I.      INTRODUCTION

Many Little Rock residents perceive the area around the University of Arkansas at Little Rock (鈥溙切腣log传媒LR鈥�) campus as decayed, dangerous, and threatening to the long-term growth of 糖心Vlog传媒LR and the surrounding area of Little Rock. While validating the civic perception, this paper examines the actual crime rate in the area and analyzes the factors that contributed to public disapproval of the area.

Officials from the City of Little Rock and 糖心Vlog传媒LR launched a comprehensive revitalization project in 2007. By establishing a 鈥淯niversity District,鈥� officials hoped to overcome the lack of economic and population growth in the area surrounding the 糖心Vlog传媒LR campus that has developed over the past few decades. The project was initiated based on an official vision for the 糖心Vlog传媒LR area announced in 2004. The vision stated the area surrounding the 糖心Vlog传媒LR campus would become an 鈥渋n-town destination鈥� and a 鈥渘eighborhood-of-choice鈥� by 2014. Eight years after officials announced the revitalization plan to the public, there have been no indications of concrete environmental engineering or construction efforts to meet these goals. This lack of progress may stem from the gigantic scale of the project, in terms of organization, staff, time, financial investment, and the cooperation of many partners and direct contributors. However, to prevent the bad situation from getting worse, the poor image that the residents of the city have developed of the study site needs to be addressed immediately.

This study presents a few simple urban planning and placemaking solutions towards improving urban safety in the area surrounding the 糖心Vlog传媒LR campus. Research shows that there are two main factors that directly affect urban safety that can be corrected through environmental design: Crime rate and public fear of crime. This article will focus on both on urban planning and placemaking methods to prevent crime and improve the public鈥檚 perceptions of crime in the studied area. The author recommends an 鈥淯rban Growth Boundary鈥� to the City of Little Rock to help the study site while promoting sustainable development for the entire metropolitan area of Little Rock.

II.    LITERATURE REVIEW

A.   Civic Efforts to Revitalize the 糖心Vlog传媒LR Campus Area

The study site of the research is the area immediately surrounding the 糖心Vlog传媒LR campus, mainly along University Avenue and Asher Avenue. These are two major city transportation arteries on the western and southern boundaries of the 糖心Vlog传媒LR campus. The study site significantly grew in the 1960s to 1970s as a destination for residential development, shopping centers, restaurants, automobile stores, and other businesses that chose to locate to this area. 糖心Vlog传媒LR also experienced significant growth during this time. As the city continues to expand westward away from downtown, the study site has suffered from blight and deterioration since the 1990s. Today, this area is identified in the University District Revitalization Plan as being a location that residents and visitors of Little Rock view as a 鈥減ass-through corridor lined with unsafe and obsolete shopping center 鈥榮trip-malls鈥� with large expanse of bleak, un-landscaped asphalt parking areas.鈥漑1]

Among all the efforts the City of Little Rock, 糖心Vlog传媒LR, and other organizations have made to redevelop this area, there are three substantial projects. The first is the update of the 糖心Vlog传媒LR Campus Master Plan initiated in 2004. Although the project focuses on the internal planning of the University campus, it also aims to revitalize the immediate areas surrounding the campus. The plan includes a vision of a University District that was to be realized in 2014, which states,

The University District is a thriving cultural and entertainment destination, regarded throughout the city as a neighborhood of choice鈥攁 walkable, in-town district with excellent schools and services, vibrant commercial areas, rich cultural resources, and connections to open space and transit. A mix of single-family and higher-density housing attracts a diverse community, including many 糖心Vlog传媒LR faculty and staff who choose to live as well as work in the district.[2]

The second effort was an extension of the first planning project focused on realizing the vision for developing the University District. 糖心Vlog传媒LR published three main urban-planning documents on its website: Strategic Plan, Revitalization Plan, and Establishing University Village, with the first two documents created in 2007 and the last document created in 2013. Unfortunately, no noticeable physical changes have been observed and the Vision is far from being realized.

Another recent effort was the proposal to create a Tech Park in the area on an 84.37-acre piece of nearby land. The Tech Park was intended to house a variety of economic-focused projects. Although some city and university officials presented strong arguments on how such an urban infill project would benefit the university and surrounding area as well as the Tech Park itself, a location in downtown Little Rock was chosen instead.

From an urban planning and placemaking perspective, there are four approaches to assist with crime prevention and improve public perception of crime in the studied area. These approaches are valuable for the following reasons:

(i) They can be achieved with fewer people and organizations, less time, and lower costs than the previous three projects;

(ii) They are suggested from a profession-specific point of view, which may not be readily apparent to those not trained in urban planning theory; and

(iii) They can produce noticeable results in a comparatively short period of time.

This study presents a new perspective to revitalizing the study site; that is taking simple and easily achievable steps towards meeting the basic human need for a sense of safety.

B.    Urban Safety through Environmental Design

The most prevalent topic in improving urban safety by design is about crime prevention: Crime Prevention through Environmental Design (鈥淐PTED鈥�).[3] The first publication on the relationship between crime and environmental design appeared in Jane Jacob鈥檚 The Death and Life of Great American Cities.[4] In the 1970s, the term CPTED was first coined and made known through two pioneers鈥� books: Schlomo Jeffery’s Crime Prevention through Environmental Design[5] and Oscar Newman鈥檚 Defensible Space:  Crime Prevention through Urban Design.[6] Today, the International CPTED Association defines CPTED 鈥渁s a multi-disciplinary approach to deterring criminal behavior through environmental design.鈥漑7]

There are many factors that are controllable through environmental design that can prevent crime, such as the accessibility to a location, density and intensity of human activities in an urban space, the mixed uses of space for different city functions, the integration of land-use, and the vitality of an urban district or neighborhood. For example, low-crime neighborhoods often have narrower, one-way routes that accommodate slow traffic, while high-crime neighborhoods usually provide an easy and quick entry and escape route to the city streets. Neighborhood crime patterns can be changed by modifying the layout of the neighborhood.[8] Three concepts serve as the underlying principles for CPTED:

(i) 鈥淓yes on the Streets鈥� is the natural and spontaneous surveillance that people provide when moving about in an environment, such as in the street, neighborhood, or building;[9]

(ii) 鈥淪ense of Territory鈥� means that people defend, respect, and take care of a place that they perceive ownership over;[10] and

(iii) 鈥淏roken Window鈥� means that serious social disorder can be prevented by taking care of minor incidences.[11]

Based on these principles, a good CPTED practice is one that is under sufficient formal or informal surveillance during the day, properly lit up at night, as well as structurally and aesthetically maintained.

At the same time, urban safety also takes 鈥渇ear of crime鈥� into consideration, which is an emotional reaction to perceived physical harm and potential danger in the environment.[12] The sight of physical deterioration and blight in a neighborhood, shopping center, or downtown area triggers individuals鈥� mental connections with social disorder in the area and themselves being victimized by crime.[13] The sense of safety is one the most basic human needs. Therefore, reducing public fear of crime is just as important at preventing actual crime. The current study focuses on addressing both aspects: preventing crime and eliminating the sense of crime.

Besides improving urban safety through better environmental design, there are two other effective approaches: law enforcement and enhancing social bonds.[14] Through the implementation of new laws and the use of police force, law enforcement has been the most commonly utilized and effective method to prevent crime and the sense of crime. In terms of enhancing social bonds, one example is that an individual that is already at risk to commit a crime may be more likely to do so when they feel isolated from important social networks, such as family and friends.[15] Social bonds are not acknowledged as a crime-reducing factor as often as law enforcement is.

According to 2015 FBI data, Little Rock is the most dangerous city in the United State among cities with a population under 200,000.[16] Social gentrification and segregation in the Little Rock metropolitan area have increased since the mid-1920s and escalated since the 1950s.[17] The next question to be analyzed in this study is whether the 糖心Vlog传媒LR campus is truly located in a high crime rate area or if it is merely the public鈥檚 perception of the environment that leads them to fear being victimized by crime activities in this area. To answer this question, the next section discusses Little Rock crime distribution patterns.

III.  CRIME ANALYSIS

A.   Methodology

The crime data[18] was collected for the full year from January 1, 2013 to January 1, 2014 and from January 2, 2014 to January 1, 2015. The Little Rock Police Department updates the data weekly with information for each case including crime type, date, time, and location. The types of crime recorded in the database are first-degree battery, robbery, auto theft, commercial and residential burglary, and homicide. There are records of 4411 crime occurrences of these types in 2013 (auto theft 1017, battery 143, commercial burglary 310, homicide 25, residential burglary 2127, and robbery 771) and 4643 in 2014 (auto theft 1196, battery 145, commercial burglary 304, homicide 30, residential burglary 2196, and robbery 751). This data was compiled into a Geographic Information System (GIS) software, ArcGIS (version 10.2.3). Each incidence of crime was assigned a point on the base-map through a geocoding process. Density analysis was conducted with Kernel Density tool in three categories: total crime occurrences, crimes against property (auto theft and burglary), and crimes against people (battery, homicide and robbery).

B. Results

Figure 1 shows the results of the crime distribution/density analysis within the city limit of Little Rock in 2013 and 2014. It is visualized with the Kernel Density tool using 鈥淓qual Interval鈥� classification by classifying the gathering degree of the crime location points into five equal degrees. The qualifying of the classification is calculated using 鈥渟quare map units.鈥� In order to make the result more understandable, the five equal degrees are categorized as such: low, medium low, medium, medium-high, and high.

Figure 1 (a through f): The crime density distribution in Little Rock in 2013 and 2014.

C. Finding and Discussion

As shown in Figure 1, the study site is within the medium to medium-high crime rate area for 2013 and 2014. The same pattern is followed by the two crime categories, crimes against property and crimes against people, during this period. Clusters of the crime rate from medium low to high are generally divided into a lower (south) and an upper (north) continuous colorized areas (except for Figure 1-f, because compared to other diagrams, the upper colorized areas are divided into a west and a mid-town-to-downtown regions). The study site is clearly located at the center of the south edge of the upper crime cluster, which spreads along Interstate 630 at its widest section and seizes at Cantrell Road as its northern edge.

Two conclusions can be drawn from the crime analysis based on 2013 and 2014 data: First, the crime rate of the study site is at medium to medium-high level when compared to the rest of the city. The area immediately surrounding the 糖心Vlog传媒LR campus suffers not only from the poor image that people do not feel safe there but also from an above-average crime rate, although it is not the most dangerous part of the city. Second, the study site is on the interface between low crime areas and a higher crime rate clustering area.

IV.  IMPROVING URBAN SAFETY THROUGH ENVIRONMENTAL DESIGN

Urban safety, as stated above, includes preventing crime and improving the public鈥檚 perception of safety. Built environmental design suggestions will be provided to improve urban safety in the study area. Urban planning and placemaking are two professional methods of designing a built environment. They both deal with the physical structures at a regional level, with urban planning mainly focusing on land-use and zoning range from city to neighborhood level, while placemaking emphasizes the more detailed design aspect at the human interaction level in the community.

A. Site Analysis: The Significance of Urban Planning and Importance of Placemaking

The study site, 糖心Vlog传媒LR and its surrounding area (shown in the Figure 2 as the circled number 鈥�1鈥�), is at the intersection of Asher Avenue (Colonel Glenn Rd to the west) and University Avenue. The city鈥檚 new developments (the blue shaded circles) are strongly shaped by the intersections of the city鈥檚 traffic structure, located at the intersections of Interstate Highways. At the inner city (also referred to as mid-town), University Avenue is the biggest north-south city artery, running perpendicular to Interstate-30, Interstate-630 and stretching northward until it meets a city east-west artery, Cantrell Road. Many perceive the major intersections along University Avenue as transportation destinations (shown in Figure 2 as grey and black circles) where people wish to travel across the city expeditiously.

Although University Avenue is frequently used as an urban traffic corridor where people aim to get to the transportation destinations, there are two major urban 鈥渘odes鈥� where civic activities take place. These social destinations contribute to slowing down traffic and make University Avenue seem less of a traffic 鈥渃orridor鈥漑19] than without the nodes. These nodes are the Park Plaza Mall (circled number 鈥�2鈥�) and the Heights and Hillcrest Neighborhoods (circled number 鈥�3鈥�).

Figure 2: Site analysis about the strategic location of the study area.

The study site is critical for several reasons. First, it is the interface between 鈥済eneral urban鈥� to 鈥渦rban center鈥� transect.[20] Between these two transects, three factors contribute to the transition of the public鈥檚 experiences of the streetscape when they drive North on South University Avenue:

(i) The street width of University Avenue gradually decreases, from 115 feet at south of Asher Avenue to 50 feet wide at north of the Park Plaza Mall;

(ii) The building height and density gradually increases beyond 糖心Vlog传媒LR campus area, with more stores, restaurants, and institutions replacing the scene of sparsely located structures of automobile dealerships and gas stations that are more prevalent south of Asher Avenue; and

(iii) University Avenue is on an uphill grade running from the south towards the north, making it much easier for vehicles to remain in a controlled state that allows people to pay more attention while driving.

All three of these factors lead people traveling north on University Avenue to feel the city-life atmosphere becoming more intimate (in spatial scale), busier and more interesting (with businesses and activities), and the need to pay more attention to traffic (because of the uphill driving on narrower streets). These feelings are desirable, as they indicate a sense of place and the vitality in the city. The transition point where this experience begins is the 糖心Vlog传媒LR Campus and its surroundings.

The red lines in Figure 2 are marked as urban interface or transitions between different urban experiences introduced by different urban transects. It would be considered proper urban planning and design practice if the transition zones can be made more aesthetically pleasing, functional, and even become additional unique 鈥渘odes鈥� on University Avenue. An advantage for the site is the city鈥檚 major open-space and park system (shown in Figure 2 as the green dashed box) which runs perpendicular with University Avenue right before the streetscape begins to transform. This detail could be carefully utilized as the buffer of the transition zone. Other similar spots where the green open space meets the highway could be preserved natural zones that provide pleasant natural open views for interstate traffic.

The analysis above indicates the significance of the study site in the urban structure of the metropolitan area of Little Rock. However, the current study is not intended to re-master-plan the site, although the author considers it necessary for the long-term growth of the area. Rather, this study focuses on improving the area through simple and easily completed strategies.

B. Urban Safety Suggestions through Environmental Design

This section gives environmental design suggestions to improve the public鈥檚 comfort level and prevent crime in the study area. These suggestions are based on the current condition of the study site and the 2004 Vision of University District. Therefore, these approaches may not be useful when applied to other cases or for a different purpose.

1. Urban Planning: To Promote Natural Surveillance

Natural surveillance is a manifestation of the difference between public space and private space: public space is more physically accessible and visible, while private space limits who can access it and avoids excessive visibility. A semi-public/private space is in between. People intuitively pick up the signals that an environment sends and decide quickly and accurately when it is a good design. A good design practice appropriately matches the intended function of a built environment and its physical characteristics without confusing those who see it; on the other hand, a space develops its own 鈥減ersonality鈥� when it has clearly assigned characteristics.

a. Observation

On the south and west of the 糖心Vlog传媒LR campus, the architecture style of the shopping centers reflects the typical styling of an American strip shopping mall in the 20th Century: a big parking area in front of the plain-styled retail buildings, which have deep roof awnings supported by columns (see Figure 3). The under-the-awning space, when the usability was high, was intended to provide a safe and shaded pedestrian corridor, and to provide a semi-public space where vehicle accessibility and large volumes of pedestrians were prohibited. Now these shopping centers are experiencing low occupancy rates and these semi-public spaces have become shelters for criminal activity and idling individuals because of the lack of natural surveillance.

Figure 3 (a through d): The pedestrian corridor semi-public space in the shopping centers around the 糖心Vlog传媒LR Campus.

b. Solution

Since the occupancy of these shopping centers is low and crime rate is comparatively high in the area, it is advisable to convert these semi-public spaces under the awnings into private space. This can be achieved through architecture modification and adaption: the corridor area in front of each store can be shortened or removed by becoming part of the interior space of the stores (see Figure 4), in order to eliminate the privacy and sheltering usability of the semi-public outdoor space under the awning. When an architectural element is not designed to symbolize long-term stability and usage (like government buildings or courthouses), especially with general retail spaces, it is better to use fixture awnings, which utilize less depth and are not constructed in the same material as the main body of the building (see Figure 5). This will imply flexibility, trendiness, and convenience without emphasizing heaviness.

Figure 4: Reducing the privacy in the semi-public corridor area by expanding the interior space of the store.

Figure 5 (a and b): examples of store fronts with shallower awning covered area.

2. Urban planning: To Enhance Connectivity

Urban compatible and complementary functions need to be connected through physical proximity for mixed-use complexes, pathways at a neighborhood scale, and transit at a greater urban level or above. If safe and convenient connectivity is missing, there are more opportunities for people to experience distractions, higher traveling activation energy, and harm from traffic accidents and criminal activities.[21]

a. Observation

University recreation and student housing are compatible functions for an educational institute and they both exist within the study area. A student apartment complex and a sports and recreation facility are located across Asher Avenue south of the 糖心Vlog传媒LR campus (see Figure 6). Although it is possible for students to walk to campus for evening classes from their apartments, the high crime rate around the campus may threaten the students, especially at night (see Figure 7). If the crime rate rises, students may avoid walking although campus is within walking distance. Therefore, providing a safe connectivity between the facilities of the University is vital.

Figure 6 (a and b): 糖心Vlog传媒LR facilities that are across Asher Avenue from the main campus.

Figure 7 (a and b): 糖心Vlog传媒LR students access university facilities on foot.

b. Solution

Building pedestrian and bicycle-friendly bridges can connect the main campus and the facilities across Asher Avenue. The bridge can be built for public use and should be designed with as much transparency and visibility as possible for it to not become a station for idle behavior and individuals. This approach would not only encourage students to use non-motor transportation safely, but it would also help the University make the statement that it is invested in protecting student safety, especially if the University intends to become the anchor of the in-town destination of the area (see Figure 8).

Figure 8 (a and b): Pedestrian bridges close to educational institute complexes.

3. Placemaking: Reduce Negative Image in Architectural Details

Visual signs can be silent but forceful in environmental communication. When visual signs communicate open, trusting, and welcoming messages, people tend to feel more trusted, invited, and relaxed in those environments. Alternatively, an environment can invoke negative feelings through visual signs of warning, such as severe security devices in an area that is already showing signs of dilapidation. According to environmental psychology, this communicates that the place is unsafe to non-criminals and reinforces anti-social behavior for the crime-prone population.[22]

a. Observation

The study area is in a higher crime rate part of Little Rock. Although it is understandable that the renters of the commercial space will install devices to protect their businesses from property crimes, the following questions should be considered: how effective are these devices and what are the consequences of using them? The use of harsh visual crime prevention devices, such as those shown in Figure 9, reinforces the area鈥檚 negative image. From crime data collected over the past two years, it is clear that the crime rates against property and people are still above average. The two images below communicate that the area is dangerous and that the properties are at risk 24 hours per day.

Figure 9 (a and b): Bars and chains as crime prevention devices in the shopping center in the study site.

b. Solution

Appropriate crime prevention devices are necessary because they show that business owners are dedicated to protecting their business. However, the visual communication needs to be subtle and avoid emphasizing anti-social behavior. Examples of effective and thoughtful methods include using 鈥渃rime-watch鈥� programs, utilizing non-business hour roll-up door (see Figure 10), and having visibility of police staff on site.

Figure 10 (a and b): Crime watching and roll-up doors used as more subtle crime prevention approaches in the neighborhoods and retail spaces.

4. Placemaking: To Promote a Sense of Place through Public Art

The final approach to improving urban safety through environmental design is to establish an identity of a place and to promote civic engagement through the site鈥檚 distinctive identities. It is common sense that suspicious people do not wish to stand out and be noticed. In this sense, one way to increase the chance of natural surveillance and reduce crime in an area is to make that area socially active, inviting, and interesting. The identity of a place can be powerfully communicated through visual products such as public art that is authentic to its cultural identity.

a. Observation

In the area surrounding the 糖心Vlog传媒LR campus, there are no obvious signs of a local identity as a place. Or worse, there is no plausible identity being perceived, but the area is being label as 鈥渄ilapidated and high crime.鈥� The lack of civic engagement and pleasant visual products has conveyed the message that this is not a place for people to spend time at.

b. Solution

If the study site is going to establish an identity anchored by the University, the current lack of public art in the area can be seen as a good opportunity for the 糖心Vlog传媒LR campus and its neighborhood to start establishing educational public art. For example, in the proposal of University Village, four roundabouts were suggested to slow down the traffic at the section in front of 糖心Vlog传媒LR campus on University Avenue.[23] This solution can be refined by adding public art at the middle island to avoid becoming overly-engineered and not pedestrian-friendly (see Figure 12).[24] Other types of public art, such as interactive sculpture, street furniture, and landmarks made from local natural materials (see Figure 13) can be used to increase civic engagement and local cultural awareness while improving the beauty and elegance of the study site. If the public art is consistently themed, the community can effectively communicate its culture to its residents as well as its visitors.

Figure 11: The street round-about solution proposed by the University District.

Figure 12: Example of public arts decorating a street round-about.

Figure 13 (a through c): Examples of public art in the forms of interactive sculpture (a), city outdoor furniture (b) and a natural material sculpture (c).

V.    CONCLUSION

This research is a comprehensive study about improving urban safety through environmental design. The research first confirmed the suspicion of many that the 糖心Vlog传媒LR campus and its immediate surroundings are situated in a higher crime rate area of Little Rock. According to the Revitalization Report of University District, people also reported that they felt unsafe in the area. Pointing out that the study area is located at an urban transect interface, recommendations were provided from an urban planning and placemaking perspective in order to improve the safety of the area. These recommendations are intended to be simple approaches that involve less labor and financial investment than a more comprehensive revitalization plan.

Additionally, the author considers urban sprawl responsible for the deterioration of the inner city of Little Rock, as exemplified by the study site. Urban sprawl is a type of development that provides short-term gratification for wealthier parts of the population by opening new territory in previously natural or agricultural areas while leaving behind insufficiently used urban space, deteriorated infrastructures, and people that have fewer options. Also, building and maintaining the extended infrastructure on the outskirt of the city needed by urban sprawl is costly. The concept of an 鈥淯rban Growth Boundary鈥� confines the spatial expansion of a city and promotes urban infill project and social desegregation. This concept has been proven effective in cities such as Portland, Oregon; Boulder, Colorado; Virginia Beach, Virginia; Lexington, Kentucky; Seattle, Washington; and San Jose, California. Maybe, for its own sustainable development, it is time for Little Rock to reconsider the expansion of its footprint outside of the boundaries of an area already being underutilized.

* Dr. Yang Luo-Branch is the Director of Placemaking and Design for Hot Springs Village, Arkansas. She earned a B.S. in Architecture in China before obtaining a M.A. in Sociology with a minor in Geographic Information Systems from Texas Tech University. In 2013, she obtained a Ph.D. in Land-Use Planning, Management, and Design from Texas Tech University. Her research focuses on community design and development. Before relocating to Hot Springs Village, she taught at the College of Architecture at Texas Tech University.

[1] University District Revitalization Plan, University of Arkansas at Little Rock iv (July 2007), available at /universitydistrict/home/strategicplan/.
[2] Partners for Progress: Shaping the Future of the University District, University District Partnership 1 (2007), available at /universitydistrict/files/2007/09/2004_Vision_Statement.pdf.
[3] INTERNATIONAL CPTED ASSOCIATION, (May 17, 2015, 7:50 PM), http://www.cpted.net/.
[4] JANE JACOBS, THE LIFE AND DEATH OF GREAT AMERICAN CITIES (1961); Planning Urban Design and Management for Crimeprevention Handbook, European Commission – Directorate-General Justice, Freedom and Security (2007), available at http://www.designforsecurity.org/uploads/files/A01_-_Handbook_English.pdf.
[5] C. RAY JEFFREY, CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN (1971).
[6] OSCAR NEWMAN, DEFENSIBLE SPACE: CRIME PREVENTION THROUGH URBAN DESIGN (1972).
[7] INTERNATIONAL CPTED ASSOCIATION, supra note 3.
[8] RALPH B. TAYLOR & ADELE V. HARRELL, NATIONAL INSTITUTE OF JUSTICE, PHYSICAL ENVIRONMENT AND CRIME (1996); RONALD E. WILSON, TIMOTHY H. BROWN, & BETH SCHUSTER, Preventing Neighborhood Crime: Geography Matters, 263 NIJ Journal 30-5 (2009).
[9] JACOBS, supra note 3.
[10] JACOBS, supra note 3.
[11] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, ATLANTIC MONTHLY, March 1982, at 29-38.
[12] J. Garofalo, The Fear of Crime: Causes and Consequences, 72 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 839-57 (1981); RONALD E. WILSON, TIMOTHY H. BROWN, & BETH SCHUSTER, supra note 8 at 30-35.
[13] J. Gerofalo, supra note 12; Rodney Stark, Deviant Places: A Theory of the Ecology of Crime, 25(4) CRIMINOLOGY 893-910 (1987).
[14] Robert J. Sampson, Stephen W. Raudenbush, & Felton Earls, Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277(5328) SCIENCE 918-24 (1997); European Commission, supra note 4.
[15] Matthew Freedman & Emily G. Owens, Low-Income Housing Development and Crime, 70(2) JOURNAL OF URBAN ECONOMICS 115-31 (2011); Robert J. Sampson & Stephen W. Raudenbush, Disorder in Urban Neighborhoods鈥擠oes it Lead to Crime?, NIJ JOURNAL, Feb. 2001, at 1-6; Robert J. Sampson, Stephen W. Raudenbush, & Felton Earls, supra note 14.
[16] Kevin Rizzo, Chelsey Goff, & Anneliese Mahoney, Crime in America 2015: Top 10 Most Dangerous Cities Under 200,000, LAW STREET (2015), http://lawstreetmedia.com/blogs/crime/crime-america-2015-top-10-most-dangerous-cities-200000/.
[17] John Kirk & Jess Porter, The Roots of Little Rock鈥檚 Segregated Neighborhoods, ARKANSAS TIMES (July 10, 2014), http://www.arktimes.com/arkansas/the-roots-of-little-rocks-segregated-neighborhoods/Content?oid=3383298.
[18] LRPD Crime Map, ARKANSAS ONLINE, http://www.arkansasonline.com/right2know/lrpdreports/.
[19] KEVIN LYNCH, THE IMAGE OF THE CITY (1960).
[20] DANIEL G. PAROLEK, KAREN PAROLEK, & PAUL C. CRAWFORD, FORM-BASED CODES: A GUIDE FOR PLANNERS, URBAN DESIGNERS, MUNICIPALITIES, AND DEVELOPERS (2008).
[21] Patricia L. Brantingham & Paul J. Brantingham, Environment, Routine, and Situation: Toward a Pattern Theory of Crime, 5 ADVANCES IN CRIMINOLOGICAL THEORY 259 (1993).
[22] Thomas J. Bernard & Jeffrey B. Snipes, Theoretical Integration in Criminology, 20 CRIME AND JUSTICE 301 (1996); Robert J. Sampson & Stephen W. Raudenbush supra note 15.
[23] Establishing University Village Report, University of Arkansas at Little Rock 9 (2013), available at /universitydistrict/files/2013/06/Establishing-University-Village-Report.pdf
[24] John Massengale & Victor Dover, The Probems with Modern Roundabouts, BETTER CITIES AND TOWNS (January 31, 2014), http://bettercities.net/article/problems-modern-roundabouts-20946

The post Becoming an In-Town Destination: Urban Planning and Placemaking Approaches for Improving Urban Safety around the University of Arkansas at Little Rock Campus appeared first on The Arkansas Journal of Social Change and Public Service.

Abstract. Small cities in Arkansas overall exhibit a lower density of commercial and residential land uses than the norm for American Sunbelt metropolitan areas. The results include highly inefficient traffic patterns that prioritize lengthy high-velocity roads over compact grids, linear real estate development along such thoroughfares, and an amplification of the segregation of citizens without the means to drive to jobs, retail outlets, and other places necessary for a comfortable way of life. This article, drawing on case studies of two small cities in Arkansas to illustrate the nature of the problem, concludes that “Smart Growth” policies, as outlined by the Environmental Protection Agency (EPA), are necessary to curb the perpetual cycle of sprawl, segregation and inefficient use of land and fuel. Such policies advocate higher density development, and a mixing of land uses that would foster sustainability, and better connect neighborhoods marginalized by automobile sprawl to enjoy enhanced proximity to the entire city such that they realize a higher standard of living.

I. INTRODUCTION AND STATEMENT OF THE RESEARCH QUESTION

In his book The Geography of Nowhere, James Howard Kunstler (1993) includes a chapter, titled “How to Mess up a Town,” which quite effectively describes the deterioration of Saratoga Springs, New York through sprawl.  The latter was spurred by urban planning policies geared toward accommodating motorists and the automobile at the expense of the city’s aesthetics, architecture and historic downtown.  He discusses how post-1960s formulaic urban planning has resulted in a preponderance of standalone buildings surrounded by soulless parking lots arranged in a linear fashion that dominate the city’s commercial landscape.  He laments the deterioration (and in some cases disappearance) of traditional downtown store fronts and other such streetscapes.  He criticizes a landscape that above all sends the message that historically relevant architecture and the ability to move around by means other than automobiles do not matter.  Indeed, a large number of academic and popular books and articles document the negative effects of the sprawling of post-World War II American cities.  Kunstler’s case study is a rare example of an analysis of small-city sprawl.  The overwhelming majority of treatises of suburbanization focus on metropolitan areas, yet suburban-style growth permeates even towns and the smallest of cities, especially in the Sunbelt.  The present essay is an attempt to draw attention to the consequences of sprawl in small cities of Arkansas.  While this essay utilizes two primary case studies, Morrilton and Stuttgart, a similar style of development can empirically be observed in virtually every small city throughout the Natural State.

The primary objective of this research is to describe, largely through insights derived from fieldwork carried out in Stuttgart and Morrilton, the main features of small-city sprawl, and to identify some of the problems it generates, including long commutes, hampered connectedness, automobile dependency, and segregation between different income groups within small cities.  The spatial spreading out of small cities since the mid-twentieth century is necessary to study, given that smaller cities exhibit lower density rates, and therefore more sprawl-related problems per capita, than mid-sized and larger cities (Kim and Brownstone 2010).  An additional objective is to review studies of the costs, whether monetary, health-related, and cultural, of the style of land use that dominates small cities of this and other states.  Given that many small cities across the country are struggling to compete with more dynamic metropolitan areas that include such amenities as public transit and diverse economies, it is increasingly clear that the ways that people engage with small-city localities must be of high quality for small cities to realize positive economic development, and the persistence of a traditional, high-density downtown development style is crucial to that outcome (Smith 2007).  Furthermore, citizen input in the process of ensuring small-city success hinges on the enhancement of connectivity and diminishing of segregation that would lead to more dialogue and community engagement across the populace of small cities.

