children's rights and society's duties

JOURNAL OF SOCIAL ISSUES VOLUME 34, NUMBER 2, 1978

Children’s Rights and Society’s Duties

Serena Stier

Coralville, Iowa

Recent legal decisions affecting the rights of children are reviewed and analyzed in terms of efforts to balance the often competing interests of children, their families, and the state. Several decisions that have resulted in an extension of children’s rights have been based primarily on clarification of general constitutional principles rather than on a changing conception of children and their appropriate rights. The courts also see legislative action as the appropriate mechanism for responding to children’s needs. In this regard, it is important to distinguish between legal rights and society’s duties. The former are the province of the court while the latter are the province of the legislature and the community.

The Supreme Court in July of 1967 held that minors, children under the age of eighteen, may consent to an abortion without requiring parental consent (Planned Parenthood u. Danforth, 1976). In contrast to this ruling the Federal Trade Commission, responding to a complaint filed by Action for Children’s Television, recently ruled that a drug company must stop its advertising of a “super-vitamin.” This decision was based on the belief that “children are unqualified by age or experience to decide themselves whether or not they need or should use” the product which was advertised (Goodman, 1976).

These two decisions focus initially on different age groups. At the point of adolescence, however, the issues come together. They reflect the complicated and often contradictory positions that evolve in the process of fashioning an appropriate balance among the often competing interests of children, their families, and the state. In each case an advocacy group for children is pressing to provide state protection for children. In the one case the desire is to protect the right of children to control their own reproductive decisionmaking and thus foster their autonomy.

Correspondence regarding this article may be addressed to S. Stier, 302 Olde Hickory Ridge, Coralville, I0 52241.

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CHILDREN’S RIGHTS AND SOCIETY’S DUTIES 47

In the other the effort is based on the vulnerability of children and the need to protect them. These competing and contradictory interests are pursued within the legal arena. For mental health professionals it is an arena of increasing importance that is sometimes misunderstood. In particular, this paper suggests the legal system’s capacity to fashion solutions to some complex societal problems is frequently exaggerated.

T h e first section of this paper will sketch the emergence of legal rights of children both under the Constitution, which is interpreted through case law, and in practice, through statute, administrative regulation, and procedure. T h e second half of the paper will address the problem of stretching legal concepts beyond their limits by looking at contemporary efforts to translate the fulfillment of children’s needs into legally protectable rights.

EMERGING LEGAL RIGHTS O F CHILDREN In balancing the interests of parental autonomy, children’s

rights, and state concerns, the courts have been willing to intervene in the family domain only under special circumstances. Attempts to expand children’s legal rights so that they generally parallel those of adult citizens are confronted with the presumption of the importance of parental autonomy as a good to be preserved by the state so long as one cannot demonstrate some overriding state interest that would justify interference in the family relationship (Baskin, 1974). T h e power of this belief in the preeminence of the family in controlling a child’s actions is well illustrated in the judicial arena by the narrowness of Supreme Court decisions involving children. In the legislative arena, the history of a program like the Child Welfare and Family Assistance plan, proposed since 1970 by former Senator Mondale (Senate Subcommittee on Children and Youth, 1976)’ reflects the same value preference-it was decried by a well-orchestrated letter-writing campaign as a legislative attempt to destroy the family and was never enacted.

One commentator has likened the configuration of parental, child, and state interests to a closed triangle so that “any expansion of the child’s rights must be accommodated on another side. T h e [Supreme] Court has been noticeably more reticent in checking parental discretion than in limiting the power of the state” (Ellis, 1974, p. 877). There appears to be a kind of primary or natural right for parents to control their children’s nurture, yhich can be traced in a line of cases from the early 1920s in which the “natural right” concept was translated into a substantive

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due process protection for the liberty of parenthood (Baskin, 1974). Such an interpretation would extend to parental rights a presumption that they should prevail in any contest between parent and child.

