REV. 1747 (1993) (advocating a generist perspective, which would “value most highly concrete service to the needs of the next generation . . . and encourage adult partnership and mutuality in the work of family, as well as collective responsibility for the well-being of our children”). 6. See Barbara Bennett Woodhouse, Ecogenerism: An Environmentalist Approach to Protecting Endangered Children, 12 VA. J. SOC. POL’Y & L. 409, 441–42 (2005) (bringing additional focus to “the ecology of childhood and the central role of the children themselves in the process of their own development”). 7. Emily Grabham, Feminism, Law, Inclusion: Intersectionality in Action, 44 OSGOODE HALL L. J. 753, 753 (2006) (book review) (identifying Kimberlé Crenshaw’s seminal article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, as the beginning of a revolution in feminist thought).

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women and the concerns of children are deeply interconnected.8 But, too often, we in the United States seem to magnify out of proportion the rare clashes between women’s rights and children’s rights, rather than focusing on the overwhelmingly positive correlations between rights for women and rights for children. Perhaps our Constitution, with its single-minded focus on individual rights, looms so large in our imaginations that it blocks our view of the basic human rights concepts that unite us. Lawyers trained in the United States tend to frame discussions as clashes of rights—the fetus’s right not to be killed and the woman’s right not to be told when or whether to bear a child, for example. This framework suggests that rights are a zero sum game. More rights for women mean fewer rights for children, and vice versa. Instead, I will argue that employing an ecogenerist method brings from the margins to the center those basic economic and social rights that are missing from the U.S. Constitution but so critical to understanding human rights and the human condition generally. Human rights principles, by placing rights in an economic and social context, acknowledge and make visible the interdependency of women’s and children’s rights and the interdependency of women’s and children’s interests. As others have observed, both the right to life and the right to reproductive choice are hollow if the material conditions necessary to exercise such rights are lacking.9 Feminism and the child-centered perspective I call ecogenerism are alike in recognizing that rights without resources are meaningless to dependent persons and those who care for them. Both methods avoid the trap of focusing narrowly on the individual and both demand that we recognize our shared interconnectedness and our shared vulnerabilities, as well as our rights to individual autonomy and privacy. II. THE EVOLUTION OF GENERISM AND ECOGENERISM In this section, I will describe the evolution of the theory I call “generism.” The term is one that I coined in Hatching the Egg, drawing upon feminist theory and theories of child and human development.10 Erik Erikson, the great psychologist, used 8. E.g., UNICEF, THE STATE OF THE WORLD’S CHILDREN 2007, at 69 (2006) (arguing that gender equality reaps a “double dividend” for the benefit of both women and children). 9. See, e.g., DOROTHY ROBERTS, KILLING THE BLACK BODY 229 (1997) (“If the facilities needed to effectuate a reproductive decision cost money, poor and low-income women . . . may not be able to afford to take advantage of them.”). 10. See Woodhouse, supra note 5, at 1754–55.

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the term “generativity” to describe an advanced stage of psychological development.11 He defined it as a commitment to the welfare of succeeding generations, but he used examples that showed that generativity is present in people who have children and in those who do not—in small scale interactions such as teaching, parenting, and mentoring as well as in large scale actions such as advocacy for social change that will outlive the individual advocate.12 Erikson saw this concern for the well-being of future generations as the pinnacle of developmental maturity 13 in the life stage of adulthood. Generism also relies on the insights of the feminist method. The very process of naming an “ism” gives visibility to previously invisible subjects. Just as feminists taught us to ask “the woman question”—how does this policy or this status quo affect women?—I urged readers to ask “the child question”—how does 14 this policy or this status quo affect children? I also used narratives of life, as viewed through the eyes and experiences of children, to dismantle the stereotypes and adult-centric models that hide injustices towards children and make them appear “natural” or “normal.”15 In more recent writings I have taken the insights of developmental science and of feminism and added an ecological or environmental component.16 I call this theory “ecogenerism.” Rather than seeing the child as an isolated subject (or object), ecogenerism places the child in ecological context.17 This ecological approach to child development was introduced by a scholar of child development named Urie Bronfenbrenner,18 and it has been central to the work of contemporary sociologists such 19 as James Garbarino. An ecological approach situates the child 11. ERIK H. ERIKSON, CHILDHOOD AND SOCIETY 266–73 (2d ed. 1963). 12. Id. at 266–68; see also RICHARD I. EVANS, DIALOGUE WITH ERIK ERIKSON 50–51 (1995) (“It is possible for a person to fulfill his generativity by working with other people’s children or helping to create a better world for them.”). 13. EVANS, supra note 12, at 50–53; Erik H. Erikson, Reflections on Dr. Borg’s Life Cycle, in ADULTHOOD 1, 266–74 (Erik H. Erikson ed., 1978). 14. See Woodhouse, supra note 5, at 1838–41 (“Asking the child question, listening to children’s authentic voices, and employing child-centered practical reasoning are not the same as allowing children to decide. They are strategies to insure that children’s authentic voices are heard and acknowledged by adults who make decisions.”). 15. Id. at 1834 n.387, 1835 n.389, 1837 (providing examples of where children’s narrative accounts have influenced how adults perceived their circumstances). 16. See Woodhouse, supra note 6, at 441–42. 17. Id. at 441 (“Ecogenerism would examine child welfare policies with reference to communities as well as individuals . . . .”). 18. URIE BRONFENBRENNER, THE ECOLOGY OF HUMAN DEVELOPMENT 6–7 (1979) (discussing how events occurring in a child’s environment shape his or her development). 19. JAMES GARBARINO, RAISING CHILDREN IN A SOCIALLY TOXIC ENVIRONMENT 30–

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at the center, but makes abundantly clear that the child is affected by her entire environment.20 MICROSYSTEMS AND MESOSYSTEMS

Child Child

The diagrams identify the microsystems where children spend their time, such as with family or in school, the neighborhood, or the faith community. Where microsystems overlap, the diagram identifies mesosystems. Layered around the microsystems and mesosystems are exosystems, places where children do not necessarily go, but areas that have powerful effects on children’s well-being, such as the financial markets and the health care system. EXOSYSTEMS

Child

A classic example of an exosystem is the parent’s workplace. A workplace that provides no health benefits and makes overtime a condition of employment has very different implications for the worker’s children when compared to a workplace that provides flex-time and health insurance.

32 (1995) (stating that the ecology of childhood, influenced by “culture, economies, politics, biology, and the psychological ebb and flow of day-to-day life,” reflects “a cultural blueprint of what is normal, what is obvious, and what is impossible”). 20. See Woodhouse, supra note 6, at 424–27.

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All of the systems identified above—micro, meso and exo— are embedded in a cultural macrosystem. MACROSYSTEMS

A cultural macrosystem is the patterning by history, power, and ideas of the broader society in which the child lives. It includes prejudices, politics, ideologies, religions, moral values, and even the very concept of childhood itself.21 The concept of the macrosystem allows those studying children not only to place children in the context of the intimate systems and formal structures that affect them, but also to examine the pervasive influences of surrounding political, religious, and economic systems in children’s lives. In addition to its roots in my past work, this Article is part of my current comparative project of examining the “ecology of childhood” in various countries. By the ecology of childhood, I mean the social and physical context—the “environment” in 22 which our children grow. As described above, I have advocated an ecological or environmentalist perspective as a central tenet of child-centered jurisprudence. While keeping the child at the center (a child-centered jurisprudence), it asks us to place the child in social, developmental, physical, and psychological contexts.23 In common with environmental sciences and social sciences, an ecological approach relies on evidence-based research in defining what children really need, rather than just 21. Barbara Bennett Woodhouse, Reframing the Debate About the Socialization of Children: An Environmentalist Paradigm, 2004 U. CHI. LEGAL F. 85, 130 (2004). 22. I discuss this concept in detail in BARBARA BENNETT WOODHOUSE, HIDDEN IN PLAIN SIGHT 21–23 (2008) [hereinafter HIDDEN IN PLAIN SIGHT]; Barbara Bennett Woodhouse, Cleaning up Toxic Violence: An EcoGenerist Paradigm, in HANDBOOK OF CHILDREN, CULTURE, AND VIOLENCE, at 415, 421 (Nancy E. Dowd et al. eds., 2006) (stating that a child’s world is interconnected with all the actors around him or her, including parents, family, and government); Woodhouse, supra note 6, at 424 (“[A]n ecological theory is descriptive of the world as the child knows and experiences it.”); Woodhouse, supra note 21, at 130. 23. See Woodhouse, supra note 6, at 424–27.

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speculation or moral judgments. In this Article, I will argue that an ecological approach can resolve many of the seeming tensions between feminist and child-centered perspectives. I will focus upon early childhood, a period of rapid growth that has tremendous implications for the developing human organism. A paramount consideration is the bond between child and caregiver, without which children cannot learn or grow. The ability to grow and flourish depends on an environment that is fit for both children and their caregivers. To make these theories more concrete, I will use the comparative example of early childhood policies (including but broader than early childhood education) in Italy and in the United States. This comparative example will illustrate how a child-centered ecological jurisprudence—one that recognizes essential vulnerability and derivative dependency and also honors human capacity for growth and flourishing—dissolves many of the supposed tensions between feminism and generism. III. THINKING ABOUT EARLY CHILDHOOD A “child” is a person who has not yet reached the age of majority, which is 18 years of age in both international law and the United States.24 But what is “early childhood”? The term early childhood may have many different meanings, depending on the speaker and the discipline. It means something different to doctors, educators, and lawyers, even when they speak the same language. Most agree that it ends well before adolescence begins.25 Some U.S. experts define early childhood as the period 26 from birth to three years of age. Some define it as covering children who are not infants or toddlers but not yet of school age (roughly two to five).27 In the United States, educators talk of children older than two and under age five as “preschoolers,” to 28 differentiate them from children of school age. This term makes

24. Convention on the Rights of the Child, G.A. Res. 44/25, Annex, U.N. Doc. A/RES/44/25/Annex (Nov. 20, 1989) [hereinafter CRC]. 25. See, e.g., ENCYCLOPEDIA OF EDUCATIONAL RESEARCH 351 (Marvin C. Alkin ed., 6th ed. 1992) (defining early childhood as the years “from birth to age 8”). 26. See James E. Ryan, A Constitutional Right to Preschool?, 94 CAL. L. REV. 49, 50, 64–65 (2006) (observing that the majority of early childhood research focuses on the first three years of life). 27. See Tiffany J. Zwicker, Education Policy Brief: The Imperative of Developing Teen Dating Violence Prevention and Intervention Programs in Secondary Schools, 12 S. CAL. REV. L. & WOMEN’S STUD. 131, 150 (2002) (detailing the age divisions used by the Center for the Study and Prevention of Violence). 28. See Joan N. Kaderavek & Lori A. Pakulski, Mother-Child Storybook Interactions: Literacy Orientation of Pre-Schoolers with Hearing Impairment, 7 J. EARLY

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sense in the U.S. context because publicly funded schooling generally begins with kindergarten at age five or first grade at age six. But in the international context, some form of public education often begins during the first year and certainly by age three.29 In the United States, we use the oxymoron “preschool” to refer to educational programs (usually private half-day 30 programs) for children not yet eligible for kindergarten. We use the term “pre-K” (pre-kindergarten) to describe a relatively new set of programs providing voluntary, publicly funded schooling 31 for four-year-olds. We use a different term, “day care,” to define programs whose primary focus is on providing care and supervision for children of working parents, beginning in infancy 32 and covering young children’s after-school hours as well. An ecogenerist perspective exposes the deep flaws in this approach. Rather than defining the period of early childhood education based on available schooling and child care options, we should focus instead on the developing child’s educational needs and environmental situation. According to the National Research Council and Institute of Medicine, a focus on “birth to 3 years 33 begins too late and ends too soon.” It ends too soon because it fails to capture the three-, four-, and five-year-olds who are not yet full day students in our public schools, and it begins too late because birth is a poor line of demarcation in planning for children’s educational development. Clearly, national policies

CHILDHOOD LITERACY 49, 55 (2007). 29. The crèche system in France and the asilo nido and scuola materna in Italy are examples. See ERMENEGILDO CICCOTTI, ENRICO MORETTI & ROBERTO RICCIOTTI, I NUMERI ITALIANI: INFANZIA E ADOLESCENZA IN CIFRE 208–17 (2007). While Italians express concern that the asilo nido serves only about ten to thirteen percent of children and aims to increase coverage to about one third of all children, CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, PERCORSO TEMATICO: NIDI E SERVIZI PER L’INFANZIA 7, 37 (Enzo Catarsi & Maria Teresa Tagliaventi eds., 2008), the Italian systems for early childhood education and care are far more accessible and comprehensive than the services provided to children through the age of six in the United States. 30. See JULIA OVERTURF JOHNSON, U.S. DEP’T OF COMMERCE, WHO’S MINDING THE KIDS? CHILD CARE ARRANGEMENTS: WINTER 2002, at 5 (2005). 31. See, e.g., NAT’L INST. FOR EARLY EDUC. RESEARCH, THE STATE OF PRESCHOOL 2007, at 15 (2007) (providing the statistical breakdown of children four years of age or younger with access to state pre-kindergarten programs). 32. See HALBERT B. ROBINSON ET AL., EARLY CHILD CARE IN THE UNITED STATES OF AMERICA 111–16 (1973) (describing the differences between “family day care homes” and “day care centers” and the needs and motives of working mothers). In addition, care needs of children may be served by other programs, including recreation programs and programs for children with disabilities or special needs. 33. COMM. ON INTEGRATING THE SCI. OF EARLY CHILDHOOD DEV., NAT’L RESEARCH COUNCIL, FROM NEURONS TO NEIGHBORHOODS 7 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000) [hereinafter NEURONS].

