Political and Social Construction of Families through Pedagogy in Family Law Classrooms

Most family law materials available today fail to reflect the diversity\u27 of family arrangements in modem society. Traditionally, family law is taught as a rules-based area of law. Students learn the requirements of marriage and the grounds for and consequences of divorce. Currently, there are efforts to expand the codification of family law through such things as support guidelines, uniform acts, and legislation listing specific factors to be considered in custody and property distribution cases. Many of these efforts stem from the underlying assumption that there is a uniform methodology describing and defining doctrine appropriate for resolution of family related matters. This uniform methodology stems from the perception that there is a preferred model for family structure. Because the substance of family law is personal and emotional and because we live in a period of intense sensitivities about race, gender, and diversity, consideration of these issues is a delicate matter for both professor and student. Students as well as society have a variety of family lifestyle experiences. Our pedagogical style for family law can have a silencing, as well as normalizing effect if our focus is on the married unit as the norm. Family law courses generally launch this silencing or normalizing effect by beginning the course in one of two ways-either with a consideration of the institution of marriage or with an examination of the rules governing its dissolution.\u27 Given the changes in behavior in the past several decades, one wonders why marriage is still the universally-accepted starting point. Is it presumed that marriage continues to be the exclusive foundation of the family? If so, this article suggests it is a flawed beginning. Discussing family law from the starting point of marriage defines a family structure which may not characterize all cultures in our society and may suggest a preference for one family structure over another. Our society hinges upon dichotomies Teaching family law through marriage discussions gives the appearance that marriage is the accepted way of starting a family, thereby devaluing other units-even though marriage is prohibited in some units. The married family unit may be deemed the good and all other units, the bad. Relationships and arrangements that do not resemble nuclear families are labeled dysfunctional. This negative label is not always a result of some problem in the family, but attaches simply because the unit does not conform to the marriage nuclear norm. Former Vice President Dan Quayle and his allies believe that many of the problems we face today result from the breakdown of family values, that is, the breakdown of the traditional nuclear family structure. However, the real problem is the judgmental attitude which favors certain family units while denigrating others. When a particular unit is favored as the norm, individuals who do not fit that standard often struggle futilely to conform. Frequently, this results in utter hopelessness and a lack of self-esteem. Disengagement, lack of productivity, and antisocial behavior are frequent by-products. Such a melancholy view can lead to a lack of value in one\u27s self and in life in general. This reduction in the value of life may result in acts of violence to oneself or to others. Triggering this sense of lack of value in one\u27s self simply because of the make-up of an individual\u27s family unit is, to this author, preposterous. Some individuals fall outside of the norm because of factors beyond their control, such as death and divorce;9 others do so by choice. Clearly, we live in a pluralist society where a variety of personal lifestyle choices abounds. Therefore, the laws and legal doctrine affecting those personal choices should address the diverse nature of our society in a positive way. Family law materials should reflect diversity of family arrangements in present day society without valuing some structures over others. The personal relationships which develop when a family is formed should be celebrated and valued regardless of whether the family mirrors the traditionally accepted model. Discussing family structures only from the point of marriage may be offensive to certain ethnic groups and various individuals who prefer to organize their families in less traditional ways. The thesis of this article posits that a discussion of family, regardless of the unit\u27s form, is a more appropriate starting point for a family law class. \u27 Focusing on what constitutes a family would foster discussions of laws and legal doctrines which affect our personal choices and address the diverse nature of our society. A value-free discussion of family would include consideration of various cultural backgrounds, perspectives, and norms that are extant in our pluralistic society. Part I of this paper discusses perspectives on modem day family units. Part II discusses the selection of an effective pedagogical style for teaching family law that will include various perspectives on family. Finally, the article concludes that family law professors should select a pedagogical style and textbooks that incorporate diverse family structures without implying that marriage is the only acceptable family unit

Force African-American Fathers to Parent Their Delinquent Sons - A Factor to Be Considered At the Dispositional Stage

