What Is Right for Children?

What Is Right for Children? The Competing Paradigms of Religion and Human Rights

Edited by Martha Albertson Fineman and Karen Worthington

What is right for children?

To our children

What is Right for Children?

The Competing Paradigms of Religion and Human Rights

Edited by Martha Albertson Fineman Emory University School of Law, USA Karen Worthington Emory University School of Law, USA

© Martha Albertson Fineman and Karen Worthington 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Martha Albertson Fineman and Karen Worthington have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data What is right for children? : the competing paradigms of religion and human rights 1. Children’s rights - United States 2. Children’s rights Cross-cultural studies 3. Children’s rights - Religious aspects 4. Children - Legal status, laws, etc. - United States I. Fineman, Martha II. Worthington, Karen 323.3'52 Library of Congress Cataloging-in-Publication Data What is right for children? : the competing paradigms of religion and human rights / [edited] by Martha Albertson Fineman and Karen Worthington. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7419-1 1. Freedom of religion--United States. 2. Children’s rights--United States--Religious aspects. 3. Parent and child (Law)--United States. 4. International and municipal law-United States. I. Fineman, Martha II. Worthington, Karen.



KF4783.W43 2009 342.7308'772--dc22

ISBN

978 0 7546 7419 1 (hbk)

2009000941 ISBN 978 0 7546 9901 9 (ebk.V)

Contents Notes on Contributors   Acknowledgements  

ix xi



1

Introduction What is Right for Children?   Martha Albertson Fineman

Part I

Children’s Rights as Human Rights   

1 The United Nations Convention on the Rights of the Child: Empowering Parents to Protect Their Children’s Rights   Barbara Bennett Woodhouse and Kathryn A. Johnson 2

Child, Family, State, and Gender Equality in Religious Stances and Human Rights Instruments: A Preliminary Comparison   Linda C. McClain

3 Rhetoric, Religion, and Human Rights: “Save the Children!”   Barbara Stark 4 Feminist Fundamentalism on the Frontier between Government and Family Responsibility for Children   Mary Anne Case

7

19 45

59

Part II Children in the United States: The Legal Context    5 6

Using International Human Rights Law in US Courts: Lessons from the Campaign Against the Juvenile Death Penalty   Linda M. Keller

83

The Lesser Culpability of the Juvenile Offender: Trial in Adult Criminal Court, Incarceration with Adults, and Excessive Sanctions   107 Bernardine Dohrn

What is Right for Children?

vi

7

Parental Rights Doctrine: Creating and Maintaining Maternal Value   123 Annette R. Appell

8

Placing Children in Context: Parents, Foster Care, and Poverty   145 Naomi Cahn

9

Expanding the Parent–Child–State Triangle in Public Family Law: The Role of Private Providers   Susan Vivian Mangold

169

Advocating for Children’s Rights in a Lawless Nation: Articulating Rights for Foster Children   Barbara Bennett Woodhouse and Brooke Hardy

195



A Proposal for Collaborative Enforcement of a Federal Right to Education   Kimberly Jenkins Robinson

205

12

Taking Children’s Interests Seriously   Martha Albertson Fineman

10 11

Part III 13

Comparisons: Children within the Context of Human Rights   

The Child’s Right to Religious Freedom in International Law: The Search for Meaning   Ursula Kilkelly

14 Clashing Rights and Welfare: A Return to a Rights Discourse in Family Law in the UK?   Shazia Choudhry 15

229

Accommodating Children’s Religious Expression in Public Schools: A Comparative Analysis of the Veil and Other Symbols in Western Democracies    Catherine J. Ross

243

269

283

16 Children, Education, and Rights in a Society Divided by Religion: The Perspectives of Children and Young People   311 Laura Lundy

Contents

vii

17

Children, International Human Rights, and the Politics of Belonging   329 Alice Hearst

18

The Right of Children to Be Loved   S. Matthew Liao

Appendix   Bibliography   Index  

347

365 389 439

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Notes on Contributors Editors Martha Albertson Fineman is the Robert W. Woodruff Professor of Law and the Director and founder of the Feminism and Legal Theory Project at Emory University, USA. Karen Worthington is Director of the Barton Child Law and Policy Clinic, Emory University Law School, USA. Contributors Annette R. Appell is Associate Dean of Clinical Affairs and Professor of Law at Washington University Law School, USA. Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School, USA. Mary Anne Case is Arnold I. Shure Professor of Law at the University of Chicago Law School, USA. Shazia Choudhry is Lecturer in Law at Queen Mary Law Department, University of London, UK. Bernardine Dohrn is Associate Clinical Professor at Northwestern University School of Law and founder of the Children and Family Justice Center, USA. Brooke Hardy is an Associate at Sutherland Law Firm, Atlanta, GA, USA. Alice Hearst is an Associate Professor of Government at Smith College, USA. Kathryn A. Johnson is an attorney working in international law and human rights, New York, NY, USA. Linda M. Keller is Associate Professor of Law at Thomas Jefferson School of Law, USA.