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towards pregnancy, health care, maternal and infant nutrition, and lactation affect the child’s educational success and cognitive capacities. These policies are feminist policies as well as ecogenerist policies. In the United States, mandatory schooling begins at around 34 age six, and thus early childhood, for purposes of my discussion, means children ages five and under. But a part of the ecogenerist project must be establishing a shared terminology for describing the full range of educational and supportive services provided during early childhood.35 I have proposed the new term “educare” (in Italiano, “educura”) to convey the interconnectedness of education and nurturing care in the child’s cognitive development.36 Current research establishes beyond doubt that early childhood is a period of critical importance in human 37 development. Indeed, researchers have found that “[f]rom the time of conception to the first day of kindergarten, development proceeds at a pace exceeding that of any subsequent stage of life.”38 While this fact has long been obvious from simple observation, new technologies, including brain imaging, have allowed scientists to explore more deeply the process of neurological development in the period of early childhood. This neurological research has produced four core findings. First, we know that brain development is influenced by both genetics and the child’s experiences and environment.39 While children are 34. NAT’L CTR. FOR EDUC. STATISTICS, U.S. DEP’T OF EDUC., DIGEST OF EDUCATION STATISTICS 2008, at 241 (2009). 35. In one discussion in Italian of early education in the United States, I was surprised to read that over 90% of U.S. children attend a “scuola materna.” The researcher must have been looking at statistics for “kindergarten,” which covers only children turning five before a specific cut-off date (usually October of the academic year), and excludes three- and four-year-old children. DEBORAH STIPEK, SOC’Y FOR RESEARCH IN CHILD DEV., AT WHAT AGE SHOULD CHILDREN ENTER KINDERGARTEN? A QUESTION FOR POLICYMAKERS AND PARENTS 3–4 (2002) (analyzing school entry policies and the effects of delaying school entry). 36. See Barbara Bennett Woodhouse, Individualism and Early Childhood in the U.S.: How Culture and Tradition Have Impeded Evidence-Based Reforms, 8 J. KOREAN L. 97, 121 (2008). 37. For overviews of current research by groups of experts, see NAT’L SCIENTIFIC COUNCIL ON THE DEVELOPING CHILD, THE SCIENCE OF EARLY CHILDHOOD DEVELOPMENT: CLOSING THE GAP BETWEEN WHAT WE KNOW AND WHAT WE DO 5 (2007), available at http://developingchild.harvard.edu/index.php/download_file/-/view/67/ [hereinafter CLOSING THE GAP]. See also NEURONS, supra note 33, at 20 (citing the increased interest in early childhood experiences in both the government and media sectors as indicative of the significance of early childhood in development). 38. NEURONS, supra note 33, at 386. 39. See James J. Heckman, Skill Formation and the Economics of Investing in Disadvantaged Children, 312 SCI. 1900, 1900 (2006).

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born with certain innate qualities, the environment in which they grow is a critical determinant of their life chances. Second, we know that later cognitive and social attainment builds upon foundations laid down earlier.40 Thus, the lack of sound early childhood foundations has life-long implications. Third, we have learned that the child’s cognitive, linguistic, social, and emotional competencies are all linked together and cannot be viewed in isolation.41 It is not a theory but a scientific fact that “intimate, loving one-to-one interaction . . . , along with adequate nutrition, constitutes the essential input to the child’s emotional, physical and cognitive development.”42 Fourth, we have learned that there is “a predictable sequence of sensitive periods” in neural 43 development. During these periods, trauma or nutritional and physical deprivation produce stress hormones that can actually disrupt the developing brain’s architecture. These core findings are not merely hypothetical; they are supported by advanced neurological studies of the developing brain.44 IV. THE GAP BETWEEN REALITY AND U.S. POLICIES For purposes of framing polices for early childhood, these core findings expose at least four major disconnects between U.S. policy and the needs of both children and women. First, the United States has never developed a comprehensive policy providing continuous and affordable health care during the prenatal period and early childhood years. In fact, reproductive health services have become so politicized that the federal government and some states limit or deny public funding of abortion and family planning services, despite evidence that denial of coverage has adverse consequences for women and for children’s health.45 Even women who have private insurance have 40. Id. 41. Id. 42. UNICEF, INNOCENTI REPORT CARD 8, THE CHILD CARE TRANSITION 6 (2008), available at http://www.unicef-irc.org/publications/pdf/rc8_eng.pdf [hereinafter REPORT CARD 8]. 43. Heckman, supra note 39, at 1900. 44. See id. (noting that there are especially sensitive periods in a child’s development “during which the development of specific neural circuits and the behaviors they mediate are most plastic and therefore optimally receptive to environmental influences”); REPORT CARD 8, supra note 42, at 6–7; CLOSING THE GAP, supra note 37, at 3–9. For an overview collecting other studies, see JANE WALDFOGEL, WHAT CHILDREN NEED 16–18 (2006). 45. Kenneth J. Meier & Deborah R. McFarlane, State Family Planning and Abortion Expenditures: Their Effect on Public Health, 84 AM. J. PUB. HEALTH 1468, 1470–71 (1994). Spacing of children through family planning is important not only to the health and welfare of the mother but also to the health and welfare of the children

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more expensive and less comprehensive family planning services than their counterparts in other developed nations.46 The failures of American public health policy have become increasingly evident as our health care system, which is built around private medical insurance provided through employers, has collapsed around us during the current financial and unemployment crises. As President Barack Obama stated in his address to Congress, every thirty seconds an American family declares bankruptcy because of “the crushing cost of health care.”47 Many of those medical bills undoubtedly were incurred to secure health care for sick children or treatment for their mothers. Scholars from other nations are shocked to learn that securing health care in the United States, even for infants and pregnant women, is the responsibility of the individual, with only the very poorest Americans eligible for government-funded health care.48 Most American families rely on insurance policies purchased through their employers or the open market. These insurance policies are inadequate in the best of times and often have lifetime limits on coverage that can quickly be exhausted when a child or the child’s caregiver is severely or chronically ill. When workers lose their jobs, their families lose their health insurance. They may be unable to afford any insurance plan at all on the open market if they have had prior illnesses such as cancer or chronic conditions such as asthma or diabetes. A program called COBRA requires employers to continue coverage of persons who have lost their health insurance along with their

she bears. See ZULFIQAR A. BHUTTA ET AL., POPULATION REFERENCE BUREAU, USING EVIDENCE TO SAVE NEWBORN LIVES 5 (2003), available at http://www.prb.org/pdf/ UsingEvidenceNewborn.pdf. 46. Cynthia Dailard, Guttmacher Institute: Issues in Brief, U.S. Policy Can Reduce Cost Barriers to Contraception (July 1999), http://www.guttmacher.org/pubs/ ib_0799.html. 47. President Barack Obama, Address to Joint Session of Congress (Feb. 24, 2009), http://www.whitehouse.gov/the_press_office/remarks-of-president-barack-obama-addressto-joint-session-of-congress/. 48. Depending on the state, a family with income above the “federal poverty level” (which is set far lower than the actual cost of living) or with assets of more than $2,000 may not qualify for Medicaid, the publicly funded program for the poor. CTRS. FOR MEDICARE & MEDICAID SERVS., DEP’T OF HEALTH & HUMAN SERVS., MEDICAID AT-A-GLANCE 2005: A MEDICAID INFORMATION SOURCE 6 (2005), available at http://www.cms.hhs.gov/ MedicaidGenInfo/Downloads/MedicaidAtAGlance2005.pdf. A federally funded program called the State Children’s Health Insurance Program or “S-CHIP” attempted to bridge some of this gap by subsidizing access to affordable health insurance for some children who did not qualify for Medicaid. An expansion of this program to cover children of lowincome working parents, vetoed by President Bush, was signed into law by President Obama as his first official presidential act. Robert Pear, Obama Signs Children’s Health Insurance Bill, N.Y. TIMES, Feb. 5, 2009, at 4A.

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jobs.49 However, it is very expensive. A single male must pay about $400 a month to buy COBRA coverage—which does not include co-payments or medications—and the cost for a family 50 with children may exceed $1100 a month. Clearly, few unemployed parents can afford to buy it. Before the current crisis, millions of children and their caregivers in the United States lacked access to health care. The situation can be expected to worsen with the increase in unemployment. Less well understood is the second major disconnect—the one between child care and early childhood education. In the United States, we have tended to treat child care and education as two separate concepts. Historically, day nurseries or day care evolved during the mid- to late-nineteenth century to meet low income families’ needs for supervision of their children during 51 working hours. Nursery schools appeared in the early twentieth century as a form of education intended to contribute to the child’s development, and they served mostly middle class and 52 upper class families. Parents have been seen as primarily responsible for providing care and nutrition to their children, relying on their own private financial resources. Indeed, day care or after school programs are seen as a personal, work-related expense of the child’s parent or parents because such services are generally provided by the for-profit economy.53 Policies have evolved to support day care programs for poor parents who cannot afford them in an effort to keep their families off the welfare rolls.54 But even still, day care is not viewed as an obligation of the state to the child or as a form of public education.55

49. Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. §§ 1161– 69 (2006). 50. See FAMILIES USA, SQUEEZED! CAUGHT BETWEEN UNEMPLOYMENT BENEFITS AND HEALTH CARE COSTS 2–4 (2009) (listing the average monthly COBRA premiums in each of the fifty states). 51. Sandra Scarr & Richard A. Weinberg, The Early Childhood Enterprise: Care and Education of the Young, 41 AM. PSYCHOLOGIST 1140, 1141 (1986). 52. Abby J. Cohen, A Brief History of Federal Financing for Child Care in the United States, FUTURE OF CHILDREN, Summer/Fall 1996, at 26, 27. 53. See Louise Stoney & Mark H. Greenberg, The Financing of Child Care: Current and Emerging Trends, FUTURE OF CHILDREN, Summer/Fall 1996, at 83, 85 (“Families bear the brunt of the burden of paying for child care. . . . Researches have estimated that, in 1990, consumer expenditures represented about 70% to 75% of all expenditures for child care, with the balance derived largely from public subsidies.”). 54. See ROBINSON ET AL., supra note 32, at 108 (stating that the several programs associated with the War on Poverty in the 1960’s, including day care, were created to help the poor achieve independence). 55. Cf. PHILIP R. NEWMAN, DEVELOPMENT THROUGH LIFE: A PSYCHOSOCIAL APPROACH 221–25 (2008) (noting the benefits of affordable, quality day care, especially for

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By contrast, the obligation to provide universal public 56 education has become firmly rooted in U.S. culture. However, this responsibility is perceived as beginning only when children are sufficiently mature to begin studying the “3 Rs” (reading, writing, and arithmetic) in a traditional schoolroom setting. Nursery schools for ages three to five are popular as a form of optional early enrichment that parents may wish to provide to their children. However, these programs are not traditionally integrated into the public education system; they are not usually subsidized or offered on a sliding scale, and they are not structured to meet working parents’ needs for supervision of their children while they are away from home. A third disconnect between the science of child development and U.S. policy is the lack of paid maternal or paternal leave. As will be noted, most American mothers return to work within four months of the birth of a child.57 By contrast, children in peer countries with generous maternal or paternal leave policies are often nurtured at home by a parent for as much as the entire first year of their lives.58 While liberal feminists and conservative critics of maternal employment may disagree about the importance of maternal care during the first year, the science tells us that children need one-on-one interaction with a stable caregiving figure during these early months.59 Either paid leave or access to high-quality day care is essential to providing this sort of interaction.60

poor children, and urging broader support for initiatives such as Head Start). 56. It bears noting that neither the U.S. Constitution nor federal law provides a “right” to education. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1972) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”). However, state constitutions often recognize such a right. See, e.g., Brigham v. State, 692 A.2d 384, 391 (Vt. 1997) (recognizing an “obligation to provide for the education of [Vermont’s] youth” based on the Education Clause in the Vermont Constitution, dating back to 1777). 57. JULIA OVERTURF JOHNSON & BARBARA DOWNS, U.S. DEP’T OF COMMERCE, MATERNITY LEAVE AND EMPLOYMENT PATTERNS OF FIRST-TIME MOTHERS: 1961–2000, at 12, 14 (2005) (“Fifty-one percent [of new mothers] were working by 4 months after giving birth.”). 58. See WALDFOGEL, supra note 44, at 64–65 (discussing how both lower- and higher-income mothers exercise their maternal leave for more extended periods in the United Kingdom). 59. See id. at 40–41, 49–50 (detailing the importance of parent–child interaction in the development of key skills, such as language and cognitive development, and describing the negative consequences of a lack of such interaction). 60. It bears noting that extended family members, typically grandmothers, provide care without charge to many children in both the United States and Italy. The interaction between family care and public systems of care is an important piece of the early childhood puzzle that deserves intensive study but is beyond the scope of this Article.

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A fourth disconnect relates to child nutrition. One consequence of the lack of programs serving the early childhood age group that deserves far more attention is the lack of access to nutrition during the years when it is most essential for building a healthy brain. For 12 million children situated in low-income 61 families in the United States, food insecurity is a fact of life. Programs such as Food Stamps provide some nutritional assistance to the very poor.62 But many hungry children count on free or reduced-cost lunches served in school to meet a significant 63 percentage of their nutritional needs. These school feeding programs also ease the burdens of mothers who must stretch family food budgets to feed many mouths. Most nutritional services for children and families in the United States are “means-tested,” i.e., available only to children in families who are at a certain percentage of the poverty line.64 In evaluating services for these children and families, it is important to bear in mind that the U.S. government statistics use a different measure of poverty than is commonly used by other nations. Where bodies such as UNICEF define poverty as an income that is less than half the median national income,65 the United States uses a market basket of goods that has not kept up with inflation or 66 with evolving standards of living.

