Professor Andrea Martin’s Article Accepted for Publication by Yale Law & Policy Review

PROFESSOR ANDREA MARTIN’S ARTICLE ACCEPTED FOR PUBLICATION BY YALE LAW & POLICY REVIEW

March 2023 — Professor Andrea J. Martin’s article, “Beyond Brackeen: Active Efforts Toward Antiracist Child Welfare Policy,” was accepted for publication by the Yale Law & Policy Review.

Professor Martin’s article was inspired by a recent case argued in the U.S. Supreme Court, Haaland v. Brackeen, which challenged heightened protections for American Indian children and their families under the Indian Child Welfare Act of 1978 (ICWA). The ICWA opponents attacked its critical provision that “active efforts” be employed by social service agencies to keep Indian families together prior to placing their children in foster or adoptive care. A similar provision for non-Indian families requires only “reasonable efforts.”

Her article shows that child welfare policy goals for Indian and non-Indian children were once much more closely aligned, as both focused on family preservation. Her research reveals that due to structural racism, legal protections afforded to non-Indian families in the foster care system were deliberately eroded. Premised on racist assumptions that parents of children of color in foster care were inherently unfit, the level of effort required to support families with rehabilitative programs were reduced and the speedy removal of children from their families into adoptive placements was fostered.

This is problematic because many children are in the foster care system due to neglect, stemming from underlying issues of poverty. The minimal level of support provided to families is woefully inadequate to re-establish the social and economic stability necessary to maintain or regain custody of their children. This negatively impacts the disproportionately represented families of color in the child welfare system and leads to negative outcomes for Black children and their families.

Regardless of the outcome in the Brackeen case, Professor Martin proposes an “active efforts” requirement for all children. This antiracist child welfare measure would create consistency in federal child welfare policy, provide clear guidelines regarding the actions necessary to effectively assist families in the child welfare system, and most importantly, help families in the foster care system establish attainable goals and receive the level of support needed to maintain bonds with their children.

Yale Law & Policy Review editors forwarded comments about their assessment of her article. The global comment stated, “It is the exact kind of actionable, policy-focused scholarship that we aim to publish.” Additional comments included:

• “This is a great article with concrete policy proposals and recommendations.”
• “This is a timely, clear, and well-written article that presents a workable and concrete policy proposal.”
• “This article takes a timely issue and provides a solid descriptive analysis. The author clearly outlines the argument for adopting a universal “active efforts” standard by demonstrating the harms of the lower standard and its ambiguous and patchwork application. The author then concludes with a clear proposal and a set of proposed guidelines that translate the principles of the ICWA into a generally-applicable standard.”
• “I appreciated the article’s acknowledgment of the role of systemic racism in child removal and adoption policymaking.”

This article is scheduled to be published in Volume 42 of the Yale Law & Policy Review.

Professor Andrea J. Martin is a visiting assistant professor of law at Penn State Dickinson Law and recipient of the Penn State Dickinson Law Phillip M. Scott Teaching Excellence Award. Her research draws on constitutional and legal history to explore and analyze current social justice issues including American Indian sovereignty rights, antiracism in education, and voter suppression. Prior to joining Dickinson Law, Martin spent twelve years as a strategic legal advisor, managing business and regulatory legal affairs at a multi-billion-dollar company. Professor Martin also served as a Special Assistant Attorney General in the Appellate Division of the Rhode Island Department of Attorney of General. Martin is involved in diversity and inclusion efforts and served on the Governor’s Task Force on Diversity, the Governor’s Commission on Prejudice and Bias and the Thurgood Marshall Lawyer’s Society. She has also taught legal writing in the CLEO (Council on Legal Education Opportunity) program, recently hosted by Penn State Dickinson Law, to increase the number of lawyers from diverse backgrounds.