What is Right for Children?

Ursula Kilkelly is Senior Lecturer in Law at University College Cork, Ireland. S. Matthew Liao is Deputy Director for the Program on the Ethics of the New Biosciences in the Faculty of Philosophy at Oxford University. Laura Lundy is a Reader in Education and Director of the Research Forum for the Child at Queen’s University Belfast, Northern Ireland, UK. Susan Vivian Mangold is Professor of Law at the University of Buffalo Law School, USA. Linda C. McClain is Professor of Law and Paul M. Siskind Scholar of Law at Boston University School of Law, USA. Kimberly Jenkins Robinson is Associate Professor of Law at Emory University Law School, USA. Catherine J. Ross is Professor of Law at George Washington University Law School, USA. Barbara Stark is Professor of Law at Hofstra School of Law, USA. Barbara Bennett Woodhouse is the L.Q.C. Lamar Chair in Law and Co-Director of the Barton Child Law and Policy Clinic at Emory University Law School, USA.

Acknowledgements We would like to thank the contributors for their time and dedication to this project. We appreciate their willingness to revise their essays and patiently wait as we prepared the final manuscript. We would also like to thank all those who have helped to bring this book together in its final form, including assistant editor Melanie Mendenhall and research assistants Tiffany Hodge, Amelia Kuhn, and Samantha Lemery. Staff members of the Feminism and Legal Theory Project, particularly Celeste Bocchicchio, also offered assistance. Finally, we would like to thank Emory University’s Center for the Study of Law and Religion (CSLR), which supported the development of this book through a grant from The Pew Charitable Trusts. The book is an outcome of the CSLR research project, “The Child in Law, Religion, and Society.” The editors serve as CSLR Senior Fellows.

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Introduction

What is Right for Children? Martha Albertson Fineman

What is Right for Children? is built around a series of provocative assertions. The first is that in the United States, conservative religious beliefs about the appropriate ordering of authority in the family have been strengthened by law. Second, these beliefs are intertwined with a complementary and well-entrenched secular sense of non-intervention into the family, which is based on narrow common law principles of parental rights and family privacy. These intertwined religious and secular premises form part of an explanatory framework for considering the failure of the US to ratify the United Nations Convention on the Rights of the Child (CRC) (1989), a failure that distinguishes the US from all the world’s nations, save Somalia. This collection is intended to raise important questions for policy makers in the United States in light of the unanimous acceptance of the Convention on the Rights of the Child by the international community. It will also be of interest to other nations as they struggle to implement the objectives of the CRC. The most basic issue for us all is whether historic balances struck between parental and state authority over children remain appropriate, particularly as both national and international understandings of children and childhood evolve. The Convention on the Rights of the Child The CRC was adopted by the United Nations in 1989, after ten years of crafting. It contains a comprehensive list of human rights relating to children. Some provisions mirror those found in other human rights treaties, but the CRC also sets forth specific provisions directed at the survival, protection, and development of children. Most CRC provisions on their face should not be controversial in a liberal democracy. For example, the CRC establishes that the basic principle of nondiscrimination applies to children. This mandates that girls and boys are to be treated equally. Children with disabilities are not to be discriminated against. However, some Americans believe that the possibility of intra-family conflict is inherent in the very idea that children have rights. They argue that the antidiscrimination principle has the potential to go beyond merely putting children on an equal footing; it could be used to advance the truly “radical” argument that children should be viewed as the equals of adults for many purposes and should not



What is Right for Children?

be discriminated against on the basis of their youth. Such arguments would lead us beyond the non-controversial assertion that, as human beings, children have the same inherent value as adults. It is a more contested assertion; children should have an age-appropriate and gradually increasing right to self-determination, as well as the ability to meaningfully participate in decisions that affect them. To opponents of the CRC, this would undermine parental authority as well as threaten the very existence of the traditional family. Religion, State and Family The United States is theoretically a secular state, but religion is far more central in US policies than in European states with national religions, such as France, or countries with which the US shares common history, such as Canada. In these other contemporary advanced countries, international human rights norms now explicitly form the background for discussion of domestic policies and define governmental obligations. Human rights norms have, in a very real political sense, displaced historic ideas about family hierarchy and traditional roles. By contrast, in the United States resistance to emerging international norms of individual dignity and substantive equality seem particularly pronounced in regard to gender, sexuality, and family issues. Historically, religious doctrines shaped our cultural and social understanding of the American family. Religious mandates gave us the “family values” through which we constructed images of what was normal and what was deviant, as well as defining appropriate family roles for men, women, and children. Law in other common law countries such as England and Canada also initially incorporated and reflected conservative religious sensibilities in defining what is considered appropriate or legitimate in regard to family form and function, as well as what is “moral” in regard to intimate behavior. The historic image of the common law family was initially forged in ecclesiastical courts in England, which developed the laws that defined and regulated the legitimate family. Historically, and in accordance with the church’s approach to marriage, legal and other texts analogized the relationship between husband and wife to other “natural” hierarchical arrangements. Thus, a man was enthroned as head of the family, just as Jesus reigned as the head of the church, and the King was the head of the state. The respective positions of husband and wife were rigidly distinct and patriarchally ordered—husband’s role, as frail wife’s protector, was deemed “divinely ordained.” Common law rules and regulations which eventually took over regulation of the family continued to aid in the construction and maintenance of subordinate gender roles in the family. The structure of the common law mired married women, in particular, in family responsibility and left them on a legal plane far from access to independent and autonomous decision making. Among the religious mandates that found expression in law was that of marriage as a lifelong sexual union blessed