61. About 11% of American households experienced food insecurity during 2007 and 4% experienced very low food security (i.e., hunger). MARK NORD, MARGARET ANDREWS & STEVEN CARLSON, U.S. DEP’T OF AGRIC., HOUSEHOLD FOOD SECURITY IN THE UNITED STATES 2007, at 4 (2008). 62. The Food Stamp Program was recently renamed Supplemental Nutrition Assistance Program, or SNAP. Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, § 4001, 122 Stat. 1853, 1853 (2008). The U.S. Department of Agriculture also provides several child nutrition programs connected with schools, summer programs, and day care programs. See generally FOOD AND NUTRITION SERVICE, U.S. DEP’T OF AGRIC., FACT SHEET: SCHOOLS/CHILD NUTRITION COMMODITY PROGRAMS (2008), available at http://www.fns.usda.gov/fdd/programs/schcnp/pfs-schcnp.pdf. 63. QUINN MOORE, LARA HULSEY, & MICHAEL PONZA, MATHEMATICA POLICY RESEARCH, INC., FACTORS ASSOCIATED WITH SCHOOL MEAL PARTICIPATION AND THE RELATIONSHIP BETWEEN DIFFERENT PARTICIPATION MEASURES 17–18 (2009), available at http://www.ers.usda.gov/Briefing/ChildNutrition/lunch.htm (reporting that “students certified to receive free and reduced-price meals eat school lunch at about 7 in 10 eating occasions”); Lisa Mancino & Joanne Guthrie, When Nudging in the Lunch Line Might Be a Good Thing, 7 AMBER WAVES 32, 34 (2009) (explaining the nutritional importance of school lunches to children). 64. CONSTANCE NEWMAN, U.S. DEP’T OF AGRIC., THE INCOME VOLATILITY SEE-SAW IMPLICATIONS FOR SCHOOL LUNCH 2 (2006). 65. UNICEF, INNOCENTI REPORT CARD 6, CHILD POVERTY IN RICH COUNTRIES 3 (2005), available at http://www.unicef-irc.org/publications/pdf/repcard6e.pdf [hereinafter Report Card 6]. 66. As of 2009, the poverty line in the United States was set at the arbitrary level of $22,050 for a family of four. HHS Poverty Guidelines, 74 Fed. Reg. 4199, 4200 (Jan. 23, 2009). Developed in the 1960s as a means for quantifying the set cost of certain goods and

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All of the essentials for early childhood education come 67 together in the transition from home to child care. When that transition is made more difficult or stressful, it has a knock-on effect with permanent consequences. Because young children in the United States do not have access to public day care or schooling, they are left out of government-funded breakfast and 68 lunch programs. In addition, because they do not go to public day care or school, the deficits they suffer (from malnutrition to abuse and neglect) are less likely to come to the attention of those who could provide assistance. The core developmental findings noted above show that, instead of drawing a line between nurturing care and education, we should focus on the interconnectedness of early childhood care and education, health care, and nutrition. The science tells us that education begins at and even before birth and that nurturing care and emotional security are essential components of early childhood education. This data concerning the needs of children and their vulnerability as developing organisms are widely accepted by experts, with reports on the subject already publicized by scientists and NGOs to policymakers around the 69 world. The inseparable relation between nurturing care and education is also well known. Yet, as noted by scientists at Harvard’s Center on the Developing Child, we are failing to put 70 this knowledge into practice in the United States. Our failure to see the child in the ecological context also leads to the conceptual (and, too often, the actual) separation of the child from her 71 caregivers. A child-centered jurisprudence cannot be truly childcentered if it excludes the concerns of caregivers. In ignoring the needs of caregivers, primarily women, we ignore the needs of the children. services, the method for calculating a family’s poverty level does not take into account inflation. Barbara Bennett Woodhouse, Race, Culture, Class, and the Myth of Crisis: An Ecogenerist Perspective on Child Welfare, Keynote (Nov. 17, 2007), in 81 ST. JOHN’S L. REV. 519, 521 (2007). Under the approach taken by UNICEF, poverty is defined instead by an income level that is less than the median income available to children in a given society. See id. 67. See REPORT CARD 8, supra note 42, at 6–7. 68. See id. at 4 (“In the United States there is at the moment no statutory right to pre-school education before the age of five, but in practice more than 60 per cent of America’s 10 million pre-school children are in some form of early childhood programme.”); see also Food and Nutrition Service, 7 C.F.R. § 245.3 (2009) (detailing eligibility requirements for participation in federally funded school lunch programs). 69. E.g., NEURONS, supra note 33, at 3–6; CLOSING THE GAP, supra note 37, at 1–11. 70. See CLOSING THE GAP, supra note 37, at 1–3. 71. For a discussion highlighting the misuse of child protective services to remove children from poor or overstressed families, see Peter Margulies, Lawyering For Children: Confidentiality Meets Context, 81 ST. JOHN’S L. REV. 601, 604, 624–25 (2007).

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V. COMPARING THE UNITED STATES AND PEER NATIONS The charge that the United States is failing to meet the basic needs of its children and their caregivers is based on more than mere subjective judgment or a naive desire to attain unreasonable levels of perfection. This judgment is borne out by data comparing the well-being of children in peer nations, data that shows the United States ranking at or near the bottom of almost every category.72 The United Nations Children’s Fund (UNICEF) Innocenti Research Centre has conducted various studies and issued a series of “Report Cards” comparing the status of children in countries that belong to the Organisation for Economic Co-operation and Development (OECD countries). The 73 2005 study focused on poverty. Statistics on child poverty by necessity look at children in the context of resources available to those who care for them. We cannot look at the child in isolation. A poor child is poor because he is growing up in a poor family. We know that family poverty and its accompanying stresses, including nutritional deficits and emotional traumas, correlate strongly with adverse outcomes for children.74 The United States, at 21.9%, had a higher percentage of children living in poverty than all but one (Mexico) of the twenty-six OECD countries for 75 which data was available. UNICEF defines children as living in poverty if they live in a family with an income of “less than half the median income 76 available to a child growing up in that society.” The 21.9% figure in the Innocenti Report Card 6 is measured after factoring in transfers through publicly funded income supports and social programs.77 Most OECD countries significantly reduce child poverty rates through such transfers.78 In order to place child poverty policies in comparative perspective, one must look at the rates both before and after such transfers. For example, France has a “market rate” (the rate before transfers) of child poverty of 79 27.7%, higher even than that of the United States. But France slashes its child poverty rate by 20.2 points through social

72. For a comparative discussion of child poverty and child well-being in the United States and other nations, see Woodhouse, supra note 66, at 521–22. 73. See REPORT CARD 6, supra note 65, at 3. 74. Id. at 6. 75. Id. at 4 fig.1. 76. Id. at 7. 77. Id. at 21 fig.9. 78. Id. 79. Id.

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spending programs—to a mere 7.5%.80 The United States, with a market rate of child poverty of 26.6%, reduces its poverty rate by only 4.7 points through social spending.81 The United States also spends a much lower proportion of its GDP on such programs when compared to other rich countries.82 No OECD country that devotes 10% or more of its GDP to social spending has a child poverty rate greater than 10%, and no OECD country that spends less than 5% of its GDP on such 83 benefits has a child poverty rate of less than 10%. The United States spends a meager 2.5% of its GDP on support for children and families.84 Poverty is not the only measure of child well-being. The Innocenti Research Centre’s Report Card 7 identified six dimensions of child well-being: (1) material well-being; (2) health and safety; (3) educational well-being; (4) family and peer relationships; (5) behaviors and risks; and (6) subjective wellbeing.85 Clearly, many of these dimensions place the child in ecological context, recognizing that the child’s well-being is intimately connected to the well-being of his or her caregivers and on the quality of surrounding microsystems and mesosystems. The United States rated poorly in every area. Despite its relative affluence as a nation, the United States had the highest relative poverty rate, with more children living in deeper poverty than any other country studied when compared to the national median.86 Its infant mortality rate was seven for every 1,000 live births, while the mean for OECD countries was just 4.6.87 Rates of accidental death among children were 22.9 per 100,000, with the mean rate for OECD countries at only 14.3.88 Out of the twenty-one countries with sufficient data to be analyzed in overview, the United States was dead last in health and safety.89 When analyzing additional data collected from twenty-five OECD countries, the United States ranked 24th in

80. 81. 82. 83. 84.

Id. Id. Id. at 23 fig.10. Id. LAWRENCE MISHEL, JARED BERNSTEIN & HEIDI SHIERHOLZ, THE STATE OF WORKING AMERICA 2008/2009, at 387 (2009). 85. UNICEF, INNOCENTI REPORT CARD 7, CHILD POVERTY IN PERSPECTIVE 2 (2007), available at http://www.unicef-irc.org/publications/pdf/rc7_eng.pdf [hereinafter REPORT CARD 7]. 86. Id. at 6 fig.1.1. 87. Id. at 42. 88. Id. at 43. 89. Id. at 2.

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infant mortality,90 22nd for infants having low birth weight,91 and 13th in immunizations of children between twelve and twentythree months of age.92 Finally, for data collected from only twenty-four OECD countries, the United States ranked 23rd in accidental death.93 The United States, in contrast to virtually every other peer nation, lacks universal health coverage.94 In family and peer relationships, the United States ranked at the bottom, with the highest number of children living in singleparent or stepfamily households, conditions that are identified as 95 risk factors for poorer outcomes later in life. In risky behaviors, the United States ranked next to worst, ahead only of the United Kingdom.96 In the educational well-being of children, the United 97 States ranked 14th out of twenty-four. Innocenti Report Card 7 noted that data were unavailable to 98 compare early childhood in the different OECD nations. The newest Innocenti Report Card, issued at the end of 2008, remedies this gap in data concerning early childhood. The authors argue, as I have argued above, that nurturing care and education are inseparable.99 Instead of focusing on child care as distinct from education, they identify a critical period of 100 transition from home to child care and schooling. The authors utilize the latest research findings to identify the basic universal developmental needs of children through the age of six.101 They point to several parallel revolutions that have radically changed the shape of childhood in developed nations.102 First, the work/family revolution has changed the places in which childhood unfolds. Working parents are a fact of life. Report Card 8 remarks that “[t]oday’s rising generation in the

90. Id. at 14 fig.2.1a. 91. Id. at 14 fig.2.1b. 92. Id. at 15 fig.2.2. 93. Id. at 16 fig.2.3. 94. Francesca Colombo & Nicole Tapay, Private Health Insurance in OECD Countries: The Benefits and Costs for Individuals and Health Systems 9, fig.1 (Organisation for Economic Co-operation and Development (OECD), Health Working Paper No. 15, 2004), available at http://www.oecd.org/dataoecd/34/56/33698043.pdf (showing that the United States is virtually alone among peer nations in relying on private source funds to cover the majority of its citizens’ health care needs). 95. REPORT CARD 7, supra note 85, at 23 fig.4.1a, 24 fig.4.1b. 96. Id. at 26 fig.5.0. 97. Id. at fig.3.0. 98. Id. at 3. 99. REPORT CARD 8, supra note 42, at 2–5. 100. Id. at 2–4. 101. Id. at 2, 4–5. 102. Id. at 5–6.

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countries of the OECD is the first in which a majority are spending a large part of their early childhoods not in their own homes with their own families but in some form of child care.”103 Indeed, approximately 25% of children under the age of three in OECD countries are in child care.104 For just the United States, that figure is over 30% for children under the age of three, and 105 60% for children of preschool age. The U.S. Census Bureau reports that 72% of all mothers and over 50% of mothers of infants under the age of one are now in the workforce.106 Indeed, were it not for mothers’ earnings, many more American children would be growing up in poverty. Second, as I have outlined above, Report Card 8 argues that the scientific revolution has expanded our understanding of the process of child development and has established beyond doubt the impact of both genetics and environment on children’s growth. The third revolution is the children’s rights revolution. The principle that children have a right to policies aimed at promoting their best interests, and that governments have an obligation to promote such policies, has taken center stage since the adoption of the Convention on the Rights of the Child (CRC).107 This children’s rights revolution has shifted the focus from what governments are inclined to give—in light of many competing, powerful, and well-funded interests—to what children actually need. And to the extent that children’s needs are inseparable from the needs of their caregivers, children’s rights reinforce and complement the economic and social rights of women. In line with this new focus on the needs of children and their caregivers, the study of early childhood in the Innocenti Centre’s Report Card 8 identified a number of benchmarks for measuring the degree to which OECD countries are meeting their youngest citizens’ needs during their first five years. As will be evident, these policies affect women and their lives as much as they affect children and their lives. Drawn from examination of the data on children’s development and measured by comparison with

103. Id. at 3. 104. Id. 105. Id. at 4 & fig.2a. 106. BARBARA DOWNS, U.S. DEP’T OF COMMERCE, FERTILITY OF AMERICAN WOMEN: JUNE 2002, at 7 (2003). Fifty-one percent of mothers in the United States who gave birth to their first child returned to work within four months. JOHNSON & DOWNS, supra note 57, at12. 107. See CRC, supra note 24, art. 3(1) (“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”).

