I.
The Status, Rights and Obligations of Children
a. There is overwhelming research evidence that, on average, a child growing up in
a family whose income is below the poverty line experiences worse outcomes
than a child from a wealthier family in virtually every dimension, from physical
and mental health, to educational attainment and labor market success, to risky
behaviors and delinquency.
b. Poverty reduction strategies:
i. “investment” perspective (emphasizing the connection between higher
income and parental investment in child resources -- cognitively
stimulating items in the home (e.g., books, computers), more parental time
(by adjusting work hours), high-quality childcare, and learning
opportunities outside the home.)
ii. “stress” perspective (emphasizing reduction of economic hardship that we
known increases psychological distress in parents and decreases their
emotional well-being.) Higher income may improve child well-being by
reducing overall family stress.
c. State Regulations
i. Parens patriae
1. States may regulate children and families under this doctrine and
general police powers. Parens patriae confers state authority to
protect or promote a particular child’s welfare; the police power is
the state’s plenary power to promote the public health, safety and
welfare generally
2. “Acting under its parens patriae power, the state may pursue ends
that would be impermissible under the police power because they
are unrelated to any harm to third parties or to the public welfare.
…[But, the state] should advance only the best interests of the
incompetent individual and not attempt to further other
objectives…that may conflict with the individual’s welfare.”
ii. Meyer v. Nebraska:
1. The teacher claimed his substantive due process liberty was being
violated under the 14th amendment. What is a fundamental liberty?
We can rely on cases that have shaped our understanding of what
is fundamental, we really don’t know.  “The full scope of liberty
guaranteed by the DP clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided in the
Constitution”
2. Meyer test: “essential to the orderly pursuit of happiness by free
men” to define fundamental liberties protected by the substantive
due process clause. This test is used to determine whether the right
is fundamental and therefor protected by the substantive due
process clause. The more common expression is that used in Palko
v. Connecticut, “those fundamental rights that are implicit in the
concept of ordered liberty.”
a. TEST FROM PALKO: “WHETHER THE RIGHT IS
FUNDAMENTAL TO OUR SCHEME OF ORDERED
LIBERTY OR WHETHER THIS RIGHT IS DEEPLY
ROOTED IN OUR NATIONS HISTORY AND
TRADITION.” THIS FRAMING IS AT THE CORE OF
WHAT THE COURT HAS LOOKED TO IN
RECOGNIZING FUNDAMENTAL LIBERTY
INTERESTS.
3. Fundamental liberty interests have historically had some relation to
the right of autonomy or the right of privacy, both of which are
grounded in the term “liberty”:
a. The right to care, custody and control ones own children
b. The right to marry and the right to procreate
c. The right to purchase and use birth control
d. The right to refuse medical treatment
e. The right to freedom of speech
f. The right to travel freely among the states
g. The right to vote
h. The right to freedom of association
i. The right to freedom of religion
4. Once a fundamental liberty interest is established, the Court
generally will apply its most stringent level of review (SS) to any
gov/state action alleged to have infringed upon said right. To pass
constitutionality, the state action must have a compelling purpose
and the action must be narrowly tailored to that purpose.
a. The heightened test creates a presumption of
unconstitutionality and if the court finds that the standard
has not been met, the action will be deemed
unconstitutional
i. Strict scrutiny = compelling interest/means (ends) +
(means must be ->) narrowly tailored
ii. The interest must be more than just arbitrary
b. If not fundamental or protected by the Const, the court will
apply its least stringiest level of review
i. Rational review= legitimate purpose + rationally
related
5. Within the rights described by the Court is the parents’ right to
“bring up children” as they choose, which would include educating
them. Indeed, education of children is also regarded by the Court
as a natural duty of parents. Rights to bring up children as they
choose, education of children is a manner of choice. A duty of the
parents to provide imposed by the state (also includes feeding
them, housing them...). they are given latitude to exercise decision
making w/ respect to their children because they have the prime
responsibility of providing for their children. Rights of parents to
engage instructors to instruct their children. Parental rights running
concurrent with parental duties.
6. Although Meyer does not specifically articulate a clear standard of
review, over time this case has come to be understood as having
elevated parent’s rights to the level of a protected fundamental
liberty interest. Fundamental right cannot be arbitrarily or
irrationality interfered w/, something more than that has to be put
forward by the state in order to infringe upon the protected liberty
interests.
a. “that the STATE may do much, go very far, indeed, in
order to improve the quality of its citizens, physically,
mentally and morally, is clear; but the INDIVIDUAL has
certain fundamental rights which must be respected. The
protection of the Constitution extends to all, to those who
speak other languages as well as those born with English on
the tongue. Perhaps it would be highly advantageous if all
has ready understanding of our ordinary speech, but this
cannot be coerced by methods which conflict with the
Constitution – a desirable end cannot be promoted by
prohibited means”
b. “the end aimed at by the statute is a lawful and proper one.