The study relies on a review of relevant literature on the nature of land use in contemporary American cities, especially small ones, and on ways to go about improving it to contribute to development.  To understand the origins, aesthetic characteristics, and problems of sprawl, the study draws heavily on direct observation by the author of land use patterns in Morrilton and Stuttgart, and it incorporates summaries of interviews with community leaders in the two case study cities.  Information gleaned from physical observation and interviews is triangulated with published demographic and economic data, and with conclusions drawn from earlier published studies carried out by urban planners and urban geographers around the country.  Triangulation of data in this way has been praised for its ability to not only provide insights from disparate sources, but to reconcile the different sources of data (Yin 2009).

The remainder of this essay is organized into four parts.  First, I define sprawl, and provide a review of the literature on the costs of sprawl and the benefits of higher-density development.  Second, I examine the style and history of sprawl, and the causes of its continuation in the case study small cities of Morrilton and Stuttgart.  Third, I provide a recommendation of how these cities can mitigate some of the negative consequences of  their low-density development while enhancing their chances of experiencing economic development in the process.  The essay’s final section provides concluding  remarks of use t planning officials in American small cities.

II. THE COSTS OF SPRAWL AND THE BENEFITS OF HIGHER-DENSITY DEVELOPMENT: A REVIEW OF THE LITERATURE

Ewing, Pendall and Chen (2002) define sprawl as “poorly managed expansion.”   Burchell and Mukherji (2003) further elaborate on this definition by emphasizing the lower-density nature of sprawling development compared to traditional neighborhood development, and its tendency to be carried out in a “leapfrog” linear fashion that often appears unlimited, resulting in higher costs to residents and city governments.  Thus, sprawl can be equated with the suburban land-use style that remains quite omnipresent across the American landscape.   While early depictions of the suburban style of land use in cinema and in literature often portrayed its culture inaccurately as monolithic and generic, its aesthetic, physical character actually is quite standardized across the country, with differences equating more with the size of a given settlement than by region of the country.   Such stretched, linear development, which represents a spreading out of functions traditionally found in downtowns and traditional neighborhoods, requires greater public investment in roads than traditional town grids (ICMA 2010).

Kim and Brownstone (2010) refer to a study of 26,000 households conducted in 2001 (the National Household Transportation Survey) concluding that a definitive inverse relationship exists between size of settlement and housing density.  Their own study revealed increased per-capita mileage driven among residents of towns and small cities compared to those of mid-sized and large cities in the U.S.  A seminal study by the Center for Environmental Quality (CEQ 1974) concluded that the costs of infrastructure investment in high-density neighborhoods close to downtowns ranged from 27 to 44 percent below those of lower-density suburban neighborhoods.  More recently, Burchell and Mukherji (2003) estimated that costs of infrastructure associated with lower-density growth are seven to ten percent higher than growth that is managed, while infill development produces ten percent lower costs in provision and maintenance of road and utility infrastructure.   Furthermore, households in small cities in Arkansas, and in most of the rest of the U.S., are more automobile-dependent on average than those in metropolitan areas where inner-city redevelopment is occurring (Burchell and Mukherji 2003).

Small-city sprawl in Arkansas is most appropriately viewed as a process that creates a largely generic pattern of segregated land uses growing outward from downtowns, which themselves were the extent of the original settlement that included a mix of land uses.  Throughout Arkansas, similar patterns of small-city spatial growth exist, including segregated residential and commercial areas traversed by mid- and high-speed thoroughfares, whether or not these cities are growing slightly in population, as in Morrilton, or slowly declining, as in Stuttgart.  Arkansas is about evenly divided between small cities that grow, and those that decline, yet the land-use patterns are quite similar.   Every small standalone city in Arkansas contains linear retail development, separated by design from residential neighborhoods, and often obscuring the downtown.

While low-density development often enables buyers and renters to enjoy lower mortgage or rent payments than is the case in higher-density areas closer to urban core areas, such savings to individuals are offset by diseconomies and inefficiencies.  According to the Congress for the New Urbanism (2010), over-borrowing and foreclosures have proven to be a problem in low-density areas.  Automobile dependency increases as cities spread out, and the greater energy usage that results from the per-capita additional miles required to drive produces not only monetary costs, but greater exhaust emissions.  Furthermore, automobile dependency discourages walking or bicycling, thereby contributing to higher rates of diabetes, heart disease, obesity, osteoporosis, and a host of other health problems.  Poorly managed growth is akin to a bicycle wheel in which the distance between spokes increases with radius; the longer per-capita length and consequent higher costs of roads that accompany sprawl are burdensome to local governments, and by extension, tax payers.  Likewise, the higher quantity of utility infrastructure per capita that accompanies sprawl is expensive, and costs are passed on to consumers (Congress for the New Urbanism 2010).   Furthermore, for cash-strapped municipal governments, higher-density development generally produces greater property tax revenues, because parking lots associated with lower-density development do not generate as much revenue per square foot than buildings, which tend to be more valuable on a per-square-foot basis in higher-density settings close to or within downtown areas (ICMA 2010; March 2013).

Studies of small-city downtowns and the impacts of their revitalizations on small-city economies are relatively scarce, making it difficult to identify exactly what such cities need to do to produce effective alternatives to poorly managed growth (Smith 2007; Otto 2007).  Smith (2007) found that successful Main Street Programs in Kentucky depended on low vacancy rates of storefronts and other real estate, the proximity of a given small city to larger urban centers that could siphon business away, and the composition of a given committee or association promoting Main Street.  Furthermore, she found that small-city downtowns tend to become too narrow in their offerings by emphasizing antiques and gift shops, which ultimately is not sustainable.  Those that succeed tend to be county seats, and therefore are more economically diversified because of local and county governance functions, which attract a wider array of restaurants and other retail businesses, thereby enabling them to compete effectively with suburban strip development.  Otto (2007) found that downtowns that are less successful at stemming the exodus of high-range (specialty) and high-threshold (department store, grocery) retailing to suburban strips nonetheless could reverse their fortunes through historic preservation and solidifying the downtown as an historic center of a small city, and a place that elicits a feeling of pride and patrimony on the part of citizens.  Chambers of commerce are crucial to the success of such strategies.

The League of American Bicyclists often point out numerous ways that bicycling enhances local business and municipal revenues.  Increased bicycle usage means less wear and tear on streets, and a savings to local governments, even when public funds are invested in bicycle lanes and other infrastructure.  Those who cycle to work or to run errands have extra money to spend that car owners do not have, and the savings can translate to greater retail sales in non-automobile products.  Consumers who live close to accessible shopping areas such as downtowns or neighborhood clusters contribute to retail sales of locally-owned businesses.  Such bike-friendly neighborhoods tend to have higher property values, a boon to local governments (Flusche 2012).   Rowe (2013) found that downtown areas and neighborhood business districts whose connections to nearby residential areas that are bicycle-friendly, can enjoy retail sales up to four times the automobile-oriented norm, even when parking spaces are reduced to accommodate cyclists.

Cost savings and expanded benefits of traffic-calming efforts in neighborhood business districts can be considerable.  For example, pedestrian-automobile and bicycle-automobile collisions are greatly reduced from traffic calming efforts such as fewer lanes on a given street dedicated to automobiles, the addition of protected bicycle lanes and pedestrian islands, while retail sales in such districts are enhanced and vacancy rates of storefronts are reduced (New York City DOT 2012).  Finally, healthy transit saves in health care expenses (Flusche 2012).  A 2012 study in Oregon concluded that funds invested in bicycle infrastructure yield health-care savings of nearly three and a half times (March 2013).  In fact, North Little Rock’s bicycle and pedestrian trail system played a definite role in the reduction of health care costs of Garver, an engineering and architecture firm headquartered there, and factored heavily in the company’s decision to locate its headquarters there (Parker 2015).

An alternative to poorly managed expansion is the concept of “smart growth.”  Key to smart growth policies is a style of planning, referred to as form-based planning, that permits each block to be planned individually, and enables residences of different income levels to be mixed with retail and other commercial land uses.  The result, compared to standardized planning, is a more walkable and cyclist-friendly neighborhood that maximizes social interaction, and connection to the historical sites of a city that elicit feelings of pride and a sense of place in the city.  Community involvement in the design of such redevelopment of sprawl is crucial to its success (ICMA 2010).  The two case-study cities contain historically-relevant sites that could serve as anchors for smart growth, potentially strengthen a sense of place, and serve as models for other small cities in the state that desire to replace poorly managed expansion with a less automobile-dependent, more traditional, historically-relevant land use style.

III. THE CASE STUDY SMALL CITIES: SPRAWL IN STUTTGART AND MORRILTON, ARKANSAS

Stuttgart is located 55 miles east-southeast of Little Rock, and Morrilton is 51 miles northwest of the state capital.  Despite relatively close proximity and the fact that both cities are parts of rural areas outside the Greater Little Rock Metropolitan Area, there are some important differences in their respective settings.  Stuttgart is located in the agricultural plains of eastern Arkansas, a region connected to the Arkansas Delta, and is accessible by two-lane highways.  Morrilton is located in the Arkansas River Valley and adjacent to Petit Jean State Park along two-lane state highways and Interstate 40, one of the most heavily traveled sections of interstate in the country in terms of truck traffic.  Each city is served by a class I railroad, an advantage in terms of economic development.  Both cities have historically viable and healthy downtowns that used to host the types of businesses, such as grocery stores, department stores, hardware stores and pharmacies that subsequently have suburbanized in a spread-out fashion (Hanley and Hanley 2009).  Both cities are above the state average in terms of manufacturing employment.  Table 1 provides key demographic data of each city, and Table 2 includes relevant workforce data.

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Table 1:  Selected Demographic Data, Arkansas, Morrilton and Stuttgart

Source:  Bureau of the Census (quickfacts.census.gov/qfd/states/05000.html, accessed 22 March 2015)

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Table 2:  Selected Workforce Data, Arkansas, Morrilton and Stuttgart (2008-2012 Average)

Source: City-data (www.city-data.com/city/Morrilton-Arkansas.html; www.city-data.com/city/Stuttgart-Arkansas.html, accessed 22 March 2015).

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The International City/County Management Association (ICMA 2010) outlines five general categories of small cities.  1.) “Gateway communities” are close to natural amenities such as national or state parks.  2.) “Resource-dependent communities” rely on a single activity, such as farming, mining or forestry, resulting in a lack of economic diversity.  3.) “Edge communities” enjoy proximity to, and spillover from larger cities such that residents can have greater access to jobs and retail amenities.  Such communities tend to grow the fastest of all small cities.  4.) Traditional Main Street communities are compact and contain historically relevant architecture that can generate business from residents and visitors alike.  Such Main Streets, however, are often in competition with retail development along high-speed arteries entering and exiting such cities.  5.) “Second home” and retirement communities tend to exhibit standard suburban land-use patterns, such that automobile dependency is unavoidable (ICMA 2010).  Morrilton and Stuttgart each show that small cities can fit into more than one category.  Morrilton is a gateway community because of its proximity to Petit Jean State Park, and is an edge community because of its proximity to Conway and other parts of the Little Rock Metropolitan Area.   Stuttgart is in part a resource-dependent community because of the dominance of rice farming in the area and processing in the city, and is in part a Main Street community because of its large annual downtown festival celebrating duck hunting that draws visitors from Arkansas and beyond (Maynard 2014).  Both cities share the prototypical suburban land-use style, yet have reasonably attractive downtown areas that, with additional renovation, could attract much needed economic investment.

Stuttgart (population 9,241) is a major center for the farming, processing and distribution of rice.  It is home to two major rice companies: Riceland, the most prominent rice-producing company in the United States, and Producers Rice (Figure 1).  The city’s main thoroughfares see heavy truck traffic oriented toward rice distribution.  The city also houses three different entities that conduct related agricultural research: The University of Arkansas Rice Research Center, the Dale Bumpers Rice Research Center, and Monsanto.  Furthermore, Ag Pro, an agricultural machinery distributor, is headquartered in the city.  However, Stuttgart is not strictly an agroindustrial small city devoted to a single activity, but is home to other manufacturing activities. Among the latter are a Lennox air conditioning plant that manufactures rooftop units for big box retail stores, and a facility that recycles parts from old aircraft, which was the basis for Stuttgart’s receipt of some $3 million in federal funds to modernize its airport.  Union Pacific provides Class I rail service between St. Louis and Houston via Stuttgart and Riceland produces enough rice on average to make up one train per day.   Highway connectivity, however, is limited to two-lane US and State highways, which appear not to be a limiting factor for workers in the rice-processing and other factories who live in rural areas away from the city.  Two industrial parks, one on the city’s east side and one to the south, house six companies.  Finally, Stuttgart relies heavily on tourism related to duck hunting and a related annual festival (Maynard 2015; Bell 2015; and Humphrey 2014).

Figure 1.  Stuttgart鈥檚 Rice Manufacturing Landscape

Though somewhat hemmed in by the valuable rice farmland of the immediate area, Stuttgart nonetheless exhibits significant sprawl.  The city has no full-time planner, so the Planning Commission has to rely on two engineers hired to manage water, street repairs, the airport, and sidewalks.  Two major bond issues within the last fifteen years have generated the funds to repair some of the city’s streets and water infrastructure, and to install a modest amount of sidewalk infrastructure on 22nd Street, the city’s southernmost commercial strip.  The downtown area is quite impressive for a small city, although its iconic hotel, the Riceland Hotel, has remained empty since the 1970s (Humphrey 2014).  The downtown appears lively, and exhibits visible improvements from “Let’s Paint Stuttgart,” a community repainting program begun in 2011 to improve the city’s core (Figure 2).

Figure 2.  Main Street, Stuttgart

Access to the downtown, however, is hampered in many cases by the poorly managed expansion of the city.  Competing with downtown and siphoning many of the latter’s businesses is 22nd Street, which runs east-west on the city’s south side and is home to Walmart and several chain stores and fast-food restaurants.  Along 22nd Street is the high school and the northern reaches of Phillips Community College.  Sidewalk connections are generally good, though the spread-out nature of the thoroughfare makes walking and cycling less of a viable option than would be the case in a more compact city (Figure 3).

Figure 3.  Suburban Commercial Sprawl in Stuttgart:  22nd Street

Two primary north-south thoroughfares connect the 22nd Street commercial strip with northerly parts of the city.  Buerkle Street largely traverses residential areas on the city’s west side.  It is a visible example of the worst facets of small-city sprawl as it has little to no sidewalk infrastructure, and is too narrow and filled with automobile traffic to be of much use to cyclists (Figure 4).  The northern portion of Buerkle crosses Michigan Street (US Highway 165) and becomes US Highway 63 north of that intersection.

Figure 4.  South Buerkle Street, Stuttgart

Michigan Street is another commercial strip that contains gas stations, motels, auto repair shops, and fast-food restaurants.  Given that Buerkle and Michigan are important thoroughfares, and their intersection is an important suburban commercial core, it would be essential for bicycle and pedestrian infrastructure to be present, though it is nonexistent (Figure 5). The crowdedness of that intersection from automobile and truck traffic serves to isolate downtown and the residential areas east and west of Buerkle.

Figure 5.  Stuttgart Suburban Commercial District:  Michigan Street and S. Buerkle

A second thoroughfare of importance is Park Avenue, which trends north-south on the city’s east side and serves as a bypass.  The two rice factories are along Park Avenue, as is an elementary school without sidewalks (Figure 6).  Main Street, a minor north-south thoroughfare between (and paralleling) Buerkle and Park Avenue, runs through downtown, and has the potential to become a viable example of a Complete Streets project.

Figure 6.  Elementary School in East Stuttgart:  Lack of Pedestrian Infrastructure

Morrilton (population 6,799), established in 1873 upon arrival of the Little Rock and Fort Smith Railroad, has a fairly diversified economy by the standards of similarly sized small cities of Arkansas (CCGA 2006).  It has three industrial parks, all of which were developed by the Conway County Economic Development Corporation (CCEDC), a nonprofit organization affiliated with the Morrilton Chamber of Commerce and funded by memberships, appropriations from the city and county, and land sales (Smith 2015).  One industrial park is located on the northwest side of the city close to the westernmost Interstate I-40 interchange, and one is on the northeast side adjacent to the eastern interchange.  The third is located on the city’s southeast side along the Arkansas Highway 9 eastern bypass.  Manufacturing is an important component of the city’s economy and contributor to employment (Table 2).

Morrilton is visibly spread out.  Like Stuttgart, the city has no full-time urban planner, but relies on a Planning Commission and a code enforcement officer to carry out planning functions.  The primary thoroughfares of this heavily automobile-dependent city include US Highway 64 (Broadway), which serves as the city’s Main Street.  The downtown section of Broadway is picturesque, compact, walkable, and architecturally rich.  The railroad depot, built in 1915 (Green 2015), and the five-story First National Bank are, along with the Conway County courthouse a block to the south, the most important visual and patrimonial markers of Morrilton (Figure 7).  Downtown extends two blocks south and some four blocks north of Broadway.

Figure 7.  Morrilton Rail Depot:  Key to the Community鈥檚 Sense of Place

Low vacancy rates of storefronts throughout downtown, coupled with the existence of some unusual businesses, such as a winery and a scuba diving shop, indicate that downtown is valued by shop owners and other residents (Lipsmeyer 2015) (Figure 8).

Figure 8. Broadway Street, Downtown Morrilton

However, east and west of downtown, Broadway traverses neighborhoods marked by a lack of walkability, an unfriendly atmosphere for bicyclists, and clear signs of segregation from the downtown, owing to the stretching of the thoroughfare in tandem with automobile proliferation.  These conditions strongly suggest that infill development and other smart-growth strategies ought to be considered by citizens.

The primary thoroughfare on the city’s north side, and the magnet for retail development since the opening in 1968 of the interstate (CCHS 1990), is Harding Street (Business 9), an example of the familiar automobile-oriented linear development of small cities throughout Arkansas.  Sidewalks and bicycle lanes are nonexistent, despite the presence of two of the city’s four public schools located along the street’s western portion (Figure 9).  Two shopping centers, a large standalone Walmart, and several fast-food and other automobile-oriented businesses surrounded by parking lots dominate Harding Street.  The east end of Harding links to State Highway 9 and the easternmost interchange of I-40, which forms the northern boundary of Morrilton.  The west end of Harding terminates at Oak Street, a north-south street that connects to the westernmost interchange of I-40.  Many of the city’s residential neighborhoods lie west of Oak Street, and virtually none is walkable, rendering them quite segregated from commercial areas of the city (Figure 10).  All of Morrilton’s public schools, including its two-year college, the University of Arkansas Community College at Morrilton (糖心Vlog传媒CCM), are inadequately connected by sidewalks, if there are sidewalks at all (Figure 11).

Figure 9.  The East Harding Street Commercial District, Morrilton

Figure 10.  Low Income, Segregated Neighborhood in West Morrilton

Figure 11.  Lack of Sidewalks:  Morrilton High School

The north-south thoroughfare with the best potential for complete street development is St. Joseph Street, which has sidewalks from Broadway northward to a block south of Harding, and exhibits the most commercial development of any north-south street in the city.  Unfortunately, most of the businesses cater to automobiles and are lacking in a form that is inviting to pedestrians or cyclists.

Immediately south of Broadway are the courthouse, the attractive public library founded in 1916 (CCGA 2006), a number of the city’s churches, and a neighborhood of large, attractive homes that offer some degree of walkability and an aesthetic that ought to appeal to cyclists.  Financed by grants, most of the sidewalk infrastructure on this south side of downtown came about only in recent years (Figure 12).  Prior to that development, pedestrians were required to walk in the streets of southern downtown to get to the library and points nearby (Green 2015).  South of that neighborhood is a collection of widely separated homes of different socioeconomic levels along curving streets (owing to the hilly topography), and little potential for connectivity with downtown through walking or cycling.  This is the location of historic Lewisburg, of which little visual evidence remains today. South of Lewisburg is the Arkansas River, the southern boundary of the city and county.

Figure 12.  Church Street, Morrilton:  A Walkable Street

Growth in manufacturing is expected in Morrilton.  A Vietnamese company, Vinhlong Arkansas, has purchased a vacant building in the northwestern industrial park to produce cabinets for IKEA, the Swedish furniture company.  Initially the company plans to hire between 40 and 70 employees, and to increase that number as the company grows (Smith 2015).  Interestingly, the company represents the first example of Vietnamese foreign direct investment (FDI) in manufacturing in the United States (Lipsmeyer 2015; Smith 2015).  Likewise, a trucking company and an additional manufacturing company are presently going through the motions of relocating to Morrilton (Smith 2015).  City leaders expect that additional residential growth will come to the city because of its proximity to Conway and Little Rock, but without the traffic problems of those two cities (Lipsmeyer 2015).  If that is indeed the case, the city should expect a growing need for road improvements, if not expansions, which could offer an opportunity to remake the main thoroughfares in accordance with Complete Streets principles, described below.   Given that the city has a part-time Main Street program and has recently begun a citizen-based initiative, “Grow Morrilton,” to plan for future growth, improved quality of life, and improvement of transportation infrastructure, the prospects are good for sustainable planning to be carried out.

IV. RECOMMENDATIONS FOR DEVELOPMENT MOVING FORWARD: INFILL, COMPLETE STREETS

“Complete Streets” is a nationwide planning strategy that seeks to transform automobile-dependent commercial thoroughfares and other streets into places that accommodate all forms of transit, including walking and cycling, and creating places with a mix of residences and retail shops to which people want to travel and spend time.  This requires form-based codes that allow each block to be  designed in accordance with what already is there and how it could be improved.  It also includes traffic calming, which turns out to produce efficient flows of vehicles (March 2013).  Connecting residential areas with downtown areas and neighborhood commercial clusters should be the primary focus of the installation of non-automobile infrastructure that allows people to get there easily and safely.  The wasted space of sprawl and/or abandonment of old factories or other brownfields can be viewed as a resource, if infill development is employed.  Benefits of infill development that incorporates design elements of Complete Streets include walkability, a mix of residential, retail, and other commercial land uses within the same block, and an emphasis on parks and other civic spaces that collectively enable transit times and automobile dependency to be reduced (Congress for the New Urbanism 2010; ICMA 2010).

Stuttgart ought to consider several initiatives to promote infill development and non-automobile forms of transit.  Bicycle lanes should be created and sidewalks installed in all residential areas, particularly on the more heavily traveled neighborhood streets.  Multi-use (bicycle and pedestrian) paths could be quite pleasant and useful in connecting each residential sector of the city with downtown and other commercial clusters, including 22nd Street and Michigan Street.  Incentives to promote mixed-use, infill development along those two commercial strips would be a positive step.  Because of its importance in linking neighborhoods between Buerkle Street and Park Avenue, South Main Street between downtown and 22nd Street should be transformed in accordance with Complete Streets principles, by installing protected bicycle lanes and sidewalks on both sides of the street in the portions where they do not exist or only exist on one side.  The same should be considered for North Main Street between downtown and Michigan Street, to connect nearby neighborhoods with downtown and with the Michigan Street commercial strip.  For its part, Michigan Street badly needs sidewalk infrastructure, bicycle lanes, and infill development that includes a mix of residences and retail establishments in close proximity.  Because it traverses several large, spatially spread-out neighborhoods of the city’s west side, both North Buerkle and South Buerkle badly need bicycle and pedestrian infrastructure.  There are portions of Buerkle (both North and South) that would be ripe for infill development involving mixed land uses.

When asked about whether there are plans for the City of Morrilton to annex any adjacent, unincorporated terrain, Mayor Lipsmeyer indicated that the city strongly prefers to pursue infill development of underutilized lands within the existing city limits (Lipsmeyer 2015).  This policy should definitely be pursued, because it very well might enable infill development a fighting chance, and would keep costs of any new transportation infrastructure lower.  Fortunately the grassroots “Grow Morrilton” includes at this early stage brief bullet points listing the need to beautify streets linking downtown with other parts of the city, in order to foster a pleasant transit experience along tree-lined streets.  It also includes provisions for invigorating features of downtown, such as the Rialto Theater, to make it an even more welcoming destination.  Those initiatives should be prioritized, and expanded to emphasize bicycle and pedestrian travel.

Harding Street needs considerable public works.  There is plenty of empty, undeveloped land along the street that could benefit from infill development that includes a mix of residences, caf茅s, and restaurants.  The street should be made within the Complete Streets framework, and include abundant pedestrian infrastructure, gardens and small plazas where people could spend time, and protected bicycle lanes.   As in the case of Stuttgart, every public school in Morrilton should enjoy enhanced connectivity through safe and abundant bicycle infrastructure and sidewalks.  The latter would make a positive contribution to the reworking of Harding Street.

St. Joseph Street is perhaps the best developed, and, therefore, the most cost-effective place in Morrilton to begin a project based on the Complete Streets strategy.  The sidewalk infrastructure that already is there is quite pleasant; however, the addition of cycling lanes would enhance it even more.  Most of the twelve blocks between Broadway and Harding are developed, though there are spots that could benefit from mixed-use infill development.  Much of it is an attractive street by virtue of its terrain and gentle curve, though a fair amount of its architecture is automobile-oriented and could be improved upon.

Finally, the most southerly of the city’s residential areas, and those west of Division and Oak Streets, an important north-south thoroughfare, should rightfully have abundant sidewalk infrastructure and protected bicycle lanes installed, especially on the more heavily traveled streets, including Division and Oak.  The priority should be to enhance the connectivity of low-density westside neighborhoods with the city’s downtown.

V. CONCLUSIONS

American small-city sprawl, including that of Arkansas, exhibits the irony that people are spread out and too often forced to travel long distances to access crowded arterial roads to commute to work, shopping, school, and other destinations.  As a result, the aesthetics of small-city commercial thoroughfares are diminished, because buildings are separated from one another by hopscotch development and surrounded by parking lots necessary to accommodate the increased automobile traffic, which contributes to the stretching out of commercial strip development (Congress for the New Urbanism 2010).  The funding necessary to build and maintain such thoroughfares means that too seldom are there enough resources available to remake such streets into places that are sustainable, and appropriate for walking or bicycling.

Fortunately, planners and other civic leaders across the country are increasingly becoming aware of the problem and are seeking ways to combat it.  West Jefferson, NC is a corollary to the “messing up” of Saratoga Springs that Kunstler (1993) lamented.  The small city (population 1,315), located in the mountainous northwest of North Carolina, began to decline economically in the 1980s upon the disappearance of its manufacturing base.  Civic leaders sought citizen input as they attempted to turn the small city’s fortunes around.  It was decided that downtown revitalization was key to the strategy.  A Complete Streets approach was followed whereby the city removed the downtown’s two primary traffic lights, renovated the bicycle lanes, and refinement of pedestrian infrastructure (Penn 2014).  The results were dramatic, and included an increase in tourism in West Jefferson, and growth in retail sales and the number of retail stores, including restaurants and art galleries (Dodds 2015).

Civic leaders in Morrilton and Stuttgart are keen to capitalize on the broad range of amenities of their respective historic downtowns.  Likewise, they view their communities as appropriate for exurban growth as Arkansans tire of the crowdedness and other problems of sprawling urban areas in the state.  They also view their cities as gateways to Petit Jean State Park in the case of Morrilton, and duck-hunting country in the case of Stuttgart, which, if promoted more broadly, could potentially attract even more tourism and retirement to their communities.  Tourists, retirees, and exurbanites would be more attracted to these communities if walking and cycling were more pleasant experiences and were viable modes of transportation to restaurants and retail stores.  Given that there is no “one size fits all” approach to infill development and making streets more complete, it is imperative that Stuttgart and Morrilton, and other small cities of Arkansas for that matter, involve citizens in the process of generating ideas favorable to sustainable urban planning.

*Dr. Michael S. Yoder is a professor of Geography at the University of Central Arkansas.

References Cited

[Editor’s Note: The following citations conform to the Annals of the Association of American Geographers guidelines.]

Bell, Stephen 2014.  Personal Interview 26 February.  (Director, Stuttgart, AR Chamber of Commerce).

Burchell, Robert and Sahan Mukherji 2003.  Conventional Development Versus Managed Growth: The Costs of Sprawl.  American Journal of Public Health 93(9): 1534-1540.

CCGA 2006 (Conway County Genealogical Association).  Conway County Heritage.  Nashville, TN:  Turner Publishing Company.

CCHS 1990 (Conway County Historical Society).  Conway County:  Our Land, Our Home, Our People.  Little Rock: Historical Publications of Arkansas.

City-data 2015a.  City-data.com/city/Morrilton-Arkansas.html.  (Accessed 21 March 2015).

_____2015b.  City-data.com/city/Stuttgart-Arkansas.html.  (Accessed 21 March 2015).

Congress for the New Urbanism 2010.  The unbearable costs of sprawl.  http://www.cnu.org/sites/www.cnu.org/files/whitepaper-unbearablecostofsprawl.pdf (Accessed 18 March 2013).

Council on Environmental Quality 1974.  The Costs of Sprawl:  Executive Summary.  Washington, DC:  Council on Environmental Quality (CEQ), Department of Housing and Urban Development (HUD), and Environmental Protection Agency (EPA).

Dodds, Alex 2015.  A transportation engineer on what convinced him to use a Complete Streets approach.  Washington, DC:  Smart Growth America.  http://www.smartgrowthamerica.org/2015/03/26/a-transportation-engineer-on-what-convinced-him-to-use-a-complete-streets-approach/ (Accessed 31 March 2015).

EPA 2013.  Our Built and Natural Environments:  A Technical Review of the Interactions Among Land Use, Transportation, and Environmental Quality, 2nd edition. Washington:  Environmental Protection Agency.

Ewing, Reid, Rolf Pendall and Don Chen 2002.  Measuring Sprawl and its Impact.  Washington, DC:  Smart Growth America. http://www.smartgrowthamerica.org/documents/MeasuringSprawl.PDF (Accessed 21 March 2015).

Flusche, Darren 2012.  Bicycling Means Business:  The Economic Benefits of Bicycle Infrastructure.  League of American Bicyclists.

http://bikeleague.org/sites/default/files/Bicycling_and_the_Economy-Econ_Impact_Studies_web.pdf (Accessed 16 March 2015).

Green, Linda 2015.  Personal interview 25 March (Director of Outreach Services, Conway County Public Library.)

Hanley, Ray and Steven Hanley 2009.  Main Street Arkansas:  The Hearts of Arkansas Cities and Towns as Portrayed in Postcards and Photographs.  Little Rock:  Butler Center Books.

Humphrey, Carl 2014.  Personal Interview February 26.  (Director, Arkansas County Economic Development Corporation).