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standards set by programs in OECD countries, these benchmarks are as follows: (1) a minimum entitlement to paid parental leave for one year at half pay; (2) a national plan with priority for disadvantaged children; (3) a minimum level of subsidized and regulated child care for 25% of children under the age of three; (4) access to subsidized and accredited early education services for at least 80% of four-year-olds for a minimum of fifteen hours per week; (5) a minimum level of training for all staff; (6) a minimum of 50% of staff having higher-level education and training; (7) a minimum staff-to-child ratio (e.g., for four-yearolds, no more than fifteen children for every trained staff member); and (8) public funding of at least 1% of GDP for the education and care of children under the age of six. Added to these benchmarks were two more general criteria: (9) a low level of child poverty, a rate less than 10%; and (10) universal outreach, so that the neediest and most marginalized children actually do receive the benefits of the aforementioned policies.108 Overall, the United States ranked 19th out of twenty-five 109 countries on the list for number of benchmarks achieved. With zero weeks of paid parental leave, the United States tied for last 110 with Australia on the first benchmark. While the United States ranked 5th for the enrollment of children under the age of three in licensed day care, there was still a large gap between the need 111 for care and access to care. As compared with peer nations, rates of employment for mothers with children under age three far outpaced access to licensed day care in the United States.112 The United States ranked 16th out of twenty-four in enrollment of four-year-olds in early education.113 The percentage of GDP spent by the United States on day care and early childhood education was below the OECD average (0.6% compared to 0.7%).114 And, as the study noted, the trends were not encouraging; government support in the United States was declining while public spending in other OECD nations such as

108. REPORT CARD 8, supra note 42, at 13–14. 109. Id. at 2. 110. Id. at 14–15 (observing that workers in Australia and the United States commonly have paid parental leave under their private terms of employment instead). 111. Id. at 21 fig.3 (illustrating an almost 20% gap between “the proportion of women with young children who are in work and the proportion of children under three who are enrolled in licensed care”). 112. Id. at 20, 21 fig.3 (recognizing that comparison of enrollment in child care and employment rates for women is an indirect method of analyzing access to child care). 113. Id. at 5 fig.2b. 114. Id. at 27 fig.4.

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Korea (at 0.2%) was rapidly increasing.115 The United States also ranked near the bottom on universal outreach to the most vulnerable children and their mothers, as evidenced by an infant mortality rate that is second from the worst among twenty-five OECD countries.116 VI. HOW AMERICAN POLICIES FAIL BOTH CHILDREN AND THEIR MOTHERS The critique of early childhood programs in the United States comes from feminists and children’s advocates alike. Studies of current programs for early childhood confirm that American children and families suffer under a chaotic patchwork of programs that fail to meet the needs of children and their caregivers. As one study stated, “[T]he federal child care financing system that has evolved is really no system at all, but rather a collection of funding streams that requires no uniform standards of care and provides no uniform administrative structure for services.”117 In his book Child Rights & Remedies, Professor Robert Fellmeth reviews existing programs for child care using data 118 from the U.S. Census Bureau. He reports that twelve million children are in day care and that twelve million more are income eligible for day care but do not receive it because of funding and outreach failures.119 Only 39% of children of working mothers were in licensed home care or day care, while the rest were cared for by relatives and friends.120 Census data from 2000 were particularly revealing of the shadow population that is not in day care. Respondents to the 2000 census reported 45,000 preschoolers in “self-care,” 432,000 in sibling care, and 565,000 with “no regular arrangement.”121 In other words, about one million children in the United States under age five are in the care of minor siblings or completely on their own. Unequal distribution of day care across income and racial groups was also revealing. Reliance on a private market system 115. Id. at 26–27 & fig.4; HANNAH MATTHEWS & DANIELLE EWEN, CTR. FOR LAW AND SOC. POLICY, TOWARD A DECADE OF INDIFFERENCE: ADMINISTRATION IGNORES CHILD CARE NEEDS OF WORKING FAMILIES 1–3 (2006) (detailing the freeze on child care spending in the fiscal year 2007 budget and predicting a future decline in spending in subsequent years). 116. Id. at 29 fig.5a. 117. Cohen, supra note 52, at 26. 118. ROBERT C. FELLMETH, CHILD RIGHTS & REMEDIES 330–43 (2d ed. 2006). 119. Id. at 330. 120. Id. 121. Id.

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where parents must purchase day care and reliance on tax credits or deductions to subsidize some of these parental expenditures produces striking inequalities. In a typical lowerincome minority community, only one opening in a licensed day care facility existed for every ten to twenty children in need of day care.122 In a middle-class community only a few miles away, 123 the ratio of slots to children was typically five times greater. High costs of day care explain the high numbers of children reported by the U.S. Census Bureau as being in “self-care.”124 A family with two young children and both parents working full time at minimum wage would have to spend two-thirds of its income on child care, leaving only $7,000 for rent, food, transportation, health care, clothing, and other basic necessities. A single parent with a toddler would have to pay 60% of her net pay for child care, leaving a paltry $5,000 for all other needs. Meanwhile, the bulk of tax subsidies go to middle-class families via tax credits and deductions.125 There are several federally funded programs in place to make day care more affordable, but they are chronically 126 underfunded and difficult to access. In 2003, just 2.5 million children out of the 24 million children in day care or eligible for day care assistance were served by these programs.127 Most federal dollars are distributed in the form of “block grants” to the 128 states. Block grants are a form of funding that does not increase as the pool of eligible recipients increases (for example, in an economic downturn); it is instead a fixed sum distributed to 129 the states that must cover a variety of needs. To add to the pressure on poor families, Temporary Assistance for Needy Families (TANF), the federal program for supporting poor children, imposes a lifetime limit on how long a parent may

122. Id. at 331. 123. Id. at 331–32. 124. Id. at 330. 125. Debra Cohen-Whelan, Protecting the Hand That Rocks the Cradle: Ensuring the Delivery of Work Related Benefits to Child Care Workers, 32 IND. L. REV. 1187, 1211–12 (1999) (explaining that middle class taxpayers receive a child care credit in the form of a nonrefundable tax credit and that this constitutes the largest government-provided child care subsidy). 126. See Stoney & Greenberg, supra note 53, at 94–96. 127. FELLMETH, supra note 118, at 330–32. These federally funded programs include the Child Care Development Block Grant, the Temporary Assistance to Needy Families Block Grant, and the Social Services Block Grant. Id. at 332. 128. Id. 129. See id. (“The block-grant structure commonly sets a static ceiling on monies available to states for at least five years . . . [and does] not usually adjust for inflation and population . . . .”).

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receive assistance. TANF also requires that mothers return to work full time (35 or more hours per week) by the child’s first birthday, or even earlier, in order to remain eligible.130 As noted earlier, many government subsidies for day care come in the form of tax deductions, which are of little help to poorer families who pay little or no taxes. Parents earning less than $15,000 annually may deduct 35% of their child care costs, but this benefit is rarely accessed because at such low income levels parents do not owe taxes.131 Parents earning over $45,000 annually may claim 20% of child care costs from their taxable income to a maximum of $3,000 for one child.132 Even assuming families at this low income level had accrued a tax liability, this sum still falls far short of covering the actual costs of fulltime day care for infants and toddlers, which averages between $5,000 and $10,000 a year.133 While higher-income families spent about 5% of their income on day care in 1999, low-income families spent approximately 28%.134 As this overview shows, unlike access to public schooling, which is free to all and paid for collectively by tax dollars, access to day care is a costly privilege beyond the means of millions of working families. Given our lack of affordable day care options for working mothers, it is especially ironic that the laws of most states consider a mother who leaves young children without supervision 135 guilty of child neglect. In my book Hidden in Plain Sight, I tell 130. See 42 U.S.C. § 607(c) (2006) (requiring both parents in two-parent families to work at least 35 hours per week); 42 U.S.C. § 607(b) (2006) (exempting a “single custodial parent” from the statute’s mandatory work requirement only until his or her child attains 12 months of age). 131. See 26 U.S.C. § 21(a) (2006) (reducing the maximum 35% deduction by 1%, with a lower limit of 20%, for every additional $2,000 of adjusted gross income over $15,000). U.S. tax policy also reflects the strong cultural bias towards values of “individualism” and against values of “solidarity” or “social welfare.” Programs supporting low income families are more acceptable to the public when labeled “tax credits or deductions.” A “nonrefundable” tax credit can be taken out of the taxes the taxpayer would otherwise owe. A “refundable” tax credit gives rise to a refund of a portion of the money expended on child care even if the taxpayer owes little or no taxes. Deductions from income taxes (the most common form of child care tax subsidy) are least advantageous to the poor and most advantageous to upper-income families. One study showed that out of $4 billion in tax subsidies for child care, more than one third of the dollars went to families earning more than $50,000 a year. See FELLMETH, supra note 118, at 334 & n.22. 132. See 26 U.S.C. § 21(a), (c)(1) (2006) (limiting the amount of child care costs that a family with two or more children may apply to a child care tax credit to $6,000). 133. FELLMETH, supra note 118, at 332. 134. Colleen Henry, Misha Werschkul, & Manita C. Rao, Child Care Subsidies Promote Mothers’ Employment and Children’s Development 2–3 (Inst. for Women’s Policy Research, Briefing Paper No. G714, 2003). 135. See, e.g., FLA. STAT. § 39.01(32)(a)(3) (2008) (defining harm to a child’s health or welfare as including “[l]eaving a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition, so that the child is unable

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the story of a single working mother who agreed out of kindness to babysit for a friend’s infant and toddler while she went to the store. The next morning, the friend still had not returned and the mother had to go to work or risk getting fired. So she left the infant and toddler at home in the care of her teenage daughter. As luck would have it, the toddler was severely injured in an accidental fall that could have happened in any household. The teenager immediately called 911. The same system that had failed to offer options such as respite care and day care instantly shifted into overdrive. Refusing to believe the fall was accidental, the investigators interrogated all of the children who had been present, charged the woman’s eleven-year-old son with felony child abuse, and filed a neglect petition against the good samaritan mother.136 This story illustrates how ignoring the needs of women can have tragic consequences for children. Statistics on the quality of care in the United States are also troubling. The most common form of day care is “babysitting” or “family day care” provided by an individual, usually a woman, who looks after children either in the child’s home or in her own home. Such arrangements are largely unregulated and lack any standards for training or licensing for facilities.137 The average annual cost for day care centers serving infants and toddlers ranges from around $4,000 to $16,000, with the mean cost among 138 all states approaching $9,000. Day care is also available in private homes, where the average costs are slightly lower.139 In a recent study that sheds light on the data in the Innocenti Report Card 8, only an estimated 9% of day care centers in the United

to care for the child’s own needs . . . or is unable to exercise good judgment in responding to any kind of physical or emotional crisis”). 136. HIDDEN IN PLAIN SIGHT, supra note 22, at 280–83. The child abuse investigators believed, based on MRIs, that the toddler’s head trauma had been caused by shaken baby syndrome and were seeking a perpetrator. Suspicions fell on the eleven-year-old son who reported that he had placed the toddler in an upper bunk of a bunk bed for her nap and she had fallen out of bed. The State’s own expert confirmed that the injury was consistent with such a fall. Id. 137. See SUZANNE W. HELBURN & BARBARA R. BERGMANN, AMERICA’S CHILD CARE PROBLEM 131–34 (2002). Compare the system of “maternal assistants” in France, providing for accreditation, training, and monthly inspections for home-based child care providers with up to three children in their home. See Syndicat Professionnel des Assistant Maternel, http://www.assistante-maternelle.org; Assistante Maternelle, http://fr.wikipedia.org/wiki/Nourrice. The system also sets standards and provides for vacation, retirement, and health benefits. 138. See NAT’L ASS’N OF CHILD CARE RES. & REFERRAL AGENCIES, 2008 PRICE OF CHILD CARE 1–2 (2008), http://www.naccrra.org/randd/docs/2008_Price_of_Child_Care.pdf. 139. From data collected by the National Association of Child Care Resource & Referral Agencies (NACCRRA), the mean annual cost for caring for infants and four-year -olds in family child care homes is under $7,000. See id.

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States were accredited,140 and in roughly half of the fifty states, a teacher hired to supervise children in a child care center was not required to have any specialized training at all beyond a high 141 school diploma or GED. Studies have concluded that the quality of care in even licensed day care centers is generally mediocre. Poor implementation of existing certification and inspection rules, the lack of any recognized national certification standards or 142 continuing education requirements for staff, high turnover of 143 staff (about 30% per year), and low rates of pay combine to hamper the effectiveness and even the safety of day care 144 programs. A teacher in a day care center earns about one-half the pay of a teacher in an elementary school and, unlike teaching positions, day care jobs usually lack any health benefits or retirement plans, sending a powerful message about how much we actually value our youngest children.145 Access to early childhood education, another crucial piece of the early childhood puzzle, has also been problematic in the United States. As noted above, the two concepts of early childhood education and of early childhood care have developed along two separate tracks. While working parents’ needs gave rise to day care for children under the age of five, affluent parents’ desires to enrich their children’s social and cognitive environment gave rise to the nursery school for children ages three to five. Nursery schools were designed as part-time learning spaces for children not yet old enough for public 146 In fact, Americans have come to use the term school.