The only question is whether the means adopted deprive
teachers of the liberty secured to them by the 14th
amendment… the statute might not be regarded as a
reasonable or even necessary method of reaching the
desired result”. HE IS BASICALLY ARGUING FOR
RATIONAL REVIEW EVEN THOUGH STANDARD OF
REVIEW IS NOT A THING YET
c. The US cons does not generally afford positive rights –
federal and state governments don’t have to affirmatively
provide things for you. But it does provide negative rightspeople have certain rights, such as freedom of speech, that
the gov cannot infringe upon. Explicit and implicit – among
the sources of the implied rights, the DP clause of the 14th
amend is the richest.
d. The scope of protected liberty interests under the Due
Process Clause does not only include the freedom
from bodily restraint. Rather, recognized liberty
interests include the freedom to contract, to engage in
any of the common occupations of life, to acquire
useful knowledge, to marry, to establish a home and
raise children, to practice religious faith, and to
generally pursue common law notions of happiness.
These liberty interests cannot be interfered with by
arbitrary or unreasonable legislation that does not
further a legitimate state purpose. Applying these
principles to the present case, the right to teach
German in schools to children at the request of their
parents relates to the fundamental right recognized
for parents to control and educate their children.
Thus, parents’ desire to educate their children in
German, as well as Meyer’s right to teach German,
are liberty interests protected by the Due Process
Clause of the Fourteenth Amendment.
7. The rights described in Meyer are also broadly enough framed to
include a non-parent’s right… “to teach and the right of parents to
engage him so to instruct their children.”
8. In exploring the balance of power, it is important to observe how
the Court frames parental rights as running concurrent with
parental duties and how the role of the State seems to be woven
into the execution of this duty (at least conceptually, if not
practically).
9. The majority opinion (McReynolds, J.) seems fairly favorable to
the “ends” and only critical of the “means” by which such ends are
sought
10. Every DP clause analysis begins with the question “has the gov
deprived some person of life, liberty, or property?” if there has
been no government action, or no deprivation, then there cannot be
a DP issue.
a. Substantive DP – issues that involve the states power to
regulate certain activities
b. Procedural DP – issues that involve an analysis of the
procedure required by the Cons when states seek to deprive
ppl of life, liberty or property.
iii. Pierce v. Society of Sisters
1. The Society alleges that the enactment conflicts with the right of
parents to choose schools where their children will receive
appropriate mental and religious training (reminiscent of the claim
made by parents in Meyer), the right of the child to influence the
parents’ choice of a school, and the right of schools and teachers
therein to engage in a useful business or profession.
a. Anti-immigrant statute
b. The purpose of the Act was to compel general attendance at
public schools by normal children between 8 and 16 who
haven’t completed the 8th grade… it would “destroy the
profitable features of the sisters’ business and diminish the
value of their property”
c. The right of teachers, of them to run a business, parents to
choose, and the right of children to influence their parents’
choice
2. “No question is raised concerning the power of the state reasonably
to regulate all schools, to inspect, supervise and examine them,
their teachers and pupils; to require that all children of proper age
attend some school, that teachers shall be of good moral character
and patriotic disposition, that certain studies plainly essential to
good citizenship must be taught, and that nothing be taught which
is manifestly inimical to the public welfare.” Saying there is no
question that the state has an interest and the power to compel
schooling and regulate schools but there is a line to be drawn.
3. “Under the doctrine of Meyer v. Nebraska, we think it entirely
plain that the Act of 1922 unreasonably interferes with the liberty
of parents and guardians to direct the upbringing and education of
children under their control.” We walk away w/ the tension of
what is a reasonable regulation, state has authority to regulate but
this one is unreasonable. Where is the line drawn?
4. As often heretofore pointed out, rights guaranteed by the
Constitution may not be abridged by legislation which has no
reasonable relation to some purpose within the competency of the
state. The fundamental theory of liberty upon which all
governments in this Union repose excludes any general power of
the state to standardize its children by forcing them to accept
instruction from public teachers only.
a. We don’t take it to mean rational review is applicable.
5. “The child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations.”