ICMA 2010.  Putting Smart Growth to Work in Rural Communities.  Washington, DC:  International City/County Management Association (ICMA).

Kim, Jinwon and David Brownstone 2010.  The impact of residential density on vehicle usage and fuel consumption.  Unpublished manuscript, Department of Economics, University of California Irvine.

Kunstler, James H.  1993.  The Geography of Nowhere.  New York:  Simon and Schuster.

Lipsmeyer, Allen 2015.  Personal Interview 25 March (Mayor, City of Morrilton, Arkansas).

March, Lynne 2013.  Economic Impacts of Walking & Bicycling in Sonoma County.  Sonoma County, CA Transportation Authority (SCTA).  http://ci.sebastopol.ca.us/sites/default/files/suekelly/economic_impacts_of_walking_and_bicycling_in_sonoma_county_january_2013_scta.pdf  (Accessed 17 March 2015).

Maynard, Marianne 2014.  Personal Interview 26 February (Mayor, City of Stuttgart, AR).

New Hampshire OEP 2012 (New Hampshire Office of Energy and Planning).  Evaluating the Fiscal Impacts of Development.

http://www.costofsprawl.org/Evaluating-Fiscal-Impacts-of-Development-Part-I.pdf (Accessed 18 March 2015).

New York City DOT 2012.  Measuring the Street:  New Metrics for 21st Century Streets. New York: New York City Department of Transportation.  http://www.nyc.gov/html/dot/downloads/pdf/2012-10-measuring-the-street.pdf (Accessed 17 March 2015).

Otto, Andreas 2007.  Downtown Retailing and ‘Revitalization of Small Cities:  Lessons from Chillicothe and Mount Vernon, Ohio. In:  Beyond the Metropolis, ed. Ofori-Amoah, Benjamin, 245-268.  Lanham, MD:  University Press of America.

Parker, Herbert J.  2015.  Personal Communication 30 March (Senior Vice President, Garver, North Little Rock, AR).

Penn, Josh 2014.  West Jefferson Streetscape Project. Raleigh:  Complete Streets NC http://www.completestreetsnc.org/project-examples/ex-westjefferson/  (Accessed 31 March 2015).

Philipsen, Klaus 2014.  What is Urban Design? Community Architect. http://archplanbaltimore.blogspot.com/2014/11/what-is-urban-design.html?q=Philipsen+November+28,+2014 (Accessed 19 March 2015).

Rowe, Kyle 2013.  Bikenomics:  Measuring the Economic Impact of Bicycle Facilities on Neighborhood Business Districts.  http://cep.be.washington.edu/wp-content/uploads/2013/07/bikenomics_v2.pdf (Accessed 18 March 2015).

Smith, Christa 2007.  Managing Downtown Revitalization Projects in Small Cities:  Lessons from Kentucky’s Main Street Program.  In: Beyond the Metropolis, ed. Ofori-Amoah, Benjamin, 269-292.  Lanahm, MD:  University Press of America.

Smith, Jerry 2015.  Personal Interview 26 March (President and CEO, Morrilton Area Chamber of Commerce and Conway County Economic Development Corporation).

Yin, Robert K.  2009.  Case Study Research:  Design and Methods, fourth edition.  Thousand Oaks, CA:  Sage Publications.

The post The Sprawling of Small Cities of Arkansas: The Case for Sustainable Urban Planning appeared first on The Arkansas Journal of Social Change and Public Service.

鈥溾�橰e-homing is not regulated; there鈥檚 no legal framework to address it. It鈥檚 mostly an underground affair.鈥欌�漑1] 鈥淩e-homing鈥� is when adoptive parents post an advertisement on the internet (usually on a message board or group site) to give away their adopted child to a stranger. Re-homing is just one of the major problems resulting from international adoptions that have recently come to the American public鈥檚 attention. In December of 2014, the American Bar Association Journal published, Far From Home: States Start to Crack Down on Parents 鈥楻e-Homing鈥� Their Adopted Kids. The article discusses how only a handful of states have recently put law in place to address the daunting problem of re-homing, but the article also touches on an even bigger issue many have been asking about for years: 鈥渨hy so many parents are relying on international adoptions given that many of America鈥檚 children are available for adoption[.]鈥漑2] The processes and procedures of domestic adoptions act as safeguards for birth-mothers鈥� rights, future adoptive parents鈥� options, and most importantly adopted children鈥檚 welfare. As we all know from the media鈥檚 stories of child-trafficking, kidnappings, illegal adoptions, and abuse, these safeguards are often absent when parents adopt children from overseas. This is because children born in U.S. hospitals or to U.S. citizens benefit from reliable documentation that is often absent in international adoptions, which creates a greater risk of unethical conduct than in domestic adoptions.

I. THE MAJORITY OF CHILD VICTIMS OF RE-HOMING ARE INTERNATIONALLY ADOPTED CHILDREN

Unfortunately, internationally adopted children are the majority of child victims in the re-homing plague that has been taking place across the United States. In 2013, Reuters investigated and published a chilling series on cases of private re-homings, Americans Use the Internet to Abandon Children Adopted from Overseas. Reuters read and analyzed five years鈥� worth of posts on one message board called 鈥淎dopting-from-Disruption鈥� for re-homing children and found that 73% of the children advertised were adopted from overseas, 7% were advertised as 鈥渘ot overseas adopted[,]鈥� and the remaining 20% were not identified as internationally or domestically adopted.[3] Re-homing is a threat to even domestically adopted children because an estimated 10-20% of those adoptions fail, which are referred to as 鈥渄isrupted adoptions.鈥漑4] If you use the low end of the statistic on failed domestic adoptions and apply it to international adoptions, the number of children at risk is frightening. Around 243,000 children have been adopted in the United States from overseas in the last 15 years, which means more than 24,000 children most likely had 鈥渄isrupted adoptions鈥� and may no longer be in the care of the parents that brought them to America.[5]

During research on the topic of re-homing, it was appalling to learn that many in the adoption community attempt to portray parents that re-home as victims of bad situations with limited options. It is difficult to feel sorry for anyone who would advertise a child online to try to give the child away as if he or she was a pet or piece of property. This is especially the case when parents that re-home know nothing about the strangers they give their children away to. In one case, a mother gave up her 9-year-old adopted son to a pedophile in a motel parking lot a few hours after she posted a re-homing advertisement for him on a Yahoo group.[6] Unfortunately, this is not a rare scenario; Adoptive parents in Illinois put a 10-year-old boy in the same situation when they gave him to a child pornographer hours after they advertised him online for re-homing.[7] In another case, a 14-year-old Haitian girl, Nita, was offered multiple times over the internet for re-homing: her fourth family, the Kruses, already had other adopted and biological children when they took custody of Nita.[8] Nita reported Mr. Kruse after the younger children said he was sexually abusing them.[9] Mr. Kruse was charged with 17 counts of sexual abuse, including the rape of two of his daughters and sexual abuse of another daughter.[10]

It is also disturbing that these parents do not blame themselves for these tragedies, but instead blame the children or the distant countries they took them from. In an interview by NBC, Dr. Mary Staat, Founder of Internal Adoption Center, empathizes with adoptive parents who feel misunderstood when they feel they can no longer care for adopted children because of the children鈥檚 behavior, special needs, etc.[11] This raises the question of why these parents allowed to adopt a child in the first place if they were not going to treat the child as they would their own biological child. It is doubtful any of these parents would 鈥渞e-home鈥� or give away their own biological child to a stranger because of their child鈥檚 mental or behavioral problems. Among other reasons, many advocate for domestic adoptions over international adoptions because of mental and behavioral problems that adopted children may have. Barbara Babb (University of Baltimore law professor and Director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts) advocates for domestic adoption because of the support available to families that adopt through state agencies: 鈥溾�橮arents should reconsider working with local departments of social services. There would be much more willingness and, in some cases, legal authority to help adoptive families facing challenges.鈥欌�漑12]

II. PROBLEMS THAT ARISE OUT OF INTERNATIONAL ADOPTIONS

Again, re-homing is just one of the major issues posed by international adoptions. An article from the Journal of Law & Family Studies that expands on the issue of international adoptions, particularly out of post-crisis nations, provides upsetting stories from the black market of child trafficking in these nations that the great demand for adoptable babies has created.[13] This article discusses Judge Richard Posner鈥檚 writings on the economic aspects of international adoptions.[14] Adoption is subject to the same pressures as any other economic market including supply and demand.[15] The great demand for internationally adoptable children has increased child kidnapping, illegal adoption, and child trafficking as a whole in the countries where foreigners adopt children.[16]

Americans trying to adopt from popular source countries like Russia, Guatemala, and parts of Asia may not realize that some adoption agencies send money to poor countries in ways that induce fraud and corruption, leading the unscrupulous local 鈥渇acilitators鈥� to defraud, coerce, buy, and even abduct children from their birth families for personal profit.[17] As E.J. Graff observes, 鈥�In the case of inter-country adoptions, far too often, orphans were 鈥榩roduced鈥� by unscrupulous middlemen who would persuade desperately poor, uneducated, often illiterate villagers whose culture had no concept of permanently severing biological ties to send their children away[.]鈥漑18] Graff concludes that new United States law put in place to regulate international adoptions has fixed many of these problems.[19] While this is an improvement, it is by no means a complete solution. Even in countries that agencies portray as low risk because of new laws or an alleged lack of human trafficking, there are still unscrupulous actions being taken to acquire desirable children for international adoptions. Even a law professor who adopted two girls from India a few years ago was deceived by faulty documents and later discovered the girls had been stolen from their mother.[20] Less than a year ago, 382 babies were rescued from a Chinese doctor who was abducting children and selling them illegally through international adoption.[21] Twenty-six cases of internationally adopted children are linked to this doctor.[22]

III. QUESTIONING WHY WE LOOK OVERSEAS TO ADOPT

Many parents still look overseas to adopt because they believe the popular idea that they are 鈥渟aving鈥� children. Meanwhile, there are over 100,000 children in the United States that need to be adopted with no question as to whether they are legitimately orphaned or in need of a home.[23] In the United States, these children are adoptable because they were willing given up by their mothers due to unwanted pregnancy, the state has taken the children because parental abuse or neglect, or the children have no living family members to care for them. None of these reasons involve a child that has been kidnapped, trafficked or sold for profit by conmen. None of these reasons involve a mother giving up her child simply because she cannot afford to keep it or has been coerced. None of these children would find out that they were stolen from biological mothers who wanted to keep them. Children eligible for international adoption may also be adoptable for the legitimate reasons listed above but as many stories have revealed, it is easy to fabricate such a reason and get away with it when a child is taken halfway across the world.

Why would an adopting parent take the greater risks associated with international adoptions when they can adopt within the US without further complicating the already delicate adoption process? Some would answer they cannot adopt in the US because they do not qualify to adopt by standards set forth by the Department of Health & Human Services Children鈥檚 Bureau. Why does it make sense to allow them to adopt children from another country? Some would say it is less expensive to get a child from overseas. Do we want someone to adopt a child that is looking for the best deal on a child? Some say they are unable to adopt in the US because of their sexual orientation or marital status. Hopefully, this policy will change in coming years because many non-traditional couples would provide loving homes to orphaned children in the US that would otherwise be pushed through foster or group homes. Some international adoptees have written on the subject themselves, stating that adopting a child from a foreign country whose culture does not recognize same-sex marriage and placing them in a home with a same-sex couple only further complicates the identification problems many international adoptees face as adults. [24]Even when placed with a traditional American family, many international adoptees struggle with the separation from their birth countries, family, and their identity as a whole. (See Why a Generation of Adoptees Is Returning to South Korea for a good discussion of international adoptees鈥� struggles with identity.)[25]

Unfortunately, many believe they are doing a good deed by saving an orphaned child from the poverty of a third-world country. This is one the biggest misconceptions surrounding international adoption. Jan Hatmaker discusses this issue in her three-part series Examining Adoption Ethics:

Let鈥檚 stipulate that rich Americans flooding impoverished countries with millions of dollars to adopt its children will absolutely garner attention. Money has always been a magnet for corruption. While there are obviously lots of true orphans, without question, that much cash flow will generate some 鈥渃reated orphans鈥� to satisfy demand, especially for babies.[26]

Hatmaker has connected to people living in different impoverished countries and notes that 鈥淸t]here is the Christian adoption narrative we use over here, including inflated statistics, words like rescue and saving鈥hen there is the in-country story, which is something altogether different.鈥漑27] In fact, 鈥淸t]he missionaries and locals are saying something very disturbing: so often vulnerable birth moms are coerced and misled, families are manipulated and deceived, children are flat out bought. International adoption is Big Business.鈥漑28] She also says, 鈥淸t]here is this silent belief that kids are better off with us, period鈥ur children were meant for their birth families, the way every child ever born is. God did not intend these children for my wealthy home and accidentally put them in Ethiopian wombs.鈥漑29] Finally, she states, 鈥淸e]very family deserves basic human rights, and I should not get to raise your child simply because I can feed him and you can鈥檛.鈥漑30] Third-world countries are not the only victims of corruption in the 鈥淏ig Business鈥� of international adoption. As described below, Asian nations such as South Korea tell a similar story.

IV. THE TRUTH ABOUT RACIAL PREFERENCE AND NEGATIVE EFFECTS OF INTERNATIONAL ADOPTION ON BIRTH MOTHERS鈥� RIGHTS IN SOUTH KOREA

As someone who spent two years in South Korea and befriended Korean adoptees who were adopted by American families as babies out of South Korea, it was eye opening to learn of the complex issues involved in international adoptions and the realities of the adoptees themselves. One of the biggest holes in the widespread notion of 鈥渟aving orphans in the third-world countries鈥� is that racial preference plays a major role in international adoptions. Racial preference is a key issue for supply and demand as well as price. While the endorsed view, 鈥渓ove is blind to color鈥� may sound nice, if it were true Russian and Asian babies would not be more expensive than African and Haitian babies. , a Professor in Law at the University of Minnesota commented in her work about the economics of international adoptions, The Free-Market Approach to Adoption: The Value of a Baby, 鈥淸C]ouples may spend upwards of $50,000 to adopt a healthy, white infant. Black infants, however, are adopted for as little as $4,000鈥︹�� [31]

As deplorable as it sounds, Korean girls are more desirable to white American parents than almost any other children from overseas for a number of reasons.[32] First, South Korea in particular is not associated with the horror stories of kidnapped mothers and stolen children that unfortunately occur in Latin American and African countries. Second, there is a common stereotype that Asian children, baby girls in particular, are light skinned, smart, docile and have a relatively low risk of health problems. Private adoptions agencies are aware of this desire and work to find more adoptable Korean baby girls[33]. Unfortunately, in order to 鈥渇ind鈥� these children, Korean birthmothers are coerced by agencies and unsupportive family members to give up their children for as a little as a promise that their children will be adopted by wealthy parents that can provide not only love but also opportunities the birthmothers could not give. While this may not sound criminal, consider that when promises like this are made to unwed mothers, who are facing the reluctant to zero support from family, friends, and the welfare system in place, they often cause birthmothers to surrender children they want to keep to adoption agencies.[34]

In an interview with Maggie Jones, author of Why a Generation of Adoptees Is returning to South Korea, the interviewer asked Jones if the Korean adoptees she interviewed all believed international adoptions should end.[35] She replied that, 鈥淸adoptees] who do oppose it鈥re focused more on the underlying causes: supporting single mothers and advocating for adoptees鈥� rights.鈥漑36] Although they may be unaware of it, Americans enable this system when they pay private adoption agencies to 鈥渇ind鈥� adoptable Korean children.[37] There have been around 200,000 children adopted out of South Korea by families abroad in the last 60 years.[38] Some readers may object that they were internationally adopted or that they know international adoptees who are well adjusted with wonderful parents and great lives. While this is true in many good cases, the fact remains that this has not been the case for thousands. Even with those positive outcomes, it is uncertain whether all of those birth parents freely and willingly gave those children up for adoption.

V. CONCLUSION

According to the Congressional Coalition on Adoption Institute, there are currently 101,666 children in the United States waiting to be adopted.[39] This number reflects only the children who have no parents or whose parents鈥� rights were terminated, so they are fully adoptable without the risk of illegal adoption and other complications. Parents who adopt children from overseas through an agency cannot know with any certainty if the child is legitimately adoptable or if the child鈥檚 documents have been forged. In cases with forged documents, adoptive parents generally find this out years later, if at all. Until new federal laws are in place, those internationally adopted children could also be at risk for re-homing if they prove more than the adoptive parents can handle.

There is a need to change the fact that Americans are paying agencies to travel across the world to take these risks when there are literally a hundred thousand children in the United States that are adoptable and waiting. There is a need to caution Americans who are continuing to use a system that, even unintentionally, fuels human-trafficking, child kidnapping, and convincing mothers to give up their children. There is a need to formulate policies that criminalize and harshly punish the cruel act of re-homing both internationally and domestically adopted children. In addition, there is a need to change public misconceptions about international adoptions and encourage domestic adoptions before families look overseas and across borders to adopt. If for no other reason, then to protect the welfare of hundreds and possibly thousands of internationally adopted children that have ended up on the internet from being given to strangers and child abusers while adoptable American children wait in hope of a family.

* Abigail Niehaus has a Bachelor of Arts in History, a Certificate in Women and Gender Studies, and a Legal Certificate from the University of Tulsa. She is currently is a 3L at the William H. Bowen School of Law. Her anticipated graduation date is May 2016. She would like to practice family or public service law, in particular to facilitate domestic adoptions and be a legal advocate for women and children.

[1] Leslie A. Gordon, Far from Home: States Begin to Crack Down on Parents 鈥楻e-Homing’ Their Adopted Kids, A.B.A. J., December 2014, at 17, 17.

[2] Id. at 18.

[3] Megan Twohey, Americans Use the Internet to Abandon Children Adopted from Overseas, Reuters (Sept. 9, 2013), http://www.reuters.com/investigates/adoption/#article/part1.

[4] Gordon, supra note 1.

[5] Twohey, supra note 3.

[6] Megan Twohey, In a Shadowy Online Network, a Pedophile Takes Home a 鈥楩un Boy鈥�, Reuters (Sept. 9, 2013), http://www.reuters.com/investigates/adoption/#article/part2.

[7] Megan Twohey, Adopted Girl: I was 鈥楻e-homed鈥� After Reporting Dad鈥檚 Alleged Sex Abuse鈥�, NBC News (March 21, 2014, 5:04 AM), http://www.nbcnews.com/storyline/re-homing/wildest-ride-adoptibe-parents-struggle-conquer-trauma-n58891.

[8] Id.

[9] Id.

[10] Id.

[11] NBC News, Finding a 鈥楪ood Solution鈥� for Adopted Children, NBC News (March 21, 2014, 5:04 AM), http://www.nbcnews.com/storyline/re-homing/wildest-ride-adoptive-parents-struggle-conquer-trauma-n58891 (the video is embedded within the article).

[12] See Gordon, supra note 1, at 17.

[13] Ian Atzet, Note, Post-Crisis Actions to Avoid International Child Trafficking, 12 J.L. & Fam. Stud. at 499, 500 (2010).

[14] Id. At 503.

[15] Id.

[16] Id.

[17] E.J. Graff, They Steal Babies, Don鈥檛 They?, Pac. Standard Mag. (November 24, 2014), http://www.psmag.com/politics-and-law/they-steal-babies-dont-they-international-adoption-schuster-institute-95027.

[18] Id.

[19] Id.

[20] Gina Kim, International Adoption鈥檚 Trafficking Problem, Harv. Pol. Rev. (June 20, 2012, 12:52 AM), http://harvardpolitics.com/world/international-adoptions-trafficking-problem/.

[21] Human Trafficking Indicators, Illegal Adoption: Is It Human Trafficking?, Hum. Traffic Indicators (March 2, 2014), http://humantraffickingindicators.org/2014/03/02/illegal-adoption/.

[22] Id.

[23] U.S. Dep鈥檛 of Health and Human Services, The AFCARS Report 1 (Vol. 20 2013), available at http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport20.pdf.

[24] Martine Gross, translated by Leo Thiers-Vidal, The Desire for Parenthood Among Lesbians and Gay Men, in International Adoption: Global Inequalities and the Circulation of Children 87, 87-101 (Diana Marre and Laura Briggs ed., 2009).

[25] Maggie Jones, Why a Generation of Adoptees Is Returning to South Korea, N.Y. Times Mag. (Jan. 18, 2015), available at http://www.nytimes.com/2015/01/18/magazine/why-a-generation-of-adoptees-is-returning-to-south-korea.html?_r=0.

[26] Jen Hatmaker, Examining Adoption Ethics: Part One (May 14, 2013), http://jenhatmaker.com/blog/2013/05/14/examining-adoption-ethics-part-one.

[27] Id.

[28] Id.

[29] Id.

[30] Jen Hatmaker, Examining Adoption Ethics: Part Three (May 29, 2013), http://jenhatmaker.com/blog/2013/05/29/examining-adoption-ethics-part-three.

[31] Michele Goodwin, The Free-Market Approach to Adoption: The Value of A Baby, 26 B.C. Third World L.J. 61, 62 (2006).

[32] Eleana Kim, Our Adoptee, Our Alien: Transnational Adoptees as Specters of Foreignness and Family in South Korea, 80 Anthropological Q. 497, 503-04 (2007).

[33] Jiannbin L. Shaio and Mia H. Tuan, A Sociological Approach to Race, Identity, and Asian Adoption, in International Korean Adoption: A Fifty-Year History of Policy and Practice 155, 155-158 (Kathleen Ja Sook Bergquist et al. eds., 2007).

[34] Id.

[35] Adoptive Families, Q&A with Maggie Jones, Adoptive Families, Winter 2015, at 16.

[36] Id.

[37] Id.

[38] Id. at 17.

[39] U.S. Dep鈥檛 of Health and Human Services, supra note 23.

The post The Underground Market of Internationally Adopted Children: Re-homing and Questioning the Practice of International Adoption appeared first on The Arkansas Journal of Social Change and Public Service.

At a very young age, I knew I was adopted. My parents felt it was important to be honest with me about that fact, but at the same time, it was obvious. My parents are “black” Americans; they have darker skin tones and their hair is kinkier than my own; I am a “black, multi-racial” American whose features lend to being interpreted as native to many different parts of the world 鈥� Cuba, Persia, Ecuador, and even China.[1] I have only become comfortable with the label of 鈥渕ulti-racial鈥� in the last five years. For years, I simply identified as a Black American due to my environment and lack of genetic and cultural history. This lack of history prevented me from developing a strong sense of self as a child. Subsequently, it has also left me feeling uncomfortable with my own identity as an adult.

After months of discussing 鈥渢he search鈥� with my mother when I was a teenager, I was given the only documentation my mother had regarding my biological parents. This information, which Arkansas law requires an agency or person involved in adoption proceedings to compile, contained a narrative from my teenage biological mother explaining she was unaware she was pregnant until the last few days before she went into labor. It also explained her family鈥檚 composition 鈥� one military father, one stay-at-home mom, a little sister, all Catholic and 鈥淐aucasian.鈥� The only information pertaining to my biological father is extremely limited 鈥� he wore glasses, he did not smoke or do drugs, and he was 鈥淏lack/Hispanic.鈥�

Growing up, I would often get lost in the mirror wondering where my brown eyes came from or whose ears also had that funny crimp in the corner. I generally questioned any other feature I deemed odd. I am extremely uncomfortable around new people because I fear I will be asked the question I dread the most 鈥� What are you?[2] This uneasiness is not due to the poor form of the inquiry but, instead, reflects my own discomfort in not knowing how to honestly answer my own questions, let alone those of the stranger on the street who feels entitled to an answer.

The fact that, like thousands of other adoptees, Arkansas law treats me differently from other citizens only frustrates my attempts to feel comfortable in my own skin even further. With each visit to a new physician, adoptees face a medical history questionnaire in which they must repeatedly answer 鈥淯nknown / Adopted.鈥� This exercise in repetition effectively drives home the point that I belong to the only class of Arkansans who are legally prevented from knowing their personal histories. In Arkansas, like many other states, an adopted person鈥檚 birth certificate is amended to list their adoptive parents and remove their biological parents.[3] Additionally, all court records and documents related to the adoption are sealed. This effectively prevents an adult adoptee in Arkansas from learning anything about their background that was not provided in documentation given to their adoptive parents when the adoption was finalized. The following discussion is my attempt to answer my own questions regarding the history of secrecy in Arkansas adoptions and to propose legislation to shift the presumption of secrecy in adoptions to one of openness.

The intent of this paper is four-fold: (i) to inform the reader of the history of privacy in the American and Arkansas adoption systems; (ii) to explain the current open access debate regarding an adult adoptee鈥檚 access to their original birth records; (iii) to present a survey of the various state response to searching adoptees; and (iv) to propose legislation that fairly balances the interests of the adult adoptee, the biological parents, and the adoptive parents (鈥渢he adoption triad鈥�).

I.  Adoption is marked by changing constitutional and policy concerns but no explicit reason is found to explain denying adult adoptees access to information surrounding their birth.

The American adoption system has drastically changed alongside the evolution of the American family. This change is best understood by reviewing the history of adoption in the United States and Arkansas because it shows how a formerly open system changed to a system concerned with privacy. It also reminds the reader that the voice most often silenced in the adoption triad is the voice of the adopted person.

A.  The first adoptions were informal and did not convey rights; but after formalization, adoptions were primarily concerned with the distribution of property and the adoptive parents鈥� legal responsibilities to the adopted person.

Historically, there have been many types of adoptions subject to different degrees of regulation. At its earliest inception, adoption more closely resembled an apprenticeship.[4] This informal 鈥渁doption鈥� phase began to formalize when Massachusetts passed the first adoption law in 1851.[5] Arkansas enacted its first adoption law on February 25, 1885.[6] Titled An Act to regulate the adoption of heirs, neither the text of the Act nor the subsequent case law interpreting the Act required the sealing of records 鈥� meaning the records of the proceedings were open to all members of the adoption triad as well as the public. The Act focused on procedural issues and property rights. The text of the Act laid out the jurisdictional requirements, requirements of the petition, rights and interests of the adopted person, legal roles of the adopting parents, and proof of the biological parents鈥� consent to the adoption.[7] Additionally, the case law stemming from the Act concerns the property rights of adopted individuals versus those of 鈥渂lood relatives.鈥漑8]

B.  The development of stigmas around illegitimacy and infertility in American culture ultimately lead to a shift in the adoption system鈥檚 approach to providing information to adoptees.

The earliest twentieth century adoption laws shielded adoption proceedings from public scrutiny rather than from the adoption triad members.[9] It was a common practice to disclose information to those most intimately connected to the adoption.[10] The role of confidentiality in Arkansas adoptions changed with the enactment of A.S.A. 1947, 搂搂 56-223, 56-224. Subsequently, Arkansas followed the popular trend of protecting the privacy of the parties involved in an adoption.[11]

By the middle of the last century, these protections evolved to create and maintain secrecy within the adoption triad 鈥� effectively cutting off the biological family from the adoptee and adoptive family.[12] Before 1930, states did not amend birth records after a child was formally adopted.[13] That meant adult adoptees only had to review their original birth certificates to learn about the cultures of their birth parents. During the 1930鈥檚, states started to provide new birth certificates to adopted persons.[14] These new birth certificates listed the adoptive parents as the adoptee鈥檚 parents, as opposed to the biological parents. The purpose of this change was to legally create a family in which the adopted person was valued as a family member and not just an additional set of working hands.

As of 1935, six states provided access to court records only to the parties or by court order; four states kept the records of decree open to the public, but permitted the court to withhold remaining documents from inspection; and one state permitted access only by the issuance of a court order.[15] The balance of states that would grant access and states that would prohibit access would soon shift because of ongoing changes in American society.

By the late 1940鈥檚, laws obliterating the adopted person鈥檚 access to court records had become the rule rather than the exception.[16] At the same time as adoptees lost access to court records, more states provided adoptees with new birth certificates while corresponding provisions were developed to limit access to the public to view these original birth certificates鈥攂ut not to the adult adoptee.[17] Consistent with the times, the Uniform Adoption Act of 1953 provided that states must seal original birth certificates and copies of adoption decrees after the issuance updated birth certificates.[18] The Act implied adoptees could request their original birth certificates if they reached the age of majority.[19] This position on access would soon change quietly, with no articulated legal reasoning provided and likely not the result of happenstance.

In 1960, a new requirement that states report their adoption statutes and procedures to the Federal government exposed a significant shift in birth records policy.[20] Of the forty-nine states reporting and the District of Columbia, twenty-eight reported that original birth records were available only by court order.[21] However, twenty states (accounting for forty percent of all jurisdictions) indicated that adult adoptees could inspect their original birth certificates as of 1960.[22]

In 1969, the Uniform Adoption Act was amended to completely rescind an adult adoptee鈥檚 access to original birth records.[23] This rescission was simply left unexplained. The Arkansas General Assembly adopted portions of the Uniform Adoption Act in 1977, including the rescission language. In 1994, the Uniform Adoption Act was revised again to specifically obstruct adult adoptees from gaining access to their birth records for ninety-nine years.[24] This revision was a continuation of the attack on adult adoptees鈥� rights to access their birth records. Once this nearly universal regime of secrecy related to court records and birth records was established, the secrecy influenced society in such a way that actions once thought natural for an adult adoptee were seen as disfavored and abnormal.[25] Arkansas did not add the 1994 revision to the Uniform Adoption Act to its own adoption statute until 2003.[26] Through this amendment, state legislators affirmatively stripped the right to access their birth records for Arkansas鈥檚 adult adoptees.[27] Only two states 鈥� Alaska and Kansas 鈥� chose to maintain access for adult adoptees throughout their legal history.[28]

C.  The changing societal norms in America have fueled a modern adoption reform movement that focuses on eliminating secrecy from adoption proceedings.

The trend of preventing access to adult adoptees continued as recently as 1990, when Alabama closed original birth records and court records at the same time that it established a system for providing non-identifying information through a passive registry system.[29] Indicative of the speed at which societal norms can change, Alabama reversed its approach to open access for adult adoptees when it reopened its adoption records ten years later.[30] This quick turnaround appears to be a result of a successful campaign of lobbying the Alabama legislature for reconsideration.

The changing societal norms on family composition and the best interest of an adult adoptee should play a role in Arkansas鈥檚 reconsideration as well. Today it is hard to deny traditional American attitudes regarding want constitutes a family are rapidly evolving. Likewise, the stigma of illegitimacy is softer today than a decade or two ago.[31] Even more important for consideration is the change seen in adoption agencies and children鈥檚 advocates who now encourage adoptive parents to tell their children about the adoption process.[32] Likewise, advocates from both ends of the spectrum now support openness in adoption and an adult adoptee鈥檚 access to records.[33] This change in advocacy reflects a new understanding of the importance of openness and the impact of secrecy on an adoptee鈥檚 ability to develop a healthy sense of self. Not all members of the adoption triad agreed and therefore, the Open Access Debate continues.

