CHILDREN'S RIGHTS

CHILDREN'S RIGHTS. The legal status of children has evolved over the course of American history, with frequent changes in the balance of rights among the state, parents, and children in response to social and economic transitions. Over time, the state has taken an increasingly active role in protecting and educating children, there by diminishing the rights of parents. It is fair to say, however, that children's rights as a full-blown independent concept has not developed. Even today there are only pockets of law in which children's rights are considered separate from those of their parents, and these are largely in the areas of reproductive rights and criminal justice.

For the whole of the colonial period and early Republic, Americans viewed children as economic assets whose labor was valuable to their parents and other adults. In this early era, the father as the head of the household had the complete right to the custody and control of his children both during the marriage and in the rare event of divorce. A father could hire out a child for wages or apprentice a child to another family without the mother's consent. Education, vocational training, and moral development were also the father's responsibility. The state took responsibility for children in one of several circumstances: the death of a father or both parents, the incompetence or financial inability of parents to care for or train their children, and the birth of illegitimate children. With these events the two major considerations in determining the fate of the child focused on the labor value of the child and the ability of the adults to properly maintain and supervise the child. Widows often lost their children because they were no longer able to support them. In the era before orphanages and adoption, such children were usually apprenticed or "placed out" to another family, who would support them in exchange for their services. A child born out of wedlock was known as "filius nullius" or "child of nobody" and the official in charge of enforcing the town's poor law was authorized to "place out" the child with a family.

Over the course of the nineteenth century, as more emphasis was placed on child nurture and education, various states passed legislation attempting to regulate child labor, largely by requiring a certain amount of schooling for children working in factories. However, such measures were hampered by the presence of loopholes and a lack of effective enforcement machinery. For example, in 1886 the state of New York passed a Factory Act prohibiting factory work by children under the age of thirteen, but appointed only two inspectors to oversee the state's 42,000 factories. The legal concept of "the best interest of the child" was initiated, the first recognition that children had rights independent of their parents. Under this rule, mothers gained favor as the parent better able to handle the emotional and nurturing needs of children of "tender years," and mothers were likely to prevail over fathers in the custody battles following the increasingly common event of divorce. Orphanages were introduced as a more child-centered approach than "placing out" for caring for children whose parents were dead or unable to care for them.

At the beginning of the twentieth century a coalition of civic-minded adults, popularly known as "child-savers," fought for a variety of legal reforms designed to protect children. Efforts were made to enact more effective child labor laws, although these efforts were initially thwarted at the federal level. In Hammer v. Dagenhart (1918) the Supreme Court ruled that in its attempt to regulate child labor Congress had exceeded its constitutional authority and violated the rights of the states. The Fair Labor Standards Act of 1938 finally succeeded in prohibiting employment of children under sixteen in industries engaging in interstate commerce. The early reformers were more successful with regard to compulsory school attendance and the establishment of juvenile courts, which handled children who were either neglected by their parents or delinquent in their own behavior. The first such court was established in Chicago in 1899. Government took a decisively more active role, irrevocably reducing parental authority and laying the ground for our modern child welfare and educational structure.

It was not until the civil rights movement of the 1960s that children gained some civil rights of their own, apart from their parents. In 1965 three Quaker school-children were suspended for wearing black armbands in their classroom to protest the Vietnam War. In Tinker v. Des Moines School District (1969) the Supreme Court stated that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Yet the Court in the 1970s allowed censorship of school newspapers and gave school authorities wide discretion to search student lockers.

The direction of the Court continued toward limiting student rights. In the early twenty-first century, the Supreme Court gave public school officials much wider authority to test students for drugs, setting the stage for districts to move toward screening everyone who attends school. In Board of Education v. Lindsay Earls (2002) the Supreme Court permitted districts to require random tests of any student who takes part in extracurricular activities such as band, chorus, or academic competition. Previously, the Court had upheld mandatory testing of student athletes.

It is in the arena of juvenile justice that courts have most seriously considered rights for children. In 1965, the same year that the Quaker children were protesting the Vietnam War in Des Moines, in Arizona fifteen-year-old Gerald Gault was charged with making an anonymous obscene phone call to an elderly neighbor. Without the benefit of a lawyer or a trial, Gerald was sentenced to incarceration in a boys' correctional institution until age twenty-one. The ensuing landmark Supreme Court decision, In Re Gault (1967), later expanded by several sub-sequent decisions, gave children who were defendants in juvenile court criminal actions nearly all the due process protections that adult defendants receive in the regular criminal courts, including lawyers and the right against self-incrimination. The rights to a speedy trial, bail, or a jury were still lacking at the close of the twentieth century.

In the 1990s, state legislatures, responding to increased juvenile crime, grew eager to throw juveniles into adult courts at ever-younger ages, and to apply adult punishments to children. In most states a fourteen-year-old can be tried for murder as an adult, and the Supreme Court has declared that a sixteen-year-old can be sentenced to execution (Thompson v. Oklahoma, 1988).

While the Supreme Court has been willing to recognize some limited rights for children with regard to schools, courts, and other governmental institutions, it has been reluctant to grant children rights that might interfere with those of their parents. Much of this concern has focused on abortion. Soon after Roe v. Wade (1973) the Court conceded that an adult woman's right to abortion extended to adolescent girls as well, but it also carved out a good deal of room for parents' rights. The Court decided that individual states could pass parental consent laws. However, with the ambivalence typical of its earlier decisions on children's rights issues, the Court also held that a girl could bypass her parents by going to a judge. If the judge declared that she was a mature minor, the decision would be hers alone (Bellotti v. Baird II, 1979).

A minor's consent to abortion is a contentious issue. States are seriously divided on the issue, and the battles continue. There has, however, been some change on the somewhat less controversial issue of adolescent consent to other sensitive medical procedures, such as the treatment of sexually transmitted diseases and drug and alcohol abuse. In many states, a doctor who cannot give an adolescent an aspirin without parental consent can treat the minor for a venereal disease. On the other hand, in sharp contrast to the adult protections provided children who face possible criminal incarceration, the Supreme Court ruled in Parham v. JR (1979) that parents retain the right to commit their minor child to a mental health facility upon the recommendation of a physician with no judicial review. A child "volunteered" by his parents need not be a "danger to self or others"—the adult standard for commitment—but only deemed in need of medical treatment.

In family law, the "child's best interest" is always the standard in determining child custody between biological parents, but in practice the child is rarely granted a representative in judicial proceedings where custody is determined, and the preference of an adolescent child is only one consideration in a long list of factors to be considered in most states. The United Nations has in some ways gone further than the American legal system in expanding and clarifying the rights of the child. The framework of principles articulated in the 1989 U.N. Convention on the Rights of the Child provides that children have a right to a nurturing environment in accordance with their developmental needs; the right to have their voices heard in accordance with their ages; the right to legal representation; and the right to economic and emotional support from their parents and from the state.

CHILDREN'S RIGHTS

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