MONEY LINE
a. THE child belongs to both the parent and the state. The
parent has this right corresponding w/ his duty to provide
for the child’s necessities including bring them up in the
world. Regulating parents “ownership” of their children
b. The state does play the role of uber parent and delegates to
parents rights corresponding to the duties. Parents also have
a weighty, cognizable, fundamental right to be assessed
when deciding on a gov action that cannot be intruded.
c. Meyer silent to children but pierce gives us a little glimpse
that children may have some interest in influencing their
parents in regards to their education.
d. Parents have a FLI to the care, custody and control of their
children – particularly the way their children will be
educated. This case buttresses Meyer this way
iv. Prince v. Massachusetts
1. Mrs. Prince “rests squarely on freedom of religion under the First
Amendment, applied by the Fourteenth Amendment to the states.
She buttresses this foundation, however, with a claim of parental
right as secured by the due process clause of the latter
Amendment.”
a. FACTS: Quasi parent, she gets charged for violating child
labor laws, putting her niece in harms way. This is the
justification for the state intervening on her decisions as a
2.
3.
4.
5.
quasi parent. Prince distributed religious materials, and
solicited funds therefor, on the streets of Brockton each
week. She allowed the children to do the same until a
school attendance officer warned her against the activity.
b. Holding: Freedom of religion and the right to make
parental decisions are important liberties, but they are
not absolute. The state has a particular interest in the
welfare of children, and its authority in that respect is
broader than its authority over adults. Accordingly, the
state may constitutionally require that children go to
school and that their employment be prohibited. Child
labor is especially damaging, and the state is
therefore empowered to prohibit it, as Massachusetts
has done here. While an adult is free to express his or
her religion through acts of martyrdom, that freedom
does not extend to making martyrs of children who
are not old enough to decide themselves. The
Massachusetts law at issue is a legitimate exercise of
the state’s objective to protect children.
The Court frames this as two claimed liberties:
a. The parent’s right to bring up the child without restraint;
b. The child’s right to observe the ways in which he is raised.
Freedom of religion, expression of her faith – first
amendment claim wrapped around a 14th amendment
interest on top of controlling her child, supporting parental
liberty interest.
The Court wrestles with the “delicate” balance of the freedoms
claimed by Mrs. Prince and the state’s exercise of authority.
a. On one hand, the Court reminds us that “the custody, care
and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for
obligations the state can neither supply nor hinder… [I]t is
in recognition of this that [prior] decisions have respected
the private realm of family life which the state cannot
enter.” There is a zone of privacy we grant to parents that
its out of reach of the state
b. On the other hand, the Court recognizes and reaffirms the
State’s parens patriae role in restricting the parent’s
control. It may supersede the role of parents in certain
circumstances.
In the end, the Court is compelled to place a limit on the scope of
parental authority that appeared to be growing after Meyer and
Pierce.
The rule from Prince: A more direct pronouncement that parental
rights are NOT absolute and inviolable. They can be permissibly
restricted if doing so is in the best interests of a child's welfare. b/c
it turns on a matter of child wellbeing and safety the court places
the brakes on whatever sense of entitlement parents were feeling
after the two previous cases. Screeching brakes. This case serves as
a check on parental liberty interests. Their liberty starts short of
any risk to child well-being, the state can intercept at this time.
6. “Parents may be free to become martyrs themselves. But it does
not follow that they are free, in identical circumstances, to make
martyrs of their children before they have reached the age of full
and legal discretion when they can make that choice for
themselves.” MONEY LINE
7. A CHILDS RIGHT TO OBSERVE THE WAYS IN WHICH HE
WAS RAISED: courts first pronouncement on a distinct right for
children. States authority over children is broader. Children do
have rights but they are not co-extensive to the rights afforded to
adults. While the aunt has a liberty interest, those same rights are
not accorded to her minor ward.
a. While children share many of the rights of adults, they face
different potential harms from similar activities. Moreover,
their rights are NOT coextensive with those enjoyed by
adults.
b. “The state’s authority over children’s activities is broader
than over like actions by adults.”
c. “We think that with reference to the public proclaiming of
religion, upon the streets and in other similar public places,
the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults, as is
true in the case of other freedoms.” Hint that children’s
rights are not as coextensive as adults and state can
operate as a more intrusive force to regulating the
rights of children
8. Since Prince, the Supreme Court has never again questioned
outright the core proposition that a child, like parents and the
government, has “rights” entitled to consideration in matters
concerning the child’s welfare.