II.  The Open Access Debate higlights one of the last areas of contention in the adoption system.

The current debate over an adult adoptee鈥檚 access to original birth records plays itself out on two levels. First, all sides of the adoption triad have sought to claim constitutional rights in order to benefit from special legal deference. Second, all sides of the adoption triad have claimed that the sealing or unsealing of adoption records is the correct public policy position. The current constitutional debate has failed to yield any judicial mandates on this topic. Therefore, the best hope to achieve adoption reform lies on the field of public policy.

A.  The Open Access Debate highlights a triad of constitutional interests.

Adoptive Parents: The open records debate centers on whether adult adoptees[34] should be able given to access to their original birth certificates and other records related to their adoptions. As a result, the adoptive parents that make up one leg of the adoption triad arguably have a smaller stake in the debate than the other two members of the triad. If adult adoptees could access their adoption records, adoptive parents would not be in a position to lose their privacy.

Some adoptive parents support a closed records system because they believe it would protect their child from hurtful information surrounding the circumstances of the child鈥檚 birth (e.g., rape, incest, or the sex trade). This argument may work when the adoptee is a minor, but the parents鈥� legal control over information disappears with all other legal rights to control a child once that child reaches the age of majority.[35] The author concedes his belief that adoptive parents have the least to fear from a policy of open access. Where currently allowed, access is not granted until the child is at least 18 years old. After such time, most adoptees (who know they are adoptees) do not question their adoptive parent鈥檚 devotion. They have had many years and experiences to learn just how many more hoops adoptive parents must jump through for a child. At the very least, adoptees have the opportunity to bond with their adoptive families as biological children would 鈥渘ormally鈥� bond with their biological families.

Adoptive parents are increasingly vocal in the current call for adoption reform. Traditionally, states enacted sealed record laws for the benefit of adoptive parents as well. Today, many adoptive parents seem to favor understanding their child鈥檚 biological roots over their own protection through secrecy.[36]

Biological Parents: Biological parents, on the other hand, perceive themselves to have a significant interest in keeping adoption records sealed. Many of these parents chose adoption in an attempt to give the child and themselves a new life and hoped to preserve these new lives through maintaining secrecy.[37] Many biological parents feel slighted by this reformation trend because of representations of privacy and anonymity that agencies or states may have made at the time of the adoption.[38] Whether these representations matter is a major issue in the Open Access Debate and have not been definitively answered. Biological parents often argue absolute confidentiality was a condition of the adoption agreement they entered into. However, recognizing such a condition would mean courts would begin enforcing contracts for children鈥攁 position highly disfavored by public policy.

Birth parents who oppose the open records reform in America鈥檚 adoption system often raise constitutional arguments. Specifically, birth parents argue that the Due Process Clause of the Fourteenth Amendment protects them from a release of identifying information.[39] They argue such a disclosure would violate their rights to familial privacy.[40] These constitutional arguments may have succeeded in the past but the current trend of states that re-evaluate this issue is to override the courts by passing legislation to grant adult adoptees access to their records.[41] Nevertheless, research suggests the overwhelming majority of birth mothers support open records for adult adoptees.[42] Birth parents generally support the efforts of their biological children to secure access to records of their birth, despite a few exceptions.[43]

Adult Adoptees: Adult adoptees overwhelmingly support open access to the records of their birth.[44] They frequently use the same constitutional reasoning employed by birth parents but, unfortunately, their arguments in favor of open access have not fared as well in the courts.[45] Their arguments center on equal protection and the right of all adults to access information about their pasts.[46] Adult adoptees also argue that the right to privacy extends to an awareness of personal biological history.[47] They also argue that the Constitution protects a fundamental right to know one鈥檚 origins[48] and sealed record policies violate principles of equal protection.[49] Advocates have pushed forth the idea that denial of birth information violates a positive right of privacy.[50] These arguments all correctly highlight the fact that adoption creates a suspect class of citizens.

Regardless, courts have ruled against the argument that adoptees make up a suspect class for constitutional purposes by reasoning that since adoption is a choice, not an immutable characteristic, the status of being adopted does not rise to the level of strict scrutiny.[51] For adoptees, this reasoning leads to a legal avenue being blocked by factual falsity鈥攁fter all; most adoptees have no choice in being adopted. At no point in the classic closed adoption scenario is the adopted person鈥檚 voice heard. Furthermore, the status of being adopted carries a stigma closely related to, if not identical to, illegitimacy 鈥� a status subjected to an intermediate level of scrutiny.[52] Despite these points, it appears the best legal solution to the issue of open access for adult adoptees remains a statutory solution to a public policy concern.

B.  Public policy arguments in support of open access to adoption records reflect the impact of secrecy on adoptees.

The primary public policy arguments in favor of adult adoptees鈥� access center on the psychological and physical health of adult adoptees. Sociopsychologists now consider fully understanding one鈥檚 identity and heritage an important psychological and social need.[53] Arthur Sorosky, a psychiatrist and author of The Adoption Triangle, explains that three separate forces form identity concurrently 鈥� the psychological, psychosocial, and psychohistorical forces.[54] The psychohistorical dimension of identity relates to a person鈥檚 sense of genealogy.[55] Since most adoptees cannot access information about their birth parents and the circumstances surrounding their births, many adoptees lack the psychohistorical dimension of identity creation that contributes to the adoptees鈥� need to seek their 鈥渙rigins story鈥� by searching for an original birth certificate, adoption records, and biological parents.[56] Adult adoptees also seek access to original birth information out of an existential need to find authenticity and truth in one鈥檚 life.[57] The proponents of this claim assert that an adoptee鈥檚 search is crucial in achieving greater mental health.[58]

Additionally, adoptees who seek out information regarding their birth and adoptions are actually searching for social acceptance.[59] Many adult adoptees sense that people treat them differently once their adopted status is learned and that society stigmatizes adoptive families as 鈥渄ifferent.鈥漑60] Adult adoptees have reported feeling the social stigmatization the most when others inquire about their origins.[61] This stigmatization comes from the adoptees鈥� perceptions that others are making negative assumptions about the circumstances of the adoptees鈥� births.[62]

Adoptees are capable of gaining social acceptance by finding answers to questions about their biological background.[63] They gain this social acceptance because the adoptee gains power over their presentation of self and over the negative assumptions that others often make about an adoptee鈥檚 biological history and circumstances surrounding their adoption.[64] Additionally, systems that deny adoptees the choice to come to terms with their biological parents鈥� heritage as a part of their own identity prevent a full realization of self-worth.[65] Common scenarios in which the adoptee does not favor the adoptive family exacerbate the adoptee鈥檚 ability to form a healthy self-image.

Open access advocates also point to the personal and state health care crises that often result from an adoptee not having access to any information regarding their genetic predispositions.[66] This argument has weakened with the successful mapping of the human genome. Current predictions regarding the widespread application of this new technology could mean this argument is moot within ten years. Until those predictions manifest and adult adoptees can affordably access genome mapping, this argument still carries some weight. Preventive health screening of BRCA1and BRCA1 (the human breast cancer gene and its protein product, respectively) and cholesterol limits are covered under the Patient Protection and Affordable Care Act, but the patient must be able show they are predisposed to breast cancer or high cholesterol levels in order to qualify for early testing, or testing at all.[67]

Open access advocates also question the fairness of binding adult adoptees to secrecy without their consent, especially after the adoptee has reached the age of majority and the state no longer has an interest in protecting the once minor adoptee.[68] This could be an even stronger argument than the need for genetic information. If the goal of the adoption process is to do what is in the best interest of the child adoptee, it seems unconscionable to hold the adult adoptee to conditions imposed upon him or her as a child that deprive to deprive the adult of information a reasonable person may want.

C.  Public policy is often relied on to show why open access should not be granted to adult adoptees.

Opponents to open access assert it would unfairly rescind promises of anonymity made to women who surrendered children for adoption in the past.[69] As the earlier discussion of the history of confidentiality in adoption shows, anonymity has not always been an element of adoption and it is not absolute under Arkansas鈥檚 law. In Arkansas, courts and the legislature may open adoption records. Opponents to access argue that allowing adult adoptees to obtain their information forces biological parents into unwanted relationships with the children they surrendered.[70] Those who use this argument often refer to birthmothers who were victims of rape or incest and who wish to maintain secrecy about their experiences.[71] This argument also assumes that adoptees will force themselves on biological mothers who have not told their husbands, children, or other family members, resulting in the biological mother being shamed and humiliated when her secret is revealed.[72] The point missed by this argument is that an adoptee鈥檚 right to information is not a right to a relationship. Additionally, research and the experiences of active registry and confidential intermediary programs have shown the majority of biological parents are eager for contact with surrendered children.[73]

Another fear of open access opponents is that without the guarantee of anonymity, more women that are pregnant will opt for abortion instead of adoption.[74] Opponents to open access state that the number of women who would make such a decision is impossible to quantify, but 鈥渢he loss of human potential from even one abortion that could have been an adoption is unknowable.鈥漑75] There is no evidence that allowing adult adoptees to access their adoption records increases abortion or decreases adoption.[76] Oregon is one of the few states where people can test this theory, as it once closed access to adult adoptees and restored such access close to two decades ago. The Oregon Center for Health Statistics and Vital Records reports that the number of induced abortions performed in the state dropped 18.2 percent in the first four years following the restoration of access to records.[77] Further analysis in other states that have restored access to records would provide more support to counter this concern.

Finally, opponents to open access argue that open access for adult adoptees undermines the institution of adoption.[78] This argument contends that allowing adopted adults access to original records regarding their birth will make adoption a less viable way to form families.[79] Despite this contention, adoption appears highly adaptable, as social, cultural, and economic influences on the best interests of adoptees have evolved greatly over time. Moreover, adoption statistics in states that have always allowed adult adoptees access to open records show just the opposite 鈥� adoption remains viable even when adult adoptees have access to their information.[80]

III.  Due to individual states historically regulating adoption within their respective boundaries, there are various state approaches to open access to original birth certificates and other adoption-related court records.

The refusal of Arkansas鈥檚 judiciary to wade into the constitutional issues regarding open access for adult adoptees mirrors courts throughout the nation. There are currently four differing state approaches to the open access issue: (i) a showing of 鈥済ood cause鈥�; (ii) a passive-registry system; (iii) a presumption of openness with the creation of a 鈥渄isclosure veto鈥�; and (iv) a simple presumption of openness. Arkansas actually applies the first and second approaches. Unfortunately, both approaches still presume secrecy rather than openness.

A.  The 鈥済ood cause鈥� approach to providing access to adult adoptees is poorly defined and extremely problematic.

Currently twenty states[81] and the District of Columbia[82] allow adoptees to gain access to their adoption records by court order only. Those courts only issue such orders if a petitioner shows good cause[83] or passes a test to determine whether disclosure would be in the best interest of the child.[84] This is often an insurmountable burden for adult adoptees attempting to gain access to adoption records. Since each state defines good cause differently, if at all, applicants struggle to develop the best argument to sway judges to open previously closed adoption records.[85] Furthermore, most adoptees have no clear guidelines to follow when filing petitions or arguing their cases before a judge because judges interpret the good cause standard on a case-by-case basis.[86] Courts have drawn widely divergent lines in determining what facts constitute good cause, offering adoptees no consistent judicial guidance on the issue.[87] For example, some courts, at least in theory, will accept psychological need as good cause[88] while other courts hold 鈥渕edical necessity鈥� a condition of good cause, requiring a 鈥渘o-other-way-out鈥� fact situation to order the release of records.[89]

Arkansas鈥檚 case law on this subject is limited, at best, and potential petitioning adoptees have no way of knowing what set of facts and circumstances will succeed before any particular judge. As a result, adoptees in Arkansas face a daunting task in drafting successful arguments to open their adoption records.

B.  States attempt to balance the privacy concerns of the triad members by allowing access with the permission of biological parents, but these attempts remain unduly burdensome on the adult adoptee.

Even though twenty states currently allow adult adoptees some degree of access to their birth records by court order,[90] most employ a passive-registry system that often requires the birth parent to register before the adoptee can learn the birth parent鈥檚 identity.[91] Arkansas employs such a system[92] in order to offer those adoptees unable to show 鈥済ood cause鈥� another way to access their birth records. A lack of public awareness of this system is a problem, at least in Arkansas. For biological parents who surrendered their child before the implementation of this registry in Arkansas, proper advertising and notification of the registry鈥檚 existence seems a reasonable step to ensure its success. The author鈥檚 experience with the registry has not been a successful one due to what seems to be a very lackadaisical attitude by the entity that runs the registry.

C.  Some states have open access systems but limit that access with the use of a disclosure veto, which requires biological parents to actively prevent disclosure of original birth and adoption records.

Currently, five states[93] provide adult adoptees access to the records of their adoptions unless a birth parent objects.[94] This is accomplished either by registering a nondisclosure affidavit with the required agency[95] or by requesting the identifying information not be revealed to the adoptee once the agency contacts the birth parent pursuant to the statute.[96] In these states, once an adoptee petitions the court or the proper agency to release their adoption records, the court or agency must comply unless an affidavit is on file at the time or the birth parent refuses disclosure upon contact by the court or agency.[97] This system is very similar to the permission system outlined above. One major distinction between these systems makes the disclosure veto system more appealing to searching adoptees. The disclosure veto system provides adult adoptees a greater chance of receiving requested information because nondisclosure requires affirmative action on the part of the birth parent. It is within this system that the state of Tennessee took inspiration for the creation of a 鈥渃ontact veto.鈥�

D.  The unrestricted access to records approach is the best approach when coupled with a 鈥渃ontact veto.鈥�

Currently, six states[98] allow adult adoptees to access their birth and adoption records without any hearings or permissions. These statutes vary in terms of complexity; nonetheless, all provide the same degree of access that many adult adoptees argue should be the norm and not the exception. This access appears to be based each of the respective state legislatures realizing the need all adoptees have for open access to their birth records. In each of these states, the adult adoptee simply requests a copy of their original birth certificate from the court.[99] There is no question of whether the birth parent knows a registry exists, or how to show the court you have good cause to access these records, or any of the other questions that Arkansas鈥檚 adult adoptee face daily in their search for information.

As an added protection for the biological parent, four[100] of the six states that provide unrestricted access to birth records also allow for a 鈥渃ontact veto.鈥� This contact veto allows the biological parent to designate that they do not wish the searching adoptee to contact them. The contact veto is normally employed after the appropriate state agency has received a request from the inquiring adult adoptee. The state agency will then notify the biological parents that it has received a request from their biological child and they can avoid contact with this person, in any form or fashion, through a contact veto.

This contact veto circumvents the potential constitutional privacy arguments biological parents have successfully used to challenge open access systems in the past. The contact veto differs from the previously discussed disclosure veto in that it does not prevent the release of any records to adult adoptees. Instead, the contact veto imposes civil or criminal penalties on those adult adoptees who violate the veto. Of utmost importance is the shift in presumption from secrecy to openness created by the use of a contact veto in conjunction with a policy of open access. These states provide adult adoptees vital information and respect the wishes of birth parents at the same time. By shifting the presumption in Arkansas, the legislature could implement a plan to protect the wishes of biological parents who want to prohibit communication with adult adoptees while respecting the wishes and needs of the searching adoptees.

E.  The current path to access in Arkansas is actually two paths to access that sometimes overlap but both presume secrecy over openness.

In Arkansas, an adult adoptee must go through the costly and time-consuming process of petitioning the probate court for a finding of 鈥済ood cause鈥� and an issuance of a court order to unseal original birth records. The finding of 鈥済ood cause鈥� is at the discretion of the judge, and Arkansas鈥檚 adoption case law lacks a clear explanation of just how 鈥済ood cause鈥� is determined. The 鈥済ood cause鈥� requirement is a virtual roadblock for many Arkansas adoptees. The creation of a passive, Voluntary Mutual Consent Registry for Arkansas鈥檚 adoption triad members appears to be more of a symbolic gesture than a viable second path to accessing original birth-related information for adoptees who cannot prove the 鈥済ood cause鈥� standard in court. As experienced by the author, Arkansas鈥檚 passive registry system is the quintessential definition of passive. Anecdotally, the Registry commonly comes up in conversations about adoption. Often times other adoptees, as well as biological parents, are shocked to learn such a resource exists. Even if the State allocated more funds to the Registry to increase public awareness, the State would have adoption laws that presume secrecy over openness. Of the four current approaches to open access for adult adoptees, Arkansas has implemented two of the four approaches.

Yet, Arkansas law still treats adult adoptees as second-class citizens. Arkansas鈥檚 adoption laws still presume adoptees have no right to the basic and formative information found in court records and original birth certificates, all due to the blood relation of the inquiring person to their legal parent. The only viable way for Arkansas to balance the conflicting interests involved in the open access debate over adoption records appears to be a statutory provision similar to that of Tennessee or Oregon 鈥� two states that presume an adult adoptee has the right to open access but grants biological parents the ability to prevent contact by the adult adoptee.

IV.  In order to end the second-class treatment of adult adoptees, the Arkansas General Assembly should reconsider the issue of open access for adult adoptees and modify Arkansas’s adoption laws to resemble Tennessee Code 搂 36-1-127, which shifts the presumption of secrecy in adoption to a presumption of openness.

Nearly fifteen years ago, the Arkansas General Assembly attempted to modify Arkansas鈥檚 statutes regarding access to adoption records to allow adopted individuals access to their adoption files upon turning eighteen.[101] That attempt took place around the same time that Tennessee and Oregon鈥檚 open access legislation was challenged in the courts.[102] Arkansas鈥檚 attempt to modify adoption access rules most likely failed due to a combination of constitutional challenges in other jurisdictions, a lack of evidence for open access arguments, and the relative newness of the open access trend in general. Arkansas鈥檚 legislators chose to retain a somewhat modified sealed record regime, which attempts to balance the concerns of open access proponents and opponents with a passive registry. Though the intentions of the Legislature are praiseworthy, the legislative scheme is nonetheless flawed by its presumption of secrecy. Without any explanation from the Arkansas General Assembly, one is left to believe the continued presumption of secrecy relies on the unfounded belief that absolute secrecy is guaranteed to parents who surrender their children for adoption.

The changing nature of adoption and its related laws warrants a periodic review of adoption laws by Arkansas legislators. Recent case law on open access, new social science insights, and empirical evidence collected from a handful of states with open access policies all make the reconsideration of Arkansas鈥檚 stance on open access a necessity. After reviewing the public health benefits and legal basis to granting open access to adult adoptees, the Arkansas legislature would find Tennessee Code 搂 36-1-127 a concrete starting point to draft Arkansas鈥檚 shift from secrecy to openness.

A.  If the state has a legal basis to continue its policy of sealing adoption records, it the principle of parens patrie which may only last until the adoptee reaches the age of majority.

Pursuant to the common law doctrine of parens patriae, the State is the protector of 鈥渢hose unable to care for themselves.鈥漑103] In that role, the State must 鈥減rotect and promote the welfare of children.鈥漑104] The State commonly flexes its parens patriae power when it terminates parental rights. Likewise, the State relies on the doctrine of parens patriae when it creates parent-child relationships. Adoption proceedings are nothing more than the State exercising its parens patriae power to form legal parent-child relationships.[105] When approving adoptive parents for a child, the State acts as the child鈥檚 agent in selecting parents that will be in the child鈥檚 best interest.[106] The doctrine of parens patriae is well established in the American legal systems handling of individuals under the age of majority. In light of Arkansas鈥檚 scant legislative history and the lack of guidance related to the Uniform Adoption Act鈥檚 reversal on granting adult adoptee鈥檚 open access to original birth certificates and records, the doctrine of parens patriae is the only ascertainable legal basis for preventing access to adoption records.

Under this legal basis, the State is concerned with what is in the best interest of the child and attempts to ensure that adoptees and their adoptive families have every opportunity to bond and develop into true families. The State employs secrecy to reach its goal of protecting the best interests of children. This concern trumps the adoptee鈥檚 interest until the child reaches the age of majority and becomes an adult adoptee鈥攁t the very latest. Once the child adoptee becomes an adult adoptee, the doctrine of parens patriae no longer applies and the adult adoptee鈥檚 interests should be favored over those of the biological parents.

Arkansas should adopt open access policies for adult adoptees because the state lacks parens patriae interests and adult adoptees may be denied potentially lifesaving preventive health screenings without such open access policies. The passage of the Patient Protection and Affordable Care Act of 2010 ushered in a new era of mandatory preventive health care benefits. The restraints placed on accessing adoption records prevent adoptees from fully reaping the benefits of this new provision. For example, cholesterol screenings[107] and breast cancer genetic test counseling (or the BRCA1/BRCA1 test)[108] are limited to patients who can show a family history of risk to these medical conditions or diseases. Though some health insurance plans may waive such showings of family history for plan members who can show they were adopted and cannot access their medical histories, adoptees are nonetheless held captive to a decision of their health plan and have no control over their own medical care. The inability of many adult adoptees to make educated decisions about their personal health and the state鈥檚 loss of its parens patriae interest at the time the child adoptee reaches the age of majority both provide Arkansas General Assembly with a strong legal basis to shift the presumption of secrecy in adoption to openness.

B.  Tennessee Code Annotated 搂 36-1-127 is a balanced, legislative approach to resolving the open access debate in Arkansas.

Tennessee鈥檚 legislators constructed legislation that clearly explained their intent and designated who could access adoption records. Subsection (a) of Tennessee鈥檚 open access legislation notes the exact date when Tennessee鈥檚 adoptee鈥檚 records became sealed and explains that the intent of the Legislature is to re-establish access for adult adoptees whose records had previously been sealed.[109] Subsection (c)(1)(A)(i) lays out who may actually receive the previously sealed information.[110] Adopted persons, their parents and siblings, their lineal descendants who have reached aged twenty-one, and their legal representatives may all receive adoption and original birth records.[111] If the adopted person happens to be deceased or is in a guardianship, the adoptee鈥檚 lineal descendants may petition the court to access the adoptee鈥檚 records.[112] The lineal descendant is also subject to the terms of contact veto provision of Tenn. Code Ann. 搂 36-1-1227.

The Tennessee legislation is the best means of balancing the interests of the adult adoptee with those of the biological parents because it provides a clear process to request access to an adoption record[113] and introduces a contact veto system that allows the biological relatives to request the adopted person not attempt to contact them.[114] The requesting person may not contact anyone eligible for a contact veto, whether by personal contact, correspondence, or other means.[115]

C.  The Arkansas General Assembly鈥檚 use of Tennessee Code 搂 36-1-127 as a legislative model is likely to result in legislation that would withstand an unavoidable constitutional challenge.

Of the states that have closed access to adoption records and then later reopened those records to adult adoptees, Tennessee and Oregon are the only states in which the statutes have been subjected to appellate level review.[116] Though not binding on Arkansas鈥檚 interpretation of its own laws, the reasoning in these cases appear logical and reliable guides when revisiting the issue of access to Arkansas adoption records because both courts work to provide a thorough legal analysis of the common issues of the Open Access Debate. In Tennessee, adoptees aged twenty-one or older may access their sealed adoption records and their biological parents and lineal relatives may sign a contact veto to prevent the adoptee from contacting them.[117] In Oregon, voter initiated and approved ballot Measure 58 granted adult adoptees aged twenty-one or older access to their records. Both states鈥� laws faced legal challenges based on interests and fears with which the reader should now find familiar.

In Doe v. Sundquist, a group of biological mothers claimed the Tennessee law granting adult adoptees open access violated birth parent privacy under the Tennessee Constitution.[118] The Tennessee Supreme Court, acknowledging that such rights exist under the U.S. Constitution as well, held that birth parent privacy should not be accepted as a basis for barring adult adoptees鈥� access to any records related to their respective birth and adoption because birth parental privacy assertions are too speculative, differ too greatly from the protections traditionally granted as a penumbra of the right to privacy, and do not sufficiently overcome society鈥檚 interest in adoptee access to this type of information.[119]

When addressing the biological mothers鈥� claim that the open access statute violated the biological parents鈥� reproductive privacy, the court emphasized the purpose of adoption rights and suggested that the plaintiffs鈥� reproductive privacy argument was misdirected.[120] The court also rejected claims of violations of the right to informational privacy by deciding biological parents lacked a fundamental right not to have personal information released to their biological children.[121]

Measure 58 was the voter-enacted initiative in Oregon that, when passed, gave adult adoptees a procedural way to access their original birth records.[122] In 2000, a few of Oregon鈥檚 biological mothers challenged Measure 58 by arguing a claim utilized in Tennessee 鈥� that it violated their constitutionally protected fundamental right to reproductive privacy.[123] The Oregon Court of Appeals approached this claim differently than the court it Sundquist did. In Does, the court held that the fundamental right to privacy does not apply to adoption because of its statutory nature.[124] 鈥淪ince a birth mother has no fundamental right to have her child adopted, she can have no correlative fundamental right to have her child adopted under circumstances that guarantee her identity will not be revealed to the child.鈥漑125] In other words, the statutory nature of adoption undermines a biological parent鈥檚 privacy assertion. This analysis potentially presents an even stronger defense against claims of privacy rights violations than the analysis provided by the Sundquist court.

The Tennessee and Oregon cases and the fact that similar statutes have survived appellate level review all show that Arkansas can survive constitutional challenges if it adopts open access policies. States like Tennessee, Oregon, Alabama, and Alaska also show that the trend towards openness in records is a bipartisan issue that all members of Arkansas鈥檚 General Assembly can embrace.

V.  Conclusion

Though the Tennessee approach best balances the interests of the adult adoptees with the interest of other triad members, it is not perfect. For example, Tennessee鈥檚 statutory scheme requires written consent from the biological parent for the release of any identifying information from the sealed adoption or post-adoption records if such records indicate that, with respect to the adopted person, the biological parent was the victim of rape or incest.[126] This effectively means Tennessee applies the disclosure veto approach for adult adoptees that were the product of rape or incest. The application of the disclosure veto in this approach seems slightly disingenuous considering all other adoptees have open access under the Tennessee law. Additionally, if the legal basis supporting the shift in presumption is strongest when considering an individual鈥檚 ability to make informed and educated decisions regarding the adoptee鈥檚 health, the prohibition on information for this small subset of adoptees is not justified. This just goes to show there are areas in which Arkansas legislators could tweak the Tennessee law to ensure that expired or non-existent interests of other members in the adoption triad no longer hinder Arkansas adoptees.

—————————————————————————————————-

Westley Ashley received a Bachelor of Arts with a major in Anthropology from Texas A&M University in 2004. Westley is an adult adoptee whose “search” has had numerous levels of intensity and a graduating 4L at the William H. Bowen School of Law. While in law school, Westley attempted to focus his efforts on public service and social justice projects all while making time with his growing family a top priority. The universe has thrown him an unexpected opportunity in the realm of corporate health law, but Westley envisions public interest and elder law being a long-term career theme.

[1] In-depth conversations on Black identity, the 鈥渙ne drop鈥� rule, the reality of color blindness, and other topics highlighting the variation within the black community are important and necessary; they also are beyond the scope of this proposal.

[2] A question normally answered 鈥�Homo sapiens sapiens.鈥�

[3] See generally, (accessed Mar. 27, 2014).

[4] Lauren M. Fair, Shame on the US: The Need for Uniform Open Adoption Records Legislation in the United States, 48 Santa Clara L. Rev. 1039, 1042 (2008).

[5] Id. at 1042-43.

[6] Act XXVIII, An Act to regulate the adoption of heirs, Acts 1885, 32.

[7] Id.

[8] See Morris v. Pendergrass鈥� Adm鈥檙, 59 Ark. 483 (1894); Dean v. Brown, 216 Ark. 761 (1950).

[9] See Joan Heifetz Hollinger et al., Adoption Law and Practice 搂 13.01[1] (2000).

[10] E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption, 100 (1998).

[11] A.S.A. 1947, 搂搂 56-223, 56-224

[12] Annette Ruth Appell, Blending Families Through Adoption: Implications for Collaborative Adoption Law and Practice, 75 B.U. L. Rev., 997, 1005 (1995); see also, e.g., Burton Z. Sokoloff, Antecedents of American Adoption, 3 Future of Children 17, 21 (Spring 1993).

[13] See mary ruth colby, u.s. dep鈥檛 of labor, children鈥檚 bureau pub. No. 262, problems and procedures in adoption 120 (1941).

[14] Elizabeth J. Samuels, The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev. 367, 376 (2001).

[15] Carl A. Heisterman, A Summary of Legislation on Adoption, 9 Soc. Serv. Rev. 269, 269 (1935).

[16] katarine wegar, adoption, identity, and kinship: the debate over sealed birth records, 25 (1997); Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution: The Case for Opening Closed Records, 2 U. Pa. J. Const. L. 150, 157 (1999).

[17] Samuels, supra note 13, at 377.

[18] Unif. Adoption Act 搂 14(2) (1953), reprinted in Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings (1953).

[19] Jennifer Butch, Finding Family: Why New Jersey Should Allow Adult Adoptees Access to their Original Birth Certificates, 34 Seton Hall Legis. J. 251, 260 (2010).

[20] Nat鈥檒 Office of Vital Statistics, U.S. Dep鈥檛 of Health, Educ., & Welfare, Digest of Statutory Provisions and Administrative Procedures for Adoption as Related to the Birth Certificate (1960).

[21] Id.

[22] Those states were Alabama, Alaska, Arizona, Connecticut, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Massachusetts, Montana, Nevada, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah, and Wyoming. See id.

[23] Samuels, supra note 13, at 390.

[24] Unif. Adoption Act 搂 6-107 (1994), (accessed Oct. 21, 2014).

[25] Samuels, supra note 13, at 368.

[26] 2003 Arkansas Laws Act 650 (H.B. 1291)

[27] Butch, supra note 18, at 260.

[28] See Alaska Stat. 搂 18.50.500 (LEXIS 2000); Op. Alaska Att鈥檡 Gen., No. 883-86-0110, 1986 WL 81152 at 1 (June 5, 1986) (citing the history of access to original birth certificates by adult adoptees); Kan. Stat. Ann. 搂 65-2423(a) (1992) (permitting release of original birth records to adoptees).

[29] See Ala. Code 搂搂 26-10A-32 (citing 1990 Ala. Acts 90-554), 26-10-4, 26-10A-31 (citing 1990 Ala. Acts 90-554), 26-10-5 (2000).

[30] Id. at 搂 26-10A-31(g) (2000).

[31] Heidi Hildebrand, Because They Want to Know: An Examination of the Legal Rights of Adoptees and Their Parents, 24 S. Ill. U. L.J. 515, 522-23 (2000).