The fragile legal status of children is emphasized when it is remembered that before about 1825 the state in effect recognized children only in terms of their role as chattel or possessions of their parents (Hofmann & Pilpel, 1973). Following the first quarter of the nineteenth century, protective state statutes and practices began with the development of children’s reformatories.

Legally, children fall within the category of infancy or minority and this largely determines the rights and duties of the child before the law. Certain rights do extend to children when they attain some special legal status, such as a party in a lawsuit or under a will. In addition, special statutes have given legal recognition to increased competence of children in special areas such as the right to drive a motor vehicle, to drop out of school, to vote, etc. A child may escape from the legal status of minor (the class of all individuals under age 21, or 18 in some instances) by the doctrine of emancipation. A declaration of emancipation may be made to release a child from parental control should the child marry, enter military service, or become economically independent and live separately from his or her family (Rodham, 1973).

The Child as a “Person” Not until the landmark juvenile justice decision I n re Gault

(1967) did the Supreme Court affirm the constitutional standing of children. The declaration, enunciated by Justice Fortas, that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone” ( I n re Gault, 1967, p. 13) was followed two years later by the declaration that children are “persons” under the Constitution (Tinker u. Des Moines School District, 1969). More recently, the Court noted that “Constitutional rights do not mature and come into being magically only when one attains the state- defined age of majority. Minors, as well as adults, are protected by the Constitution and possess Constitutional Rights” (Planned Parenthood u. Danforth, 1976, p. 5204).

These various declarations by the Court raised the possibility that the judicial system would view children as a class as having constitutional rights similar to adults as a class. However, because of changes within the Supreme Court’s composition, coupled with the strong societal ambivalence toward children, these court

CHILDREN’S RIGHTS AND SOCIETY’S DUTIES . 49

decisions and statements have failed to lead to such an equalization of children’s constitutional rights. The Supreme Court has not chosen simply to extend to children all those rights constitutionally assured to adults (Rodham, 1973). Instead, certain adult rights have been extended to children in a piecemeal fashion under specific circumstances when children happened to be involved in cases otherwise raising matters of traditional judicial concern.

Consequently, the evolving structure of the legal underpin- nings of children’s rights is not based on a generalized recognition of children qua children as a proper matter for constitutional concern. Rather, fairly discreet classes of children may receive protection in particular circumstances that give rise to judicial concern whether children are involved or not. For example, children whose parents are in the process of divorce are beginning to have their preferences considered or at least represented in custody hearings (Goldstein, Freud, & Solnit, 1973; Inker & Peratta, 1970; Newman, cited in Ellis, 1974). Adolescent children in need of medical or psychological assistance are increasingly being viewed as capable of consent on their own to these procedures (Hofmann & Pilpel, 1973). Such extensions of rights to children follow as a result of societal concern with some overriding legal issue, such as divorce or protection from unauthorized interference with one’s person, rather than from concern with children per se. Thus, instead of viewing the Gault decision as representing a determination to extend to children as a class most of the procedural rights accorded adult defendants in criminal proceedings, the decision might better be characterized as reflecting Supreme Court concern with protecting the rights of individuals confronting the criminal justice system generally, including those in the juvenile justice system.

Juum ile Justice Rights The Gault decision grew out of a disillusionment with the

functioning of the juvenile justice system. That system was set up without the formal procedural protections required in adult criminal proceedings with the intention of creating an opportunity for greater flexibility and sensitivity to the needs of juveniles, in particular with respect to rehabilitation efforts. The hoped-for beneficial results for juveniles, however, were not realized (Platt, 1969). Therefore, Gault extended to the juvenile defendant most of those procedural protections normally granted to adults in crifninal court proceedings. This included giving notice of the charge to both parent and child so as to provide a reasonable

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opportunity to prepare a defense, the right to counsel, the provision of counsel if the child is indigent, the privilege against self-incrimination, and the right to confrontation and cross-exami- nation of witnesses. However, even within the juvenile justice system the rights accorded juveniles do not exactly parallel adult rights, as demonstrated by a 1971 Court decision denying jury trials to alleged delinquents in juvenile court (McKeiver u. Pennsyl- vania, 1971).