9. The central issues continue to be what weight the child’s interests
or rights will receive in a particular circumstance, whether a child
may articulate their rights personally or indirectly through a parent
or non-parent committed to representing the child, and, most
controversially, whether a child’s claims may prevail over parental
opposition.
v. Our lessons from Meyer, Pierce and Prince, collectively: TRIAD OF
PARENTAL RIGHTS OF PARENTS- FUNNY ENOUGH NONE WERE
PARENTS
1. The Supreme Court first established in Meyer (1923) and then
subsequently reinforced in Pierce (1925) that parents have a
constitutionally protected fundamental liberty interest in decisions
regarding the care, custody and control of their children, conferring
on parents the right to control their child’s upbringing without
unreasonable state interference. Like education and religion. But
not outside of reasonable restrictions that can be placed by the
state. Free of arbitrary, unreasonable interference but these cases
don’t take the state’s power away at all, don’t diminish the state’s
role as an uber parent in establishing base line duties/obligation
2. Prince (1944) reminds us, however, that “the family itself is not
beyond regulation in the public interest,” meaning that parental
authority is not absolute. “Acting to guard the general interest in
youth’s well being, the state as parens patriae may restrict the
parents’ control.”
vi. Wisconsin v. Yoder
1. Three Amish parents were convicted and fined $5 each for
violating the state compulsory school attendance statute, which
required them to cause their children to attend public or private
school until the age of 16. The parents agreed to send their
children to school until the end of the eighth grade, but declined to
send their 14 and 15 year old children to school afterwards.
2. What does the Court conclude as to whose interests are at stake?
a. The parents (…and only the parents!). Frustratingly so, the
Court is correct in concluding that compulsory education
statutes do not make children’s wishes a part of the actual
offense itself. Evidence about the children’s wishes would,
therefore, have thus been irrelevant at trial. Parents are the
ones fines. Religious + parental liberty interest first and
14th amendment. Here it was about not educating your
children compared to the other cases. The law was in
violation of the parents rights to free exercise of religion
and their rights as parents to bring up their children
religiously in the ways that they want. The court made clear
that children’s interest are irrelevant – if they may compete
with their parent’s rights.
3. Court concludes that the parents’ interests outweighed the state’s
interest in regulating the duration of basic education and that
enforcement of the compulsory education statute “would gravely
endanger if not destroy the free exercise of respondents’ religious
beliefs.” While state can compel education, how long can be
limited
a. “The state has substantial authority to mandate and
regulate education, but its power is not unlimited. A
parent’s interest in a child’s religious upbringing and
the rights secured by the Free Exercise Clause are
fundamental.”
4. The Court took great care to note that the holding in Yoder in no
way addressed the “possible competing interests of parents,
children and the State” where the interests of children differed
from those of their parents.
5. Most troublingly, however, we just have no way of knowing in
Yoder whether, in fact, this is one of those occasions.
6. How did Petitioner’s frame their argument?
a. As “harm to the child” which authorized the state to use its
parens patriae authority to avoid. “[A] decision exempting
Amish children from the State’s requirement fails to
recognize the substantive right of the Amish child to a
secondary education…”
b. In his dissent, Justice Douglas remarks that the child’s
voice is woefully absent as well as recognition that children
have constitutional rights distinct from their parents. “The
child… should be given an opportunity to be heard before
the State gives the exemption which we honor today.”
Court doesn’t even contemplate what right the child might
have. We get an assumed alignment of interests- that
parents can also vindicate the rights of their children. The
court respects the Amish that strengthens the merits of their
claims, their assumption that parents are operating in the
best interest of their children.
d. Substantive Due Process
i. Troxel v. Granville:
1. helps us understand why there is not universal acceptance of the
notion of parental rights as a fundamental liberty interest. This case
remains an ideal vehicle for revealing the fault lines in the doctrine
of parental rights.
2. The liberty interest of parents in the care, custody, and control of
their children is one of the oldest interests recognized by the
Court as absolutely protected by the Due Process Clause. Applying
these principles to the present case, the Washington statute, as
applied to Granville and her family unconstitutionally infringes on
that fundamental parental right.
3. The Fourteenth Amendment provides that no State shall “deprive
any person of life, liberty, or property, without due process of
law.” We have long recognized that the Amendment’s Due
Process Clause, like its Fifth Amendment counterpart, “guarantees
more than fair process.” Washington v. Glucksberg.
4. “The liberty interest at issue in this case–the interest of parents in
the care, custody, and control of their children–is perhaps the
oldest of the fundamental liberty interests recognized by this Court.
More than 75 years ago, in Meyer v. Nebraska, we held that the
“liberty” protected by the Due Process Clause includes the right of
parents to “establish a home and bring up children” and “to control
the education of their own.” Two years later, in Pierce v. Society of
Sisters, we again held that the “liberty of parents and guardians”
5.
6.
7.
8.
includes the right “to direct the upbringing and education of
children under their control.” We explained in Pierce that “[t]he
child is not the mere creature of the State; those who nurture him
and direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations.” We returned
to the subject in Prince v. Massachusetts, and again confirmed that
there is a constitutional dimension to the right of parents to direct
the upbringing of their children. “It is cardinal with us that the
custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.”