[32] Carp, supra note 9, at 131-35.

[33] See Bastard Nation Mission Statement, bastard nation (last accessed Oct. 21, 2014) (explaining that Bastard Nation is a 鈥渞adical organization鈥� formed in 1996 that lobbies for unrestricted access to all adoption records by adult adoptees). See also, Openness in Adoption, child welfare league of america, (last accessed Oct. 21, 2014).

[34] Regarding access to adoption records, the definition of the age of adulthood ranges from eighteen (see, e.g., 23 Pa. Cons. Stat. Ann. 搂 2905 (West 2001)) to twenty-five (see, e.g., Neb. Rev. Stat. 搂 43-130 (1998)).

[35] Rosemary Cabellero, Open Records Adoption: Finding the Missing Piece, 30 S. Ill. U. L.J. 291, 297 (2006).

[36] See Hildebrand, supra note 30, at 536-37 (discussing study indicating that eighty-three percent of adoptive mothers and seventy-three percent of adoptive fathers believe adoptees should be able to access their original birth certificates).

[37] See National Council for Adoption, State Legislation and Mutual Consent Registries, in Families by Law: An Adoption Reader 145, 145 (Naomi R. Cahn & Joan Heifetz Hollinger eds., 2004) (providing the National Council for Adoption鈥檚 stance that 鈥減rivacy should not be removed from the adoption process unless all parties agree鈥�).

[38] Cabellero, supra note 34, at 297; Hildebrand, supra note 30 at 533.

[39] See, e.g., Pierce v. Soc鈥檡 of Sisters, 268 U.S. 510 (1925).

[40] See Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that the right to privacy extends to the parental prerogative to raise a child in the way the parents best see fit).

[41] See infra notes and accompanying text

[42] Brett S. Silverman, The Winds of Change in Adoption Laws: Should Adoptees Have Access to Adoption Records?, 39 Fam. Ct. Rev. 85, 92 (2001) (citing multiple studies showing that almost ninety percent of birth parents support open records).

[43] See generally Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution: The Case for Opening Closed Records, 2 U. Pa. J. Const. Law 150 (1999).

[44] Id. at 179-80.

[45] At this point, no case brought by adult adoptees based on constitutional arguments has succeeded in court. Some states, like Tennessee, have ruled that open records statutes passed by legislatures are in fact constitutional. See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).

[46] See, e.g., ALMA Society v. Mellon, 601 F.2d 1225 (2nd Cir. 1979).

[47] See, e.g., In re Annetta Louise Maples, 563 S.W.2d 769 (Mo. 1978).

[48] See, e.g., Evan B. Donaldson Adoption Inst., For the Records: Restoring a Legal Right for Adult Adoptees 9, 12 (2007), (accessed Oct. 19, 2014).

[49] The equal protection argument focuses on the idea that all other person, except adoptees, have access to their original birth information, and that the state lacks a compelling interest to make such a harmful classification. See, e.g., Caroline B. Fleming, The Open-Records Debate: Balancing the Interests of Birth Parents and Adult Adoptees, 11 Wm. & Mary J. Women & L. 461, 469-471 (2005).

[50] Cabellero, supra note 34, 302-03. As to constitutional privacy, proponents of open access often argue the right to privacy incorporates the right to control intimate information like one鈥檚 birth record. Id.

[51] Audra Behne, Balancing the Adoption Triangle: The State, the Adoptive Parents, and the Birth Parents 鈥� Where Does the Adoptee Fit In?, 15 Buff. Jour. Pub. Int. Law 49, 67 (1996-1997) (pointing out the irony in the courts鈥� distinction between choice and immutability and noting that the adoptee had no choice in the matter).

[52] See generally, Ramos v. Town of Vernon, 331 F. 3d 315, 321 (2003).

[53] M.P. Sobol & J. Cardiff, A sociopyschological investigation of adult adoptees鈥� search for birth parents, 32 Family Relations 477 (1983).

[54] Arthur D. Sorosky et al., The Adoption Triangle, 13-14 (1st Ed. 1978).

[55] Id. at 14.

[56] Id.

[57] Mary J. Jago Krueger & Fred J. Hanna, Why Adoptees Search: An Existential Treatment Perspective, 75 J. Counseling & Dev. 195, 195 (Jan./Feb. 1997). (鈥淓xistentialism deals with primary, inescapable, and transcultural鈥spects of human existence. It is concerned with an individual鈥檚 struggle to come to terms with one鈥檚 being-in-the-world. It deals with the authenticity of one鈥檚 existence鈥nd the desire to attain meaningfulness and one鈥檚 intrinsic freedom鈥�).

[58] Id. at 195-96.

[59] Karen March, Perception of Adoption as Social Stigma: Motivation for Search and Reunion, 57 Journal of Marriage and the Family 653, 654 (Aug. 1995).

[60] Id. at 656.

[61] Id.

[62] Id.

[63] Id. at 658.

[64] Id.

[65] See Hilderbrand, supra note 30, at 527-28.

[66] Why Adoptive Parents Support Open Records, bastard nation, (accessed Mar. 3, 2015).

[67] Preventive health services for adults, (accessed Mar. 3, 2015); Preventive health services for women, (accessed Mar. 3, 2015).

[68] Donaldson, supra note 47, at 14.

[69] Id. at 17.

[70] Thomas C. Atwood, Consent or Coercion? How Mandatory Open Records Harm Adoption, In Adoption Factbook IV 461-68 (2007).

[71] Donaldson, supra note 47, at 18.

[72] Id.

[73] Id.

[74] Donaldson, supra note 47, at 19; see Atwood, supra note 68, at 461-68.

[75] Atwood, supra note 68, at 464.

[76] Donaldson, supra note 68, at 19-20.

[77] Id. at 20.

[78] Id. at 22.

[79] Hildebrand, supra note 30, 515-539.

[80] Donaldson, supra note 47, at 22.

[81] Ark. Code Ann. 搂 9-9-506 (LexisNexis 2002); Colo. Rev. Stat. 搂 19-5-402 (2004); Fla. Stat. Ann. 搂 63.162 (West Supp. 2005); Ga. Code Ann. 搂 19-8-23 (2004); Idaho Code 搂 9-342 (Michie 2004); 750 Ill. Comp. Stat. Ann. 50/18 (West 1999); Ind. Code Ann 搂 31-19-24-2 (LexisNexis 2003); Iowa Code Ann. 搂 600.16A (West Supp. 2004); Ky. Rev. Stat. Ann. 搂 199.570 (Michie 2004); La. Rev. Stat. Ann. 搂 40:73 (West 2001); Me. Rev. Stat. Ann. 18-A, 搂 9-310 (West 1998); Md. Code Ann., Fam. Law 搂 5-329 (Michie 2004); Mo. Ann. Stat. 搂搂 453.120 and 453.121 (West 2003); Mont. Code Ann. 搂 42-6-109 (2003) (providing access to adoptees placed before 1967 without restriction, and access to adoptees placed after 1997 unless a birth parent has filed a disclosure veto); Nev. Rev. Stat. Ann. 搂 127.140 (Michie 2004); N.J. Stat. Ann. 搂 9:3-52 (West 2002); N.Y. Pub. Health Law 搂 4138-c (Consol. Supp. 2004) (providing for a mutual-consent registry but only disclosing information through that registry if such disclosure is found to be in the 鈥渂est interest鈥� of the adoptee or birth parent); N.C. Gen. Stat. 搂 48-9-105 (2003); Tex. Fam. Code Ann. 搂 108.003 (Vernon Supp. 2004-2005); Va. Code Ann. 搂 63.2-1246 (LexisNexis 2002).

[82] D.C. Code 搂 16-311 (Supp. 2004) (allowing access only upon a showing that disclosure would serve the 鈥渨elfare of the child鈥�). The District of Columbia Court of Appeals has held that in a case where the adult adoptee has obtained consent of both the birth parents and the adoptive parents and wishes to examine the record of her adoption, her welfare would be served by opening the records; See also In re D.E.D., 672 A.2d 582, 584 (D.C. 1996). The court distinguished the case from one in which the adoptee did not know beforehand the identity of her birth parents and wished to open the file for that particular reason.

[83] See, e.g., Ark. Code Ann. 搂 9-9-217(a)(2)(A) (2012).

[84] See, e.g., D.C. Code 搂 16-311 (2003).

[85] Behne, supra note 50, at 71-72 (addressing the problem of a judicially-defined, as opposed to a statutorily-defined, good cause standard).

[86] Florida is the only state that makes an effort to provide a statutory definition of good cause. Fla. Stat. Ann. 搂 63.162 (West Supp. 2005) instructs the consideration of the 鈥渞eason the information is sought,鈥� any alternatives to releasing the identity of the birth parent, the wishes of each concerned party, the 鈥渁ge, maturity, judgment, and expressed needs of the adoptee,鈥� and any recommendation for or against disclosure made by the agency responsible for the original adoption. Id.

[87] Behne, supra note 50, at 71-74.

[88] See Doe v. The Ward Law Firm, 579 S.E.2d 303, 306 (S.C. 2003) (finding sufficient good cause when an adopted child faced serious mental health problems as well as 鈥渞espiratory problems and a cyst on his brain鈥�).

[89] See, e.g., In re George, 625 S.W.2d 151 (Mo. App. 1981) (holding that a fatal leukemia condition that could potentially be treated with a bone marrow transplant from a close blood relative was not sufficient good cause to open an adult adoptee鈥檚 records).

[90] Ariz. Rev. Stat. 搂 8-121 (West Supp. 2004); Cal. Fam. Code 搂 9203 (West 2004); Conn. Gen. Stat. 搂 45a-751b (West 2004); Mass. Gen. Laws ch. 210, 搂 5D (West 1998); Mich. Comp. Laws Ann. 搂 710.68 (West 2002) (providing, for adoptions finalized between May 28, 1945, and September 12, 1980, that adult adoptees can access identifying information from their birth records only if the birth parent has filed a written consent with the Central Adoption Registry; for adoptions finalized before May 28, 1945 and after September 12, 1980, adult adoptees may receive information as long as no written denial of consent has been filed by the birth parent); Neb. Rev. Stat. 搂 43-131 (1998); N.H. Rev. Stat. Ann. 搂 170-B:19 (Lexis Supp. 2004); N.M. Stat. Ann. 搂 32A-5-40 (West 2003); N.D. Cent. Code 搂 14-15-16 (2004); Ohio Rev. Code Ann. 搂 3107.41 (West 2000); 23 Pa. Cons. Stat. 搂 2905 (West 2001); R.I. Gen. Laws 搂 15-7-2 (2003); S.C. Code Ann 搂 20-7-1780 (West Supp. 2003); S.D. Codified Laws 搂 25-6-15.3 (West 2004); Utah Code Ann. 搂 78-30-18 (2002); Vt. Stat. Ann. tit. 15-A, 搂 6-104 (LexisNexis 2002); Wash. Rev. Code 搂 26.33.343 (West 1997); W. Va. Code Ann. 搂 48-23-501 (Michie 2004); Wis. Stat. 搂 48.433 (West 2003); Wyo. Stat. Ann. 搂 1-22-203 (LexisNexis 2003).

[91] For a more thorough discussion of the types of registry systems employed in the states, see Cahn & Singer, supra note 15, at 162-67. The authors analyze in great detail the difference between 鈥減assive鈥� and 鈥渁ctive鈥� systems.

[92] Ark. Code Ann. 搂 9-9-501

[93] Del. Code Ann. tit. 13, 搂 962 (1999); Haw. Rev. Stat. 搂 578-15 (1993); Minn. Stat. Ann. 搂 259.89 (West 2003); Miss. Code Ann. 搂 93017-215 (West 1999); Okla. Stat. Ann. tit. 10, 搂 7505-6.6 (West Supp. 2005).

[94] Michigan allows access to information unless birth parents object, depending on when the adoption was finalized; see supra note 25.

[95] See, e.g., Miss. Code Ann. 搂 93-17-215 (West 1999).

[96] See, e.g., Minn. Stat. Ann. 搂 259.89 (2003) (Providing that the agency search for the birth parents once an adult adoptee has initiated a request for release of adoption of records. The birth parents are give thirty days to reply to the agency with a request that the information not be released.)

[97] Like the states that employ a permission scheme, the disclosure veto system states are split on the issue of whether to release the information if a birth parent is deceased or cannot be located.

[98] Ala. Code 搂 22-9A-12 (Michie Supp. 2004); Alaska Stat. 搂 18.50.500 (LexisNexis 2004); Kan. Stat. Ann. 搂 59-2122 (1994); N.H. Rev. Stat. Ann. 搂 5-C:16 (2005); Or. Rev. Stat. Ann. 搂 432.240 (West 2003); Tenn. Code Ann. 搂 36-1-127 (2003).

[99] See, e.g., Tenn. Code Ann. 搂 36-1-127 (LexisNexis 2001).

[100] Ala. Code 搂 22-92A-12(d) (Michie Supp. 2004); N.H. Rev. Stat. Ann. 搂 5-C:16 (2005);Or. Rev. Stat. 搂 432.240(2) (West 2003); Tenn. Code Ann. 搂 36-1-128 (LexisNexis 2001). Tennessee also provides a blanket prohibition on disclosing the identities of birth mothers who were victims of rape or incest; absent written permission from those birth mothers, those adoption records are kept sealed.

[101] H. Keith Morrison and Patricia A. Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1, 32 (2000).

[102] See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 199), Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822 (Or. 2000).

[103] BLACK’S LAW DICTIONARY 1221 (9th ed. 2009). Historically, children and persons with mental

or physical disabilities warranted state protection under parens patriae. See O’Connor v. Donaldson, 422 U.S. 563, 583 (1975) (‘The classic example of [the State’s pareas patriae] role is when a State undertakes to act as ‘the general guardian of all infants, idiots, and lunatics.”‘ (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972))).

[104] Moe v. Dinkins, 533 F. Supp. 623, 629 (S.D.N.Y. 1981), affd, 669 F.2d 67 (2d Cir. 1982); see

also Schall v. Martin, 467 U.S. 253, 265 (1984) (“Children, by definition,are not assumed to have the capacity to take care of themselves.”); Ruth Arlene W. Howe, Race Matters in Adoption, 42 FAM. L.Q. 465, 467 n. 10 (2008) (noting that in the United States, parens patriae refers to the State’s role as protector of the interests of children).

[105] James G. Dwyer, The Child Protection Pretense: States’ Continued Consignment of Newborn Babies to Unfit Parents, 93 MINN. L. REV. 407, 412 (2008)

[106] Id.

[107] Preventive health services for adults, (accessed Mar. 3, 2015).

[108] Preventive health services for women, (accessed Mar. 3, 2015).

[109] Tenn. Code Ann. 搂 36-1-127(a).

[110] Id. at 搂 36-1-127(c)(1)(A)(i).

[111] Id.

[112] Id. at 搂 36-1-127(c)(1)(C).

[113] Id. at 搂 36-1-127(h)(1)-(3).

[114] Id. at 搂 36-1-127(c)(3).

[115] Id. at 搂 36-1-127(c)(4)(D).

[116] See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 199), Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822 (Or. 2000).

[117] Tenn. Code Ann. 搂 36-1-27

[118] Doe v. Sundquist, 2 S. W.3d 919, 920-21 (Tenn. 1999).

[119] Id. at 919.

[120] Mary O鈥橪eary Wiley & Amanda L. Baden, Birth Parents in Adoption: Research, Practice, and Counseling Psychology, 33 The Counseling Psychologist 13, 42 (Jan. 2005).

[121] Supra note 116, at 926.

[122] Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822, 826 (Or. 2000).

[123] Id. at 835.

[124] Id. at 836.

[125] Id. at 835-836.

[126] Tenn. Code Ann. 搂 36-1-127(e)(2).

The post Reconsidering the Presumption: A Proposal to Provide Arkansas鈥檚 Adult Adoptees Open Access to their Original Birth Records appeared first on The Arkansas Journal of Social Change and Public Service.

I.  Introduction

This paper explores the racial disparities in the school discipline system, which lead to racial disparities in the juvenile justice system and in turn furthers the racial disparities in the adult prison population.[1] This process is known as the school-to-prison pipeline. Specifically, the paper (i) discusses the racial disparities in Arkansas鈥檚 school discipline system and compares those disparities to the racial disparities in the juvenile justice system, (ii) examines the impact these racial disparities have on the children鈥檚 education and families, (iii) addresses the cost of these racial disparities to taxpayers and society, and (iv) recommends ways to decrease racial disparities and its negative impact.

II.  School Discipline and Race in Arkansas

The statistics describing the Arkansas school discipline system disclose significant racial disparities. In 2012, black students received in and out of school-suspension approximately three times to five times as often as white students, and corporal punishment almost twice as often as white students.[2] Many have tried to explain the racial disparities as a reflection of the differences in behavior, which innately causes a natural incongruity. However, these differences do not account for the drastic racial disparities found in school discipline.[3]

A.  Disciplinary Process in Arkansas Schools

The Arkansas school system has certain discipline policies set in place.[4] These policies allow for two primary types of offenses: discretionary offenses and nondiscretionary offenses.[5] Children of color are 鈥渕ore likely to be disciplined for less serious 鈥榙iscretionary鈥� offenses,鈥� while their white counterparts are more likely to be disciplined for 鈥渕ore serious nondiscretionary [offenses].鈥漑6] Discretionary offenses are wrongdoings in which the school has the discretion to determine the appropriate level of discipline received by the student. Conversely, the school has limited discretion over the level of discipline administered to the student over nondiscretionary offenses. .

For example, discretionary offenses are typically defined by the Little Rock School District as category one, two, three offenses.[7] Offenses in these categories include but are not limited to minor altercations, disorderly conduct, using verbally abusive language/obscene gestures or fighting words, theft, and vandalism.[8] Discretionary offenses that have result in school discipline for children of color include offenses such as using expletives in class, 鈥渄isrupting a school function,鈥� stealing, talking back to teachers, and writing on a desk.[9] Other discretionary offenses included stealing a chicken nugget in the lunch line at school and 鈥溾�榞etting agitated and upset towards鈥� a school administrator.鈥漑10]

Nondiscretionary offenses have set disciplinary outcomes that each student receives for those offenses–regardless of circumstances. Schools have limited discretion in the discipline that the student receives. Nondiscretionary offenses are typically found in category four offenses and some category three offenses, which are listed in the Little Rock School District Handbook.[11] Nondiscretionary offenses are more serious and include drug possession, carrying a weapon, assault, battery, breaking and entering, vandalism, or representing a serious threat to the safety and wellbeing of others.[12] With the zero tolerance policies in place in schools today, almost anything can constitute an offense that results in a disciplinary referral to local police.

Zero tolerance policies originally came about in the 1980鈥檚 as part of the federal government鈥檚 鈥済et-tough on drugs” campaign.[13] In the 1990鈥檚, zero tolerance policies began to be implemented in schools in response to misguided public fears based on erroneous statistics that violent youth crime was increasing.[14] Zero tolerance policies are intended 鈥渢o be highly punitive in order to send a strong message鈥� and they 鈥渕irror the criminal justice system[s]鈥� predetermined and punitive consequences.[15] These policies command that severe and 鈥減redetermined consequences to student misbehavior . . . be applied without regard to 鈥榮eriousness of behavior, mitigating circumstances, or situational context.鈥欌�漑16] These zero tolerance policies have a hair-trigger and can be activated by almost any minor offense or misbehavior. Children of color are subjected to these policies more frequently than their white counterparts.[17]

Primary types of school discipline include inability to participate in extra-curricular activities, corporal punishment, detention, in-school suspension, out-of-school suspension, expulsion, and referral to police or juvenile courts. The school discipline policies in the Little Rock School District include a number of possible consequences for misbehavior including reprimand by teacher; referral to other school personnel (from teacher to administration); parent/guardian conferences; school counseling (determined by principal or designee); team conferences; probation (loss of privilege); being sent home (24 hours); detention; Saturday school; Behavior Management Plan; in-school-suspension; short term suspensions (exclusion from school for 2-10 days); long-term suspension/Alternative Learning Environment (鈥淎LE鈥�) Placement (minimum of 45 days, one nine-week period); expulsion (school board action taken to exclude a student for the entire school year or permanently); and referral for prosecution under municipal, state, and federal laws that apply to the behavior.[18]

Offenses and their related penalties are divided into four categories: category one offenses, category two offenses, category three offenses, and category four offenses.[19] The system is designed to be progressively punitive in correlation with higher the category of offense.

Category One Offenses and Consequences

The school principal determines the penalty assessed for a category one offense.[20] Category one offenses include dishonesty; failure or refusal (insubordination) to follow reasonable directives of school staff and/or school rules and regulations; horseplay/minor altercations (鈥淪tudent must participate in Mediation for minor altercations.鈥�); teasing; leaving school grounds/class without permission of a school official/skipping/cutting class; failure to serve detention; the use of verbally abusive language, obscene gestures, or 鈥渇ighting words鈥�; failure to follow bus rules and regulations; and tardiness.[21]

Disciplinary actions for category one offenses include warning; parent contact (verbal or written); student, staff, administrator and/or parent/guardian(s) conferences; in-school time-out (elementary); before-school/after-school/lunch detention; Saturday school; Behavior Management Plan; in-school suspension; sent home; school-site probation/contract; school-site service (optional 鈥� not during instructional time and must have parental consent); conflict mediation; and school-based team SBIT Conference/Referral, which includes a student behavior support/modification plan, counseling, teacher support, and parent support.[22] The School Based Intervention Team (SBIT) may recommend long-term suspension or placement in an ALE as a penalty for category two offenses.[23] SBIT鈥檚 purpose 鈥渋s to collaboratively address minor, inappropriate behaviors in the school setting prior to recommending a student to an ALE setting.鈥漑24]

Category Two Offenses and Consequences

Category two offenses include smoking or use of tobacco products/possession of matches, lighters, lighter fluid, or tobacco products; smoking or use of tobacco products of any kind on school district property, at a school-related activity or on the school bus; possession of matches, lighters, lighter fluids and/or tobacco products of any kind on school district property, at a school-related activity or on the school bus; possession of mace, chemical agents, multi-fingered rings, fireworks, or gaming material devices; gambling; bullying; fighting (Conflict Resolution or Mediation is mandatory); the use of profanity/slander directed to or about a staff person in a non-threatening manner; loitering; repeated violation of category one offenses; forgery/falsification of information/misrepresentation; participation in prohibited clubs, street gangs, fraternities, sororities, or similar organizations; inappropriate use of technology/computers; spitting; and possession/use of paging device, cellular phones and/or other electronic communication devices (penalty in elementary school: 3-10 day confiscation of the device; penalty in secondary school: 5-15 day confiscation of the device).[25]

Disciplinary actions for category two offenses differ between kindergarten through second grade and grades three through twelve.[26] Children in kindergarten and up through second grade receive a two day suspension and/or counseling for the first offense, three to four day suspension for the second offense, five to ten day suspension for the third offense, and long-term suspension/ SBIT team recommendation for the fourth offense.[27] Children in grades three through twelve receive a three to four day suspension for the first offense, five to ten day suspension for the second offense, and long-term suspension/SBIT team recommendation for the third offense.[28]

Category Three Offenses and Consequences

Category three offenses include assault (Conflict Resolution or Mediation is mandatory and police notification is required by law); battery (Conflict Resolution or Mediation is mandatory and police notification is required by law); theft; theft by receiving; indecent exposure; sexual misconduct; breaking and entering/vandalism; breaking and entering/vandalism in excess of $500 (police notification is required by law); vandalism to computer hardware/software (violators will be prosecuted); repeated violation of category two offenses; disorderly conduct/hindering/interfering with a school function; harassing communications; use of fireworks; use, possession and/or under the influence of drug paraphernalia, alcohol, controlled substances or unauthorized drugs or substances (police notification is required for possession of a controlled substance); false alarm (Fire Marshall and/or Police notification is required); failure to permit a lawful search or inspection by a school official; and possession of a laser pen light.[29]

Disciplinary actions for category three offenses differ between kindergarten through second grade, grades three through five, and grades six through twelve.[30] Children in kindergarten through second grade receive a two to four day suspension and/or counseling for the first offense, five to seven day suspension for the second offense, ten day suspension for the third offense, and long-term suspension/SBIT team recommendation.[31] Children in grades three through five receive a four to five day suspension for the first offense, a six to ten day suspension for the second offense, and long-term suspension/SBIT team recommendation for the third offense.[32] Children in grades six to twelve receive a five to ten day suspension for the first offense and long-term suspension/SBIT team recommendation for the second offense.[33]

Category Four Offenses and Consequences

Category four offenses include use of multi-fingered rings, chemical agents, or laser pen lights; arson; drug/alcohol sale or distribution; physical assault on staff; verbal abuse of staff; possession of firearm (expulsion for a full calendar year is required by law); use of weapon (expulsion for a full calendar year is required by law); possession or use of explosives (expulsion for a full calendar year is required by law); extortion/robbery, unlawful assembly; inciting to riot; possession of weapon or facsimile weapon (expulsion for a full calendar year is required by law); terroristic threatening; felony violations; and crime of video voyeurism.[34] Disciplinary actions for category four offenses receive a recommendation for expulsion and 鈥淸t]he Little Rock Police Department will be immediately notified and violators will be prosecuted to the fullest extent of the law.鈥漑35]

Category three and four offenses may result in suspension or expulsion and 鈥渁re those defined under city and state law as criminal in nature.鈥漑36] The school administrator is given the discretion to choose more or less sever penalties based on the student鈥檚 past disciplinary record when warranted.   Repetitive violations of the same category may result in a suspension under a higher category.[37]

As can be seen by the above survey of the four categories of offenses and their related disciplines, there are about twelve possible disciplinary actions available that keep children in school and under the school鈥檚 discipline.[38] There are three possible disciplinary actions that keep children out of their educational home environment and make them more likely to enter the juvenile justice system.[39] Of the offenses disciplined, some are defined in more than one category and can be punished under more than one category or escalated to a higher category. For example, minor altercations are listed in category one, fighting is listed in category two, and assault/battery is listed in category three.[40] Each of these is a form of physical altercation, but can be punished under any of the three categories. Furthermore, category one lists using verbally abusive language, category two lists the non-threatening use of profanity/slander directed to staff, and category four lists verbal abuse of staff.[41] Each of these is a form of verbal abuse, but can be disciplined under any of those categories. The school determines which disciplinary category each offense earns.

B.  How Race Impacts Discipline

1.  National Statistics

There is a national trend in schools today of enforcing disciplinary measure that result in referral to the juvenile justice system for children of color, more so than their white counterparts. Schools today are referring children to the juvenile justice system for punishment of offenses that school once dealt with themselves.[42] This national trend contributes to the strong racial disparity when analyzing discipline, whether in schools or in the juvenile justice system.

National studies conducted in 2011-2012 reveal 鈥淸b]lack children represented 18% of preschool enrollment, but 48% of the preschool children receiving more than one out-of-school suspension; compared to white students that represented 43% of preschool enrollment, but only 26% of preschool children receiving more than one out of school suspension.鈥漑43] A 2006 national study found that 鈥渁pproximately one in seven black students enrolled was suspended at least once compared to about one in 20 White students.鈥漑44] Furthermore, in a 2010 study, 28% of black males in middle school were suspended compared to only 10% of white males in middle school, and 18% of black females were suspended compared to 4% of white females.[45] Additionally, 鈥渂lack students are suspended and expelled at a rate three times greater than white students. On average, 5% of white students are suspended, compared to 16% of black students. American Indian and Native Alaskan students are also disproportionately suspended and expelled, representing less than 1% of the student population but 2% of out-of-school suspensions.鈥漑46]

2.  Arkansas Statistics

In Arkansas, statistics show similar racial disparities in school discipline correlates to the increased exposure of children of color to the juvenile justice system. In 2011, Arkansas Advocates for Children and Families its study of discipline in Arkansas schools. This study showed children of color constituted 56% of recorded offenses in schools, while white children constituted 44% of recorded offenses in schools.[47] While children of color constituted 56% of offenses recorded, they only accounted for approximately 21% of the population enrolled in school.[48]

Moreover, in 2011-2012, the Little Rock School District鈥檚 black youth enrollment was approximately 15,629 youth,[49] but black youth received 21,037 discipline actions in schools, which included referral to law enforcement, school-related arrest, corporal punishment, in-school suspension, out-of-school suspension, and expulsion.[50] Whereas white youth enrollment was approximately 5,034,[51] white children received 5,499[52] disciplinary actions in schools. Thus, black youth received 35% more disciplinary actions based on population, as compared to 9% for the white youth population. Additionally, there were sixteen counts of student expulsion under zero tolerance policies in the Little Rock School District, and all sixteen counts were given only to black students.[53] These statistics show that black youth are more likely to be disciplined than white youth, thus they are more likely to receive referrals to law enforcement and the juvenile justice system than white youth.

The implementation of zero tolerance policies in schools brought police officers in schools. Police officers and probation officers in schools have some discretion as to how the offenses they observe and report are handled.[54] However, when school administrators approach police officers with offenses that occur in a school setting, the officer has less discretion and must report the student. When the student is sent to intake, the officer may have the discretion to divert the student (similar to probation), or send the student to the District Attorney for prosecution.[55]

C.  Disparate Impact on Children in the Juvenile Justice System

The juvenile justice system also has a disparate impact on children of color. 鈥淭here is a continuum of entry points into the school-to-prison pipeline [that] range from early school-based behavior problems, . . ., to more serious law breaking and probation violations, which involve the juvenile justice system and ultimately, criminal prosecution and incarceration by [the] adult penal system.鈥漑56]

In this continuum 鈥渕inorities are more likely than whites to be formally charged in juvenile court and to be sentenced to out-of-home placement, even when referred for the same offense.鈥漑57] Youth of color 鈥渞eceive longer, harsher sentences than white youth who commit similar crimes and with similar criminal histories.鈥漑58] Some attempt to explain this glaring difference by arguing that children of color misbehave more in schools than their white counterparts.[59] Others argue that those in control of the juvenile justice system possess an unconscious bias that keeps children of color on the track to end up in the school-to-prison pipeline.[60] Because children of color are more likely than white children to be disciplined in school, they are more likely to be sent to the juvenile justice system. This means there is a direct correlation between the racial disparities in the school discipline system and the racial disparities in the juvenile justice system that cannot be justified by misbehavior, but may be partially explained by an unconscious bias.[61] The racial disparities in school discipline and the juvenile justice system are apparent. These racial disparities exist within the juvenile justice system across the nation and in Arkansas.

1.  National Statistics

In 2010, courts with juvenile jurisdiction handled approximately 1.4 million delinquency cases.[62] During this time, black juvenile proceedings (87.6) occurred at more than double the rate of white juvenile proceedings (36.4).[63]   Thus, despite the black youth population only being 16%, black youths constituted more than double the delinquency cases than white youths. These numbers are highly disproportionate based on the population of each race.