Introduction



and sanctified by God, whose purpose was procreation. Laws prohibiting sexual relations outside of marriage reinforced its preferred position. In addition, family relationships reflected the hierarchical organization of religious society. Authority over children in the common law family was fairly extensive. Its justification was founded upon the necessities of parental responsibility. William Blackstone in his Commentaries on the Laws of England (1811) declared: The power of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it … [t]he power of a parent by our English laws [is] sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. (p. 452)

References to “parents” in this context should be understood in light of the further admonition by Blackstone, in the same chapter, that he was discussing the “legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) …” (p. 453). James Kent’s Commentaries on American Law [1827] shows how this version of a gendered and authoritarian family also took root in the US: In regard to wives—the husband acted as her guardian, and was bound to maintain her. Therefore “the law has given him a reasonable superiority and control over her person and he may even put gentle restraints upon her liberty if her conduct be such as to require it …” (p. 181)

State v. Rhodes (1868) set out the role of family privacy, which abandoned both subservient wife and child to discipline and possible abuse: The courts have been loath to take cognizance of trivial complaints arising out of domestic relations … the evil of publicity would be greater than the evil involved in the trifles complained of … however great are the evils of ill temper, quarrels, and even personal conflicts inflicting on temporary pain, they are not comparable with the evils which would result from raising the curtain and exposing to public curiosity and criticism the nursery and the bed chamber. (p. 454)

In the United States, the moral or divine sensibilities swirling around that early common law history have tended to endure, and the family in both the arenas of form and function is viewed by many Americans as a “natural” entity, pre-dating and existing independent of the state. Yet, even in America the laws regulating the family have changed over time, reflecting a more egalitarian set of expectations, at least in regard to husband and wife. The very definition of what or who constitutes



What is Right for Children?

a family has undergone transformation as same-sex couples gain access to marriage and adoption in more and more instances. As changes in the legal perception of the family have occurred, proponents of religious orthodoxy in the United States have reacted as though religion itself was threatened. It is not just the possibility of new forms—but the fear that religion is being displaced by an even more secular framework. Resistance to secularism seems to be a key feature of American fundamentalism. Therefore, it is not surprising that there is vigorous resistance by large segments of the religious community to the movement to expand the definition of the legal family, as well as condemnation of shifting family behavior that would make the institution more egalitarian and flexible. Since this “natural” family is as primary to legal analysis as it is fundamental in religious orthodoxy, it is not surprising that increasingly we find corollary resistance and condemnation of innovations in family form in political discourse and policy platforms. In other countries the lines drawn historically to balance authority over children between family and state have been substantially redrawn and they have moved beyond the traditional notions confining the family and afford greater protection and support for the child as an individual. This has not been the case in the US. In the United States we need to rethink our approach to children with explicitly secular, rather than religious, sensibilities providing the framework and defining state obligations. How should our expanded and deepened political sense of equality and individual liberty, even within the family, be integrated with our understanding of the rights and responsibilities of children within and without the family? Certainly the law reflects a tremendous shift in our understanding of the state’s obligation in restructuring and monitoring the rights and responsibilities of adult family members. Does it not have a corresponding obligation to act in regard to children? How should we proceed to rethink and adjust the lines of parental dominion over children in response to the demise of the hierarchical, gendered, and role-defined family? What does the state owe the child in a world in which relationships among individual, family, and state are no longer defined in terms of status, but by norms of individual liberty and autonomy?