[S]o long as a parent adequately cares for his or her children (i.e.,
is fit), there will normally be no reason for the State to inject itself
into the private realm of the family to further question the ability of
that parent to make the best decisions concerning the rearing of
that parent’s children. […] The problem here is not that the
Washington Superior Court intervened, but that when it did so, it
gave no special weight at all to Granville’s determination of her
daughters’ best interests.”
Concurrence: While my other colleagues go on and on about the
fundamental nature of parental rights, I’m the only one bold
enough to say that they are so fundamental that I would have
applied strict scrutiny and, upon that basis, found in favor of the
parent.
Justice Stevens (dissent): “While it is established that parents are
protected from arbitrary intrusion by the State into the sphere of
parenting, we’ve never declared that parental rights are absolute.
Indeed, limitations on parent’s interests in their children are
balanced against the State’s interest as parens patriae.
Kennedy dissent: It’s possible that had those earlier parental
rights cases been decided now, they would likely have been
grounded in the 1st rather than 14th Amendments. History seems to
favor thinking of parental rights as “special”, but just how special
I can’t say. As our case law has developed, the custodial parent has
a constitutional right to determine, without undue interference by
the state, how best to raise, nurture, and educate the child. The
parental right stems from the liberty protected by the Due Process
Clause of the Fourteenth Amendment. See, e.g., Meyer v.
Nebraska; Pierce v. Society of Sisters; Prince v. Massachusetts;
Stanley v. Illinois; Wisconsin v. Yoder; Santosky v. Kramer. Pierce
and Meyer, had they been decided in recent times, may well have
been grounded upon First Amendment principles protecting
freedom of speech, belief, and religion. Their formulation and
subsequent interpretation have been quite different, of course; and
they long have been interpreted to have found in Fourteenth
Amendment concepts of liberty an independent right of the parent
in the “custody, care and nurture of the child,” free from state
intervention.”
ii. Pro Shulman:
1. the state does not intervene in every instance in which a child is not
being raised optimally, and must assess whether the risk to child
well-being justifies interference against what is arguably
understood to be a fundamental protected liberty interest – that of
parents w/r/t the care, custody and control of their children. Prof.
Shulman prompts us to inquire exactly how that balance is itself
set up and why.
2. “paternal power rests on the fulfillment of paternal duty.”
3. “The power of the parent, because it derives directly from the duty
to benefit the child, is limited in scope and duration. It is only as
great as is needed to secure the child’s welfare: ‘It is not a power
granted to the parent for his benefit, but allowed to him for the
benefit of the child, and it ceases when the faculties of the child
have acquired that degree of maturity, that it may safely be trusted
to its own resources. When, therefore, the parent abuses this
power, or neglects to fulfill the obligations from which it results,
he forfeits his rights.’”
4. Parental rights amendment: His version differs slightly from the
one proposed above: “[t]he liberty of parents to direct the
upbringing and education of their children is a fundamental right,”
and, consequently, that strict scrutiny would be the standard of
review in cases of alleged infringement.”
iii. Illinois Compiled Statutes ,325 ILCS, 5/3: “A child shall not be
considered neglected or abused for the sole reason that such child's parent
or other person responsible for his or her welfare depends upon spiritual
means through prayer alone for the treatment or cure of disease or
remedial care as provided under Section 4 of this Act.”
II.
Ages
a. Bellotti v. Baird:
i. the “mature minor doctrine.” This doctrine relates back to the differences
we observe between children (minors) and adults and the underlying
justifications for why we distinguish between the two. It also touches on
lingering questions specifically about adolescent capacity to make mature,
independent and reasoned decisions that are in his or her best interests.
ii. The Court reiterates that children have some measure of constitutional
rights: “A child, merely on account of his minority, is not beyond the
protection of the Constitution.”
iii. However, the Court makes a pronouncement on the limited scope of these
protections in noting that: “We have recognized three reasons justifying
the conclusion that the constitutional rights of children cannot be equated
with those of adults: the peculiar vulnerability of children; their inability
to make critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing.”
iv. As to vulnerability, the Court notes that “…although children generally
are protected by the same constitutional guarantees against gov’t
deprivations as are adults, the State is entitled to adjust its legal system to
account for children’s vulnerability and their needs for “concern…
sympathy, and paternal attention.”
v. As to inability to make critical decisions, the Court reasserts that limits on
the freedom of children to choose for themselves may be placed due to
their lack of experience, perspective and judgment to recognize and avoid
choices that could be detrimental to them.