140. NACCRRA, CHILD CARE IN AMERICA: 2008 STATE FACT SHEETS 3 (2008), http://www.naccrra.org/policy/docs/childcareinamericafactsheet.pdf. 141. NACCRRA, Center Staff Training & Minimum Education Requirements, http://www.naccrra.org/policy/state_licensing/cst_minimum_edu.php (last visited Sept. 18, 2009). 142. See HELBURN & BERGMANN, supra note 137, at 125 (advocating federal “funding standards” as a means of improving quality child care). 143. Angela Hooton, Note, From Welfare Recipient to Childcare Worker: Balancing Work and Family Under TANF, 12 TEX. J. WOMEN & L. 121, 131 (2002). 144. See Bureau of Labor Statistics, May 2008 National Occupational Employment and Wage Estimates, http://www.bls.gov/oes/current/oes_nat.htm (last visited Sept. 18, 2009) (estimating the mean annual wage for child care workers to be $20,350). 145. See Peggie R. Smith, Caring for Paid Caregivers: Linking Quality Child Care with Improved Working Conditions, 73 U. CIN. L. REV. 399, 405–06 (2004) (discussing the difficult professional circumstances of child care workers); Bureau of Labor Statistics, supra note 144 (estimating the mean annual wage for elementary school teachers to be $52,240). 146. See SONYA MICHEL, CHILDREN’S INTERESTS/MOTHER’S RIGHTS 118–19 (1999) (discussing the evolution of nursery schools, which were “intended first and foremost to function as an employment program” for unemployed public school faculty during the

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“pre-school” to cover a wide range of settings, from Montessori or nursery schools, to day care centers that claim to provide some educational component.147 As can be seen from this brief overview of U.S. policies and practices, the disconnect between care (emotional nurturing, supervision, nutrition, and health care) and education, together with the privatization of responsibility for early childhood care and education, have produced large gaps between children’s needs and access to quality affordable resources. They have also produced large gaps between women’s needs and access to quality affordable resources that make it possible for them to raise their children while still playing an active role in the wage economy. VII. COMPARING ITALY AND THE UNITED STATES Many Americans balk at being compared with nations such as Sweden and Netherlands, arguing that they are too small, too homogenous, and too affluent to provide useful comparisons. In this section, I will look at Italy—not because it is the nation with the most advanced or generous family supportive policies. In fact, Italians express great concern about the shortcomings of their own services for parents and children during the early childhood period.148 Italy is not at the top of the list in Innocenti Report Great Depression, into unintended wartime child care centers during World War II). 147. E.g., NAT’L CTR. FOR EDUC. STATISTICS, U.S. DEP’T OF EDUC., THE CONDITION OF EDUCATION 2008, at 235 (2008) (defining preschool as a “beginning group or class enrolling children younger than 5 years of age and organized to provide educational experiences under professionally qualified teachers”); Nat’l Ctr. For Learning Disabilities, Choosing a Preschool: Simple Tips for Parents, http://www.ncld.org/at-school/generaltopics/early-learning-aamp-literacy/choosing-a-preschool-simple-tips-for-parents (last visited Sept. 18, 2009) (discussing common terms used to describe preschool settings). 148. I am grateful to Dr. Elena Urso for her guidance in my ongoing research on Italian law and Italian services for children. Any errors in this paper are, of course, my own. Among the sources to which I have been referred are GRUPPO DI LAVORO PER LA CONVENZIONE SUI DIRITTI DELL’INFANZIA E DELL’ADOLESCENZA, 4° RAPPORTO DI AGGIORNAMENTO SUL MONITORAGGIO DELLA CONVENZIONE SUI DIRITTI DELL’INFANZIA E DELL’ADOLESCENZA IN ITALIA 2007–2008 (Arianna Saulini & Viviana Valastro eds., 2008). About the specific difficulties in different regions of Italy and in the development of a system of asilo nido, see CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, PERCORSO TEMATICO: NIDI E SERVIZI PER L’INFANZIA (Enzo Catarsi & Maria Teresa Tagliaventi eds., 2008). For a general picture, see ISTITUTO NAZIONALE DI STATISTICA (ISTAT), AVERE UN FIGLIO IN ITALIA (2006), available at http://www.istat.it/dati/catalogo/20061220_00/ and CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, I NUMERI ITALIANI: INFANZIA E ADOLESCENZA IN CIFRE (2007); CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, I NIDI D'INFANZIA E GLI ALTRI SERVIZI EDUCATIVI PER I BAMBINI E LE FAMIGLIE: COMMENTO GENERALE AI RISULTATI DELLA RICERCA (2001); ANNA LAURA ZANATTA, LE NUOVE FAMIGLIE (2d ed. 2003). For a sociological perspective, see LO STATO DELLE FAMIGLIE IN ITALIA (Marzio Barbagli & Chiara Saraceno eds., 1995); NICOLA NEGRI

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Card 8. Italy achieves only four of the ten benchmarks.149 The Report Card 8 tables often seem to show Italy as scoring “lower” than the United States. For example, Figure 2a indicates that 35% of children under the age of three are enrolled in day care in the United States, as compared with a little more than 5% in Italy.150 While census data in the United States indicate a lower 151 enrollment, data from Italy indicate that approximately 10% of Italian children under three attend a publicly funded nido (nest).152 While this is low in comparison to other EU countries, it is high in comparison to the U.S. analog to the nido, our Head Start program.153 The average levels of care and education offered in the nido are generally high in comparison to U.S. providers. While nido is often translated into English as “day care,” a nido is far more than a place where parents leave children while they are working. The publicly funded nido program has been in existence since a 1971 law created a system of nidos to be managed by municipalities in cooperation with families.154 155 In contrast to the scuola materna, demand for the nido outstrips supply, especially in the northern provinces where more

& CHIARA SARACENO, LE POLITICHE CONTRO LA POVERTÀ IN ITALIA (1996); CHIARA SARACENO & MANUELA NALDINI, SOCIOLOGIA DELLA FAMIGLIA 123 (2001); MANUELA NALDINI, LE POLITICHE SOCIALI IN EUROPA: TRASFORMAZIONI DEI BISOGNI E RISPOSTE DI POLICY 95 (2006); EMILIO REYNERI, SOCIOLOGIA DEL MERCATO DEL LAVORO: I. IL MERCATO DEL LAVORO TRA FAMIGLIA E WELFARE 64 (2005). Demographic trends are examined in Massimo Livi Bacci, Italia e Europa, in LA POPOLAZIONE ITALIANA DAL MEDIOEVO A OGGI 215, 215–78 (Lorenzo Del Panta et al. eds., 1996). 149. REPORT CARD 8, supra note 42, at 2 fig.1. 150. Id. at 4 fig.2a. 151. The U.S. Census Bureau reports that for households with working mothers, 16% of children under the age of one and 22.1% of children between the ages of one and two were enrolled in a day care facility. See JOHNSON, supra note 30, at 4 tbl.2. 152. CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, I NUMERI ITALIANI: INFANZIA E ADOLESCENZA IN CIFRE 210 (2007) (presenting data that 9.9% of children aged 0–3 are enrolled in nidos). 153. See JOHNSON, supra note 30, at 4 tbl.2 (indicating that only 0.4% of children between the ages of one and two are participating in Head Start). The percentage of children who attend a nido is smaller in southern Italy and much higher in the central and northern areas of the country. See CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, PERCORSO TEMATICO: NIDI E SERVIZI PER L’INFANZIA (Enzo Catarsi & Maria Teresa Tagliaventi eds., 2008). 154. Law No. 1044, Dec. 6, 1971, Gazz. Uff., No. 316 (Dec. 15, 1971); see also Carolyn Edwards, Lella Gandini & George Forman, Introduction: Background and Starting Points, in THE HUNDRED LANGUAGES OF CHILDREN 5, 19 (Carolyn Edwards et al. eds., 2d ed. 1998) (stating that families applied for services and supplied supplemental financial contributions while regional and municipal governments handled legislative tasks and school organization). 155. A scuola materna is an Italian state-run nursery school. William A. Corsaro, Early Education, Children’s Lives, and the Transition from Home to School in Italy and the United States, 37 INT’L J. COMP. SOC. 121, 122–23, 125 (1996).

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mothers work in the wage economy.156 Of course, with generous maternal and parental leave policies, not all parents want or need to utilize a space in the nido system, especially in the baby’s first months of life. Even so, Italian public policy and law recognize the nido as an integral part of the education system—a right of the child and not merely a convenience to parents. Italians, who have seen birth rates decline lately,157 recognize that a quality nido is a public good that costs more than individual families can afford. The current national policy assumes one-third of children will need access to a nido, and the long term objective is to provide spaces in a publicly funded nido for 33% of children in the 3- to 36-month age group.158 Unlike the scuola materna, where tuition is free to all, the nido is funded by a combination of public funds and payments from families.159 Statistics comparing day care enrollment for children under the age of three must also be viewed in light of the fact that Italian law provides an effective paid leave of thirty-two weeks compared to the total effective paid leave of zero in the United 160 States. In Italy, working mothers receive five months maternity leave (congedo di maternità) at 80% of earnings.161 They have the option of taking additional months of parental leave at 30% of their monthly salaries.162 Parents of children under eight may take a maximum of ten months at 30% of salary.163 Each parent is

156. William A. Corsaro & Francesca Emiliana, Child Care, Early Education, and Children’s Peer Culture in Italy, in CHILD CARE IN CONTEXT 81, 95 (Michael E. Lamb et al. eds., 1992) (stating that, while priority is given to working mothers, most regions, including Modena in central-northern Italy, have long waiting lists). 157. See DEP’T OF ECON. & SOCIAL AFFAIRS, UNITED NATIONS, WORLD FERTILITY PATTERNS (2007), available at http://www.un.org/esa/population/publications/ worldfertility2007/Fertility_2007_table.pdf (showing fertility per woman in Italy decline from 2.4 in 1970 to 1.3 in 2003). 158. CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, PERCORSO TEMATICO: NIDI E SERVIZI PER L’INFANZIA 7, 37 (Enzo Catarsi & Maria Teresa Tagliaventi eds., 2008). 159. See Edwards, Gandini & Forman, supra note 154, at 19 (describing asili nido as a program where families “apply for services and make partial financial contributions, but the assistance was a matter of public (as opposed to purely private) interest”); SHEILA B. KAMERMAN & ALFRED J. KAHN, STARTING RIGHT 138 (1995) (providing the fees one family might be expected to pay); Corsaro & Emiliana, supra note 156, at 113. 160. Effective paid leave is computed by multiplying the duration of leave by the percentage of salary paid. REPORT CARD 8, supra note 42, at 16. 161. John Bennett, Early Childhood Services in the OECD Countries: Review of the Literature and Current Policy in the Early Childhood Field 5 (UNICEF, Working Paper No. 2008-01), available at http://www.unicef-irc.org/publications/pdf/iwp_2008_01_ final.pdf; Jane Waldfogel, International Policies Toward Parental Leave and Child Care, FUTURE OF CHILDREN, Spring/Summer 2001, at 99, 103 tbl.1. 162. Bennett, supra note 161, at 5; Waldfogel, supra note 161, at 103 tbl.1. 163. Bennett, supra note 161, at 5 tbl.1.

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allowed six months of parental leave164 and single parents have the right to obtain ten months of parental leave.165 An incentive has been introduced to encourage fathers to ask for leave. An additional month of leave is added to the family’s allowance when the father stays with the child for at least three months.166 Working mothers are entitled to two hours release time each 167 work day to nurse their children. They may leave work to nurse their child, and then return, or they may leave two hours early. Parents have the right to take paid leave to care for sick children. Parents of three- to eight-year-olds get five paid days of leave per year.168 Parents of adopted children receive the same benefits as biological ones169 due to Constitutional Court intervention and 170 legislative reforms. As noted earlier, parental leave policies in the United States can be quickly summarized. There is no federal law providing 171 paid maternal leave. If the mother’s employer provides health insurance and/or sick leave (neither of which are mandated by law), she may have the option of taking paid sick leave in order to give birth, but this leave is usually limited to a few weeks. As a result, most American mothers work through the last months of their pregnancies and return to the workforce when their babies are very small.172 At the national level, the Family and Medical Leave Act (FMLA) requires employers to provide up to twelve weeks of leave to parents while they care for sick children or newborns and newly adopted children.173 However, this leave is unpaid.174

164. 165.

Id. DINO

GIOVANNINI, DEP’T FOR BUS. ENTER. & REGULATORY REFORM, INTERNATIONAL REVIEW OF LEAVE POLICIES AND RELATED RESEARCH 252 (2008). 166. Bennett, supra note 161, at 5 tbl.1. 167. CENTRO NAZIONALE DI DOCUMENTAZIONE E ANALISI PER L'INFANZIA E L'ADOLESCENZA, ISTITUTO DEGLI INNOCENTI, PERCORSO TEMATICO: NIDI E SERVIZI PER L’INFANZIA (Enzo Catarsi & Maria Teresa Tagliaventi eds., 2008). 168. Law No. 53, Art. 7, Mar. 8, 2000, Gazz. Uff. No. 60 (Mar. 13, 2000). 169. Decree-Law No. 151, Mar. 26, 2001, Gazz. Uff. No. 96 (Apr. 26, 2001). 170. See generally Paolo Wright-Carozza, Organic Goods: Legal Understandings of Work, Parenthood, and Gender Equality in Comparative Perspective, 81 CAL. L. REV. 531 (1993) (tracing the history of Italian labor law and comparing United States legislative efforts). 171. See Gillian Lester, A Defense of Paid Family Leave, 28 HARV. J.L. & GENDER 1, 2–3 (2005) (opining that the absence of a wage replacement requirement in the federal Family and Medical Leave Act “makes the American system the least generous of industrialized nations”). 172. JOHNSON & DOWNS, supra note 57, at 17. 173. 29 U.S.C. § 2612(a) (2006). 174. 29 U.S.C. § 2612(c) (2006).