Moreover, in 2010, cases involving black youth and American Indian youth were more likely to involve detention (29% each) than those involving Asian youth or white youth (27% and 24%, respectively).[64] These statistics reveal children of color are detained at higher rates than white children, even though white children are a majority of the population. Furthermore, black youth constitute 25% of delinquency detainees, 22% of detainees for property damage, and 25% of detainees for drug charges.[65] This is compared to white youth, who were 19% of delinquency detainees, 12% of detainees for property damage, and 14% of detainees for drug charges.[66] These statistics clearly show that black youth are more likely to be charged as delinquent and detained than white youth, which is evidence of racial disparities due to an unconscious bias at work in the juvenile justice system.[67]

2.  Arkansas Statistics

According to the Arkansas Administrative Office of the Courts data for 2012, the courts placed 10,896 youths in detention before their hearing or after their ruling.[68] Between 2010 and 2012, the detained youth consisted of 54% white youth, 39% black youth, and 1% of other youth.[69] In 2012, 257 black youth were committed to the Department of Youth Services, (DYS), as compared to 203 white youth.[70] That is 21% more black youths than white youths committed to DYS. Of these, 61% of black juveniles were committed to DYS for a felony, 35% for a misdemeanor, and 4% for a probation violation, as compared to the 60% of white juveniles who were committed to DYS for a felony, 37% for a misdemeanor, and 3% for probation violations.[71] While the percentages are close in range, this demonstrates a racial disparity in these statistics because the black youth population is not equivalent to the white youth population. There are more white youth than black youth. Hence, for the two races to be disciplined at similar rates is disproportionate.

III. Impact of the Racial Disparities in the Arkansas Juvenile Justice System on Children鈥檚 Education, Families, Costs to Taxpayers, and Society.

There are numerous downsides to the racial disparities found in the juvenile justice system. One of the many downsides is the debilitating effect on the detained youths鈥� education and social skills development. Another is the high cost of detention that taxpayers must help support. There is also an overall economic impact that traps people of color in a socioeconomic status and creates a reoccurring cycle.

A.  Impact on the Children

1.  Education

Detention is not a substitute for meeting the educational, social, or health care needs of children. In fact, detained youth frequently 鈥渄o not receive the education or the healthcare鈥� that they might otherwise have access to if they were not detained.[72] If youths were at home they would have better access to the specialized types of educational and healthcare services that they need. [73] Detention centers provide a basic education, but one that is often not specifically structured toward meeting the specialized educational needs of the children in detention. Many of the youth that encounter the juvenile justice system typically have difficulty in school already and removing them from their educational homes and halting their learning process causes them to fall further behind in school.[74]

Moreover, placing youth in detention drastically impacts their ability to learn and disrupts their educational environment. When youth re-enter school from juvenile detention they are frequently sent to Alternative Learning Environments (ALE), which further disrupts their learning process and normal routine.[75] ALEs are generally used for children with behavioral problems.[76] Hence, if a child was exposed to the juvenile justice system for an offense that occurred outside of school, when that child re-enters school they will likely be placed in an ALE with other children who have behavioral problems.[77]  For example, Judge Branton, a Judge in the Pulaski County Juvenile Justice system, had a child in his court over the summer that was not a school referral.[78] He was referred to Judge Branton鈥檚 court for an offense committed in the community.[79] Judge Branton sent the child to C-step, a military boot camp program.[80] When the child returned to school in the fall and the school became aware that he had been in C-step over the summer, they moved him to an ALE as part of the school protocol.[81] The child鈥檚 educational opportunity was diminished by being placed in an ALE, because ALEs are typically full of children with behavioral problems which makes it more difficult for the child to focus on his or her education. Thus, the placement in the ALE is counter-productive to the child鈥檚 learning. Moreover, for example, at Hamilton Learning Academy, an ALE, there were 104 male youths enrolled. Of those 104, one was a Hispanic male youth, one was a white male youth, and the other 102 were black male youths.[82] This is further evidence of the racial disparities in the school discipline system that is funneling youth of color into the juvenile justice system. As Officer Allen, a Resource Officer for Hamilton Learning Academy, stated, 鈥渆verybody can鈥檛 be educated in the same thing.鈥漑83] Hence, the ALE segregates children with behavioral problems from those without behavioral problems; however, the ALE is not necessarily providing an appropriate education for those children who are placed in ALE. It may not meet the child鈥檚 educational needs, because it does not provide a more practical hands-on learning format.[84]

Since youth of color are subject to disproportionate contact with the juvenile justice system and are more likely to be funneled into the school-to-prison pipeline, they are at a higher risk of losing their right to an education than white youth. Additionally, youth detained for a prolonged period of time often lose opportunities to further their education.[85] For example, if a child is held in an ALE or detention, they cannot be referred to a GED program until they reach age 18, which is also when they age out of school.[86] Statistically speaking, once an adolescent has encountered the juvenile justice system, he or she is more likely to drop out of school.[87] Adolescents become more likely to drop out because they have fallen so far behind, have become isolated from their peers, and have been labeled as delinquent. For adolescents that encounter the juvenile justice system it is difficult to rid themselves of their delinquency label. Moreover, a loss of educational opportunities leaves them with limited room for advancement in education, work, and society. This can cause them to rely on past criminal behaviors in order to meet their daily needs. Therefore, once they drop out of school, they are more likely to be incarcerated later in life.[88]

2.  Families

Exposure to the school discipline system and the juvenile justice system has had a dramatic impact on the families of children of color exposed to both systems. Often, children of color receive school discipline, which leaves them suspended or expelled. In these situations, the parents generally must still work and have no one to watch the child. According to Judge Branton, many times children who are suspended and sent home from school have no supervision while one suspension, whereas if they were in school they would be under school supervision. This leads to these children becoming delinquent by committing a crime such as breaking and entering, which in turn exposes them to the juvenile justice system.[89]

B.  Cost to Taxpayers

The average annual cost to operate a Juvenile Detention Center (JDC) in Arkansas is $1.2 million.[90] Of that $1.2 million, 81% is allocated to personnel cost.[91] On average, the cost per bed for detention is $29,381 per year.[92] It costs more to detain one youth for one year than it does to attend any public college for one year.[93] The average annual cost of tuition, fees, room and board, books and supplies for an in-state student at 糖心Vlog传媒LR is $14,944.90, and $26,014.90 for an out-of-state student.[94] If we spent $29,381 on obtaining the services needed to help the youth and their families, we would most likely observe better outcomes for the youth and potentially decrease the disparate impact felt by youth of color in society, in addition to the disproportionate minority contact with the juvenile justice system.

Stakeholders in the local juvenile justice system have some suggestions for other uses of the resources used to detain juveniles. Judge Branton suggested that a day center for children who have been suspended from school would be useful and it would give the children a place that they could go for educational assistance, counseling, supervision, and generally help keep them out of trouble.[95] Additionally, Officer Allen suggested that providing the children with trade school training would be more practical and beneficial in becoming productive members of society.[96] These are just a few suggestions that would help decrease the disproportionate minority contact with the juvenile justice system and the cost to taxpayers, while increasing the benefits of services provided to youth of color.

C.  Impact on Society

Racial disparities in school discipline and contact with the juvenile justice system also have created a social impact on youth of color. Some researchers have concluded 鈥渢hat suspension may act more as a reinforcer than a punisher for inappropriate behavior.鈥漑97] In 2012, the recommitment rate to DYS was 22%.[98] Once young people are introduced into the juvenile justice system, they are more likely to become incarcerated or reoffend.

Studies show that the mind continues to develop mature decision-making until about age 25.[99] Hence, youth are more impressionable and more likely to act impulsively and without judgment. Adolescents are also more susceptible to developing a prison or institutionalization mentality.[100] If detained long enough, they will not be capable of functioning outside of the prison system. Thus, this hinders any likelihood of successful rehabilitation and reentry into society.

D.  Economic Impact

There is also a significant economic impact on youth in the juvenile justice system. The impact is greater on youth of color because of their disproportionate representation in the juvenile justice system. Jeremy Travis, former director of the National Institute of Justice, termed this effect the 鈥渋nvisible punishment.鈥漑101] Aspects of the invisible punishment include the forfeiture of federal benefits such as public assistance including food stamps, and denial of public housing and student loans.[102] There are also limits on their 鈥渁bility to participate in their communities after鈥� release due to the separation from their communities during confinement.[103] This limits their ability to be productive members of society. Other economic impacts include the difficulty these youth have in obtaining marketable skills with limited and less access to education, which in turn limits their ability to find employment.[104] Thus, because youth of color have encountered the juvenile justice system more frequently than whites, they experience more forfeiture of their rights to government assistance and educational opportunities. This often places them in a low-income socioeconomic lifestyle that is almost impossible to transcend.

IV.  Recommendations for Minimizing the Racial Disparities in the Juvenile Justice System and Decreasing Negative Impacts on Youth of Color, Families of Color, and Taxpayers.

There have been numerous suggestions made to minimize racial disparities in the juvenile justice system. These recommendations have been made by the federal government, non-profit organizations like Arkansas Advocates for Children and Families, scholars, and practitioners. For Arkansas, the first step in addressing racial disparity in the juvenile justice system is to collect and maintain reliable data that can be used to analyze where the disparities occur and then help to address those areas.

The federal government has created the Office of Juvenile Justice and Delinquency Prevention to help states comply with the Juvenile Justice and Delinquency Prevention Act (JJDPA), which requires states to address disproportionate minority contact (DMC) with the juvenile justice system. The JJDPA recommends 鈥渄iversion, alternatives to secure confinement, advocacy, and training and technical assistance on cultural competency with youth and staffing practices.鈥漑105] Arkansas is currently in phase II of this process, which is known as the assessment and diagnosis phase.[106] This phase also includes gathering data.[107]

Additionally, it will be necessary to maintain uniform and reliable data throughout the state so that a proper evaluation can be performed.[108] Other suggestions include creating alternatives for low and moderate risk level youth, creating structured ways of responding to violations of probation and other court orders using sanctions other than detention, the elimination of using detention to reprimand status offenders, creating an understanding of racial disparities, and developing new ways to help counteract the disproportionality between various decision makers such as the law enforcement, courts, and schools to develop appropriate school referrals.[109] Once we collect and analyze the data, we should be able to identify at what point the disproportionality occurs and begin to modify those areas to safeguard against further disparities.

鈥淪tudies focused on school safety find that when schools approach discipline through responsive, reintegrative, and restorative mechanisms they are more effective at maintaining safe communities.鈥漑110] 鈥淪chools can promote improved academic environments, which in turn improve school safety,鈥� when they provide a better-balanced response to misbehavior.[111] By schools addressing misbehavior with more reintegrative and restorative measures, schools can take back control and begin to better address the problem at hand and its underlying issues. If schools addressed the underlying issues, there would be fewer court referrals. In turn, this would help lessen the racial disparities and the amount of contact children have with the juvenile justice system.

Reintegrative and restorative measures include providing teachers with leadership training and more effective classroom management helps provide students with more structure and stability, leading to improved educational outcomes and less disruptions resulting in discipline.[112] Some researchers suggest that teachers should be given special training to help identify and improve youth development.[113] If teachers could identify and improve youth development in the classroom, there would be less need to escalate punishment to the juvenile justice system. Additionally, some believe that giving teachers multi-cultural sensitivity training will help teachers be more aware of any unconscious bias and how they as teachers interact with their students of color.[114]  Also, the implementation of fair and tolerant disciplinary policies will help.[115] If teachers were aware of the potential for unconscious bias and how that affects their interaction with their students coupled with more fair and tolerant policies, then the racial disparities found in school discipline would likely diminish.

Several researchers suggest the use of Positive Behavior Intervention and Supports (PBIS), which is a 鈥渄ecision making framework guiding evidence-based academic and behavioral practices for improving outcomes for students.鈥漑116] These are typically three tier systems that help 鈥渁ddress classroom management and disciplinary issues ranging from tardiness to antisocial behavior.鈥漑117] A PBIS would help prevent unwarranted escalation of punishment to suspension and possibly juvenile court by addressing the issues at the most basic level, in the classroom. Methods such as PBIS can help add a layer of protection for youth of color. They can serve as a barrier to the juvenile court system, only allowing serious, non-discretionary offenses to escalate to juvenile court, which would help decrease the racial disparities in the school-to-prison pipeline.

Other recommendations include stopping the funneling of colored youth and youth in general into the school-to-prison pipeline by banning zero tolerance policies and making suspensions and expulsions an alternative of the last resort.[118] Zero tolerance policies encourage the use of suspension, which frequently leads to contact with the juvenile justice system. Another option is if zero tolerance policies persist in schools, to implement mediation or arbitration panels to help resolve school disciplinary problems before escalating them to juvenile courts, unless it is a serious, felony offense.[119] Mediation, like PBIS, would provide an additional alternative to funneling children into the school-to-prison pipeline.[120] Alternatives such as these would help prevent disproportionate discipline and unnecessary court referrals for children of color. Furthermore, adding additional staff to each school for mental health and counseling would be highly beneficial to resolving the youthful indiscretions without funneling them into the juvenile justice system. It also gives a more direct and better chance to address the actual issues that are causing the youth to misbehave.

Other avenues of improvement consist of forcing stakeholders in the juvenile justice to examine unconscious bias and make an active and conscious effort to use other alternatives to detention.[121] These stakeholders include, but are not limited to, school officials who refer students to the criminal justice system, judges, prosecutors, probation officers, and intake officers. By bringing these racial disparities to the forefront of conversation and educating stakeholders in the juvenile justice system and the school discipline system about how unconscious bias operates and its impact, we can begin to recognize the problem and address the issue.

One of the more successful approaches to improving the racial disparity in the juvenile justice system comes from the Annie E. Casey Foundation. This foundation started the Juvenile Detention Alternatives Initiative (JDAI), and provides resources to states that have JDAI sites. These sites include providing small cash grants; technical assistance; tools, guides, and publications; model sites; training seminars; national conferences; and network and peer support.[122]

By utilizing other community-based alternatives to detention in 2012, the JDAI helped to reduce the annual admission to detention in participating states by more than 59,000 youths and commitment to state custody by 40%.[123] JDAI sites decreased the number of youth of color in detention by 39%.[124] Additionally, the number of juvenile intakes declined by 29%; the number of juvenile arrests declined by 33%; the number of felony petitions filed declined by 43%; and the number of delinquency petitions filed declined by 45%.鈥漑125] JDAI has actively helped to decrease the racial disparities in juvenile detention as well as the number of juveniles being detained.

In 2012, JDAI partnered with two counties in Arkansas, Benton County, and Washington County to create more effective and efficient alternatives to juvenile detention.[126] The JDAIs in these counties have been so successful that the counties now must repurpose the multi-million dollar juvenile detention facility that was built just a few years prior.[127] By reducing the number of juvenile detainees, JDAI has helped to reduce the number of youth of color being detained, which helps address the disproportionate minority contact with the juvenile justice system within these counties. A program such as the JDAI should be implemented throughout the state to decrease overuse of detention and the racial disparities in the juvenile justice system.

V.  Conclusion

Racial disparities exist in both the school discipline system and the juvenile justice system. School discipline systems are disproportionately used on youth of color, and this leads to a pronounced exclusion of youth of color from educational opportunities. These disparities in turn, disproportionately send more youth of color through the school-to-prison pipeline, which increases the number of youth in detention and the cost to taxpayers, instead of utilizing cheaper, more efficient alternatives. It also disenfranchises youth of color from their educational opportunities by disrupting and decreasing those opportunities. Furthermore, it separates them from their communities, which disrupts their futures.

A plethora of recommendations has been set forth by numerous experts; of those, limiting suspension and expulsion to felonious actions that require a last resort of suspension or expulsion should be implemented along with a ban on zero tolerance policies. Zero tolerance policies do more harm than good. There are better alternatives that will actually help address the underlying issues of youth, but especially youth of color in a more efficient and effective manner. There are a lot of resources being dedicated to the current juvenile justice system. A reallocation of those resources to expanding projects like JDAI will improve Arkansas鈥� youth, economy, and society and would make an excellent first step to rectifying the racial disparities in the juvenile justice system. Moreover, measures to correct school discipline that leads to discipline by the juvenile justice system also must be implemented, such as banishing zero tolerance policies. However, until the underlying social issues that helped create these disparities are addressed, society can only remain reactive as opposed to proactive.

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Destiny McHughes is from Little Rock, Arkansas. Destiny attended the University of Central Arkansas and obtained a Bachelors degree Business Administration in 2008. Destiny graduated from 糖心Vlog传媒LR, William H. Bowen, School of Law in 2015. Destiny has dedicated her time and efforts to help improve the community through a variety of volunteer and outreach activities. Destiny co-chaired the Zero K Fundraiser in 2014. She also founded the Juvenile Mentor Program in August 2014, which provides group mentor sessions twice a month. In the Spring 2015, she participated in the Road to Justice Program with Legal Aid of Arkansas. Destiny opened

[1] See generally, Elbert H. Aull IV, Zero Tolerance, Frivolous Juvenile Court Referrals, and the School-to-Prison-Pipeline: Using Arbitration as a Screening-Out Method to Help Plug the Pipeline, 27 OHIO ST. J. ON DISP. RESOL. 179, (2012).

[2] Jerri Derlikowski, Keeping Kids in Class: Fixing Racial Disparities in School Discipline, Arkansas Advocates for Children and Families, 1, 7, (February 2013), .

[3] See generally, Daniel J. Losen, Discipline Policies, Successful Schools, Racial Justice, and The Law, 51 FAM. CT. REV. 388, (2013).

[4] Little Rock School District, Student Handbook, 1, 69-80, (2014-2015), .

[5] Id.

[6] Daniel J. Losen, Discipline Policies, Successful Schools, Racial Justice, and The Law, 51 FAM. CT. REV. 388, 391 (2013).

[7] Little Rock School District, Student Handbook, 1, 71-78, (2014-2015), .

[8] Id.

[9] Thalia Gonzalez, Restoring Justice: Community Organizing to Transform School Discipline Policies, 15 U.C. DAVIS J. JUV. L. & POL鈥橸 1, 10-11, (2011).

[10] Elbert H. Aull IV, Zero Tolerance, Frivolous Juvenile Court Referrals, and the School-to-Prison-Pipeline: Using Arbitration as a Screening-Out Method to Help Plug the Pipeline, 27 OHIO ST. J. ON DISP. RESOL. 179, 179-180, (2012).

[11] Little Rock School District, Student Handbook, 1, 76-80, (2014-2015), .

[12] Id.

[13] Elbert H. Aull IV, Zero Tolerance, Frivolous Juvenile Court Referrals, and the School-to-Prison-Pipeline: Using Arbitration as a Screening-Out Method to Help Plug the Pipeline, 27 OHIO ST. J. ON DISP. RESOL. 179, 182, (2012).

[14] Id. at 182-183.

[15] Thalia Gonzalez, Restoring Justice: Community Organizing to Transform School Discipline Policies, 15 U.C. DAVIS J. JUV. L. & POL鈥橸 1, 10, (2011).

[16] Elbert H. Aull IV, Zero Tolerance, Frivolous Juvenile Court Referrals, and the School-to-Prison-Pipeline: Using Arbitration as a Screening-Out Method to Help Plug the Pipeline, 27 OHIO ST. J. ON DISP. RESOL. 179, 182, (2012).

[17] See generally, Jerri Derlikowski, Keeping Kids in Class: Fixing Racial Disparities in School Discipline, Arkansas Advocates for Children and Families, (February 2013), .

[18] Little Rock School District, Student Handbook, 1, 70, (2014-2015), .

[19] Id.

[20] Id.

[21] Id. at 71-72.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 73-75.

[26] Id. at 73.

[27] Id.

[28] Id.

[29] Id. at 76-78.

[30] Id. at 76.

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 79-80.

[35] Id. at 79.

[36] Id. at 70.

[37] Id. at 71.

[38] Id. at 70.

[39] Id.

[40] Id. at 71 – 76.

[41] Id. at 72 – 79.

[42] See generally, Jerri Derlikowski, Keeping Kids in Class: Fixing Racial Disparities in School Discipline, Arkansas Advocates for Children and Families, (February 2013), .

[43] U.S. Dept. of Ed. Office for Civil Rights, Civil Rights Data Collection: Data Snapshot: School Discipline, Issue Brief No.1, 1, (March 2014), .

[44] Daniel J. Losen, Discipline Policies, Successful Schools, Racial Justice, and The Law, 51 FAM. CT. REV. 388, 389 (2013).

[45] Id. at 390.

[46] U.S. Dept. of Ed. Office for Civil Rights, Civil Rights Data Collection: Data Snapshot: School Discipline, Issue Brief No.1, 1, (March 2014), .

[47] Morganne Sample, From Playgrounds to Prisons: Police involvement in School Discipline, 1, 2, (July 2013), .

[48] Id.

[49] Civil Rights Data Collection, (last viewed November 15, 2014),

[50] Civil Rights Data Collection, (last viewed November 15, 2014), .

[51] Civil Rights Data Collection, (last viewed November 15, 2014),

[52] Civil Rights Data Collection, (last viewed November 15, 2014), .

[53] Id.[54] Personal Interview with Officer Allen (Little Rock Police department, Resource Officer) and Mr. Polk (Probation Officer) from Hamilton Learning Academy, (Nov. 21, 2014).

[55] Deborah Busch, 7: Pathways to Juvenile Detention Reform: By the Numbers, the role of data and information in detention reform, Annie E. Casey Foundation, 1, 14, (Jan. 1, 1999), .

[56] Thalia Gonzalez, Restoring Justice: Community Organizing to Transform School Discipline Policies, 15 U.C. DAVIS J. JUV. L. & POL鈥橸 1, 12, (2011).

[57] Edgar Cahn and Cynthia Robbins, An Offer They Can鈥檛 Refuse: Racial Disparity in Juvenile Justice and Deliberate Indifference Meet Alternatives that Work, 13 U.D.C.L. REV. 71, 79 (2010).

[58] Olatunde C.A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374, 375 (2007).

[60] See generally, Olatunde C.A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374, 382-383 (2007).

[61] Id.

[62] Charles Puzzanchera and Sarah Hockenberry, Juvenile Court Statistics 2010, 1, 6, (November 2013), .

[63] Id. at 20.

[64] Id. at 34.

[65] Id.

[66] Id.

[67] See generally, Olatunde C.A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374, 382 (2007).

[68] Paul Kelly, Why Detention is Not Always the Answer: A Closer Look at Youth Lock-Up in Arkansas, Arkansas Advocates for Children and Families, 1, 5, (April 2014), .

[69] Id.

[70] Arkansas Department of Human Services, Division of Youth Services, Arkansas Child Welfare Report Card, 1, DYS-5, (last viewed on November 15, 2014), .

[71] Id.

[72] Edgar Cahn and Cynthia Robbins, An Offer They Can鈥檛 Refuse: Racial Disparity in Juvenile Justice and Deliberate Indifference Meet Alternatives that Work, 13 U.D.C.L. REV. 71, 80 (2010).

[73] Id.

[74] Paul Kelly, Why Detention is Not Always the Answer: A Closer Look at Youth Lock-Up in Arkansas, Arkansas Advocates for Children and Families, 1, 6, (April 2014), .

[75] Id.

[76] Personal Interview with Officer Allen (Little Rock Police Department Resource Officer) and Mr. Polk (Probation Officer), Hamilton Learning Academy, (Nov. 21, 2014).

[77] Id.

[78] Personal Interview with Judge Wiley Branton, Eighth Division, Sixth Judicial Circuit, (Nov. 10, 2014)

[79] Id.

[80] Id.

[81] Id.

[82] Personal Interview with Officer Allen (Little Rock Police Department Resource Officer) and Mr. Polk (Probation Officer), Hamilton Learning Academy, (Nov. 21, 2014).

[83] Id.

[84] Id.

[85] Edgar Cahn and Cynthia Robbins, An Offer They Can鈥檛 Refuse: Racial Disparity in Juvenile Justice and Deliberate Indifference Meet Alternatives that Work, 13 U.D.C.L. REV. 71, 92 (2010).

[86] Personal Interview with Officer Allen (Little Rock Police Department Resource Officer) and Mr. Polk (Probation Officer), Hamilton Learning Academy, (Nov. 21, 2014).

[87] Jerri Derlikowski, Keeping Kids in Class: Fixing the Racial Disparities in School Discipline, Arkansas Advocates for Children and Families, 1, 11, (February 2013), .

[88] Id.

[89] Personal Interview with Judge Wiley Branton, Eighth Division, Sixth Judicial Circuit, (Nov. 10, 2014)

[90] Paul Kelly, Why Detention is Not Always the Answer: A Closer Look at Youth Lock-Up in Arkansas, Arkansas Advocates for Children and Families, 1, 3, (April 2014), .

[91] Id.

[92] Id.

[93] Id.

[94] University of Arkansas at Little Rock, Tuition & Fees, (last visited Nov. 14, 2014), /bursar/home/tuitionandfees/.

[95] Personal Interview with Judge Wiley Branton, Eighth Division, Sixth Judicial Circuit, (Nov. 10, 2014).

[96] Personal Interview with Officer Allen (Little Rock Police Department Resource Officer) and Mr. Polk (Probation Officer), Hamilton Learning Academy, (Nov. 21, 2014).

[97] Daniel J. Losen, Discipline Policies, Successful Schools, Racial Justice, and The Law, 51 FAM. CT. REV. 388, 393 (2013).

[98] Arkansas Department of Human Services, Division of Youth Services, Arkansas Child Welfare Report Card, 1, DYS-18, (last viewed on November 15, 2014 at 2:13pm), .

[99] NPR: Brain Maturity Extends Well Beyond Teen Years, (NPR Radio Broadcast Oct. 10, 2011), .

[100] Prateek Shukla, The Criminal Child and Its Potential for Change: A Presumption in Favor of Rehabilitation in Sentencing Juvenile Offenders, 38 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 379, 396 (2012).

[101] Edgar Cahn and Cynthia Robbins, An Offer They Can鈥檛 Refuse: Racial Disparity in Juvenile Justice and Deliberate Indifference Meet Alternatives that Work, 13 U.D.C.L. REV. 71, 80-81 (2010).

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id. at 2.

[107] Personal Interview with Judge Wiley Branton, Eighth Division, Sixth Judicial Circuit, (Nov. 10, 2014).

[108] Paul Kelly, Why Detention is Not Always the Answer: A Closer Look at Youth Lock-Up in Arkansas, Arkansas Advocates for Children and Families, 1, 8, (April 2014), .

[109] Id. at 8-9.

[110] Thalia Gonzalez, Restoring Justice: Community Organizing to Transform School Discipline Policies, 15 U.C. DAVIS J. JUV. L. & POL鈥橸 1, at 14, (2011).

[111] Id.

[112] Daniel J. Losen, Discipline Policies, Successful Schools, Racial Justice, and The Law, 51 FAM. CT. REV. 388, 396 (2013).

[113] Id.

[114] Id.

[115] Id. at 15.

[116] Id.

[117] Id.

[118] Elbert H. Aull IV, <e

The post A Comparative Analysis of Racial Disparities in the Arkansas School Discipline System, the Racial Disparities in the Arkansas Juvenile Justice System and the Effects of Such Disparities. appeared first on The Arkansas Journal of Social Change and Public Service.

As you鈥檒l see, Ms. McHughes argues that race plays a role in the state鈥檚 juvenile justice system due to the systemic prejudices faced by children of color in the state鈥檚 public schools. In Mr. Ashley鈥檚 article, he proposes the Arkansas Legislature adopt Tennessee鈥檚 approach to balancing the interests of adoptees, their adoptive parents, and their biological parents to ensure adult adoptees are no longer prevented by the state from learning of their biological history. Additionally, Ms. Neihaus provides an excellent discussion of re-homing children who are adopted from foreign countries.

As the Arkansas Times recently reported, re-homing is an issue in Arkansas鈥檚 domestic adoptions as well. Representative Justin Harris and his wife assigned their adopted daughters to an employee who worked for the Harris鈥檚 childcare center after the adopted daughters failed to fit into their new home with Representative Harris, his wife, and their sons. The male employee of the childcare center was later convicted of sexually abusing the older daughter. In fact, the 90th General Assembly of the Arkansas Legislature responded to this report by passing legislation making re-homing of adopted children a felony offense in Arkansas; Governor Hutchinson signed the bill into law earlier this month.

This children-centric series of articles will also represent the end of the current Editorial Board鈥檚 tenure. The new Editorial Board will be led by Ms. Kendall Lewellen; she will be joined by Dr. Anna Baker, Mr. Zac Hale, and Ms. Aarkia Kilgore. In the last few years, the Journal has slowly grown from a spark in one law student鈥檚 mind to an officially recognized publication of the William H. Bowen School of Law. We see big growth for the Journal over the next few years! Though the Journal faces constant hurdles and new surprises around every corner, we (the current Editorial Board) hope we are leaving Bowen, its students and the community with an established vehicle to investigate and discuss the intersections of policy, law, pubilc service and academics often left unexamined.

– The 2014-2015 Arkansas Journal of Social Change and Public Service Editorial Board

The post A Letter from the Editors appeared first on The Arkansas Journal of Social Change and Public Service.

One in three women around the world will be raped or beaten in her lifetime. With seven billion people on this planet, that equals more than one billion women who will become victims of violence. Playwright and activist Eve Ensler wrote The Vagina Monologues after interviewing a diverse group of more than two hundred women about what it means to be a woman. The play, produced to raise awareness about violence against women, conveys a different aspect of the lived female experience 鈥� including topics and themes like sex, violence, sexuality and sexual orientation, menstruation, female genital mutilation, rape, love, and birth. By putting on a production of The Vagina Monologues, college and community groups raise awareness about violence against women while also raising funds for local organizations working to address this systematic problem.

The Vagina Monologues is a key tool used by V-Day, a global activist movement to end violence against women and girls, to raise funds and awareness concerning gender-based violence. It seeks to end acts of gender-based violence such as rape, battery, incest, female genital mutilation (FGM), and sex slavery (, 2014). The V-Day organization actually arose from the reactions of women after seeing performances of The Vagina Monologues. In 2012, the organization supported the production of more than 5,800 V-Day events around the world in more than 167 countries (, 2014). In the fourteen years that V-Day has been operating, the movement and the events it supports have raised more than $90 million for grassroots and international organizations that work to end violence against women and girls (, 2014). Although the play is not without significant criticism from social conservatives and feminists alike, productions take place around the country, and globally, with significant fanfare and success. In addition to The Vagina Monologues, V-Day now includes four other dramatic pieces that college and community groups can produce (, 2014).