In the Gault opinion the Court recognized the danger of exchanging procedural protections for ephemeral and often unrealized treatment promises. Were undeniably efficacious rehabilitation available to juveniles, it is not clear whether the Supreme Court would have acted differently. However, the primary issue would most likely still have been what kind of proceeding is required where the possibility of a significant deprivation of liberty is at stake. The legal issue in this and other kinds of cases is simply not stated in terms of the interests and rights of children as a class.

Educational Rights Some constitutional commentators have interpreted the case

of Brown u. Board of Education (1954) as asserting a basic right of children to education. In fact, of course, the case is framed in other terms-the issue of the impact of racial discrimination on the educational experience. Another case (Wisconsin u. Yoder, 1972), in which the Court ruled that Amish parents may prevent their children from attending high school in defiance of state compulsory education laws, has been interpreted by some commentators as diluting the finding in BroGn in terms of a right to education (Rodham, 1973). But once again this illustrates the problem of interpreting a Supreme Court decision outside the framework articulated by the Court itself. The focus of the Amish case is really freedom of religion and not whether or not children have a right to education. Parenthetically, it should be noted that Justice Douglas was alone on the Court in his suggestion that the views of the children concerned be solicited.

The Supreme Court is concerned that it not act like a kind of superlegislature. It has generally resisted announcing opinions that have the effect of making new law, even though its interpretation of statutes or the Constitution may sometimes have that effect. Thus, in the case of Sun Antonio Independent School District et al. u. Rodriguez et al. (1973) the Court held that the State of Texas might continue to support education through the property


tax even if that meant unequal expenditures for education among the different school districts. The Court explained that although “education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this court as guaranteed by the Constitution” (p. 1972).

The right to education for the handicapped has been success- fully litigated in the lower courts (Mills u. Board of Education, 1972). Once again, however, these cases do not address the issue of a general right to education for all children. Rather these cases involve the assertion that insofar as the state does provide educational opportunities for its nonhandicapped child citizens, it must provide equivalent access to those who are handicapped. This amounts to invoking for handicapped students the equal protection clause of the Fourteenth Amendment to the Constitu- tion. It suggests that children enjoy equal protection, but does not set any minimum standard.

Juxtaposition of Parental and Child Rights In December of 1976, the Court heard oral argument on

Kremens u. Bartley (1977), a case much more on point in terms of balancing parental, child, and state interests. The American Psychological Association, along with numerous other organizations concerned with children, participated as amici curiae, “friends of the court” (Bartley u. Kremens, Note 1). The case began in I975 when the Pennsylvania state court ruled in favor of Kevin Bartley and the class of children under the age of 18 whom he represented in the lawsuit. The court determined that before children could be placed in state mental facilities by their parents, various procedural protections, such as providing counsel to the child and a hearing mechanism, must occur. After this case had been decided in the Pennsylvania courts, regulations which sub- stantially increased the procedural safeguards afforded minors aged 13 and older were enacted through the Mental Health Procedures Act of 1976 in Pennsylvania. This action is of major importance to the subsequent history of the case.

The appeal to the Supreme Court was eventually ruled on in May of 1977. It was sent back to the Federal District Court in Pennsylvania for a rehearing on certain issues. All but two of the justices ooncurred in the majority opinion written by Justice Rehnquist. Justices Brennan and Marshall filed a dissenting opinion (Kremens u. Bartley, 1977).

Essentially, the Supreme Court took a fairly narrow proce- dbral stance, sending the case back because the claims of the

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defendants were mooted by the Mental Health Procedures Act of 1976 enacted after the District Court decision. The effect of the Act was to satisfy the specific defendant’s complaint. T h e District Court was asked to reconsider the class definition, to exclude those whose claims were mooted, and to substitute class representatives with live claims.