vi. As to the parental role, the Court reasserts that the right to custody, care
and nurture of the child reside FIRST with the parent. The Court
acknowledges the fundamental right of parents to direct the rearing of
their children and notes that parents are entitled to the support of laws (via
the State) designed to aid discharge of that responsibility.
vii. The Court concludes that if a State decides to require a pregnant minor to
obtain one or both parents consent to an abortion, it also must provide an
alternative procedure whereby authorization for the abortion can be
obtained without parental consent. This is typically referred to as judicial
bypass.
viii. how we understand children’s capacities will influence the degree to
which we consider and recognize a body of rights for children bearing
resemblance to (but, according to the Court, not “co-extensive with”)
those belonging to adults.
ix. The ‘mature minor doctrine’ is among many exceptions to the rule that all
persons under the age of 18 are required to obtain parental consent,
especially as it relates to medical treatment.
x. The Illinois Supreme Court has recognized a common law “mature minor doctrine,” pursuant to
which a trial judge can adjudicate a minor mature enough to consent to or refuse medical
treatment where the evidence is clear and convincing that the minor is mature enough to
appreciate the consequences of her actions and to exercise the judgment of an
adult. In re E.G., 133 Ill.2d 98 (Ill.1990).
b. Tinker v. Des Moines
i. Three public school students were suspended for wearing black armbands
in school to express their opposition to the Vietnam War. The question
before the Court is whether this is the kind of expression protected by the
First Amendment. The Court regards this as “pure speech” thus entitled to
comprehensive protection under the First Amendment.
ii. The touchstone for determining where the line is drawn is whether there is
a material and substantial threat of interference with the school’s work.
iii. The Court finds no evidence whatsoever of petitioners’ interference, actual
or nascent, with the school’s work or of collision with the rights of other
students to be secure and to be let alone.
iv. Therefore, the mere undifferentiated fear or apprehension of fear imagined
by the school was insufficient to overcome the students’ protected right to
freedom of expression.
v. School officials do not possess absolute authority over their students.
Students in school as well as out of school are ‘persons’ under the
Constitution. They are possessed of fundamental rights which the State
must respect, just as they themselves must respect their obligations to the
State. In our system, students may not be regarded as close-circuit
recipients of only that which the State chooses to communicate. They
may not be confined to the expression of those sentiments that are
officially approved. In the absence of a specific showing of
constitutionally valid reasons to regulate their speech, students are entitled
to freedom of expression of their views.”
c. Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412 (3d Cir. 2003)
i. (upholding the First Amendment authority of school officials to prevent a
nine-year old 3rd grader from circulating a handwritten petition during
quiet reading time and on the playground.)
ii. The panel explained that elementary school speech is afforded less
protection than that in high school because, “as students approach
adulthood, their ability to form and express their own views becomes
increasingly important.” Instilling appropriate values is a primary goal of
the schools, particularly as it relates to earlier grades. Young students
demand a far greater level of guidance, which is fundamental to the public
schools’ mission.
d. Morse v. Frederick, 551 U.S. 393 (2007)
i. At a school-sanctioned and school-supervised event, petitioner Morse, the
high school principal, saw students unfurl a banner stating "BONG HiTS 4
JESUS," which she regarded as promoting illegal drug use. Consistent
with established school policy prohibiting such messages at school events,
Morse directed the students to take down the banner. When one of the
students who had brought the banner to the event--respondent Frederick-refused, Morse confiscated the banner and later suspended him.
According to Frederick, his suspension was doubled to 10 days when he
quoted Thomas Jefferson on free speech.
ii. Our cases make clear that students do not "shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate." Tinker v. Des
Moines Independent Community School Dist., 393 U. S. 503, 506 (1969).
At the same time, we have held that "the constitutional rights of students
in public school are not automatically coextensive with the rights of adults
in other settings," Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675,
682 (1986), and that the rights of students "must be 'applied in light of the
special characteristics of the school environment.' " Hazelwood School
Dist. v. Kuhlmeier, 484 U. S. 260, 266 (1988) (quoting Tinker, supra, at
506). Consistent with these principles, we hold that schools may take
steps to safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use
e. SUMMARY OF CASES: Children’s right as similar to adults
i. Wisconsin v. Yoder, 406 U.S. 205 (1972) The children’s interests would
appear to be subsumed by those of the adult parents. Reinforces
presumption that fit parents will operate in the best interests of their
children (later reiterated in Troxel. V. Granville (2000)).
ii. Belotti v. Baird, 443 U.S. 622 (1979) Even accepting that adolescents
possess the capacity to make mature independent reasoned decisions that
are in his or her best interests, “[…]the constitutional rights of children
cannot be equated with those of adults [due to]: the peculiar vulnerability
of children; their inability to make critical decisions in an informed,
mature manner; and the importance of the parental role in child rearing.”
iii. Tinker v. Des Moines, 393 U.S. 503 (1969) Neither students or teachers
“shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate,” but a test hinged on safety and security of the school
environment will be applied in determining how much a student’s free
expression may be curtailed.
iv. Morse v. Frederick, 551 U.S. 393 (2007) “[S]chools may take steps to
safeguard those entrusted to their care from speech that can reasonably be
regarded as encouraging illegal drug use.