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In addition, the absence of universal health insurance in the United States places at risk both mothers and their children. Many pregnant women do not receive adequate prenatal care and 175 Not the newborn may also lack any insurance coverage. surprisingly, out of twenty-five OECD nations, infant mortality rates in the United States were worse than in any other developed country except Poland and Hungary, while Italy is tied with Belgium and Switzerland as the eleventh best.176 Support for lactation is also weak, affecting children’s healthy development. The United States has no official lactation policy and does not mandate any specific benefits or release time for nursing mothers and their infants.177 The Innocenti Report Card 8 confirms that enrollment of three- to six-year-olds in early childhood education reaches almost 100% in Italy.178 Report Card 8 further provides that slightly over 60% of three- to six-year-olds are enrolled in early childhood education in the United States.179 The 60% figure, however, appears lower than reports issued by the U.S. Department of Education.180 To reach a higher figure, one would have to include babysitting and day care as “early childhood 181 education.” In addition, the Report Card statistics on attendance do not purport to measure quality. The average 175. See LaShanda D. Taylor, Creating a Causal Connection: From Prenatal Drug Use to Imminent Harm, 25 N.Y.U. REV. L. & SOC. CHANGE 383, 394 (1999) (attributing widespread lack of access to adequate prenatal care to “financial and systemic barriers”); see also Susan Egerter, Paula Braveman & Kristen Marchi, Timing of Insurance Coverage and Use of Prenatal Care Among Low-Income Women, 92 AM. J. PUB. HEALTH 423, 423 (2002) (observing that rates of untimely prenatal care were highest among women who were uninsured throughout pregnancy or began coverage after the first trimester). 176. REPORT CARD 7, supra note 85, at 14. 177. See Shana M. Christrup, Breastfeeding in the American Workplace, 9 AM. U. J. GENDER SOC. POL’Y & L. 471, 483 (2001) (observing that the lack of legislation directly dealing with breastfeeding among working women has forced courts to construe the right from other laws, which “have been poorly adapted to deal with this issue”). 178. REPORT CARD 8, supra note 42, at 5 fig.2c. 179. Id. 180. Looking at the data from the United States undergirding the Innocenti statistics, I was able to see why these figures appear so high to those familiar with early childhood education in the United States. The government data states that 43% of threeyear-olds and about 70% of four- and five-year-olds are enrolled in “[c]enter-based early childhood care and education programs.” NAT’L CTR. FOR EDUC. STATISTICS, U.S. DEP’T OF EDUC., THE CONDITION OF EDUCATION 2006, at 29 (2006). However, “[c]enter-based early childhood care and education programs” include the following: “day care centers, Head Start programs, preschool, nursery school, prekindergarten, and other early childhood programs.” Id. A center need not have any educational or developmental program to qualify as a center-based early childhood program for purposes of these statistics. In presenting this data to an Italian audience at a seminar in Florence, I translated into Italian the proverb: “There are three kinds of lies: lies, damned lies, and statistics.” 181. See id. at 29.

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quality is significantly higher in the Italian nido and scuola materna than in most day care centers and nurseries in the United States. As described above, lack of public funding for these services as well as ineffective or nonexistent regulation of day care and pre-school providers results in poor staff quality and high staff turnover.182 Only 16% of the children under age five who have a mother working at least 35 hours a week receive a subsidy for day care.183 Only 12% of families with an annual income at or above the federal poverty level (FPL)—a measure that is far less generous than the European measures—receive any subsidy for day care.184 Only 55% of families whose annual income is below the FPL receive day care subsidies.185 The “poverty level” for two adults and two children is $22,050 (a dollar amount far lower than that 186 used in the Innocenti Reports). Head Start is a publicly funded program that is utilized by 187 only 12.7% of American children. It actually serves only about 50% of eligible children (i.e., children from low-income families).188 There are several reasons for this shortfall, including the absence of adequate public funding and other pervasive problems involving bureaucratic red tape and the “lack of communication and information-sharing among programs 189 providing services to children.” Especially hard to quantify, but evident to this Author during field work comparing the two systems, are the comparative strength and effectiveness of outreach, policies of inclusion, and user-friendliness. Since the passage of Law 444 in 1968, virtually every child 190 in Italy is enrolled at age three in a free public scuola materna. The scuola materna, unlike the American nursery school, 182. 183.

See KAMERMAN & KAHN, supra note 159, at 131. NAT’L CTR. FOR EDUC. STATISTICS, U.S. DEP’T OF EDUC., NATIONAL HOUSEHOLD EDUCATION SURVEYS PROGRAM OF 2005, at 40 tbl.9 (2006), available at http://nces.ed.gov/ pubs2006/2006075.pdf. 184. Id. 185. Id. 186. See HHS Poverty Guidelines, 74 Fed. Reg. 4199, 4200 (Jan. 23, 2009); REPORT CARD 7, supra note 85, at 6 (utilizing a $24,000 poverty level for international statistical comparison). 187. JODI JACOBSON CHERNOFF ET AL., U.S. DEP’T OF EDUC., PRESCHOOL: FIRST FINDINGS FROM THE THIRD FOLLOW-UP OF THE EARLY CHILDHOOD LONGITUDINAL STUDY, BIRTH COHORT (ECLS-B) 11 tbl.7 (2007). 188. NAT’L WOMEN’S LAW CTR., A PLATFORM FOR PROGRESS 10 (2008). 189. See U.S. DEP’T OF HEALTH AND HUMAN SERVS., STRENGTHENING HEAD START 12–13 (2003). 190. See William A. Corsaro, Early Education, Children’s Lives, and the Transition from Home to School in Italy and the United States, 37 INT’L J. COMP. SOC. 121, 125 (1996).

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pre-school, or kindergarten, typically operates on a full day schedule and includes healthy hot meals to meet the needs of working parents and their children. The scuola materna provides high quality education by trained teachers, a quality benchmark reached by Italy but not by the United States. In summary, access to early education and quality affordable day care in the United States may be overstated by Report Card 8, while accessibility and quality of these programs in Italy may be understated. VIII. INDIVIDUALISM AND ITS NEGATIVE IMPACT ON CHILDREN AND THEIR CAREGIVERS Why is the United States so far behind peer nations in developing a system of publicly supported early childhood care and education?191 Abby J. Cohen captures the answer with a focus on individualism: Several core American values have impeded efforts to establish, maintain, and expand public financing for child care. Primary among these is the belief in individualism, particularly the freedom of individuals to raise their own children without government interference. . . . The values of individualism and family autonomy, taken together, have supported a position that government is an appropriate source of help only when a family—or the country itself—is 192 in crisis. The American Heritage Dictionary defines individualism as a “[b]elief in the primary importance of the individual and in the virtues of self-reliance and personal independence . . . [a] doctrine holding that the interests of the individual should take precedence over the interests of the state or social group.”193 It is seen by most segments of society as a quintessentially American value. It is admired in our national icons, from George Washington to John Wayne and Arnold Schwarzenegger, and its antithesis (dependence or collectivity) is disparaged and rejected, 191. Sweden, Denmark, Norway, France, Germany, Spain and Japan are among the many that have developed effective day care systems. Heather S. Dixon, National Daycare: A Necessary Precursor to Gender Equality with Newfound Promise for Success, 36 COLUM. HUM. RTS. L. REV. 561, 563 & n.12 (2005); see also Waldfogel, supra note 161, at 105 (comparing publicly supported child care in the United States and ten peer nations). 192. Cohen, supra note 52, at 27. 193. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 893 (4th ed. 2000). The antonym of individualism is solidarity. The word “solidarity” is shunned by U.S. policy makers because, like the words “socialism” and “redistribution,” it is also tainted by an association with communism.

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as can be witnessed by the stigma attached to “socialism,” “welfare,” or other programs seen as government “handouts.” As is apparent from this description, individualism is hardly compatible with an ecological perspective. It is also incompatible with theories of positive rights. While positive rights are rejected by U.S. constitutional jurisprudence, they are an integral part of international human rights theories. It is not surprising that trained lawyers in the United States, steeped in traditions of individualism and negative rights, have trouble conceptualizing claims of positive rights to nurture and care. It is not surprising that a jurisprudence that emphasizes values of mutual support strikes many Americans as utopian and not supported by “hard law.” But Americans must face the fact that these concepts are considered foundational in most of our peer nations. The culture and tradition of individualism has had a major impact in the United States on the development of laws and policies towards the family. As appealing as this tradition may seem, it perpetuates a myth that is harmful to children. The focus on individualism in American custom and tradition impedes family law reforms designed to address the evidencebased, critical needs of early childhood. This tradition is a primary reason why the ecology of childhood in America is so toxic and why America lags so far behind peer nations in providing for the well-being of its youngest and most vulnerable citizens. Individualism is a deeply rooted tradition in the United States. Historian Frederick Jackson Turner, writing in 1893, identified certain qualities as the quintessence of the American character. Pointing to the importance of multiple frontiers in the settlement of the United States, he claimed: [T]o the frontier the American intellect owes its striking characteristics. That coarseness and strength combined with acuteness and inquisitiveness; that practical, inventive turn of mind, quick to find expedients; that masterful grasp of material things, lacking in the artistic but powerful to effect great ends; that restless, nervous energy; that dominant individualism, working for good and for evil, and withal that buoyancy and exuberance which comes with freedom—these are traits of the frontier, or traits called out elsewhere because of the existence of the 194 frontier.

194. Frederick Jackson Turner, The Significance of the Frontier in American History, in THE FRONTIER IN AMERICAN HISTORY 1, 37 (Henry Holt & Co. 1920). Turner introduced this notion in 1893 in a speech delivered to the World Congress of Historians held in

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The term “rugged individualism” was made famous by Herbert Hoover in a speech delivered shortly before he won the presidential election of 1928. In his speech he traced the rise of U.S. power in the post-World War I years: We were challenged with a . . . choice between the American system of rugged individualism and a European philosophy of diametrically opposed doctrines—doctrines of paternalism and state socialism. The acceptance of these ideas would have meant the destruction of self-government through centralization . . . [and] the undermining of the individual initiative and enterprise through which our 195 people have grown to unparalleled greatness. Elected to office in 1928, Hoover is best known for his failure to respond effectively to the economic crisis that culminated in the 196 Great Depression. His successor, President Franklin D. Roosevelt, although elected four times, was demonized by conservatives for spending tax dollars on social welfare programs 197 to provide a universal safety net. Individualism, including a commitment to the privatization of public services and the shrinking of government, gained renewed strength under Republican Presidents Ronald Reagan 198 and George H.W. Bush. It was even championed by Democratic President William Clinton in the move to “end[ ] welfare as we know it.”199 Individualism reached a new apex of popularity during the administration of President George W. Bush. Even after the victory of Democrat Barack Obama in the 2008 presidential campaign, individualism arguments have continued to resonate powerfully with the American public. Indeed, opponents of social spending have been able to characterize support for children’s health insurance and aid to the states

Chicago. He argued that “the settlement of the frontier was the distinctive force in forging the American character.” Patrick L. Baude, A Comment on the Evolution of Direct Democracy in Western State Constitutions, 28 N.M. L. REV. 343, 345 (1998). 195. HERBERT HOOVER, THE NEW DAY: CAMPAIGN SPEECHES OF HERBERT HOOVER 154 (1929). 196. See generally HARRIS GAYLORD WARREN, HERBERT HOOVER AND THE GREAT DEPRESSION 294–95 (1959) (arguing that Hoover’s emergency measures in response to the Great Depression did not work because they failed to “strike hard enough at the basic causes of depressions”). 197. See, e.g., GEORGE WOLFSKILL & JOHN A. HUDSON, ALL BUT THE PEOPLE 151–57 (1969) (chronicling the vitriol against Roosevelt and his policies). 198. See ZILLAH R. EISENSTEIN, THE COLOR OF GENDER 181 (1994) (“The process of privatization they put in place . . . reduced public spending in the public realm and shrank public services . . . .”). 199. See Barbara Vobejda, Clinton Signs Welfare Bill Amid Division, WASH. POST, Aug. 23, 1996, at A1.

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during an economic crisis as fundamentally un-American forms of “socialism” and “wealth redistribution” inimical to the free enterprise system.200 Our new President and congressional supporters of a stimulus package labored mightily to explain to the American people why spending on programs such as food stamps, government-funded health care, public housing, and unemployment insurance, stigmatized in tradition and culture as “government handouts,” could be essential to the recovery of the American economy.201 Because dependency, both essential and derivative, is so stigmatized, the rhetoric of social solidarity and the concept of our shared obligation to address our common vulnerability often seems to have very little traction in U.S. political discourse. Another manifestation of American individualism is found in our attitudes towards international treaties, and namely the U.N. Convention on the Rights of the Child (CRC). Opponents in the United States have blocked ratification of this convention, making the United States the only nation with a functioning 202 government that has failed to do so. Critics in the United States misinterpret the CRC because they view it through the 203 lens of individual autonomy. Rather than seeing it as a commitment on the part of government to assist and support children and their families, opponents believe the CRC is a subversion of parental authority and an instrument of state intrusion into the private sphere of family life.204 The moral panic that the CRC actually empowers children is matched by a similar moral panic over the CRC disempowering the autonomous family. The notion of “broad autonomy rights guaranteed by the CRC compris[ing] a significant attack on parental rights” is an example of common misconceptions about the CRC, misconceptions rooted in the belief that the highest value is

200. Philip M. Boffey, The Socialists Are Coming! The Socialists Are Coming!, N.Y. TIMES, Sept. 28, 2007, at A28 (detailing Republican presidential hopefuls’ use of the word “socialism” as an epithet to denounce their rivals’ support of, among other things, legislation that would enlarge a children’s health insurance program); Robert Brent Toplin, Editorial, We’re Not Heading to Socialism, CHI. SUN-TIMES, Mar. 2, 2009, at 24 (rejecting opponents’ characterization of the stimulus package as socialist). 201. See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, A NEW ERA OF RESPONSIBILITY 17–18, 25–27, 74, 83–85 (2009) (endorsing investments in social programs that allow “economic opportunity to trickle up”). 202. See David M. Smolin, A Tale of Two Treaties: Furthering Social Justice Through the Redemptive Myths of Childhood, 17 EMORY INT’L L. REV. 967, 972–73 (2003). 203. See id. at 981–82 (noting American critics’ concern that the CRC is “fundamentally authoritarian, rather than libertarian”). 204. See, e.g., id. at 979–81 (observing how some parents might perceive the CRC as a means of criminalizing spanking).