T h e flavor of the exchange within the Court is suggested by Justice Rehnquist’s portrayal of Justice Brennan’s dissent:

Mr. Justice Brennan suggests that our refusal to review the merits of these claims and our vacation of the District Court’s judgment, is simply a confusing and unnecessary exaltation of form over substance. . . . The dissent’s startling statement that our insistence on plaintiffs with live claims is “purely a matter of form,” . . . would read into the Constitution a vastly expanded version of Rule 23 [Rule of Federal Procedure dealing with the prerequisites to a class action]. The availability of thoroughly prepared attorneys to argue both sides of a constitutional question, and of numerous arnici curiae ready to assist in the decisional process, even though all of them “stand like greyhounds in the slips, straining upon the start,” does not dispense with the requirement that there be a live dispute between “live” parties before we decide such a question. (Kremens u. Bartley, 1977, pp. 1717-1718, footnote 15)

T h e point of elaborating on what is essentially a nondecision is to illustrate that, whatever the merits of the Court’s procedural stance, the result may indicate the Court’s resistance to altering the balance of parental, child, and state rights. Legislatively, however, there has been a liberalizing trend in evaluating the capacity of a minor to make adult decisions which is expressed in terms of a “mature minor rule.” Such a rule allows consent to medical care to be given by unemancipated minors of “sufficient intelligence to understand the nature and consequences of the treatment they consent to, if the treatment is for the minor’s benefit.” A recent Mississippi law incorporated this doctrine by permitting any minor “of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment” to consent to health care. A 1971 Alabama statute similarly liberalizes the traditional rule by permitting minors of 14 years and over the right to consent to all medical treatment (Hofmann & Pilpel, 1973).

In the amicz curiae brief prepared by the Mental Health Law Project for the American Psychological Association and six other mental health organizations for Bartley u. Kremens (1976)’ the participants proposed that children of 12 years o r older should


be accorded the same due process protections as adults in considering institutionalization. The choice of the age of 12 as an increasingly preferred dividing line for majority status seems to reflect the impact of the research of Swiss psychologist Piaget (Piaget & Inhelder, 1958), as well as current societal practices where the age of 12 appears to determine whether or not a child must pay full fare to travel or to attend a movie.

The movement away from a restrictive view of minority is also evident in administrative regulations being drafted by the National Commission for the Protection of Human Subjects regarding the rights of children to participate in experimentation. Further development and extension of this concept of a “mature minor doctrine” may provide an appropriate means for extending children’s rights without resorting to constitutional authority.

This brief review of some of children’s emerging legal rights illustrates that this is an extremely unsettled area qf the law at best. Recent decisions on abortion and conception, for example, pose many new complex issues (Gunther, 1977). The Supreme Court has acknowledged that children do have constitutional rights, but what these may be under particular circumstances is still largely unknown outside the juvenile justice area. The “law in fact,” which extends beyond tlie judici i1 .wens to legislative and administrative law as well as to everyday practice, suggests the application of an emerging notion of actual mental functioning in determir ing legal rights rather than specific age limitations, through the development of the “mature minor doctrine.”

A recent summary of case law suggests the following charac- teristics describe the legal rights of children as they have so far been enunciated by the courts:

(1) Children are persons and enjoy constitutional rights and protections. (2) The children’s interests have generally been seen as allied with those of their parents. (3) In conflicts between the interests of parents and children, the rights of children and the role of the state are still without clear delineation. (4) The state may act to limit parents’ discretion with regard to their child. When it does, its interests are twofold: (a) protecting the interests of the child, and (b) furthering general societal interest in the well-being of its youth. (Ellis, 1974, pp. 875-876)

EXTENDING THE RIGHTS ANALYSIS Although children have escaped both from the category of

c,hattel of the period prior to the eighteenth century and the romanticized class of “perfect angels” of the nineteenth century,

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their role in society is still fraught with ambiguous and contradictory expectations (de Mause, 1974). In the twentieth century, children’s societal position has been aggravated by the increasing cost of children together with their decreasing economic utility. Perhaps, then, it should be no surprise to discover that even in the proclaimed child-oriented United States of the near twenty- first century essential needs of children for survival and development are not being met.