III.
Abuse, Neglect, and Dependency
a. “Child maltreatment frequently results from the interactions of personal and social
factors. Particularly significant factors are ‘poverty, ethnicity, neighborhood
dysfunction, mental health problems, substance abuse, and the presence of
children with special needs.’”
b. Child Abuse Prevention and Treatment Act, CAPTA (1974)
i. CAPTA defined child abuse as follows: “the physical or mental injury,
sexual abuse or exploitation, negligent treatment, or maltreatment of a
child… under circumstances which indicate that the child’s health or
welfare is harmed or threatened thereby. (U.S. Senate, 1973)
ii. One of the most significant features of CAPTA was the mandated
reporting system, which became a condition for continued federal funding
for prevention, identification and treatment of child abuse and neglect.
iii. Mandated Reporting
1. They must immediately report suspected child abuse or neglect.
2. Privileged communication between professional and client is not
grounds for failure to report. Willful failure to report suspected
incidents of child abuse or neglect is a misdemeanor (first
violation) or a class 4 felony (second or subsequent violation).
Further, professionals may be subject to penalties by their
regulatory boards. A member of the clergy may claim the privilege
under Section 8-803 of the Code of Civil Procedure.
3. Reporters may have to testify regarding any incident reported if the
case becomes the subject of legal or judicial action.
4. State law protects the identity of all mandated reporters, and they
are given immunity from legal liability as a result of reports made
in good faith.
5. The mandated reporting system has been criticized for the
inadequacy of constitutional protections and the administrative
challenges parents who are “factually innocent” face in getting
removed from the database.
IV.
6. Humphries v. County of Los Angeles is a procedural due process
case in which, even after two courts (criminal and
civil/dependency) found them innocent of any child abuse, parents
of a minor found it impossible to be removed from California’s
child abuse central registry.
Evolving Conceptions of Children’s Status
a. ASFA was designed to properly capture the spirit of the Adoption Assistance and
Child Welfare Act by making it very clear what the priority of child welfare was:
the safety and well-being of children, not the preservation of families; and two,
establishing timelines.
b. “Neglected child” means any child who is not receiving the proper or necessary
nourishment or medically indicated treatment including food or care not provided
solely on the basis of the present or anticipated mental or physical impairment as
determined by a physician acting alone or in consultation with other physicians or
otherwise is not receiving the proper or necessary support or medical or other
remedial care recognized under State law as necessary for a child's well-being, or
other care necessary for his or her well-being, including adequate food, clothing
and shelter; or who is abandoned by his or her parents or other person responsible
for the child's welfare without a proper plan of care; or who has been provided
with interim crisis intervention services under Section 3-5 of the Juvenile Court
Act of 1987 and whose parent, guardian, or custodian refuses to permit the child
to return home and no other living arrangement agreeable to the parent, guardian,
or custodian can be made, and the parent, guardian, or custodian has not made any
other appropriate living arrangement for the child; or who is a newborn infant
whose blood, urine, or meconium contains any amount of a controlled substance
as defined in subsection (f) of Section 102 of the Illinois Controlled Substances
Act or a metabolite thereof, with the exception of a controlled substance or
metabolite thereof whose presence in the newborn infant is the result of medical
treatment administered to the mother or the newborn infant.
c. The Illinois DCFS utilizes what is known as a Child Endangerment Risk
Assessment Protocol (CERAP) to determine the safety risk facing a subject child.
Based upon the factors present in a given case, the agency may file a petition or
put a “safety plan” in place.
d. A 2015 study on social worker decision-making revealed that “reasoning
strategies utilized by social workers to support their decision making suggest that
they tend to selectively interpret information either positively or negatively to
support pre-existing underlying hypotheses. This finding is in keeping with the
literature on 'confirmation bias.‘” It, along with systemic factors, shape all of
child welfare decision-making.
e. That the Connecticut statute authorizing removal of children “if the commissioner
has probable cause to believe that a child is "suffering from serious physical
illness or serious physical injury or is in immediate physical danger from his
surroundings, and that immediate removal from such surroundings is necessary to
insure the child's safety....” violates the due process clause of the fourteenth
amendment both because it is an impermissible infringement on her right to
family integrity, and because the statute is unconstitutionally vague.