What species can survive and function when a substantial segment of its young male population is harnessed by the burdens of substance abuse, unemployment, and incarceration? Empirical data suggests that these maladies have infected African-American males at a rate alarmingly disproportionate to that of other races. This trend, if it continues, suggests that America is creating a dysfunctional class. In this Article the term dysfunctional refers to a predicament wherein African-American males engage in violent activities.\u27 Their conduct may be attributable to their inability to contribute to the family or smaller groups which form the foundation of the social order of society. In light of the increasing numbers of African-American males populating correctional facilities, becoming enslaved to drugs, and becoming unemployed, unskilled, and only minimally educated, drastic measures need to be taken to prevent them from becoming dysfunctional members of society. The problem is real. Recognizing this burden, several theories of remedy have been suggested. Some propose single-sex, single-race schools,9 while others advocate rearing African-American children in non-African-American families.\u27 ° None of the suggested remedial measures will be effective if we do not seriously consider the real problems that confront the African American male child. The consequences of racism play a substantial role in the demise of these youth, and the placement of the delinquent child is vital in correcting the situation. I suggest that a potential solution is placing African-American male children with their fathers. In proposing this remedy, I am not advocating separating them from their mothers. My focus is on children in the juvenile justice system who are thus wards of the state. I consider this remedy as pro-survival for African-American males. I am in no way implying that African-American women have failed in raising our male children, but I am suggesting that perhaps the burden is too heavy for us to bear, alone, today. I advocate state interference in a family unit only when there are signs of profound distress and disturbance, as indicated by a child\u27s entrance into the juvenile justice system. Once the child becomes a part of the system, the state has an interest in the child sufficient to merit intervention and the state should act, as when non-delinquent conduct is involved, in the best interests of the child. The best interests of the child test for deciding custodial placement is the most recent standard delineated by the courts. At early common law, a father had the paramount right to custody of his children. Courts later considered the age and gender of the child as a deciding factor, and placed children of a tender and early age with their mothers. A more recent rule, the primary caretaker rule, allowed the child to be placed with the parent who was primarily responsible for the child\u27s care. This rule allowed for a gender neutral determination. Today, however, placement decisions are determined by applying the best interests test. Courts focus on the child\u27s needs and determine placement accordingly. Placement questions, for the most part, arise during custodial disputes, neglect, and child abandonment cases. The juvenile justice system needs to be transformed so that this test is similarly applied to a child\u27s placement at the dispositional stage. Part I of this Article discusses issues plaguing African-American males. Part II addresses the best interests of the child test as it arises in the dispositional stage for juvenile delinquents. Part III discusses the AfricanAmerican father as nurturer, and considers the implications of forcing him to parent even though he is absent from the home. Part IV notes that the state has forced parents to parent in other areas, thus the notion of forced parentage can be implemented for delinquents. Part V concludes that the remedial measure of forced parentage may be necessary as a pro-survival measure, outweighing any anti-mother, anti-womanist, or anti-feminist notions. Understanding the role racism plays in our society, I conclude that forced parentage is necessary for the survival and prosperity of the African-American community, and that it would be in the best interests of both delinquent African-American male youth and society as a whole

Women in the New Millennium: The Promises of the Past are Now the Problems for the Millennium