A recent report of the National Council of organizations for Children and Youth in honor of the American bicentennial (Note 2) detailed some of the statistics on the state of the child and found some of the following disturbing trends:

Although the birthrate has declined, between 1970 and 1976 more children lived below the official poverty standard in 1976 than did in 1970. There is a “new morbidity” affecting children including behavior problems, learning disorders, child abuse, and once traditional adult problems with venereal disease and drug and alcohol abuse. Children’s medical and dental health care needs are not being met despite major expenditures because of poorly administered health programs.

Although by 1974 expenditures by the federal government on children and youth had increased to 10% of the total federal program in social welfare, this increased funding has had no substantial impact on America’s most impoverished children. Children’s needs in America today are simply not being met. Part of the reason for this is a failure to get the children with the problems together with the programs that do in fact exist (Joint Commission on Mental Health of Children, 1970). Frustra- tion at this failure to meet children’s needs has led some organized advocacy groups to adopt the strategy of trying to have children’s needs translated into constitutionally recognized rights through judicial action.

Dist ingu ish ing Rights and Duties Interpretation of the concept of a “right” could easily involve

the attention of an entire philosophers’ convention. For our purposes the distinctions of the legal philosopher H. L. A. Hart will suffice. Hart (1955) emphasizes the importance of distinguish- ing between legal right and moral duty. For Hart, the fact, for example, that a parent (or society for that matter) may be morally obliged to t ry to meet the needs of a dependent child does not confer upon the child a legally enforceable right to this support.


He argues that the notion that parents (or society) may have a moral obligation to care for their children is sufficiently well handled by the concept of duty without involving the notion of right, which has a more specialized meaning. “Rights are typically conceived of as possessed or owned by or belonging to individuals.” They have a quality of being inviolate. Normally, we expect that such rights will be protected by the judiciary when infringed. Of course it is this very quality of rights as seeming to be inalienable and enforceable which leads many child advocates to attempt to color children’s needs with the same sense of authority and immutability by describing them as rights.

Both psychologists and lawyers have attempted to extend to children’s needs the legal imperative of a right by declaring various “bills of rights for children,” which may include everything from the right to an education (Forer, 1972) to the right to responsive design (Farson, 1974). Failing to distinguish between moral obligation, society’s duty to meet the needs of its child citizens, and legal rights, however, may result in diluting the force of the concept of a right as it properly applies to constitutionally enunciated notions such as equal protection and due process, even while it fails to achieve any improvement in society’s response to children’s needs.

A n Argument f o r Extending the Notion of Right An argument based on the status of the child has been

tentatively suggested for recognizing as rights certain of society’s duties to children. It is proposed that certain vulnerable groups in our society, such as mental patients, the institutionalized elderly, and children, should enjoy the realization of certain of society’s duties as rights because the vulnerable or dependent position of these citizens has been created by state action. For mental patients, for example, it has been held that involuntary commitment, the taking of a person’s liberty, requires as a quid pro quo the giving of treatment (O’Connor u. Donaldson, 1975; Rouse u. Cameron, 1966; Wyatt u. Aderholt, 1974).

Such a “right to treatment” is still uncertain in terms of its judicial standing, but, more importantly for our purposes, its theory has yet to be extended to children (Wald, Note 3). The notion of a right to treatment, and the even less developed but related concept of a right to refuse treatment (Bart19 u. Kremens, Note l), does provide a basis for rationally implying from the stfte-created status of a juvenile in need of treatment a concomitant right to that treatment. However, a “viable legal theory for a

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general right to treatment for all juveniles has (not yet) emerged” (Wald, Note 3). An outline of what such an argument and its extension to other rights for children might look like has been offered by attorney Wald. She suggests:

It might be argued that a child’s dependent status is in large part the creation of society, e.g., compulsory education laws, restrictions on minor’s ability to contract, etc. That dependent status in turn contributes to the minor’s inability to fend for himself in securing treatment for his needs; hence society has an obligation to provide such treatment. (Wald, Note 3)