Part I

Children’s Rights as Human Rights Introduction As the chapters in this section discuss, the concept of rights for children, even the most basic human rights, is complex. Because children are by their very nature and physiology dependent beings, discussions of rights for children require consideration of how those rights can be exercised and how this might undermine or interfere with the rights of those who have authority over and responsibility for children. The authors in this section explore some of the public and political conversations about human rights, assessing whether the provision of basic human rights to children would destroy the American family as we know it (or as it is envisioned by conservative Christian groups). The authors provide a rich background for assessing the claims of and resistance to children’s rights. Barbara Bennett Woodhouse begins this section with a discussion of how the United Nations Convention on the Rights of the Child (CRC) aligns with American values and laws. Much of the opposition to the CRC in the United States relates to perceived infringements on parents’ rights. Woodhouse investigates the merits of this objection and asserts that the CRC strengthens rather than undermines the role of parents and families. In her analysis, the anti-CRC rhetoric does not reflect the actual provisions of the CRC, which she argues need not be viewed as antagonistic to parents’ rights in regard to their children. Barbara Stark gives us the other side, introducing us to the threats to the family inherent in the CRC as they are perceived by certain Christian groups. She considers the ways in which religious groups have claimed and reshaped discourse around human rights and children’s rights. Stark places this in historical context by providing an overview of past campaigns for human rights and civil rights in the US. She compares the political and cultural shifts in thinking associated with the human rights campaign after World War II and the domestic civil rights movement of the 1960s with the current campaign for children’s rights. She concludes that the contemporary rhetoric casting God and family as the victims of a rights movement was not possible in other rights’ struggles, which were more sympathetically embraced by the majority of Americans. Linda McClain provides some insight into the extent to which some conservative Christian groups are impacting US public policy. She analyzes and compares the approaches of some American conservative Christian religious groups to children and the family, expanding on the ways in which they perceive the threats posed by a human rights paradigm. McClain challenges our current notion of the “ideal



What is Right for Children?

family” and the concept of “family values” that underlies that idea. Drawing on the importance of contemporary American political and constitutional values, such as equality, as well as international human rights doctrines, she then contrasts the rights vision with different religious groups’ concepts of child, family, and the State. The question she poses is whether these differences in conceptualization can ever be reconciled. Mary Anne Case presents her argument as a feminist fundamentalist by adapting the language used to describe religious positions in order to highlight her commitment, and, indeed, the US constitutional obligation, to sex equality. Although Case illustrates this constitutional obligation in a variety of cases before the Supreme Court, she notes that those cases involving children and religion in the family are not so clear in supporting sex equality. In fact, she argues that judges have been reticent to deny parents the right to socialize their children, even if such socialization encourages discrimination based on sex and particularly if the parents’ claims are based on religious convictions. Case’s chapter brings us back to the first chapter in the section, reminding us of the intimate relationship between women’s rights and children’s rights.

Chapter 1

The United Nations Convention on the Rights of the Child: Empowering Parents to Protect Their Children’s Rights Barbara Bennett Woodhouse and Kathryn A. Johnson

Responding to the horrors of child abuse, the deaths of children from war and conflict, and children suffering from disease and hunger, the nations of the world agreed to draft a document addressing the special dangers children face and articulating their rights as young humans. On November 20, 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC), which guarantees children individual human rights while strengthening the role of parents and the family. The overall principles of the CRC recognize the child as a person, with evolving capacities. The seven rights set out by the CRC have been described as falling under four core areas: non-discrimination; the best interests of the child; the right to life, survival, and development; and the views of the child. Article 2 of the CRC spells out the non-discrimination rights. State Parties must ensure that all children within their jurisdiction enjoy their right to live without suffering discrimination. This applies to every child, “irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” (Article 2). When governments make decisions that affect children, the best interests of children must be a primary consideration as defined in Article 3 of the CRC. This principle applies to decisions by courts of law, administrative authorities, legislative bodies and both public and private social-welfare institutions (Van Bueren, 1995). While there is no concise definition of the “best interests of the child,” persons involved in the child advocacy field evaluate different factors to determine what is best for the child overall. Those factors include physical safety, emotional wellbeing, and a child’s healthy growth and development (Woodhouse, 1999). Article 6 of the CRC relates to the right to survival and development, which governments must ensure “to the maximum extent possible.” The term  This chapter appeared in The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification by Jonathan Todres, Mark E. Wojcik and Cris R. Revaz (2006), and is reprinted by permission of Koninklijke Brill NV.



What is Right for Children?