In this Article, I will explore the roles of women and the expectations that society maintains for them in the past and the expectations for the present and future. As we enter the millennium, the courts appear to administer the law in the same way as laws were administered prior to the women\u27s rights movement. Judges appear to implement notions of equal rights while society attaches the notions of the difference group without any special treatment for the dual roles. Something interesting appears to be happening to the dual roles of women. There is one standard stating that women must work, and yet another standard suggesting that women are to be caregivers following the traditional notions of caring and nurturing their youth, even though the work standard has pushed them out of the home. What is a woman to do? Part I of this Article focuses on how the laws have adapted to the differing perspectives of women\u27s roles that were launched within the feminist movement. I will also present the promises that women were given by society. Part II of the Article examines the problems facing women as we enter the millennium. Finally, Part III considers various recommendations to address these problems. It is my contention that the problems women are facing will persist, if they are not remedied, in part, from the promises presented during the feminist movement. Three dominant themes: culture, sameness (the equality principle), and dominance, emerged during the feminist movement. Newly enacted statutes, rules of law, and judicial opinions focused on one of those themes, the equality principle. Supreme Court decisions resting on the equality principle have often involved men as plaintiffs or men as injured parties rather than women. The equality principle, however, did not enhance the status of women but actually hindered women and enhanced the status of men

Affirmative Action, a Look at South Africa and the United States: A Question of Pigmentation or Leveling the Playing Field

Affirmative action is one of the most divisive issues in the United States today.\u27 Proponents of affirmative action argue that the United States has not come far enough in leveling the playing field. They argue that affirmative action programs are needed as much today-if not more-than when the balancing policies initially took effect. Opponents of affirmative action argue that race-based decision-making is undemocratic and discriminates against the majoritarian members in United States society. As we prepare to exit the twentieth century, we are confronted with the need to resolve the affirmative action dilemma. Do we eliminate affirmative-action programs altogether and institute purely color-blind policies? Is a middle-ground possible, or do we simply start anew? As the second millennium approaches, W.E.B. DuBois\u27s observation that the twentieth century must confront the problem of the color-line becomes even more apparent. As we come to the close of this century we must ask ourselves, in light of the continued problems brought on by race, if problems of the persisting color-line can be addressed with affirmative action policies-policies that are designed to eliminate past and present discrimination based on race, color, religion, sex, or national origin. If we ask the question today, with an honest outlook for tomorrow, our response has to be in the affirmative.\u27 A negative response is simply a lie.\u27 The answer is yes. We know that faces remain at the bottom of the well, and we recognize the color of those faces. If the answer should be in the affirmative, then why does a debate exist over the continuation of affirmative action programs? The only debate that should exist is how to make affirmative action programs work for the faces at the bottom of the well. The self-named victims of affirmative action programs are not faces at the bottom of the well. These self-named victims, the white members of the majority, are screaming for an end to openly sanctioned affirmative action programs because they believe such programs result in discrimination against the white majority. What they really mean is that there should be no more attempts at leveling the playing field for the faces at the bottom of the well. They do not mean discontinuing the good old boy affirmative action club; they know their club will continue as long as the color-line remains problematic in United States society. There has always been and will always be a need for affirmative action in United States society. There will always be informal policies where members of United States society will be hired without regard to their merit, will be admitted into schools even though they fall below the admission criteria, and who will be granted loans even though they come within the no loan risk zone. Formal affirmative action policies simply tell members of the majority that they have to hire, admit, and loan to minorities. What discrimination claim do the self-named victims make? The victims want color-based affirmative action programs to become nonexistent because affirmative action programs: (a) will never overcome the color problem in the United States; or (b) they, the victims, do not need them; or (c) the faces at the bottom of the well are no longer in need of them; or (d) the programs disadvantage the self-proclaimed victims. South Africa, like the rest of the globe, is setting the stage for the twenty-first century. Black South Africans have suffered throughout this century with oppression caused by a minority of the country\u27s white inhabitants. Both South African and United States oppressive practices were, and still are, based on the race of the group oppressed, and the races of both oppressed groups share the same skin pigmentation. As South Africa charts its future democratic society with a mission to do the right thing, what route will it take for uplifting the oppressed group--a leveling of the playing field laden with affirmative action policies, like the United States, or a new and different course? This article will compare South Africa\u27s future of righting the wrongs the minority in its society carried out against members of its majority with the United States\u27 stance on remedying past discrimination. Although this article parallels the United States with South Africa, minority members did not cause the oppression in the United States as they did in South Africa. In the United States\u27 truer sense of democracy, majority members caused the oppression. This article compares these two countries because the oppressed people share some commonalties, namely their skin pigmentation, which appears to be an easy target for discriminatory purposes, and the continent of their ancestry.\u27 South Africa\u27s approach to righting the wrongs suffered by so many and caused by so few is intriguing. Why is South Africa discussing affirmative action? How is it, then, that in a democratic society members of the majority need affirmative action incentives to overcome race problems brought on by members of the minority? How could oppressed people vote to oppress themselves? Why would they? Should we suggest to black South Africans that they should simply use their majority status as the minorities did? In South Africa, the fact that a majority democratic dark-skinned group is in need of affirmative action suggests that perhaps the color of one\u27s skin is at issue-not simply any darkened skin color, but a color that designates African descent. The 1996 United States presidential election vibrantly depicts the furor of affirmative action. During an election year divisive issues tend to come to the forefront because politicians know that these issues get excellent media attention that influences potential voters. Politicians go for the jugular without regard to the pain caused, proclaiming on the nightly news and advertising programs picayune resolutions to important issues. Rather than bring forth the same old arguments of the politicians and media gurus, this article examines affirmative action through South Africa\u27s prism and suggests solid resolutions the United States can use in righting its wrongs. Part I of this article examines affirmative action in the United States and discusses majority versus minority oppression and the significance of skin pigmentation. Part II compares and contrasts South Africa\u27s approach of rewriting its constitution to include the oppressed group with the United States\u27 addition of amendments to its constitution in trying to include members of the oppressed group. Part III makes recommendations for resolving affirmative action concerns in an effort to allow all members of society to embrace the twenty-first century in a way that enhances our communities without regard to skin color