f. The statute is constitutional because the language of the statute limits the scope of
intervention to cases where the state interest is compelling. Intervention is
permitted only where "serious physical illness or serious physical injury" is found
or where "immediate physical danger" is present.
i. As to the narrowly tailored requirement, the statute meets this part of the
test by requiring, in addition to the compelling need to protect the child,
that the assumption of temporary custody by the commissioner be
immediately "necessary to insure the child's safety." This phrase requires
that various steps short of removal from the home be used when possible
in preference to disturbing the integrity of the family. The statute is
constitutional because the language of the statute limits the scope of
intervention to cases where the state interest is compelling. Intervention is
permitted only where "serious physical illness or serious physical injury"
is found or where "immediate physical danger" is present. As to the
narrowly tailored requirement, the statute meets this part of the test by
requiring, in addition to the compelling need to protect the child, that the
assumption of temporary custody by the commissioner be immediately
"necessary to insure the child's safety." This phrase requires that various
steps short of removal from the home be used when possible in preference
to disturbing the integrity of the family.
g. What are the relevant statutes pertaining to taking children into custody? 705
ILCS 405/ Juvenile Court Act
i. Probable cause (to believe child is abused, neglected or dependent) is the
standard of proof at this early stage of a child welfare case.
ii. After this factual finding, “the court may enter an Order of Protection
setting forth reasonable conditions of behavior that a parent, guardian, or
custodian must observe for a specified period of time, not to exceed 12
months, without a violation” or “[i]f it is consistent with the health, safety
and best interests of the minor, the court may also prescribe shelter care
and order that the minor be kept in a suitable place designated by the court
or in a shelter care facility designated by the Department of Children and
Family Services or a licensed child welfare agency.”
iii. “In determining the health, safety and best interests of the minor to
prescribe shelter care, the court must find that it is a matter of immediate
and urgent necessity for the safety and protection of the minor or of the
person or property of another that the minor be placed in a shelter care
facility or that he or she is likely to flee the jurisdiction of the court, and
must further find that reasonable efforts have been made or that,
consistent with the health, safety and best interests of the minor, no efforts
reasonably can be made to prevent or eliminate the necessity of removal
of the minor from his or her home.”
h. REMOVAL AT TEMPORARY CUSTODY HEARING REQUIRES:
i. PROBABLE CAUSE to believe child is abused or neglected as defined in
the statute;
ii. IMMEDIATE AND URGENT NECESSITY FOR THE SAFETY AND
PROTECTION OF THE MINOR that the minor be placed in shelter care;
and
iii. REASONABLE EFFORTS have been made to prevent or eliminate the
necessity for removal.
i. “When the court finds or has found that there is probable cause to believe a minor
is an abused minor as described in subsection (2) of Section 2-3 and that there is
an immediate and urgent necessity for the abused minor to be placed in shelter
care, immediate and urgent necessity shall be presumed for any other minor
residing in the same household as the abused minor.”
j. Child Neglect: Research reveals that the impact of child neglect on brain
development may be significant and lasting. This is particularly true for very
young children whose brain development follows a “bottom-up” design. What
this means is that the most regulatory, bottom regions of the brain develop first;
followed, in sequence, by adjacent but higher, more complex regions. The
organizing, "sensitive" brain of an infant or young child is more malleable to
experience than a mature brain. While experience may alter and change the
functioning of an adult, experience literally provides the organizing framework
for an infant and child. Exposure to early life trauma has been shown to be highly
correlated to negative health outcomes across one’s lifespan. The Adverse
Childhood Experiences Study (ACEs) demonstrates this in many health domains.
The ACEs Study is a large-scale, ongoing evaluation of the link between negative
childhood experiences and the origins of risk behaviors that evolve into the
leading causes of disease and disability in adulthood.
k. An International Law Basis for Children’s Rights?
I.
Children’s rights under the U.N. Convention on the Rights of the Child are
typically described as falling under the “three P’s” Participation,
Protection and Provision.
II.
For many reasons, participation is regarded as the most troubling of the
CRC’s provisions. Using “capacity” as a touchstone, our society has
defined permissible restrictions on the freedoms enjoyed by children
including, to vote, hold office, marry, drive automobiles, shoot firearms,
gamble, enter into contracts, consent to sexual acts, and to make many
other binding decisions about their own lives, that have curtailed
children’s participation.
III.
“It is difficult to assess the true extent of children’s capabilities in a
society that presumes their incompetence.”
IV.
The reality is that we may never know what young people are capable of
until we vest them with opportunities to participate in the process of
problem-solving while they are still young.
V.
VI.