Such an argument extends to children the vulnerable status through state action perspective earlier articulated for institutionalized mental patients, Enunciating a right to treatment for adults has been begun by the courts. However, as Wald herself acknowledges, “the chaos . . . such a right would create in our legal and mental health systems almost necessitates it come not from the courts but from carefully considered legislative action” (Wald, Note 3, p. 16). As we have seen in the first section of this paper, courts prefer to strike down laws rather than to force legislatures to take affirmative action by evoking and pressing constitutional considerations. Moreover, as we have also seen, the courts tend not to consider the children’s issues they have confronted in terms of children-rather, children happen to be involved in circumstances that otherwise raise constitutional issues. The fact of institutionalization for example-a deprivation of liberty protected by the Fourteenth Amendment-would be the basis for affirming a “right to treatment” for all persons institutionalized by the state, be they children or adults. To extend such an analysis to less clear deprivations of liberty such as the requirement to attend school until age 16 and argue therefrom a “right to education” is a much more precarious undertaking. Further extensions of this style of argument to even more peripheral issues, such as a “right to medical care,” undermines the clarity of the “right to treatment” argument without persua- sively buttressing the authority of these other rights.

CONCL USIO N

The failure of society to meet children’s physical and mental needs has set the stage for the play of forces pressing to extend the gloss of “right” to the expression of those needs. Inchoate as the legal rights of children may be, the frustration of attempts to force society to meet its duties to its child citizens has led many reformers to propose that those duties-to feed, to educate,


to maintain health-are in fact rights due children as legal imperatives. It is the contention of this paper that the attempt to extend and thus dilute the notion of legal right to encompass society’s moral duties presses the courts to perform a function better attempted by the legislature. Certainly, this review illustrates the resistance of the judiciary to come to terms even narrowly with defining the legal rights of children. T o attempt to extend that still tenuous analysis to the meeting of children’s needs seems both futile and unwise.

The quality of the optimal relationship between the state and its child citizens in terms of meeting children’s needs is more appropriately captured by Hart’s (1955) notion of duty. The state’s obligations to children derive from the transactional nature of the relationship between child and state, parallel to the kind of relationship that occurs between child and parent. A transactional relationship is mutual and mutable. Each party extends something to the other and what this something is changes over time and varies over circumstances.

The motivation for the state to meet the needs of its child citizens does not and cannot derive from some arguable legal requirement alone. Inspiring society to meet its duties to children involves the creation of a sense of moral and social imperative, together with an appreciation for the potential benefit of creating successful future adult citizens who, in turn, feel a responsibility to cooperate with the state. In addition, of course, considering the multitude of competing interests seeking state satisfaction, the appropriate use of political persuasion in committing the state to the fulfillment of its duties to children is also necessary. When political action leads legislatures to mandate certain services to meet the needs of children, then these needs are appropriately translated into legal rights based on statutes. Extension of the rights of children as constitutionally determined is of course a useful, meaningful objective. However, it is the political process, not the judicial process, that needs to be engaged in order to provide what children need qua children and what children need to develop into effective adults.

REFERENCE NOTES 1. Bart19 U. Kregnens, 402 F. Supp. 1039 (E.D. Pa. 1975): Amicz curtae brief

of American Psychological Association et al. Washington, D.C.: Mental Health Law Project, 1976.

2. National Council of Organizations for Children and Youth. America’s children 1976: A bicentennialassessment. Washington, D.C.: National Council, 1976.

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3. Wald, P. M. The legal rights of children in treatment. Paper presented at the meeting of the American Psychiatric Association, May 1976.

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Farson, R. Birthrights: A bill of rights for children. New York: Macmillan,

Forer, L. The rights of children. Young Children, 1972, 27, 332-339. Goldstein, J., Freud, A,, & Solnit, A. J. Beyond the best interests of the child.

Goodman, E. A limit on ads for kids. The Washington Post, September 15,

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