Save the Marriage before (Not after) the Ceremony: The Marriage Preparation Act - Can We Have a Public Response to a Private Problem

Two individuals meet, engage in an intimate, not necessarily sexual, relationship and marry. The two join in a union with the promise to spend the remainder of their natural lives together. But forever is not forever. On a national level, over 50 percent of marriages end in divorce.\u27 Perhaps marriage vows should include a statement about the inevitability of divorce. States\u27 divorce laws vary, from faultbased, to no-fault, to a statutory period of separation. Some states recently made it easier for individuals to be granted a divorce. Reasons for making it easier to end marriages could have been related to the increased incidences of domestic violence. Or the reasons could simply be related to a change of times. By making it easier to get a divorce, states may have simply played piper to individuals wanting to end their marriages without being forced to prolong the inevitable. Rather than prolong an unwanted marriage, the move to no-fault divorce was to serve as an out of a failing marriage. Such a move could have created an environment where rather than try to resolve differences individuals simply divorced their married partner. The divorce rate has reached an all time high and it would not be a stretch to assume that there is a correlation between the high divorce rate and the move to a no-fault system. The break down of the family structure resulting from the high divorce rate is also of concern to states. In an attempt to prepare individuals for marital conflicts and resolves, Florida enacted the Marital Preparation and Preservation Act. The purpose of the act, I presume, is to educate individuals about the marital union before the marriage ceremony. Education prior to the union would presumably prepare couples for conflicts that may arise during the union and would therefore have the affect of saving the marriage. The Marital Preparation and Preservation Act provides that individuals are to enroll in classes prior to entering into a marriage union. The Act does not make it mandatory for individuals to enroll in such classes but it does provide for a reduction in the marriage license fee for individuals who choose to enroll. The Act does, however mandate a three-day waiting period for individuals who do not enroll in such classes. Why would a state such as Florida enact such a statute when Florida made it easier to divorce? Florida is now a no-fault state, which means married individuals meeting residency requirements simply file for divorce once they believe the marriage is irretrievably broken. What are the states\u27 expectations for enacting such a statute? To preserve marriages, to prepare individuals for the union of marriage or to prepare individuals on how to care for children who are brought into the union? Or could it be to set the standard for the norms, values, and morals of the state? If the states\u27 interests are in preserving marriages then why not simply require fault on a party prior to granting a divorce? If the state\u27s interest is in preparing individuals for the union or preparing individuals for children who may be brought into the union then is the state overstepping it\u27s bounds with such a statute because of the privacy nature of child rearing? If the state\u27s interest is in setting the norms, values and morals, then is it overstepping it\u27s bounds by commingling the church with the state and/or also interfering with a family\u27s private family values? How will the state dictate who instructs the courses? Can an instructor be a divorcee? On what basis will the state determine the content of the material? What role will religion play? If religion has any role is there a church and state conflict? Could such a course cause a conflict to arise if individuals do not share the same religion or have no religion at all? Can state government enter into a contract with individuals premarriage for a lifetime commitment post-marriage-- a contract that two free engaging individuals are, purportedly, failing to uphold at alarming rates? Should the government engage in this type of bargaining? If not a contract, is it an unconstitutional imposition? What are other countries doing with regard to maintaining marriages? Are other countries\u27 divorce rates as high as the United States\u27? Is it a jurisdictional problem, an international one, or is it simply a matter for concern in the United States? Who will prepare the individuals for this lifetime commitment? Will we require the educators to be married? Will we prohibit the educators from divorcing? How will such an Act impact the fundamental right to marry which includes a right not to, and to end it? These are some of the questions I probe as I consider whether marriage preparation and preservation acts are constitutionally sound