On October 25, 2012, when we decided to stage a production of The Vagina Monologues in Little Rock, Arkansas, it is safe to say we were unaware of how deeply this would affect our classmates, our community, and ourselves.

The first production of The Vagina Monologues staged by female students from the Clinton School of Public Service took place in February 2013. Mara D鈥橝mico and Sara Chapman directed it, with 17 female students acting in the play and many others in supporting roles. This single performance raised over $2,000 and many rolls of toilet paper and paper towels for , Arkansas鈥檚 largest domestic violence shelter.

The second production took place in March 2014, again directed by Mara D鈥橝mico and Sara Chapman, with 22 female students acting and many more supporting in various capacities. These two performances raised over $1,600 for Green Dot, an anti-violence training program at the University of Arkansas at Little Rock, and many rolls of toilet paper and paper towels for Women and Children First.

The March 2014 performance of The Vagina Monologues by Clinton School students clearly illustrated the increased interest and importance of this topic among our classmates. Male peers who witnessed the show the previous year were eager to be supportive and as involved as possible. In addition to volunteering in various capacities at the show 鈥� as ushers, running sound and lights, and accepting donations to name a few 鈥� the male students of the Clinton School also wished to publicly express their support for us, their female classmates, and their dedication to stopping violence against women. This resulted in a beautiful, moving video of our male peers 鈥� the men we see and interact with on a daily basis 鈥� giving messages of support, reaffirming their belief in the importance of women and their safety, and making conscious commitments about what they would do to address the topic.

Productions of The Vagina Monologues can and do serve as consciousness-raising activities for actresses, volunteers, and audience members, and increase the chance that individuals will continue to advocate for action in the future. This is especially important for men, who may not be aware of the ways in which gender-based violence shapes the daily life of their friends, classmates, partners, family members, and themselves. It is often through witnessing The Vagina Monologues that men 鈥� and women 鈥� become aware of just how pervasive and severe violence against women is.

The fundamental goals of producing performances of The Vagina Monologues are to raise awareness about violence against women and to raise money for local organizations working to address violence against women. Since the individual monologues contained in the play cover a variety of aspects of the female experience, including but not limited to sex, sexual orientation, rape, and female genital mutilation, the audience experiences a roller coaster of emotions and gains a deeper understanding of what it means to be a woman through women鈥檚 stories.

Further, a production of The Vagina Monologues creates a safe space to discuss typically taboo topics. This is done in a variety of ways. First, the female classmates who choose to act in the production cultivate a strong sense of community. This happens through regular rehearsals, discussion of their own individual lived female experience, and sharing deeply personal stories with one another. Peers share their stories of rape or sexual assault for the first time, women grapple with the sexism they鈥檝e experienced in their own lives, and discuss the merits of identifying as feminist or not. The space does not always exist for these types of conversations in our everyday lives, but the time spent together preparing for a play focused on these topics naturally allows and encourages these types of discussions. This has certainly been true for the productions of The Vagina Monologues in which we have been part. Some of our favorite moments from our two years in Little Rock have been during the preparation and presentation of the play.

Second, a sense of curiosity is piqued among classmates who are not directly involved in the play鈥檚 production. It is liberating to be involved in a production of The Vagina Monologues and the actresses will naturally discuss the experience outside of rehearsal time. Through these discussions and the prevalence of the word vagina, a word not typically in most people鈥檚 vernacular, other classmates tend to get very interested and curious for more information. People ask questions and want to learn why so many of their peers are involved. This opens yet another space for conversation about the show and violence against women.

Third, a sense of desire develops among male classmates to become informed and involved. Those who are not familiar with the play will typically hear a lot about it, and will begin to sense how deeply their female classmates are affected by violence and a sexist society. This generates a desire among some of our male classmates to contribute in some way. Since individuals who identify as male cannot be involved as actors or directors of the play, they often find other ways to be involved. This was exemplified in our male classmates鈥� involvement for the March 2014 productions.

Through all these contexts, we are able to build a platform for talking about the issues many of us care so much about. Those acting in a production of The Vagina Monologues are doing it for a reason 鈥� we鈥檝e either directly experienced violence, or we have someone close to us who has. Many of us want to discuss these issues, but people do not always want to listen, or are insensitive to the extent to which sexism and patriarchy impacts us all. This show generates a buzz and creates a space for us to talk and for others to listen.

It is essential to build upon the momentum started by a production of The Vagina Monologues. Many are inspired by what they see, and would like an outlet to turn this inspiration into action. By continuing these conversations, learning how violence affects our everyday lives, and making a commitment to acting to address violence against women, we can all have a collective impact.

[You can catch this year’s production of The Vagina Monologues  April 10th and 11th at 7:30 at the Clinton School of Public Service’s Sturgis Hall.]

The post “The Vagina Monologues”: Turning Inspiration Into Action appeared first on The Arkansas Journal of Social Change and Public Service.

I. Introduction

Swaziland, Lesotho, Papua New Guinea, and the United States of America. These four countries seemingly have nothing in common. Swaziland and Lesotho are located in Africa, Papua New Guinea is in a region of the southwestern Pacific Ocean north of Australia and obviously, the United States is located in North America. Swaziland, Lesotho, and Papua New Guinea all have populations of seven million or less.[2] The United States has a population of 319 million. Swaziland and Lesotho are severely afflicted by HIV/AIDS.[3] Papua New Guinea has the highest incidence of HIV/AIDS in the Pacific region, high infant and maternal mortality rates, and a large proportion of the population is illiterate.[4] The United States, on the other hand, has an extremely advanced health care system and is considered one of the greatest places to live in the world. Swaziland, Lesotho, and Papua New Guinea are all governed by monarchies of some sort while the United States is a democracy. All of the countries, aside from the United States, are developing countries with struggling economies, while the United States has the World鈥檚 largest national economy. On paper, these countries could not be more different from the United States. That is, until one examines how these countries deal with maternity leave. In this area, the countries are remarkably similar.

These countries do have one thing in common; they are currently the only four countries across the globe without mandated paid maternity leave. This raises the question, 鈥淗ow is it possible that the United States has found itself with maternity leave policies similar to those of developing countries that struggle to control HIV/AIDS and have problems with literacy?鈥� The United States is an extremely advanced country in many ways; however, it is failing miserably at taking care of those who bear children. In many ways, the answer is pretty clear. The United States鈥� attitude toward pregnancy in general leaves a lot to be desired. In dealing with this area of policy, the United States fails to protect women both during and after pregnancy. Countries with similar economic and democratic policies all have mandated paid maternity leave and, for the most part, the governments fund these programs.

This paper will look at some examples of how countries similar politically and economically to the United States have handled mandating paid maternity leave for their citizens. In addition, this paper will examine current federal legislation that discusses maternity leave in the United States including the Pregnancy Discrimination Act[5] and the Family Medical Leave Act.[6] In addition, this paper will look at how some states, such as California, have implemented paid maternity leave through state legislation. This paper will scrutinize why the United States is so far behind its world counterparts in mandating paid maternity leave and protecting those who bear children. Finally, this paper will suggest improvements the United States can make in its treatment of pregnancy and childbirth based on research concerning the importance of mothers playing an active role in the growth and development of their infants in the early days after childbirth as well as the effect of mothers returning to work shortly after childbirth on their own health and wellbeing.

II. Comparative Legislation Across Europe

Many of the countries that are similarly structured to the United States are member states of the European Union. The European Union enacts legislation in many different ways to govern its member states. One of those mechanisms is through directives. As the name suggests, the European Union enacts directives that 鈥渄irect鈥� the member states to pass their own legislation that will implement the policies that the European Union wishes to further.[7] The European Union has given directives on leave for new moms. The policies involve many facets of pregnancy. First, pregnant workers have the right to attend ante-natal appointments during working hours on full pay. Second, women are entitled to take at least fourteen weeks maternity leave before and/or after childbirth and must take at least two weeks leave before and/or after childbirth. Finally, employers must not dismiss a woman who is pregnant and/or on maternity leave except in exceptional circumstances not connected with pregnancy/maternity.[8]

In addition, the European Union has given directives on parental leave. Those policies include that men and women have equal right to at least eighteen weeks’ parental leave for each child. Each Member State has implemented the directives through their own legislation, so the exact language of the legislation varies across the European Union. The European Union directive is also looked at as a floor, not a ceiling. Therefore, the member states are free to make their policies more expansive as long as they sufficiently implement the underlying European Union directives. Most of the member states have expanded on the European Union directives in the area of maternity leave. The following countries provide relevant examples of this.

          A. United Kingdom

The United Kingdom, for example, has legislated a mandatory two weeks off, four weeks if you work in a factory, followed by fifty-two weeks maternity leave with 鈥淥rdinary Maternity Leave鈥� for the first twenty-six weeks and 鈥滱dditional Maternity Leave鈥� for the last twenty-six weeks. [9] During those weeks of maternity leave, the citizens of the United Kingdom receive 鈥淪tatutory Maternity Pay,鈥� (SMP) which is paid for up to thirty-nine weeks.[10] The SMP consists of 90% of the employee鈥檚 average weekly earnings (before tax) for the first six weeks and 拢138.18 or 90% of your average weekly earnings (whichever is lower) for the next thirty-three weeks.[11] SMP is paid in the same way as the citizen鈥檚 wages: monthly or weekly and tax and National Insurance is deducted.[12] In order to qualify for SMP, the pregnant citizen must earn on average at least 拢111 a week (or around $174), give the correct notice, provide proof that she is pregnant, and have worked for her employer continuously for at least twenty-six weeks up to the 鈥渜ualifying week鈥� which is the 15th week before the expected week of childbirth.[13] In addition, the woman will still be entitled to SMP if she has a stillbirth after the twenty-fourth week of pregnancy or her baby dies after birth.[14]

          B. France

France is another European Union member state that has enacted its own legislation for maternity leave. In France, women on maternity leave receive their full salary for 16 weeks or 26 weeks if it is their third child and up to 34 weeks for multiple births.[15] Maternity and paternity leave is paid by the parent鈥檚 local social security office.[16] To be eligible for the payments, the citizen must have registered with the French social security system at least ten months before the expected date of birth and worked at least 200 hours in the three months preceding the date the leave begins, or have earned at least 鈧�8,993 in the six months before the same date.[17] French law also provides for parental leave in which fathers are entitled to eleven consecutive days of paternity leave with no loss of pay.[18]

III. Current United States Legislation

The current state of federal legislation in the area of maternity leaves much to be desired. In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to include pregnancy as a prohibited form of sex discrimination. This became known as the Pregnancy Discrimination Act.[19] However, as noted below, this amendment did not do very much to protect pregnant women from discrimination. Then in the early 1990s, the Family Medical Leave Act was passed to provide, among other things, unpaid leave after the birth or adoption of a child for both men and women.[20] A review of these laws shows they are insufficient to protect pregnant workers as well as new parents.

          A. Pregnancy Discrimination Act of 1978

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to include pregnancy as a prohibited form of sex discrimination. The Pregnancy Discrimination Act prohibits employers from taking adverse action against an employee because of pregnancy.[21] If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee. The law, for example, may require an employer to provide a pregnant employee light duty, alternative assignments, disability leave, or unpaid leave if it does so for other temporarily disabled employees.[22] However, this also means that if the employer does not provide light duty, alternative assignments, disability leave, or unpaid leave for other temporarily disabled employees, then it does not have to do so merely because of a pregnancy.

Commentators have subjected the Pregnancy Discrimination Act (鈥淧DA鈥�) to harsh criticism for a variety of reasons. One of the largest pitfalls of the Act is that it only requires equal treatment of a pregnant employee with an employee with a temporary disability. 鈥淎lthough it prohibited employers from treating pregnancy any worse than a disability, the law did not require employers to provide any benefits to pregnant women that they did not already provide to other disabled employees.鈥漑23] The end result is that employers can treat a pregnant woman just as poorly as they treat anyone else. If the employer does not accommodate employees with temporary disabilities, then it does not have to do anything 鈥渟pecial鈥� for any employee who becomes pregnant. In addition, so long as the policies are 鈥渟ex-neutral,鈥� they are not actionable under the Civil Rights Act.[24] Clearly however, these policies are 鈥渟ex-neutral鈥� only facially. Employer policies that insufficiently protect pregnant workers will never harm men, because they will never become pregnant. 鈥淎lthough the PDA ensures gender-neutrality, it clearly harms women in some areas much more than men: most women will become pregnant and give birth at some point in their lives, while no man ever will.鈥漑25]

          B. Family Medical Leave Act

In the early 1990鈥檚, Congress enacted the Family Medical Leave Act or FMLA.[26] The FMLA provides for twelve weeks of unpaid maternity leave after the birth or adoption of a child in a twelve month period. Prior to the passage of the FMLA, there was no federal mandate of any type of leave in the United States for parents, specifically mothers, after the birth of infants. However, the FMLA does not provide for any mechanism of pay for the mother who wishes to take the twelve weeks of leave. She can take up to twelve weeks, sans any type of pay. 鈥淓mployers may require employees, to 鈥檚ubstitute鈥� accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period.鈥漑27] Basically, the employer can force an employee into exhausting all of their leave prior to approving a FMLA leave period. This will leave the mother returning to work after her leave period without any leave to use for doctor鈥檚 appointments, temporary illnesses, or vacation.

In addition, the FMLA only applies to 鈥渃overed employers,鈥� or those who employ at least 50 employees who have worked at least 20 weeks of the current or preceding calendar year. The employee must work at a location that has the 50 required employees within 75 miles, so even if employers have more than 50 employees, if they are spread across the country, none of those employees will be eligible for the leave. Also, the employee must have worked for the employer for twelve months prior to the time that they wish to use the leave.[28] The Family Medical Leave Act not only provides for maternity leave, or leave after the birth or adoption of a child, but also for leave to care for sick family members.[29]

One of the biggest criticisms of the Family Medical Leave Act is that it does not provide a realistic mechanism for leave time because many families cannot afford twelve weeks of unpaid leave. The Family Medical Leave Act forces employers to give time off to employees that qualify, but it does not do anything to aid those employees with taking unpaid time off.[30] Whether or not an employee taking FMLA leave will be paid is at the discretion of the employer. Most of the time, modern family life requires that both parents work outside of the home; two salaries are necessary to keep the home going. Therefore, it is often not feasible to lose half of the family income in order for one parent to care for the newborn child. If a family cannot afford to lose half of its household income, then the FMLA鈥檚 provision granting the mother twelve weeks off after the birth of child means absolutely nothing. 鈥淲hile one of the main goals of the FMLA was to allow parents to work while raising a family, the benefits created are mainly hollow because the majority of Americans cannot afford to use them.鈥漑31]

Even with the implementation of the FMLA, many mothers choose not to take the twelve weeks that the FMLA requires covered employers to provide. Nearly half of all leave events under the FMLA last ten days or less. Less than a fifth, or seventeen percent, take leave that lasts more than sixty days. Forty percent of those who used the FMLA for time off stated that the reason for returning to work was the inability to afford unpaid leave.[32] 鈥淗owever, studies of Europe and Canada consistently show that take-up of paid leave is very high, often close to universal.鈥漑33]

          C. State Implemented Paid Leave in California and Its Impact

In 2004, California became the first state in the nation to enact paid family leave with the passage of Senate Bill 1661, which is known as California鈥檚 Paid Family Leave (PFL) insurance program.[34] PFL in California provides for six weeks of paid leave for the care of sick family members in a twelve month time frame.[35] The program is fully funded by employees鈥� contributions and is administered by the State Disability Insurance (SDI) program.[36] The California law must be used concurrently with the FMLA because it does not provide any right to return to work after the six weeks of paid leave is used. In addition, PFL is open equally to both mothers and fathers.[37] While this program was novel when it became effective in 2004, few other states followed in California鈥檚 footsteps; only New Jersey and Rhode Island have passed similar legislation.[38]

One interesting thing about state-implemented leave in the United States is that it opens up the ability to study the effect on infants and families. 鈥淪tudying the effects of the California paid leave program is interesting in its own right because the results may be informative for understanding the potential effects of similar programs enacted in other states or nationally.鈥漑39] While the current research is limited to whether or not more mothers take advantage of paid leave versus unpaid leave, it is promising in that respect. 鈥淥ur analysis indicates that California鈥檚 PFL program achieved the first-order objective of increasing leave-taking among new mothers, particularly those who are disadvantaged.鈥漑40] However, California鈥檚 PFL still leaves a lot of be desired as it only provides for six weeks of paid time off. As discussed later, research has shown while some time is better than none at all, mothers and infants need significant bonding time after childbirth for optimal growth and development of the child.

IV. Why is the United States So Far Behind?

Prior to the passage of the Family Medical Leave Act in 1993, the United States was one of the last countries in the developed world that did not have a federal maternity leave policy. The United States consistently falls behind in this arena. Why is the United States the last country in the developed world to mandate paid maternity leave for its citizens? It may have a lot to do with the traditional gender roles that have been constant through the country鈥檚 history. Traditionally, in the United States women stayed home with the children and the man of the household was the breadwinner and the only one who was employed outside of the home. 鈥淏usinesses resented being required to provide women with employment opportunities because the 鈥榠deal worker鈥� was still based upon the male standard of someone who has a spouse available to take care of the domestic and caregiving needs of the family.鈥漑41]

Big business has a lot to do with the country鈥檚 overall attitude towards implementing paid maternity or family leave. Businesses do not want to pay their employees to stay at home with their children. Those opposing the FMLA primarily consisted of businesses and employers who were concerned with shielding the private sector from 鈥渦nnecessary costs and excessive government regulations.鈥�^[42] The Family Medical Leave Act faced opposition from big business, so much so that members of Congress interested in including provisions for paid leave completely dropped this issue during debates on the law.[43]

          A. Pregnancy and Sex Discrimination in the United States

As discussed above, pregnancy discrimination in the United States is viewed as a form of sex discrimination. The foundation of how sex and gender discrimination is viewed sheds light on how policies have developed nationwide. The United States has focused on making things between men and women 鈥渆qual鈥� instead of providing benefits to those who bear children. One of the realities of the very nature of pregnancy is that nothing will ever be 鈥渆qual鈥� because women are the only ones who become pregnant, and, even after childbirth, the majority of the work that is involved with raising a child falls on the woman whether she is working or not. First and foremost, the United States needs to stop viewing pregnancy as something that should be given 鈥渆qual鈥� rights and begin to see pregnancy and caring for a child as the unique situation that it is. The Supreme Court of the United States currently has a chance to do just that.

          B. Young v. United Parcel Service

The Supreme Court of the United States granted certiorari in July of 2014 to hear a pregnancy discrimination case — Young v. United Parcel Service.[44] In Young, Peggy Young was a pregnant employee whose employer denied her any accommodations or light duty assignments after her doctor limited her to jobs in which she did not lift more than 20 pounds. The United Parcel Service鈥檚 policy was that if an employee was unable to perform essential elements of their job and it was not due to an on-the-job injury, then the employee was ineligible for a light duty assignment.[45]

In order to prove a case of pregnancy discrimination under the Pregnancy Discrimination Act, Young had to establish the following elements of a prima facie case of pregnancy discrimination: 鈥�(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly situated employees outside the protected class received more favorable treatment.鈥漑46] Ultimately, the Fourth Circuit Court of Appeals held in favor of United Parcel Service. Where did Young fail? Young could not prove the fourth element — that similarly situated employees outside the protected class received more favorable treatment. The Fourth Circuit stated that, 鈥渨e therefore adhere to the majority view that where a policy treats pregnant workers and non-pregnant workers alike, the employer has complied with the PDA. The UPS policy at issue is not direct evidence of pregnancy-based sex discrimination.鈥漑47] In the end, this is the rub of the Pregnancy Discrimination Act. As long as the policy treats everyone 鈥渆qually,鈥� then the court will hold the policy compliant with the Act.

The Supreme Court heard arguments in early December and will release its holding in the early part of next year. However, given the current state of the law, it is unlikely that the Supreme Court will overturn the Fourth Circuit鈥檚 ruling. It is likely that these issues are something that only Congress will be able to address; real change will have to come directly from the legislative branch.

V. Proposal for the Future

Where does the United States go from here? What should be considered in order to devise a policy that is not only reasonable for business owners, but also provides necessary benefits to expectant and new mothers? For one, the science behind what is best for families and the infant should be examined. It is important that any moves for change are based on what is best for both mothers and infants.

In addition, Congress should amend the Pregnancy Discrimination Act to provide real protection for women during pregnancy. Providing real protection for pregnant workers is the first step in paving the way for policy change in this area. Finally, the United States should look at amending the Family Medical Leave Act to mandate paid maternity leave for the period of time that studies suggest is of the utmost importance to the family and infant and, as discussed below, some of the studies have shown that twelve weeks is not enough.

A. What Does Science Say about How Long Women Need Off after Childbirth?

With the United States鈥� attitude toward pregnancy and maternity leave, it is not surprising that there is not a lot of scientific information about what is best for working mothers and infants following childbirth in our nation. It is difficult to study the effects of mothers who return to work soon after childbirth and those who do not because of the low rates of use of maternity leave across the board. There is, however, research to show how vital mother-child bonding is for the child鈥檚 growth and development.[48] In addition to the science available from our own country about mother-child bonding, the effects of infant stress, and how employment after childbirth affects maternal health, Congress also can look to other countries as well as worldwide research from respected organizations for guidance in what works and what does not in terms of pregnancy and childbirth policy.

There is more research worldwide on the effects of the mother鈥檚 employment on maternal and infant health. In fact, the World Health Organization (WHO) recognized that twenty-four weeks of maternity leave after childbirth provides extensive health benefits.[49] The WHO also recognized that twenty-four weeks, while beneficial for health, may not be a feasible number for countries to implement. 鈥淏ased on available evidence, the World Health Organization concludes that 鈥榳omen need at least 16 weeks of absence from work after delivery鈥� to protect the health of both mother and child.鈥漑50]

          1. Maternal-Infant Bonding

Beginning with what is known about mother-child bonding, the few months directly following the birth of the infant is one of the most significant times for creating a secure attachment and bond between the mother and the infant.[51] 鈥淲hen a caregiver consistently responds to an infant鈥檚 needs, a trusting relationship and lifelong attachment develops. This sets the stage for the growing child to enter healthy relationships with other people throughout life and to appropriately experience and express a full range of emotions.鈥漑52] Mothers are unable to form this secure bond if they are immediately running back to work because they cannot afford to take time off.

          2. Importance of Reducing Infant Stress

Research shows some of the things that parents can do in the early days of infant care to ensure that the infant鈥檚 stress level is reduced. Studies have shown that a reduced stress level in infancy affects later brain development and reactions to stress. Research has shown what types of parenting practices help reduce infant stress. 鈥淧arenting practices include co-sleeping, breast feeding on demand, extensive carrying and holding of infants, and rapid response to infant crying.鈥漑53] These practices will obviously require a lot of attention from the parent. Children who are dropped off at a daycare or have a nanny may not receive the same type of love and attention as they would from their own mother. In addition, research has shown breastfeeding often stops at the same time the mother returns to work.[54] The longer she has to stay at home, the longer the infant will be breastfed.

          3. Maternal Health

Research also has shown that time off after childbirth for mothers does not only have a positive influence on the child, it is also beneficial for maternal health. 鈥淭he results indicate that among employed mothers of infants, returning to work later is associated with fewer depressive symptoms . . . . Holding other factors constant, an incremental increase in length of maternal leave from work would reduce depressive symptoms on average by five to ten percent.鈥漑55] However, this research is pretty limited. Few studies have looked at the effects of returning to work after childbirth. 鈥淎lthough the Family and Medical Leave Act of 1993 was motivated by concerns about the health of infants and postpartum women, there is little empirical evidence regarding whether or not longer maternity leave actually affects maternal health.鈥漑56]

          4. How Much Time Off is Optimal?

Length of maternity leave time correlates with other factors that are important to maternal and infant health. In one study, it was found that children whose mothers went back to work within twelve weeks were less likely to go to after-birth checkups or receive the appropriate immunizations in a timely manner.[57] Other studies have found that children are affected even up to eighteen months old when their mothers are employed full-time.[58] 鈥淩ecent research indicates that early maternal employment increases the frequency of child behavior problems, and detracts from school readiness, verbal ability, and test scores. . . . Full-time employment during the first eighteen months is particularly harmful for children鈥檚 cognitive and behavioral outcomes.鈥漑59]

As noted above, the World Health Organization (WHO) recognizes twenty-four weeks of maternity leave after childbirth provides for extensive health benefits.^[60] This recommendation comes from research into the effects of breastfeeding, infant mortality rates, and studies on maternal health. While the jury is still out on how much time is optimal, it is clear that, based on research, twelve weeks is likely not enough.

          B. Real Protection for Pregnancy — Amending the Pregnancy Discrimination Act

The first step in changing the way the United States looks at pregnancy and childbirth is through providing real protection for pregnant workers. The Pregnancy Discrimination Act simply does not provide adequate protection. A policy that allows employers to treat pregnant employees just as poorly as anyone else is not a policy at all. The Senate introduced the Pregnant Workers Fairness Act in 2013 in an attempt to address some of the problems with the current legislation.[61]

The Pregnant Workers Fairness Act would specifically require an employer to make reasonable accommodations for pregnancy, childbirth, and other related medical conditions, as long as it does not create an undue hardship on the employer.[62] This type of Act, if it had been the law at the time Peggy Young was working for United Parcel Service, would have required the company to give Young alternative or light duty assignments. In addition, this Act would not allow employers to require pregnant employees to accept accommodations when they do not want them.[63] Thus, a company could not force a pregnant employee into a light-duty assignment if she did not wish to have the accommodation. This added protection would ensure that pregnant employees are not treated differently from any other employee with a temporary disability.

          C. Amending the Family Medical Leave Act

The House of Representatives examined another proposed change in 2013. Known as the Family Medical Leave Insurance Act (FAMILY Act),[64] if the bill passed, it permitted covered workers up to twelve weeks of paid leave equaling up to 66 percent of their monthly income or up to $1000 per week.[65] This type of paid leave is set up as an earned benefit, meaning workers are eligible to receive benefits if they have paid into the system, much like Social Security.[66] However, in some ways this bill would further the current policy of trying to treat pregnant employees 鈥渆qually鈥� because it includes the same types of leave policies as the Family Medical Leave Act in that an employee can use it for both maternity leave as well as caring for sick family members.

In addition, with some of the research that has been conducted about the effects of mothers returning to full-time employment after childbirth, it is clear that twelve weeks of leave is simply not enough. Congress should amend the FMLA to include not only paid leave, but also more than the mere twelve weeks of leave that is currently provided. Twelve weeks of paid leave instead of unpaid leave is certainly a small step in the right direction, but the United States is in need of some serious leaps in this area.

VI. Conclusion

The United States is an extremely advanced country in many ways; however, it has consistently failed to take care of those who bear children. The reasons for this are pretty clear, because the United States鈥� attitude toward pregnancy in general leaves a lot to be desired. Current policy strives to treat everyone 鈥渆qually,鈥� which does not make any logical sense when one realizes that there is nothing equal about pregnancy. Pregnancy is different than anything else and needs to be treated as such. The United States has zero chance of changing maternity leave policy without changing the underlying attitudes toward pregnant women in general. Congress must work to amend the Pregnancy Discrimination Act in order to provide real protection for pregnant workers.

In dealing with this area of policy, the United States fails to protect women both during pregnancy and afterward. In addition, it is not just about the mother. The United States is also failing to do what is best for the future of its children. The scientific evidence is virtually undisputed that children need their parents, specifically their mothers, early in their lives to ensure healthy development. While it may not be feasible to provide paid leave for eighteen months after childbirth, the United States can certainly do better than a mere twelve weeks of unpaid leave.

While some states have tried to do something about this problem on their own, it is clear that federal mandates are needed. While states such as California have implemented state programs for paid leave, even this legislation leaves a lot to be desired. Countries with similar economic and democratic policies all have mandated paid maternity leave and, for the most part, the programs are funded by the government. Scientific research has proven women need a certain amount of time off of work after childbirth for both their health and the future growth and development of their children. Further, studies have shown that mothers do not take advantage of unpaid leave for a variety of reasons but will use paid leave if it is made available to them. Providing paid maternity leave is not just about providing a benefit to the citizens, it is about recognizing its necessity for maternal and infant health.

_____________________________

[1] Kendall Shortway received a Bachelor鈥檚 of Arts with a major in Criminology from the University of South Florida in 2010 before graduating from the William H. Bowen 糖心Vlog传媒LR School of Law in December 2014. While in law school, Kendall was elected as a Senator and served as Social Committee Chair of the Student Bar Association, was a member of the Arkansas Journal of Social Change and Public Service, and was a member of the National Trial Competition Team. Kendall balanced her schedule as a part-time law student while working full-time as an Investigator for the Department of Justice. Her plans are to continue her career in public service while she works on being admitted to the bar before she shifts her focus to finding a position in as a criminal prosecutor.

[2] International Monetary Fund, http://www.imf.org/external/country/index.htm (last visited Feb. 8, 2015).

[3] Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/ (last visited Feb. 8, 2015).

[4] Id.

[5] 42 U.S.C. 搂 2000 e(k) (1994).

[6] 29 U.S.C. 搂 搂 2601-2654 (1994 & Supp. IV 1998).

[7] European Union Employment Law, available at, http://europa.eu/legislation_summaries/employment_and_social_policy/equality_between_men_and_women/c10914_en.htm, http://eur-lex.europa.eu/browse/summaries.html (last visited Feb. 8, 2015).

[8] Id.

[9]Gov.uk, (Nov. 12, 2014), https://www.gov.uk/maternity-pay-leave/overview.

[10] Id.

[11] Supra note 7.

[12] Id.

[13] Id.

[14] Id.

[15] Europa.eu, (Oct. 11, 2014), http://europa.eu/epic/countries/france/index_en.htm.

[16] Id.

[17] Supra note 14.

[18] Id.

[19] 42 U.S.C. 搂 2000e(k) (1994).

[20] 29 U.S.C. 搂 28.

[21] 42 U.S.C. 搂 2000e(k); see also Joanna L. Grossman & Gillian L. Thomas, Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act鈥檚 Capacity Based Model, 21 Yale J.L. & Feminism 15 (2009-2010).

[22] 42 U.S.C. 搂 2000e(k).

[23] Deborah J. Anthony, The Hidden Harms of the Family and Medical Leave Act: Gender-Neutral Versus Gender-Equal, 16 Am. U. J. Gender, Soc. Pol鈥檡 & L. 459-501 (2008).

[24] Id.

[25] Id.

[26] 29 U.S.C. 搂搂2601-2654 (1994 & Supp. IV 1998).

[27] United States Department of Labor, FMLA Fact Sheet, (2012), http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.