“development” in this context is interpreted in a broad sense, referring to the physical, mental, emotional, cognitive, social, and cultural development of the child. Developmental rights include the rights to nurture, love, food, health care and education. The State has a duty to support parents’ responsibilities in these contexts by providing appropriate economic and social supports. Survival rights include the rights to life and life-protective interventions (Van Bueren, 1995). The participatory views of the child are also very important and are detailed in Article 12 of the CRC. Children have a right to participate in all matters affecting them, and their views should be given due weight “in accordance with the age and maturity of the child” (Article 12). In short, children have the right to be heard and have their views taken seriously, and the same Article confers on the child the right to be consulted in matters that affect his or her well-being. Since its adoption, 192 countries have ratified the CRC (United Nations Children’s Fund [UNICEF] 2006), and only two countries have not. Those two countries are the United States and Somalia. Somalia cannot ratify the treaty because it lacks a formal government due to civil strife. The US fully participated in the drafting process, and President Clinton signed the CRC in 1995, but the Bush Administration failed to bring the CRC before the Senate for a vote on ratification. Meanwhile, the US ratified the two Optional Protocols to the CRC on December 23, 2002 (subject to certain reservations, understandings, and declarations). The first Optional Protocol deals with children in armed conflict. The Protocol states that the minimum age for compulsory recruitment into a State Party’s armed forces is 18. Also, the State Parties must take “all feasible measures” to ensure that members of their armed forces who are under 18 years old do not take a “direct part” in hostilities (Article 1). The second Optional Protocol deals with the sale of children, child pornography, and child prostitution. The Protocol requires State Parties to protect children up to the age of 18 by treating the exploitations of children as criminal acts that merit serious punishment. The ratification of these Protocols suggests that the US can ratify the CRC without compromising sovereignty or robbing parents of their roles and duties. Additionally, it demonstrates that the US is finally addressing the human rights abuses against children (Detrick, 1992). Ratification of the CRC in the US would indeed provide an opportunity to focus on children’s rights as we have on the rights of other groups. Ratification means considering children as persons with clear interests and individual voices. Around the world and increasingly here in the US, the CRC provides children and adults with a shared framework for thinking about rights for children. The CRC gives the world a “clear, coherent, and comprehensive” legal instrument devoted solely to children’s rights as opposed to the “incomplete” and scattered provisions in the previous treaties (Detrick, 1992). However, the Bush Administration’s position on the CRC is best demonstrated by a US State Department statement:

The United Nations Convention on the Rights of the Child



It is misleading and inappropriate to use the Convention as a litmus test to measure a nation’s commitment to children. As a non-party to the Convention, the United States does not accept obligations based on it, nor do we accept that it is the best or only framework for developing programs and policies to benefit children. (Free the Children, 2005)

The CRC and Traditional Family Values Opponents believe the CRC will undermine parental authority, interfere with parents’ ability to raise and discipline their children, and make the rights of children more important than the rights of parents. Nothing could be further from the truth. In reality, the CRC repeatedly refers to the importance of the parent-child relationship, places new obligations on parents through responsibilities owed to their children, and requires governments to respect the rights and duties of parents. Many existing US policies are already aligned with the CRC, and these policies do not interfere with parental rights but instead help parents protect their children from harm. Another reason for US reluctance to ratify the CRC is a fear that the rights enumerated must translate into individual causes of action against the State. Traditionally, the US recognized civil and political rights (such as the rights to expression, assembly, and due process) but not economic, social, and cultural rights (such as the right to education, health care, and an adequate standard of living). The CRC includes both. But the economic, social, and cultural rights are qualified by language sufficiently broad to accommodate a wide range of approaches by nations of varying levels of economic development and with all kinds of political systems. While each child has a moral right under the CRC to health care and education, the methods adopted and the levels of care supplied will vary according to the circumstances and traditions of each nation. Americans, by definition, assume that rights exist to be asserted in relation to someone or something that could potentially take the rights away. When Americans think of rights, they imagine a person who asserts his or her right to speak under the First Amendment or his or her right not to speak, after receiving a warning about the right not to incriminate oneself. Some critics assumed the CRC would give children the same rights against their parents that individuals have against their governments. It is a mistake to read children’s rights in the CRC as rights against their parents. Parents rightfully occupy a special role within the CRC scheme, as protectors, not oppressors, of children. What the CRC does provide children (and their parents) is protection from the intrusion of government into their rights. Many nations agreed to observe basic human rights for their adult citizens and signed the United Nations Covenant on Civil and Political Rights (1976). This Covenant is consistent with the US Constitution’s fundamental principle that citizens must be protected from government interference with basic human rights. The CRC extends this reasoning to children. The CRC aims to protect vulnerable children by providing a range of

10

What is Right for Children?