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necessarily autonomy as opposed to other values such as solidarity or protection of vulnerable persons.205 The tradition of rugged individualism is a myth that distorts family policy in the United States. The work of Professor Martha 206 Fineman has exploded this myth. As she explains, everyone is an inevitable dependent at some point in the journey from birth to old age.207 Caretakers—those persons (mostly women) within the family to whom our society assigns responsibility for caring for the young, ill, and elderly—are “derivative depend[ents]” because they are uncompensated in the wage economy, yet they still need and consume resources themselves.208 Fineman has shown that dependency is not a character fault but a fact of life. Given this reality, it is a mistake of policy to view citizens as inherently autonomous.209 Accordingly, the role of a “tenable state” should be to meet the needs created by inevitable and derivative dependency.210 In her more recent work, Fineman has proposed an even more universal “vulnerability thesis” that would refocus policymaking on “the vulnerable subject” rather than on the 211 traditional notion of the autonomous or independent agent. Key to her argument is the principle that the term “vulnerable” should not be used when depicting broad social groups (e.g., the young, old, disabled, unemployed, or ill); instead, the word is best reserved for the overarching description of the human condition.212 We are all vulnerable, from the moment of birth 213 until we approach our death. This recognition of our common

205. Id. at 978; see also Jonathan Todres, Analyzing the Opposition to U.S. Ratification of the U.N. Convention on the Rights of the Child, in THE U.N. CONVENTION ON THE RIGHTS OF THE CHILD: AN ANALYSIS OF TREATY PROVISIONS AND IMPLICATIONS OF U.S. RATIFICATION 20–21 (Jonathan Todres et al. eds., 2006). 206. Martha Albertson Fineman has written many books, including THE AUTONOMY MYTH (2005) and THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995), as well as numerous law review articles, including Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 AM. U. J. GENDER SOC. POL’Y & L. 13 (2000), which explores the gap between myths of rugged individualism in family law and the actual realities of inevitable and derivative dependency. 207. See MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH 35 (2004). 208. See id. at 35–37. 209. See id. at 34 (“[T]he very idea of an independent individual is fashioned upon unrealistic and unattainable . . . premises.”). 210. See id. at 263–64. 211. See Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 YALE J.L. & FEMINISM 1, 8–12 (2008). 212. See id. at 8. 213. See id. at 12.

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vulnerability allows us to overcome barriers of identity politics that currently divide us and impede reform.214 Fineman highlights two major barriers to the reform she proposes: (1) the tradition that conceptualizes “equality” as 215 and (2) the synonymous with sameness of treatment; traditional fear of government involvement in family affairs and emphasis on individual autonomy, the phenomenon described above as “individualism.”216 As Cohen points out, American child care policy has been driven forward only in times of national crises that break through the myth of individualism.217 The Great Depression, World War II, the War against Poverty, the Gender Equality Revolution, and the Crisis over Welfare Reform all produced child care innovations and reforms, each focusing on a specific problem.218 But as each crisis passed, we turned our 219 attention to other issues. Ever since, American policymakers have failed to articulate a coherent set of principles to justify public investment in early childhood.220 Child care policy has also been driven by another form of crisis—individual family crisis—with access to programs conditional on proof that the private family has somehow “failed” or fallen apart. Day care first developed as a service for families deemed inadequate to the task of parenting.221 A report from the Children’s Bureau in 1963 stated, “The child who needs day care has a family problem which makes it impossible for his parents to fulfill their parental responsibilities without supplementary 222 help.” This feature has created barriers by stigmatizing the needy and attacking a sense of solidarity that recognizes all children as meriting support, not just children of failed families. Ironically, the failure to establish a comprehensive program for early childhood care has caused the most vulnerable age groups to fall between the cracks. Children under the age of five are 214. See id. at 17. 215. Id. at 2. 216. Id. at 5. 217. See Cohen, supra note 52, at 26–35 (chronicling the waxing and waning of national support for subsidized child care in response to domestic and international crises and events). 218. Id. 219. Id. 220. Id. at 36. 221. Deborah Phillips & Edward Zigler, The Checkered History of Federal Child Care Regulation, 14 REV. RESEARCH EDUC. 3, 7 (1987) (“Eligibility for day care services was premised on demonstrated family inadequacy. Parents without problems presumably did not need child care.”). 222. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH, EDUC., & WELFARE, GUIDES TO STATE WELFARE AGENCIES FOR THE DEVELOPMENT OF DAY CARE SERVICES 2 (1963).

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more likely than older children to be abused or neglected,223 and less likely to report their condition than school age children. They are also more likely to suffer nutritional deficits because they are 224 not participating in school lunch or food stamp programs, and they are more likely to suffer from undetected physical and mental health conditions because they are not seen and tested 225 regularly by professional educators and caretakers. Accordingly, children pay a high cost for our attachment to the myth of family autonomy and rugged individualism. IX. HISTORICAL ANTECEDENTS: HEAD START AND THE VETO OF THE 1971 COMPREHENSIVE CHILD DEVELOPMENT ACT As scholars have previously commented: Child care regulation lies at the heart of one of the thorniest and most fundamental social policy issues, namely private versus public responsibility for childrearing. As a consequence, political discussions of child care regulation are rarely guided by theories of child development or research on components of child care quality. They are characterized instead by heated controversy about working mothers, the importance of family privacy, and social-class-linked conceptions of 226 appropriate childrearing environments. A comprehensive history of child care in America is beyond the scope of this Article, but this discussion will focus on a particular point in U.S. history when publicly supported early childhood care and education surfaced on the national agenda, only to be defeated by values of individualism and family autonomy. In 1971, the U.S. Congress passed the Comprehensive Child Development Act (CCDA).227 This was the same period in which many of our peer nations, including Italy, began ambitious early 223. See ADMIN. FOR CHILDREN AND FAMILIES, U.S. DEP’T OF HEALTH & HUMAN SERVS., CHILD MALTREATMENT 2006, at 27–28 (2006). 224. See Sonya J. Jones et al., Lower Risk of Overweight in School-aged Food Insecure Girls Who Participate in Food Assistance: Results from the Panel Study of Income Dynamics Child Development Supplement, 157 ARCHIVES PEDIATRICS & ADOLESCENT MED. 780, 783 (2003) (analyzing the nutritional benefits of food stamps and school lunches). 225. See NEURONS, supra note 33, at 125, 129 (explaining that children with developmental problems are “heavily dependent on early detection and intervention” and describing the various related services offered by child care centers). 226. Phillips & Zigler, supra note 221, at 3. 227. S. 1512, 92d Cong. (1971). The CCDA was incorporated into various sections of the Economic Opportunity Amendments of 1971 (EOA), S. 2007, 92d Cong. (1971). See infra notes 231–238 (discussing President Nixon’s veto of the EOA).

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childhood care and education programs. The CCDA would have provided free child care for all families earning up to what was approximately 40% of the median income; for families earning up to approximately 70% of the median income, care would have been available on a sliding scale.228 It was hailed by its authors as a major step in promoting the well-being of all children. They argued that [q]uality comprehensive programs can help all children and should be available in this country—on a voluntary basis— to all children as a matter of right, regardless of their economic, social, and family background. Preschool in this country has become a privilege for the very rich and, to the extent that public programs are currently provided, for the 229 very poor. Despite widespread support for the CCDA from a broad coalition of labor, education, social welfare, and citizen’s 230 organizations, President Nixon vetoed the Act on December 9, 231 1971. President Nixon recognized the need to expand access to day care for children of working mothers and the important role played by preschool programs in preventing abuse and neglect and leveling the playing field for children from poor families.232 He praised the Head Start program, enacted in the 1960s to serve poor and at-risk children, and its success, which had been the inspiration for Congress’s new and more comprehensive universal program.233 However, he flatly rejected the involvement of the federal government in an area he considered fundamentally private. President Nixon shared his “conviction that the Federal Government’s role wherever possible should be one of assisting parents to purchase needed day care services in the private, open market, with Federal involvement in direct provision of such 234 services kept to an absolute minimum.” In his veto message he called the legislation “deeply flawed” and the “most radical piece 235 of legislation to emerge from the Ninety-second Congress.” He condemned it as a threat to “the family in its rightful position as 228. S. 2007, 92d Cong. § 516(8)(A)–(B) (1971). 229. Phillips & Zigler, supra note 221, at 14–15 (summarizing the positions of Sen. Walter Mondale and Rep. John Brademas, sponsors of the CCDA). 230. Cohen, supra note 52, at 32. 231. Veto of the Economic Opportunity Amendments of 1971, PUB. PAPERS 1174 (Dec. 9, 1971). 232. Id. at 1176–77. 233. Id. at 1177. 234. Id. at 1176–77. 235. Id.

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the keystone of our civilization” and a “long leap into the dark for the United States Government and the American people.”236 He saw the legislation as diminishing “parental authority and parental involvement with children—particularly in those decisive early years when social attitudes and a conscience are formed, and religious and moral principles are first inculcated.”237 He concluded with these words: “[F]or the Federal Government to plunge headlong financially into supporting child development would commit the vast moral authority of the National Government to the side of communal approaches to child rearing over against the family-centered approach. This President, this Government, is unwilling to take that step.”238 This attitude was nothing new. Americans had long been wary of government intervention in child care. The 1930 White House Conference on Children addressed these fears, when it stated, “No one should get the idea that Uncle Sam is going to rock the baby to sleep.”239 At first Uncle Sam’s role was limited to convening conferences. But during the New Deal response to the Great Depression, Uncle Sam had sponsored mothers’ allowances.240 During World War II, federal dollars funded day care programs so that female workers could contribute to the war effort.241 But over the preceding decades, pressure had been growing for a more robust role of the federal government in providing for the day care needs of increasing numbers of working mothers.242 In addition, support was growing for the educational value of early childhood programs, especially for 243 children from disadvantaged families. Despite President Nixon’s shocked reaction, the idea of federally designed and funded services for young children should not have come as a surprise by 1971. The model for the 1971 Act was Head Start, which initiated in 1965 as a federally funded program for low-income three- to five-year-olds from the poorest

236. Id. 237. Id. at 1178. 238. Id. 239. Ray Lyman Wilbur, M.D., U.S. Sec’y of the Interior, A Survey and a Challenge, Address at the White House Conference on Child Health and Protection (Nov. 1930), in WHITE HOUSE CONFERENCE 1930 at 15, 25 (1931). 240. See Cohen, supra note 52, at 28–29 (noting the role of WPA funds in the child care context). 241. See id. at 29–30 (discussing the impact of the Lanham Act). 242. See id. at 30 (chronicling the outcry to the threatened closures of child care programs after World War II). 243. See id. at 28–31.

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families and communities.244 It grew out of President Lyndon Johnson’s “War Against Poverty” and reflected a belief that early intervention in the lives of children whose poverty placed them at 245 risk could prevent poor developmental outcomes. It was not envisioned as a form of day care, but rather as a form of prophylactic early educational intervention in which disadvantaged parents would be partners in the child’s learning process.246 Head Start was widely popular among experts in child development because it empowered poor parents. As longitudinal research became available, data found that children who had been in the program actually performed better when they 247 reached school age, and this only added to its popularity. New programs such as Early Start for very young children followed on 248 the heels of Head Start. Despite controversies over measuring the impact of Head Start, it has remained popular with the public. However, Head Start has always been and remains a program for the very poor. It is open only to families living in poverty according to the federal guidelines.249 While the median annual income for a family in the United States is about 250 $60,000, and the estimated cost of meeting the basic needs of a family of four is at least $40,000,251 a family of four earning $22,500 would be too rich to qualify for Head Start.252 Due to funding shortfalls and difficulty of access, Head Start actually serves only about half of the eligible population.253 Clearly, the popular support for Head Start did not translate into widespread

244. Id. at 31. 245. Id. 246. See Phillips & Zigler, supra note 221, at 22. 247. ADMIN. FOR CHILDREN & FAMILIES, U.S. DEP’T OF HEALTH & HUMAN SERVS., HEAD START IMPACT STUDY 5-1 (2005). 248. See Jane Knitzer, Federal and State Efforts to Improve Care for Infants and Toddlers, FUTURE OF CHILDREN, Spring/Summer 2001, at 90. 249. 42 U.S.C. § 9840(a)(1)(A) (2006), amended by Pub. L. No. 110-134, § 14, 121 Stat. 1363, 1415 (2007). 250. U.S. CENSUS BUREAU, FACT SHEET, 2005–2007 AMERICAN COMMUNITY SURVEY 3-YEAR ESTIMATES, (2007), http://factfinder.census.gov/servlet/ACSSAFFFacts. 251. NANCY K. CAUTHEN & SARAH FASS, NAT’L CTR. FOR CHILDREN IN POVERTY, MEASURING INCOME AND POVERTY IN THE UNITED STATES 3 (2007), available at http://nccp.org/publications/pdf/text_707.pdf (estimating that the average family of four requires at least $40,000, or approximately twice the federal poverty level, to meet basic needs while “[i]n a high-cost city like New York, the figure is over $50,000, whereas in rural areas, the figure is in the low $30,000s”). 252. See HHS Poverty Guidelines, 74 Fed. Reg. 4199, 4200 (Jan. 23, 2009). 253. FIGHT CRIME: INVEST IN KIDS, HEAD START REDUCES CRIME AND IMPROVES ACHIEVEMENT 1–3 (2006), available at http://www.fightcrime.org/reports/ headstartbrief.pdf.