[28] Id.

[29] 29 U.S.C. 28 搂 2612.

[30] Id.

[31]Annie Pelletier, The Family Medical Leave Act of 1993鈥擶hy Does Parental Leave in the United States Fall So Far Behind Europe?, 42 Gonz. L. Rev. 547 (2007).

[32] Dol.gov, Family and Medical Leave in 2012: Executive Summary, (Sept. 13, 2013), http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Executive-Summary.pdf.

[33] Maya Rossin-Slater, Christopher J. Ruhm & Jane Waldfogel, “The Effects of California’s Paid Family Leave Program on Mothers Leave Taking and Subsequent Labor Market Outcomes,” 32 J. Pol鈥檡 Analysis & Mgmt. 224 (2013).

[34] Cal. Unemp. Ins. Code 搂搂 3300-3305 (2003).

[35] Id.

[36] See Jennifer Thompson, Family and Medical Leave for the 21^st Century?: A First Glance at California’s Paid Family Leave Legislation, 12 U. Miami Bus. L. Rev. 77 (2004).

[37] Id.

[38] N.J.A.C. 搂 13:8-2.2 (2008), R.I.Gen.Laws 搂搂 28-48-1 (2013).

[39] Maya Rossin-Slater, Christopher J. Ruhm & Jane Waldfogel, “The Effects of California’s Paid Family Leave Program on Mothers Leave Taking and Subsequent Labor Market Outcomes,” 32 J. Pol鈥檡 Analysis & Mgmt. 247 (2013).

[40] Id.

[41] Anthony, supra note 22, at 470.

[42] Anthony, supra note 22, at 471.

[43]Carol Daugherty Rasnic, The United States’ 1993 Family and Medical Leave Act: How Does it Compare with Work Leave Laws in European Countries?, 10 Conn. J. Int’l L. (1994).

[44] Young v. United Parcel Service, Inc., 707 F.3d 437 (2013).

[45] Id.

[46] Id. at 449.

[47] Id.

[48] Patrice Marie Miller & Michael Lamport Commons, The Benefits of Attachment Parenting for Infants and Children: A Behavioral Developmental View, 10 Behav. Dev. Bull. (2010), available at http://baojournal.com/BDB%20WEBSITE/BDB-no-10/A01.pdf.

[49] European Health Alliance, Voting Recommendations on the Maternity Leave Directive (September 10, 2010), available at http://www.epha.org/IMG/pdf/EPHA_Voting_recommendations_on_the_maternity_leave_directive-1.pdf.

[50] Michael Baker and Kevin Milligan, How does Job-Protected Maternity Leave Affect Mothers鈥� Employment and Infant Health?, National Bureau of Economic Research (Feb 2005), http://www.nber.org/papers/w11135.pdf.

[51] Miller & Commons, supra note 47, at 2.

[52] Mary Beth Steinfeld, M.D., Bonding is essential for normal infant development, http://www.ucdmc.ucdavis.edu/medicalcenter/healthtips/20100114_infant-bonding.html.

[53] Miller & Commons, supra note 47, at 1.

[54] Pinka Chatterji, Sara Markowitz, and Jeanne Brooks-Gunn, Early Maternal Employment and Family Wellbeing, National Bureau of Economic Research (July 2011), http://www.albany.edu/EARLY_MATERNAL_EMPLOYMENT.pdf

[55] Id.

[56] Id.

[57] Berger, Lawrence M. and Jennifer Hill, Maternity Leave, Early Maternal Employment and Child Health and Development in the US. 115 Econ. J. F29-F47 (Feb. 2005), available at SSRN: http://ssrn.com/abstract=654829.

[58] Chatterji, et al., supra note 53.

[59] Id.

[60] European Health Alliance, Voting Recommendations on the Maternity Leave Directive (September 10, 2010), available at http://www.epha.org/IMG/pdf/EPHA_Voting_recommendations_on_the_maternity_leave_directive-1.pdf.

[61] S. 942, 113^th Cong. (2013).

[62] Id.

[63] Id.

[64] H.R.3712, 113th Cong. (2013-2014).

[65] Id.

[66] Id.

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Freedom of press, expression, and thought means that government actors cannot prohibit such action.  But some governmental officials and academics seem not to understand the basic elements of this formula.

The common and thoughtful refrain amongst free-speech experts is that the best check on offensive public speech is more speech, to wit, “counter-speech.”  So, if someone says something deemed offensive by others, the proper response is not to prohibit the original offensive speech, but to respond to it. Indeed, it should be obvious that the First Amendment is designed to protect offensive public speech, because fairy tales and greeting cards are not under siege and need no such protection.

Therefore, comments attacking the substance of perceived offensive comments are permitted–indeed encouraged.  Ad hominem attacks, however, are not.  Attacks on the person, in contrast, are the archetype of attempts to quash speech rather than respond to it.  Indeed, it is no coincidence that such comments are both intolerant and contrary to free speech, as tolerance and free speech are inherently intertwined and serve as foundational principles in a classically liberal democracy.

Unfortunately, these concepts are not universally respected.  For example, former presidential press secretary Jay Carney, in both 2012 and recently, attacked the “judgment” of the editors, many now dead, of the French satirical magazine Charlie Hebdo for publishing a cartoon depicting Muhammad, the prophet in Islam.  These are ad hominem attacks, plain and simple.  These statements are wrongful and can be so labeled. Carney himself, however, shouldn’t be called an “idiot,” or the intellectual equivalent–of exercising poor judgment.  We are not in a position to morally evaluate his judgment, just his actions.  This difference really matters.

I suspect that those who make such ad hominem attacks believe that they are appeasing those offended by the comments at issue.  The result is quite the contrary, however.  This undermining of freedom of speech serves to embolden those opposed to our liberal, democratic ideals, as they correctly see no consistent commitment to the precepts of the  First Amendment that apply to offensive speech.  Rather, they see the flaccid commitment of a wind-sock philosophy.

Similarly, the decision of news outlets such as CNN, the New York Times, and MSNBC, amongst many others, unfortunately, to excise from their reporting public images that are indisputably newsworthy today because some people might find them subjectively offensive represents cowardice and contravenes the most basic journalistic standards.  Charlie Hebdo’s recent cover was no less news today than were the Pentagon papers in their day.

Media outlets don’t deserve, and will eventually lose, First-Amendment rights if they are cowed in their exercise thereof.  At minimum, these “journalists” should publicly admit that they are publishing less-than complete articles because terrorists were successful in quashing speech.  Admittedly, if I had a gun to my head, I wouldn’t antagonize the terrorist, but I would also concede my deficiency.

I can only imagine what soldiers, who I’ve personally heard say they are fighting for, inter alia, our freedom of expression, think when they see the effective abandonment of rights that their colleagues died to defend.

I’ve seen similar behavior in academia when those in positions of authority attack students whose comments are deemed offensive by accusing them of being “unprofessional,” or when academics undermine their colleagues by accusing them of lacking “collegiality” or “civility.”

For example, administrators at Chicago State University attacked some of its very own professors when the faculty members wrote a blog critical of some of the administration’s actions.  In the formal cease and desist letter sent to the faculty authors, the administrators charged that 鈥渢he lack of civility and professionalism expressed on the blog violates the University鈥檚 values and policies requiring civility and professionalism.鈥�  The bureaucrats didn’t challenge the ideas in the blog, rather they attacked its authors.  That’s saddening and indefensible.

I can think of virtually no actions more contrary to free speech, academic freedom, democratic ideals, and the search for truth that should be the inherent function of academia than those of the Chicago State University management described above.

All is not lost in the academic enterprise, though.  Organizations, such as the American Association of University Professors, reject such actions as contrary to academic freedom and, where applicable, the First Amendment.  And, importantly, the court in the predictably ensuing litigation in the Chicago case aptly derided the administrators’ self-serving, insidious, and cringe-worthy actions.

These attacks are inherently ad hominem.  They may be facile and convenient, but they undermine the core beliefs of a liberal democracy and academia.  The substance of these statements should be challenged, not the quality of the speakers.

Of course, I welcome alternative views on the topic.  But, needless to say, I don’t care to hear personal attacks that inherently undermine our foundational principles–and the law.

________________________

[1] resteinbuch@ualr.edu
Professor of Law
University of Arkansas at Little Rock 鈥� William H. Bowen School of Law
1201 McMath Ave.
Little Rock, AR 72202

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The Human Immunodeficiency Virus and its associated disease, Acquired Immunodeficiency Syndrome, have profoundly affected medical, social, and political aspects of society since they first came to national prominence in the 1980s. Few medical syndromes have impacted the American psyche as much as HIV. The HIV virus was generally equated only with promiscuous, homosexual men when it first emerged, but today it is recognized by the layperson as the cause of a disease that anyone may contract, regardless of their social qualifiers. Attitudes towards those afflicted with AIDS have improved significantly since the disease鈥檚 first appearance in the United States. As these attitudes have changed, improving treatments have been discovered that render AIDS a chronic condition instead of a fatal disease.

The Makings of a Deadly Disease

In 1982, AIDS was first described in medical literature as an unusual combination of clinical diseases, i.e., Pneumocystis jirovecii pneumonia and Kaposi鈥檚 sarcoma, in homosexual men living in Los Angeles County and Orange County, California.[2] Some referred to the condition as GRID (Gay-related Immune Deficiency) because of its association with gay men at that time.[3] This term was later abandoned in favor of AIDS, which has a more neutral connotation, as further research indicated that other populations could also contract the disease.

AIDS is the penultimate step in disease progression before death in an untreated HIV infection. People most typically acquire HIV by sexual intercourse through exposure to the semen or vaginal secretions of an infected person. It can also be acquired in utero from an infected mother or by exposure to contaminated blood from a blood transfusion or contaminated needle. However, contraction in utero and by blood transfusion are both uncommon due to enhanced prenatal testing and screening of transfusion blood products.[4] There are several risk factors for HIV infection, such as presence of other sexually transmitted infections, history of many sexual partners, and nitrite inhalant (鈥減oppers鈥�) use.[5]

HIV causes illness by infecting and destroying the CD4 T-cell, a type of white blood cell of central importance to the immune system. The destruction of CD4 cells compromises the immune system鈥檚 ability to fight certain types of infections and cancers. After infection, an initial short primary disease syndrome develops consisting of non-specific flu-like symptoms such as malaise, fatigue, fever, sore throat, and lymphadenopathy.[6] There is some evidence that a more severe primary illness indicates faster progression to AIDS.[7] After about six months, the infected individual will enter a steady state of asymptomatic clinical latency in which the number of copies of the virus in the blood slowly rises, with a concomitant slow fall in the number of CD4 cells, over a period of several years.[8]

AIDS is diagnosed when the number of CD4 cells in the blood falls below 200 cells per cubic millimeter (cells/mm³). However, some patients may develop the clinical symptoms of AIDS despite having a CD4 count above this threshold (by comparison, a normal count in a healthy individual is generally accepted to be between 500 cells/mm³ and 1000 cells/mm³). These patients are also diagnosed with AIDS. Clinically, AIDS presents in the untreated person as a collection of opportunistic infections that would not normally be found in a healthy individual. These infections arise from cell-mediated immune system deficiency. The most common of these are Pneumocystis jirovecii pneumonia, esophageal candidiasis, Kaposi鈥檚 sarcoma caused by Human Herpesvirus-8 infection, and disseminated Mycobacterium avium complex infection.[9]

Without treatment, the CD4 level continues to fall. A count below 50 cells/mm³ is referred to as advanced HIV infection. This is the final form of disease before death. Clinically a patient with advanced HIV infection will have severe and disseminated infections, and untreated patients in this condition usually have an expected survival time of only 12 to 18 months.[10]

A Moral Quandary

Social attitudes towards those afflicted with HIV/AIDS when the complex first emerged in the 1980s were predominantly negative and driven by stereotypes about homosexual men. The Ronald Reagan administration was totally silent on HIV/AIDS for several years, which created a vacuum in public discourse and allowed conversations about HIV/AIDs to focus on the 鈥渕oral politics of homosexuality, sexual promiscuity, and intravenous drug use.鈥漑11] The United States Surgeon General, Dr. Charles Everett Koop, was 鈥減revented from addressing the nation’s most urgent health crisis, for reasons he insisted were never fully clear to him but that were no doubt political.鈥漑12] During this time, AIDS was a disease predominantly affecting homosexual men. Reagan and his closest advisors held the view that those afflicted with AIDS 鈥渂rought the disease upon themselves鈥� and were 鈥渋n greater need of moral reform than of new health information or policies.鈥漑13] Koop was prevented from participating in the Executive Task Force on AIDS that was created in 1983 for two years, and journalists were even barred by Assistant Secretary of Health Edward Brandt (to whom Koop answered) from asking any questions pertaining to HIV or AIDS.[14] Brandt himself later faced grassroots level hostility from conservatives for scheduling an appearance at a ceremony sponsored by the National Gay Task Force to present an award to the Blood Sister Project of San Diego, recognizing the group鈥檚 work in collecting blood for AIDS victims. Brandt later cancelled the appearance under pressure from the conservative American Life Lobby, and eventually was ousted from the Reagan administration.[15]

It wasn鈥檛 until February 1986 that President Reagan ordered the Surgeon General to prepare a report on AIDS.[16] The report was kept highly secret during its development: Koop wrote the report himself in the basement of his home on the National Institutes of Health campus in Bethesda, Maryland, with the help of only a few close advisors.[17] Careful steps were taken during its approval process to prevent leaks to the press.[18] The report was finally released the following October.[19]

While the politics of the Reagan administration clearly singled out gay men in any discussion of AIDS, Koop鈥檚 report was surprisingly candid and accurate. He wrote that, 鈥淸although] the initial discovery was in the homosexual community, AIDS is not a disease only of homosexuals. AIDS is found in heterosexual people as well.鈥� He went on to write that 鈥淎IDS will probably increase and spread among people who are not homosexual or intravenous drug users.鈥漑20] Koop argued against many of the knee-jerk reactionary policies being discussed in the public discourse at the time, such as compulsory blood testing for the HIV virus, identifying carriers by 鈥渟ome visible sign,鈥� or quarantining individuals with AIDS, arguing these actions were either unnecessary or cost-prohibitive.[21] The report frankly emphasized monogamy and the use of condoms as the most effective means of preventing the spread of the HIV virus among sexually active people.[22] It also encouraged early sex education in grade school.[23]

Reactions to the Surgeon General鈥檚 report highlighted the poor social attitudes of the time towards those afflicted with HIV/AIDS. Arguing against a straw man, Koop鈥檚 harshest critics complained that following his advice would require 鈥渢hird graders be taught about sodomy and that 8-year-olds be given condoms.鈥漑24] Conservative and anti-feminist icon Phyllis Schlafly called the report a directive to 鈥渋nstitute grammar school sodomy classes.鈥漑25] Conservatives renewed calls for mandatory blood testing, and public opinion polls at the time even showed most Americans approved of mandatory blood testing for HIV, leading politicos to speculate that Republicans would use AIDS as an issue in the 1988 presidential election.[26]

President Reagan remained silent on the issue throughout the winter of 1986.[27] It wasn鈥檛 until the following spring that he finally spoke about AIDS when he agreed to Senate demands to form a presidential commission to advise him on public health matters related to the epidemic.[28] He also eventually agreed to address an AIDS fundraiser.[29] His address turned out to be little more than a political stunt to stave off criticism; the address focused not on education about the disease, but about testing, with no guarantees of confidentiality or civil rights protections for people with a positive test result.[30] He floated the idea of mandated testing at marriage license bureaus; but as heterosexual couples were rarely affected by HIV/AIDS, this action was unlikely to save any lives.[31]

A Critical Moment

Misguided public attitudes towards people with HIV continued well into the 1990s, but began to improve as a handful of celebrities and other well-known figures began to announce that they were burdened with the virus. Professional basketball player Magic Johnson announced in November 1991 that he had become infected with the virus and shortly thereafter founded the Magic Johnson Foundation to provide education on HIV and AIDS.[32] In the following years there was some evidence published in academic literature that public figures such as Magic Johnson sharing their disease status may have influenced a change in attitudes about AIDS and influenced risk-reducing behavior in some individuals.[33] One political scientist even went so far as to proclaim that the 鈥渓oudness鈥� of Johnson鈥檚 announcement, combined with his statement that 鈥渋t could happen to anybody, even me,鈥� was enough to create a 鈥渃ritical moment in the evolution of public opinion about AIDS, and it therefore should have produced a change in the structure of opinion, a durable shift in the type of values people use when deciding where they stand on policies dealing with the disease.鈥漑34]

Emerging Treatments, Emerging Frustrations

Zidovudine, also known as azidothymidine or AZT, was approved in 1987 as the first medication to treat HIV/AIDS.[35] Initially, the Food and Drug Administration (鈥淔DA鈥�) approved use of AZT only for those with 鈥渁dvanced illness characterized by Pneumocystis carinii pneumonia[36] and depressed immunity and for symptomatic cases of AIDS-related complex (ARC). It did not, however, recommend approval of zidovudine for treatment of pre-AIDS or nonadvanced AIDS cases with other opportunistic infections.鈥漑37] The approval of zidovudine was a blessing at the time for those who needed it most because of its documented clinical benefit for those suffering from AIDS.

However, zidovudine has several drawbacks. It is highly toxic. It must be used cautiously because it causes symptoms such as nausea, muscle aches, insomnia, severe headaches, and induction of macrocytosis in most patients, which causes anemia requiring blood transfusions in some.[38] Zidovudine and the other medications of its class approved in the following years were only a form of treatment for AIDS but not a cure. When used alone, they significantly delay the onset of advanced HIV infection but do not prevent it.[39] By 1993, it was clear that the HIV virus was highly mutable because it replicates rapidly, which allows it to resist drugs such as zidovudine and the other antiretroviral medications.[40] Eventually, the scientific community accepted that effective HIV/AIDS treatment would require multiple-drug regimens aimed at targeting different components of the HIV virus.[41] In 1990, when zidovudine remained the only drug treatment approved by the FDA, one physician even wrote that 鈥渁 disease once viewed as an automatic death warrant is now in the process of becoming a chronic, potentially long-term treatable illness.鈥漑42]

The long break between the approval of zidovudine and the next pharmacologic breakthrough in the treatment of HIV/AIDS intensely frustrated those affected by the disease. The development of new forms of treatment seemed hampered by the slow process of medication approval in the United States. Dr. Alvin Friedman-Kein, a dermatologist in New York, wrote in an article in 1990 that 鈥渢he time-honored, double-blind, placebo-controlled study design traditionally used to evaluate potential drugs is no longer acceptable in patients with HIV infection in view of the fatal prognosis associated with AIDS.鈥漑43] He also wrote that 鈥渋t is likely that future treatment trials with promising drugs for HIV infection . . . will be evaluated only in an 鈥榦pen,鈥� unblended fashion, or will be tested in comparison with such agents as zidovudine or other medications that have previously been shown to have beneficial effects.鈥漑44]

His prediction was startlingly accurate. As patients continued to wait for new forms of treatment, an AIDS activist movement formed that successfully fought for inclusion in committees in the National Institutes of Health and the FDA, both of which were involved in drug development and approval.[45] Activists also successfully influenced reforms in the FDA drug approval process through legislation that cut FDA review times in half and allowed for quicker access to new medications despite safety concerns.[46]

Changing Definitions

The next pharmacological breakthrough was the emergence of a new class of medications known as the protease inhibitors that acted on the HIV virus by a different mechanism than previously used medications. The first drugs of this class, saquinavir and ritonavir, were approved by the FDA in late 1995[47] and early 1996[48], respectively, both via the FDA鈥檚 accelerated approval program. The combination of the protease inhibitors with earlier classes of drugs resulted in pharmacological treatment of multiple targets of the HIV virus, a treatment regimen referred to by clinicians as Highly Active Antiretroviral Therapy (HAART).[49] Within two years of the emergence of this new class of medications, the number of annual deaths from AIDS in the United States fell by over half according to the Centers for Disease Control, from a high of 75,457 in 1992 to 17,489 in 1999.[50] The emergence of the protease inhibitors therefore made HIV a manageable chronic condition rather than a death sentence.

Evolving Attitudes

As HIV/AIDS treatment has improved, stigmas against the disease and the people enduring it has decreased. One extensive study published in 2011 by the Kaiser Family Foundation, a non-partisan health policy foundation, found that prejudices have begun to subside despite some lingering stigmatization of the illness. According to Kaiser, the number of people who say they would be 鈥渧ery comfortable鈥� working with an HIV-positive person has increased from about one-third to about one-half since 1997. Even more notably, while 43% of people believed that AIDS was a 鈥減unishment for the decline in moral standards鈥� in 1987, only 16% of people held that view in 2011. Similarly, the view that acquiring HIV/AIDS is the victim鈥檚 own fault fell from 51% to 29% between 1987 and 2011.[51]

However, the Kaiser Foundation is concerned that attitudes may be evolving too slowly and that HIV/AIDS is an illness that disproportionately affects the African American community.[52] They go on to note that as the illness has become a manageable condition, and less of an 鈥渦rgent threat,鈥� the public has had a declining sense of urgency about the condition. People have also had a noted desire for more information, which may indicate inadequate education about the disease.[53]

Notably absent in the new millennium, however, is almost all of the impulsive, reactionary, and hateful rhetoric about those with HIV or AIDS that once dominated public discourse on the subject. The days of policy proposals involving quarantine, mandatory testing, and the like are gone. In hindsight, it is apparent how driven by panic such ideas were. These ideas have been replaced by renewed investments in research, education, and treatments. President George W. Bush鈥檚 administration organized the President鈥檚 Emergency Plan for AIDS Relief (PEPFAR) that committed more than $15 billion from 2003-2008 to infection treatment with antiretroviral medications and infection prevention in fifteen African countries.[54] This program is often overlooked due to the highly controversial nature of many other policies during Bush鈥檚 presidency.

The Clinton Health Access Initiative (CHAI) is another global health initiative, this one organized by the Bill, Hillary & Chelsea Clinton Foundation in 2002, to expand access to treatments for HIV/AIDS.[55] According to CHAI, President Clinton negotiated major price reductions in antiretroviral drugs on October 23, 2003, cutting costs for such medications by at least a third.[56] Such initiatives by Presidents Bush and Clinton highlight a changing public perspective and attitude about helping those afflicted with HIV/AIDS.

What Lies Ahead

The stigmas faced by HIV/AIDS patients has decreased in the three decades since the first cases of AIDS were reported. The federal government is now willing to subsidize antiretroviral treatments and research, whereas the Reagan administration and members of congress in the 1980s appeared reluctant to act for political reasons. The public conversation on HIV/AIDS has shifted from one of panic to one that is well-informed and receptive.

But there is still work to be done. Specifically, more research needs to be conducted to find a vaccine for the causative virus. Biotechnology companies like GeoVax continue to work towards the goal of a safe and effective vaccine, but as of today there is no demonstrably effective vaccine for HIV that has been approved by the FDA. Hopefully a successful vaccine will be announced soon, which will push HIV/AIDS to the history books in a similar fashion as diseases like polio or the measles.

______________________________________

[1] Dylan Estes is a medical student at the University of Arkansas for Medical Sciences and will graduate in May of 2016. Before entering medical school, he completed a Bachelor鈥檚 degree in United States History at the University of Central Arkansas, where he did extensive work in African American studies. He was born and raised in Mountain Home, Arkansas. His academic interests are varied and include health insurance reform and health care access for marginalized groups. He plans to practice primary care.

[2] “A Cluster of Kaposi’s Sarcoma and Pneumocystis carinii Pneumonia among Homosexual Male Residents of Los Angeles and range Counties, California,” Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report 31, no. 23 (1982): 305-307.

[3] Randy Shilts, And the Band Played On: Politics, People, and the AIDS Epidemic (New York: St. Martin’s Press, 1987), 121.

[4] MW Adler, 鈥淎BC of AIDS: Development of the epidemic,鈥� The BMJ 322, no. 7296 (2001): 1226.

[5] SP Buchbinder et al., “Sexual risk, nitrite inhalant use, and lack of circumcision associated with HIV seroconversion in men who have sex with men in the United States,” Journal of Acquired Immune Deficiency Syndromes 39, no. 1 (2005): 82.

[6] MT Niu, DS Stein, and SM Schnittman, “Primary human immunodeficiency virus type 1 infection: review of pathogenesis and early treatment intervention in humans and animal retrovirus infections,” Journal of Infectious Diseases 168, no. 6 (1993): 1490.

[7] C Pedersen et al., “Clinical course of primary HIV infection: consequences for subsequent course of infection,” The BMJ 299, no. 6692 (1989): 154.

[8] C. Bradley Hare, MD, 鈥淐linical Overview of HIV Disease,鈥� HIV InSite: Comprehensive, up-to-date information on HIV/AIDS treatment, prevention, and policy from the University of California San Francisco, January 2006, http://hivinsite.ucsf.edu/InSite?page=kb-00&doc=kb-03-01-01 (accessed November 16, 2014).

[9] Ibid.

[10] R Yarchoan, DJ Venzon, JM Pluda, J Lietzau, KM Wyvill, AA Tsiatis, SM Steinberg, and S Broder, “CD4 count and the risk for death in patients infected with HIV receiving antiretroviral therapy,” Annals of Internal Medicine 115, no. 3 (1991): 184.

[11] 鈥淭he C. Everett Koop Papers: AIDS, the Surgeon General, and the Politics of Public Health,鈥� Profiles in Science: National Library of Medicine, http://profiles.nlm.nih.gov/ps/retrieve/Narrative/QQ/p-nid/87 (accessed October 20, 2014).

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Phil Gailey, “G.O.P. Aides Organize On Homosexual Issues,” New York Times, May 16, 1984, http://www.nytimes.com/1984/05/16/us/gop-aides-organize-on-homosexual-issues.html (accessed October 29, 2014).

[16] National Library of Medicine, “The C. Everett Koop Papers.”

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] C. Everett Koop, Surgeon General’s Report on Acquired Immune Deficiency Syndrome (Rockville: U.S. Public Health Service, 1986), 14.

[21] Koop, Surgeon General’s Report, 33-34.

[22] Koop, Surgeon General’s Report, 16-17.

[23] Koop, Surgeon General’s Report, 31.

[24] Holcomb B. Noble, “C. Everett Koop, Forceful U.S. Surgeon General, Dies at 96,” New York Times, February 25, 2013, http://www.nytimes.com/2013/02/26/us/c-everett-koop-forceful-surgeon-general-dies-at-96.html (accessed October 29, 2014).

[25] Shilts, And the Band Played On, 588.

[26] Shilts, And the Band Played On, 588-589.

[27] Shilts, And the Band Played On, 589.

[28] Shilts, And the Band Played On, 589-595.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] 鈥淥verview,鈥� Magic Johnson Foundation, http://magicjohnson.org/about-us/overview (accessed November 1, 2014).

[33] D. Hollander, 鈥淧ublicity About Magic Johnson may have Led Some to Reduce their Risky Behavior, Request HIV Testing,鈥� Family Planning Perspectives 25, no. 4 (1993): 192-193.

[34] Philip H. Pollock III, “Issues, Values, and Critical Moments: Did ‘Magic’ Johnson Transform Public Opinion on AIDS?” American Journal of Political Science 38, no. 2 (1994): 428-430.

[35] Itzhak Brook, MD, “Approval of Zidovudine (AZT) for Acquired Immunodeficiency Syndrome: A Challenge to the Medical and Pharmaceutical Communities,” Journal of the American Medical Association 258, no. 11 (1987): 1517.

[36] Pneumocystis carinii is an antiquated term that was used until 1999 to refer to the causative agent of Pneumocystis pneumonia in both animals and humans. The term used today is Pneumocystis jiroveci, which distinguishes the illness occurring in humans from that which occurs in animals.

[37] Brook, 鈥淎pproval of Zidovudine,鈥� 1517.

[38] Douglas D. Richman, MD, “The Toxicity of Azidothymidine (AZT) in the Treatment of Patients with AIDS and AIDS-Related Complex,” New England Journal of Medicine 317, no. 4 (1987): 192-197.

[39] 鈥淥verview of HIV Treatments,鈥� HIV/AIDS Basics, http://www.aids.gov/hiv-aids-basics/just-diagnosed-with-hiv-aids/treatment-options/overview-of-hiv-treatments (accessed November 16, 2014).

[40] Douglas D. Richman, MD, 鈥淗IV Drug Resistance,鈥� Annual Review of Pharmacology and Toxicology 33 (1993): 149-160.

[41] Richman, 鈥淗IV Drug Resistance,鈥� 160.

[42] JJ Zurlo and HC Lane, “The Role of Antiretroviral Therapy in Living Long and Living Well,” Maryland Medical Journal 39, no. 2 (1990): 161-165.

[43] Alvin E. Friedman-Kien, MD, “What We Now Know 鈥� and Must Do 鈥� About HIV Disease and AIDS,” Journal of the American Academy of Dermatology: Part 2 22, no. 6 (1990): 1163-1166.

[44] Ibid.

[45] Steven Epstein, “The Construction of Lay Expertise: AIDS Activism and the Forging of Credibility in the Reform of Clinical Trials,” Science, Technology, & Human Values 20, no. 4 (1995): 410.

[46] Mary K. Olson, “Pharmaceutical Policy Change and the Safety of New Drugs,” Journal of Law and Economics 45, no. S2, Part 2 (2002): 614-642.

[47] Harry Nelson, “FDA advised to license three anti-HIV agents,” Lancet 356, no. 8986 (1995): 1358.

[48] Alicia Ault Barnett, “Protease inhibitors fly through FDA,” Lancet 347, no. 9002 (1996): 678.

[49] 鈥淥verview of HIV Treatments,鈥� HIV/AIDS Basics.

[50] “HIV Surveillance — United States, 1981-2008,” Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report 60, no. 21 (2011): 689.

[51] Kaiser Family Foundation, HIV/AIDS at 30: A Public Opinion Perspective, 2011. Available online: http://kff.org/report-section/hivaids-at-30-section-1 (accessed November 1, 2014).

[52] Ibid.

[53] Ibid.

[54] The United States President鈥檚 Emergency Plan for AIDS Relief, The Power of Partnerships: The President鈥檚 Emergency Plan for AIDS Relief, Third Annual Report to Congress, 2007. Available online: http://www.pepfar.gov/press/c21604.htm (accessed October 25, 2014).

[55] 鈥淎bout CHAI,鈥� Clinton Health Access Initiative, http://www.clintonhealthaccess.org/about (accessed October 25, 2014).

[56] 鈥淚ncreasing Access to Medicines and Diagnostics,鈥� Clinton Health Access Initiative, http://www.clintonhealthaccess.org/program-areas/access-to-medicines/meds-and-diagnostics (accessed October 31, 2014).

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