civil, political, economic, social, and cultural rights appropriate to children and youth, which the government agrees to uphold. It is not possible to talk about children’s rights without talking about parents’ rights. Parents’ rights play a central role in the concept of children’s rights and vice versa. The CRC recognizes that to strengthen the rights of children, it is essential to strengthen the rights and responsibilities of parents. Children are not competent to function as adults, and the CRC does not suggest that they are. During the period of development from helpless infants to competent adults, children require the nurturing care and support of parents or guardians. Children do not exercise their rights in a vacuum, and they do not exercise their rights without parental supervision and guidance. For US parents confused or concerned about the intent of the CRC, it might be helpful to consider an analogy to a trust fund. Children often have savings accounts held in trust by their parent or guardian. The philosophy behind this is that the money belongs to the child but, because the child may not be mature enough to have control of these resources, that job falls to the responsible adult. The responsible parent or guardian is the steward of the child’s property. Similarly, the CRC views parents as the stewards of their children’s rights. To extend this analogy, the CRC acts to make a large deposit into the child’s trust fund of rights. Instead of the parents having stewardship over a small savings account, they now have stewardship over a much more significant account. When a child’s trust fund grows, the child is wealthier, but the parent is not poorer. The CRC adds to the rights guaranteed to children, but it does not diminish the rights guaranteed to their parents. This concept is reflected in the CRC by identifying a developmental principle called “the evolving capacities of the child,” which establishes that it is up to parents to provide “appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention” (Article 5). The CRC is explicit in its support of the role of parents and the family. Article 5 states that “States Parties shall respect the responsibilities, rights and duties of parents, or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child” (Article 5). One area of the CRC that provokes controversy and opposition is the notion of children’s participatory rights: the right to express their views freely in accordance with their age and maturity, the right to be represented in all judicial and administrative proceedings, and the right to be considered as persons with interests apart from their parents. However, Americans should realize that recognizing children’s rights as stakeholders and citizens to participate in society and in legal proceedings is nothing new. Under existing laws and decisions, children have First Amendment rights to free speech and rights to a lawyer in a criminal case. Doctrines and procedures are tailored, however, to meet children’s special circumstances as developing persons. Voting age limts are one example of ways in which children’s and adults’ rights are not equal. The CRC does not suddenly liberate children to subscribe to pornographic magazines or hijack classroom discussions with topics of their own choosing. Such

The United Nations Convention on the Rights of the Child

11

extremes only undercut children’s rights to nurture, education, and protection. The CRC certainly does not allow children to usurp the authority of parents. On the contrary, the CRC promotes the same principles implicitly supported by the Constitution and developed through judicial decisions. Over 80 years ago, in Meyer v. Nebraska (1923), the Supreme Court recognized parents’ rights to control and custody of their children and to raise them as they see fit as fundamental rights. In Ginsberg v. New York (1968), the Court wrote that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society” (p. 639). This realm includes family relationships, child rearing, and education. Parental authority is not absolute, and there are limitations on this right. If the parental decisions amount to abuse or neglect of the child, the parental right is no longer constitutionally protected. In the United States we have long accepted that children are separate individuals apart from and distinct from their parents and we have incorporated this notion into our laws by making children’s best interests the cornerstone for resolving disputes between family members (Woodhouse, 1999). We presume that the parents agree on a course of action and are acting with the child’s best interest in mind. This presumption can be rebutted with evidence that parents are actually harming their children. When abuse or neglect is present, the State may utilize either its parens patriae power or its police power to interfere. The State must provide due process of law and show by clear and convincing evidence that parents failed in their duties to justify supplanting them as decision makers (Santosky v. Kramer, 1982). This principle is consistent with the CRC’s respect for parental authority. Many of the children’s rights articulated in the CRC are simply mirror images of rights already existing in American law but typically described as rights held by parents. For example, Article 9 ensures “that a child shall not be separated from his or her parents against their will” except through due process of law consistent with the child’s best interests. This right, protecting the family unit from disruption without due process of law, is well established in US law as a right of parents (Santosky, 1982). The CRC recognizes that the right of parents to raise their children is mirrored by the right of children to be raised by their parents. Ironically, some of the provisions of the CRC viewed by American parents as possibly eroding their authority might actually have the opposite effect. Article 13(1) states: The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or though any other media of the child’s choice.

This is interpreted as meaning that the States signing the CRC agree not to infringe upon the child’s rights to free expression. In the past, the government might interfere with parental discretion by deciding when and how to limit a child’s

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What is Right for Children?