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support for universal, federally funded programs of centralized design complying with uniform licensing criteria, such as those available in many of our peer nations. In the aftermath of the presidential veto of 1971, the major share of federal subsidies for child care shifted from programs aimed at very poor families to tax credits benefitting very affluent families.254 The ordinary working-class and middle-class family have been left out of the equation. X. THE CONTINUING CULTURAL INFLUENCE OF INDIVIDUALISM ON WOMEN AND CHILDREN DURING EARLY CHILDHOOD Studies of attitudes towards child care demonstrate that the distrust of government and the primary reliance on individual families expressed in Nixon’s 1971 veto reflect a deep-seated ambivalence in the American public at large.255 As these studies show, most Americans feel strongly that decisions about child care are an intensely personal matter and should be left to parents to decide. However, the majority also believes that government should provide financial assistance to parents who need it in order to access day care.256 Americans believe in the values of early childhood education as well as in self-sufficiency. A large majority of those polled, 74%, favored increasing funding for federal programs serving low-income children such as Head 257 Start. By a greater than three-to-one margin, they felt it was more important for mothers on public assistance to work to support their children than for them to stay at home.258 At the same time, almost 70% felt it was better for children if the father worked and the mother stayed home.259 Many parents expressed doubts about the quality and safety of day care even as they were aware of studies showing the benefits of early childhood education.260 As these responses show, a conflict has developed between the deeply held belief in America that all families should be self-

254. Id. 255. See Kathleen Sylvester, Caring for Our Youngest: Public Attitudes in the United States, FUTURE OF CHILDREN, Spring/Summer 2001, at 53, 54–56. 256. Id. at 59 (observing that “73% of parents with young children and 65% of all adults supported government financial assistance to help families pay for quality child care” in a June 2000 poll). 257. Id. at 57. 258. Id. at 58. 259. Id. at 55. 260. Id. at 55, 58.

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sufficient and the equally strong conviction that mothers should be at home caring for young children. A conflict has also developed between Americans’ belief in a fair start for all children and their belief that child care and “preschool” education are a private family matter. These conflicts are destructive of social cohesion, producing resentment among two-earner families struggling to afford day care who perceive their tax dollars as enabling single mothers on public assistance to stay at home while they must work. Current realities, both social and scientific, expose the fissures created by such a narrow and divisive approach. With some 60% of mothers of young children employed at least part time,261 and quality day care out of reach for so many, these conflicting beliefs cannot continue to coexist. In the United States, neither our day care nor our education systems are meeting the needs of children and their caregivers during early childhood. Health care and nutrition programs also leave out many of our youngest citizens and their mothers, both during and after pregnancy. As a result, we are falling behind other peer nations that recognize the importance of investing in the human capital that will ensure continued prosperity and health. XI. TOWARDS A MORE ECOLOGICAL PARADIGM THAT SEES THE CONNECTIONS BETWEEN WOMEN’S AND CHILDREN’S LIVES The administration of President Barack Obama has been striving to create a new paradigm on social responsibility for meeting the needs produced by dependency and vulnerability. While the previous administration of President George W. Bush favored a privatization model, the privatization model has fallen at least partially out of favor since the economic collapse that struck in September of 2008. An examination of the Obama Agenda suggests a greater willingness to invest in infrastructure and human capital as a whole, including investing in programs for children and families.262 The Obama Agenda includes a zeroto-five initiative, paid parental leave initiatives, day care initiatives, and early childhood initiatives, while also addressing hunger and poverty.263 In his first address to a joint session of 261. Id. at 56. 262. See, e.g., OFFICE OF MGMT. & BUDGET, supra note 201, at 23 (determining that the President’s budget will “provide funding to double the number of children served by Early Head Start and expand Head Start”). 263. For a detailed description of the Obama Agenda and list of proposed programs, see http://www.whitehouse.gov/issues/.

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Congress, President Obama broke through the barriers between “day care” and “education” by asserting that access to comprehensive and competitive education must be the right of all children, “from the day they are born to the day they begin a career.”264 The Obama Agenda is a good start, but it risks being sabotaged by the same recurring myths that cause Americans to reject so many sensible public investments as “socialism” or an assault on family “privacy.” To develop support for an integrated policy, we must adjust our old way of thinking and view the period of early childhood as a unified whole. We must put mothers (and fathers) and the systems that serve them back into the picture of what children need. In committing to meeting this age group’s needs for care and for education, for nurturing and for cognitive stimulation, for nutrition and for health care, we must not separate children from the families in which they are being raised—either conceptually, through the lens of individualism, or through child protection policies that separate children from families instead of providing necessary financial and practical supports and services to families and communities. Above all, we must recognize that vulnerability is a natural human condition; the vulnerabilities of children and those who care for them are integral to promoting the general welfare, and they demand public investments. Early childhood policy should include support for parental leave during the child’s first year to ensure the secure attachment and one-on-one interaction during the earliest months that experts tell us are an essential foundation for the child’s future educational and social attainments. It should include access to affordable health care and relief from poverty. It should provide for licensed educational day care settings for children, infants, and toddlers once their parents have returned to work. Publicly supported education, health care, and day care must be available to all children under the age of five, either free of charge or on a sliding scale so that it is affordable to all. Programs must be designed to meet the child’s evolving needs for nurture and structured learning. Hours of operation and services provided must be designed to match children’s and parents’ schedules. Nutritious meals and quiet or nap times, along with developmentally appropriate learning activities, are an essential component. Benchmarks must be set for staff training, 264. President Barack Obama, Address to Joint Session of Congress (Feb. 24, 2009), http://www.whitehouse.gov/the_press_office/remarks-of-president-barack-obama-addressto-joint-session-of-congress/.

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accreditation, and continuing education. Early childhood programs must be seen not as a service or handout to parents but as an important aspect of the general welfare of the nation, a necessary investment in human capital that pays solid dividends. Moreover, they must be seen as every child’s right, creating a seamless continuum of preparation for life, from birth to mandatory schooling and, eventually, school graduation and shouldering of the responsibilities of citizenship. It will not be possible to accomplish these reforms as long as the myth of individualism continues to dominate the American imagination. Americans will not respond to the needs of children as long as they view child care and education, health care, and nutrition during early childhood as an individual responsibility rather than as a shared investment in our human capital infrastructure that benefits society as a whole. Our peer nations will continue to improve the quality of early childhood programs while Americans sit on the sidelines and our children continue to suffer. A child-centered perspective—when it is employed in an ecologically and developmentally sensitive manner—exposes the myth of individualism. In doing so, it brings women and their needs back into the center of the picture because nurturing care is central to the child’s survival. Instead of relegating feminism to the margins, this version of child-centered jurisprudence makes visible and tangible the deep connections between generism and feminism. This much is certain: if women stop wanting to be mothers, the future of children is dark indeed. If women who are currently bearing and raising children do not receive adequate support, due to some misguided notion of rugged individualism, hard data from neuroscience tells us that children will suffer. XII. FEMINISM, ECOGENERISM, AND THE FERTILITY PARADOX I cannot end this discussion without addressing a certain paradox. Arguably, a primary measure of the health of an ecosystem is whether it fosters reproduction of a species at a rate that is both sustainable in terms of avoiding exhaustion of resources and sufficient in terms of maintaining stable populations. I have been arguing in this Article that creating a favorable ecology, through services and income supports, will be good for children because they are good for mothers and that mothers will be more inclined to have children if the climate is family-friendly. With paid parental leave, access to day care and early childhood education, and universal health care, one might

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expect Italian birth rates to be higher than those in the United States. Instead, the birth rate in the United States in 2008 was 14.18 per 1,000 while in Italy the birth rate was 8.36 per 1,000.265 More importantly, the total fertility rate (TFR), which refers to the number of births per woman, should be at about 2 in order to sustain current populations. In the United States the most recent estimates place the TFR at 2.05 for 2009 while in Italy the projected 2009 TFR is 1.31.266 Here lies the paradox: Why should a nation with less generous provisions for children and families have a higher birth rate than a nation with more generous provisions? The picture changes when one makes comparisons between Italy and its European neighbors. Italy has lower levels of support for families than many other European nations. It also has lower birth rates than many other European nations. TFRs for France (1.98), Netherlands (1.66), Norway (1.78), and Sweden (1.67) show that higher levels of support do not correlate with lower fertility rates. On a global scale, the highest TFRs are found in developing nations that provide few resources for families and children. In attempting to explain the paradox of low birth rates in welfare states, scholars of comparative European demography have noted some intriguing comparisons among welfare states. The Southern European countries of Portugal, Spain, Italy, and Greece are characterized by “strong families” or “familism” (strong ties between kin and across multiple generations) and low fertility rates.267 By contrast, the northern countries like France, Germany, Netherlands and Denmark are characterized 268 by weaker family ties, but higher fertility rates. Countries characterized by “strong families” typically have less generous or less comprehensive systems of public support for families than their northern neighbors. European experts are faced with a “chicken or egg” question that defies easy resolution: “[A]re people [in the countries like Italy] – in some way – compelled to

265. See CENT. INTELLIGENCE AGENCY, THE CIA WORLD FACTBOOK 2008, at 293, 612 (2008). 266. Global TFR estimates for 2009 are taken from the Central Intelligence Agency (CIA), The World Factbook, Country Comparisons: Total Fertility Rate, https://www.cia.gov/library/publications/the-world-factbook/rankorder/2127rank.html (last visited Sept. 19, 2009). 267. Gianpiero Dalla Zuanna & Giuseppe A. Micheli, Introduction to STRONG FAMILY AND LOW FERTILITY: A PARADOX? 7–15 (Gianpiero Dalla Zuanna & Giuseppe A. Micheli eds., 2004). 268. Id. at 7, 12 (assessing the strength of family ties in part on the frequency with which the elderly see family members).

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strengthen their family ties in order to adapt themselves to a welfare system they are certainly not capable of changing, or has the welfare system adjusted to a society based on strong family ties?”269 A further paradox has troubled European observers: why should strong family ties seem to produce fewer rather than more children? The low fertility paradox is far too complex to be covered in this Article. In Italy, the tendency for adult children to live at home and to delay marriage plays an important role, as does the desire on the part of many Italian couples to favor “quality over quantity”—opting to produce one child so they can provide that child with greater opportunities for education and social mobility. But many Italian observers believe that gender inequality in the workplace and at home is a significant factor in deterring Italian women from bearing children at or near the replacement rate. The gender barriers are cultural and relate to gendered structures of labor rather than being formal or legal. The principle of gender equality between parents was recognized in Italian law as early as the 1970s.270 Yet fathers still tend not to take parental leave, despite the incentives described above. Since a parent’s salary is reduced during the leave period and the average husband’s salary is higher than his wife’s,271 couples often prefer to minimize lost income by having the mother stay at home. In addition, the Italian labor market is far less flexible than the labor market in the United States. Part-time work is difficult to obtain, and part-time workers have far fewer protections than their full-time counterparts. Women who step off the career ladder find it difficult to return. Recent studies suggest that improving low birth rates in Italy may depend on greater pay equity and more flexible employment opportunities for women, coupled with more equal sharing of child care and housework by men.272 While habits are gradually changing,

269. Zuanna & Micheli, supra note 267, at 11. 270. Law No. 1204, Dec. 30, 1971, Gazz. Uff. No. 14 (Jan. 18, 1972). 271. CATALYST, WOMEN’S EARNINGS AND INCOME: QUICK TAKES 5 (2009), available at http://www.catalyst.org/file/196/qt_womens_earnings_and_income.pdf (compiling statistics of median earnings based on gender and showing Italian women as earning approximately 73% of their male counterparts). 272. See Peter McDonald, Gender Equity in Theories of Fertility Transition, 26 POPULATION & DEV. R. 427, 437–38 (2000) (“Very low fertility rates will persist unless gender equity within family-oriented institutions rises to much higher levels than prevail today. In a context of high gender equity in individual-oriented institutions, higher gender equity in family-oriented institutions will tend to raise fertility.”); Daniela Del Boca et al., Why are Fertility and Women’s Employment Rates So Low in Italy? Lessons from France and the U.K. 3–4 (Institute for the Study of Labor (IZA), Discussion Paper No. 1274, 2004), available at http://ssrn.com/abstract=585307 (analyzing the social policies that

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Italian men have been notoriously slow in matching women’s increasing participation as wage-earners with their own greater participation in household labor.273 The comparative perspective provided by the Italian experience is helpful on another level. Not only does it show us that a nation far poorer than ours can afford to support its mothers and children, it also shows that paid maternity leave and prenatal and reproductive health care and access to quality early education are not enough to motivate women to choose motherhood. They must also have flexible work options and partners who are committed to gender equality in housework, child care, and the workplace. The Italian experience reminds us that feminism and generism both must demand as “positive human rights” those social and political environments that are friendly to women and children. But social and economic rights are not enough without gender equality. One cannot elevate the status of children while devaluing the sex that bears and nurtures them. As the children so wisely stated in 2002, “a world fit for children . . . is a world fit for everyone.”274 By the same taken, a world not fit for women is truly not fit for anyone, and most certainly not fit for children.

affect Italy’s fertility rates, including the rigidity of the labor market). 273. Gianpiero Dalla Zuanna, The Banquet of Aeolus: A Familistic Interpretation of Italy’s Lowest Low Fertility Rate, in STRONG FAMILY AND LOW FERTILITY: A PARADOX? 119 (Gianpiero Dalla Zuanna & Giuseppe A. Micheli eds., 2004). 274. A WORLD FIT FOR CHILDREN, supra note 1, at 58.