No Penetration - and It\u27s Still Rape

This Article explores the penetration requirement and considers the following: (1) whether it is a male or reasonable person understanding of what is so violative of a woman\u27s body that it should be referred to as rape; and (2) what punishment should be imposed. This Article explores problems raised by the foreplay issue. Understanding that rape is not sex, in order to deem a violation, one must understand how a violation is characterized. In addition to defining what is violative, the foreplay issue raises questions about characterizations from a male perspective concerning when a male is placed on notice by the female that she either no longer wishes to engage in the activity and that he should stop or that this is unwelcome conduct altogether and that he should stop. The focus has been on the male\u27s notice rather than the desires of the female to stop the conduct. An additional problem is that the crime of rape may be lessened if penetration is deemed insignificant. If penetration, a male prerequisite for the crime of rape, is not used to determine severity of the violation, then there may be some concern that stiff penalties may no longer be imposed, that is, if men comprehend the violation, then it is not a violation. If stiff penalties are not imposed, then there could be a significant increase in rapes. Part I of this Article discusses how society defines criminal conduct and why society punishes this type of conduct. Part II explores the punishment theory, with regard to rape, from the woman\u27s perspective of pain and pleasure. This Article then compares what is pleasurable for women, and from this perspective, what should be punishment for conduct that is deemed violative from the woman\u27s point of reference of pain and pleasure. Part III addresses some solutions and perhaps, redirection in defining and punishing the crime of rape. Finally, Part IV concludes that the severity of the invasion into the private, protected sphere of a woman\u27s body should be defined in women\u27s terms and punished accordingly

Sweep Searches--The Rights of the Community, and the Guarantees of the Fourth and First Amendments: Moms of the Chicago Public Housing Complex, Revisit Your Civil and Constitutional Rights and Save your Babies