access to information or right of free expression. Under the CRC, the government agrees to protect the right of the child, exercised under the guidance of the parents or guardian, to freedom of expression. The analysis of Article 13 establishes an important philosophical principle of the CRC. Parents are seen as caretakers who will always endeavor to provide guidance and direction in the best interests of their children. The CRC recognizes that children are entitled to basic human rights, and the exercise of those rights will be protected by the parents and gradually turned over to the child when parents consider it appropriate to their child’s individual growth and development. A helpful analogy is parents’ supervision of children’s allowances and earnings. Families vary widely in how much money they give their children and how much freedom children have to spend it. The law recognizes parents’ authority in this realm by requiring parents’ permission before children are permitted to work. Many families believe children learn responsibility by gradually being given opportunities to earn and spend money, but these decisions are still made within the privacy of the family. Article 17 is a provision of the CRC that discusses a child’s right to receive information from a variety of sources. This Article contains five specific ways that States agree to encourage the mass media to provide children with a variety of information and material, especially information “aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” The Article also encourages States to develop guidelines to protect children from information and material injurious to his or her well-being. The theme of Article 17 is that the State should encourage, rather than discourage, the media to make appropriate materials available to children. Since children cannot always decide for themselves what information is appropriate, parents, acting in the best interests of their children, would continue to oversee the specific information made available. The US already has programs in effect that help parents protect the rights of their children, as discussed in Article 17. In 1996, the US Congress addressed the concerns of children being exposed to indecent and inappropriate broadcasts by creating the Telecommunications Act of 1996. The Act did not limit broadcasting, but rather required the broadcast industry to create a ratings system. This ratings system is used in conjunction with the VChip to give parents more control over what their children watch. As of January 1, 2000, the Federal Communications Commission (FCC) required all new television sets 13 inches or larger to contain the V-Chip technology (FCC, 2005). The V-Chip allows parents to block television programming they do not want their children to watch. Most television shows now include a rating, as previously established by the broadcasting industry. This rating is encoded into the programs, and the V-Chip technology reads the encoded information and blocks shows accordingly. Using the remote control, parents can program the V-Chip to block certain shows based on their ratings. This is a clear example of how discretion about what children watch on television is left to their parents. Furthermore, the Motion Picture Association of America (MPAA) ratings system and video game ratings systems

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give parents guidelines for what may be appropriate for their children. Video stores are not supposed to rent or sell video games with an “M for Mature” or DVDs with an “R” rating to children under the age of 17. Additionally, the government, through the FCC, regulates interstate and international communications by radio, television, wire, satellite, and cable, thus providing a safer viewing environment for children. Moreover, the CRC in Article 13(2) and Article 17(e) recognizes restrictions necessary to protect children and encourages the development of guidelines to protect children from materials injurious to their well-being. Consistent with this concept, US courts and legislatures have already developed guidelines and restrictions for protecting children from information injurious to their well-being while still allowing for the freedom of information. For example, Congress passed the Children’s Internet Protection Act (CIPA) and the Neighborhood Children’s Internet Protection Act (NCIPA) in 2000. This former Act requires schools K12 and public libraries receiving federal funds to install internet filters that block access to obscene materials, child pornography, and materials harmful to minors (CIPA, 2000). Furthermore, the Act requires the schools and libraries to additionally create internet safety policies in order to continue to receive federal funding (CIPA). CIPA was upheld against First Amendment challenge in US v. American Library Association (2003). Such legislation illustrates how, consistent with the CRC, governments can recognize the interests of libraries and schools in protecting children from harmful materials while still recognizing the child’s rights to free access to information that is not harmful (Article 13; Article 17(e)). Perhaps the clearest statement of how the CRC integrates the rights of children into the scheme of parental rights and authority is reflected in Article 14. Article 14(1) states, “States Parties shall respect the right of the child to freedom of thought, conscience and religion.” The right to freedom of thought, conscience, and religion are generally included in statements of “basic human rights,” and the CRC explains that children are people and are therefore entitled to these rights that we recognize as fundamental to adults. When States agree to grant basic human rights to adults, they are agreeing that the government will not infringe on those rights. This is the type of agreement required in Articles 14, 28, and 19 of the CRC. States are agreeing not to infringe on the freedom of thought, conscience, education, or religion of children. The experience of Jewish children during the Holocaust, and more recently Muslim children in Bosnia and Christian children in China, provide dramatic evidence of the need for protection from such infringement by governmental authorities. Similar to First Amendment reasoning, Article 14 does not regulate intrafamilial relationships, but rather protects children from governmental oppression. Article 14(2) recognizes that these freedoms for children must be understood in the context of their parents and their families: “States Parties shall respect the rights and duties of the parents, and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with

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What is Right for Children?

the evolving capacities of the child.” This Article recognizes the right of parents and guardians to make appropriate decisions for each child. Once again, the stewardship principle is presented. Children are not adults, but they are entitled to basic human rights. Therefore, their rights must be held in trust by their parents and guardians. The assumption is that parents and guardians are in the best position to act in the best interests of their children, and parents have unique roles to play in inculcating religious and cultural values in the next generation. Parents are entrusted with providing direction to their children in the exercise of the child’s rights. As children develop and their capacities evolve, parents and guardians will be in the best position to gradually direct the transfer of rights from being held in trust to being held independently by the children themselves. To promote parents’ ability to protect their children’s rights, some Articles are specifically concerned with protecting the rights and authority of parents. Article 18 ensures that States will “use their best efforts” to ensure that both parents have common responsibilities for their children. Article 18(1) says in part that “[p]arents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child,” while Article 18(2) provides that States “shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities.” Furthermore, Article 29(1)(c) actually establishes that one of the goals of a child’s education should include “[t]he development of respect for the child’s parents.” Other Articles discuss States having responsibilities to assist parents in providing stewardship for their children. Article 27 concerns a child’s right to a decent standard of living. Article 27(3) provides that States “shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing, and housing.” The exact legislative schemes and definitions, however, are to be determined by specific governments, as opposed to the CRC. This provides great leeway in how a government applies the CRC. The CRC and US Sovereignty Concerns about US sovereignty were triggered by provisions that appeared to conflict directly with US practices. For example, before 2005, the US objected to the CRC and its implications for the death penalty. The CRC prohibits the use of the death penalty for offenses committed by persons under the age of 18. Since 1990, juvenile offenders are known to have been executed in only eight countries: China, Democratic Republic of Congo, Iran, Pakistan, Yemen, Nigeria, Saudi Arabia, and the United States (Death Penalty Information Center, 2006). On March 1, 2005, by a vote of five to four, the US Supreme Court held that the Eighth and Fourteenth Amendments of the Constitution forbid the execution of offenders who were under the age of eighteen when their crimes were committed (Roper v. Simmons, 2005).