African-American babies are an endangered species. They have the potential to live to the ripe old age of fourteen. We are singing new songs of overcoming-overcoming the loss of our babies. However, it\u27s the same song: the lyrics are Black, and the music is, as always, White. Across the nation let us hold hands, let us gather together, let us save our babies. Will the music, the lyrics of our collective songs, save our babies? Is there a collective voice? There must be a collective voice if we are to save our babies and WE must save them if we are to survive. When we saw the tragedy involving the babies in Oklahoma City, we cried. We did not believe that someone could hurt our babies. We were sickened, we were hurt, we became enraged. Get them, find them, those inhuman creatures-they hurt and killed our babies. The cry is no different for the moms in Chicago public housing. They cry out, Save our Babies, but their voices, their lyrics are drowned in the sounds of blackness. Although the constant- save our babies -remains, the savior\u27s voice has been transformed. The moms of Chicago public housing are now crying let us save our own babies. Let us relinquish our individual constitutional rights of privacy that we fought so hard for in an effort to save our babies, our own babies. The government\u27s response (the music) to the moms, was in its usual whiteness: No, you can\u27t save your babies by waiving your neighbors\u27 constitutional rights. Constitutional rights are individual rights, not community rights, and although we built this city for you, we have no obligation to save your babies from your neighbors, because the constitution protects you from us and we ain\u27t doing nothing. Before you give up hope, moms, let\u27s revisit civil rights and constitutional rights. Let\u27s revisit with the mission to save our own babies, and let\u27s do it legal style. In this paper, I am addressing fundamental issues involving the Fourth and First Amendments to the United States Constitution. In addressing these particular competing constitutional claims I am concerned that the article is accessible to a wide variety of readers. Readers of particular interest are women within the Chicago housing complex. (This group is particularly interested due to the large number of single parent households headed by women.) However, it is also directed at lawyers who litigate sweep searches claims with public housing complexes, legislators making decisions about clean sweeps, and judges. Because the audience is so diverse I am making a conscious effort to modify my language. My purpose for targeting these particular groups is to empower my sisters and address a crucial social problem with an effort to help severely disadvantaged kids survive. In choosing voice in the introduction, I recognize that African Americans are not a monolithic group of people and my use of music may be confusing to some. Music is important to most groups, but in different ways. Music is sometimes used by the African-American community to express a wide variety of concerns, causes, and their present state of mind. For example, rap music tends to explore and report the life of urban America today. The blues arose from a need to expose the effects of, but at the same time give a way to live with, discrimination. Gospel is saving grace: how we get over and how we endure. With jazz we don\u27t have to necessarily sing about our plight; we can simply feel whatever we want to feel. Our minds give us the lyrics for jazz and we control. I use the voice of music for the discussion of the appearance that the government believes that the lives of the white community are more important than the lives of people of color. This article explores whether residents of the Chicago Housing Complex (hereinafter, the Complex), in particular a double minority group, women of color, can be empowered to resolve problems in their community. The major problem in the community is the demise of the youth in the Complex. Their demise leads to incarceration or death at an early age due to drugs, violence, and the inability to leave the Complex. The cycle is inevitable and constant. It has been suggested that residents of the Complex want to waive their Fourth Amendment privacy protections and allow police to conduct sweep searches. I propose that the sweeps should be allowed as a viable solution for the residents but only in the event that a super-majority of the residents agree to them. Further, the residents be permitted to decide when to terminate the sweep searches. I challenge readers to go beyond their understanding of the protections afforded by the United States Constitution and pose for them a consideration of the enforcement of rights guaranteed by the Constitution. In the housing projects, enjoyment of Fourth Amendment protections infringes upon the First Amendment\u27s guaranties and vice versa. The practicalities and intersections of these infringements are addressed in the paper. I strongly suggest that community empowerment is the only viable solution for the residents of the Chicago Housing Complex. Community empowerment is not a new concept. Like other instances of empowerment, the group most affected by the controversy has to decide its own solution. It should be no different with the residents of the Chicago Housing Complex. I address the sweep searches controversy from the position of the plight of the children. In fashioning a solution I examine the intersectional predicament precipitated by the privacy guaranty of the Fourth Amendment coupled with the rights of a community to safeguard its citizens. I argue that the First Amendment affords the residents, in particular the children, of the Chicago Housing Complex certain guarantees. I recommend that the courts and government balance the residents\u27 freedom from unreasonable searches with the freedom of association and decide the controversy in favor of the tilt of the scales. Alternately, I also recommend that we simply allow the community, through a super-majority, to decide the controversy as we have historically done when the victims were not African-Americans