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As recently as 2003, 25 US states allowed executions of juvenile offenders, and on July 1, 2001, there were 85 juvenile offenders on death row in the US (Roper, 2005). In the five years prior to the Supreme Court’s Roper (2005) decision, eight executions of juvenile offenders were carried out in the US. The majority opinion in Roper noted that the execution of juvenile offenders was contrary to the norms established by several international treaties, including the CRC and the International Covenant on Civil and Political Rights. In addition, the Court stated that the overwhelming weight of international opinion against the juvenile death penalty provides confirmation for the Court’s own conclusion applying US constitutional doctrines, that the death penalty is disproportional punishment for offenders under 18. Perhaps predictably, the Supreme Court suffered criticism in the US for drawing upon international law for guidance for its decision. Yet it seems unrealistic and short-sighted to visualize fundamental rights under our Constitution as developing in a domestic bubble, isolated from world developments. The Court’s decision in Roper serves to emphasize that the US, while retaining its sovereignty, does not exist in isolation from the international community. Concerns about federal and state jurisdiction or “federalism” plagued the CRC ratification effort even before Roper. Federalism, the US system of government, grants certain specific rights and reserves all other rights to the states or the people. Implementation of treaties presents special challenges in a federal system of government and the United States is no exception. Through the Treaty Clause found in Article II § 2 and Article VI, the US Constitution grants power to the President, with advice and consent of the Senate, to make treaties with other governments. These treaties are the supreme law of the land. In the Tenth Amendment of the Constitution, “the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Some are concerned that the CRC would derogate from states’ rights because many of the issues addressed by the CRC lie primarily within the jurisdiction of the 50 states, rather than with the federal government. For example, in the United States, individual states are responsible for education and for setting laws related to the administration of juvenile justice. Some critics fear that ratification of the CRC would sweep away all laws at the state level and make the CRC the law of the land. These fears are misplaced. Under established principles of US and international law, the CRC would not be considered a self-executing treaty. The CRC could only be implemented by laws enacted at the local, state, and federal levels. In areas where uniformity is absolutely essential, federal laws might be the best vehicle for its implementation. Federal law already addresses topics such as child custody jurisdiction and child trafficking (Parental Kidnapping Prevention Act, 1980), but state and local bodies would continue to play the leading role in enacting laws adapted to their own needs and circumstances. By contrast, some opponents of CRC ratification claim that the US already implements everything the treaty espouses and ratification would make no practical difference. This reasoning is flawed because there is no comprehensive

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What is Right for Children?

legal scheme to define children’s rights in the United States. Although the US has many programs in place that help safeguard children’s rights, there is still much to do to promote children’s rights and children’s well-being in the United States. Furthermore, the US Constitution does not explicitly enumerate children’s rights, and only some rights have been implied through judicial action. Therefore, the US would benefit from clear benchmarks and standards to ensure the protection of children. In ratifying the CRC, governments commit themselves to promoting all the rights of the child, social and economic, as well as civil and political rights. The CRC places primary responsibility with parents to provide for their children’s needs but it exhorts State Parties to provide support and assistance to parents in fulfilling their roles. Sadly, the US lags behind other developed nations in the resources it provides to assist parents. Working parents in the US lack access to affordable housing, day care and medical care for their families, resources that are routine in the rest of the developed world. Ratification of the CRC would reinforce the notion that our government has a special obligation to support families and invest in America’s children. The periodic reviews mandated by the CRC would remind Americans not to let children disappear from our radar screen of national priorities just because they are smaller, have weaker voices, and are poorer than other interest groups. Under the CRC, children are not only protected from abuses of State power but from all forms of physical or mental violence or abuse while in the care of “parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19(1)), including in schools. While violent and abusive parents are the exception to the rule, they are an exception that must be addressed through effective programs. Disturbing statistics make it clear that the US has not succeeded in protecting all children from abuse and neglect. The National Child Abuse and Neglect Data System (NCANDS) reported an estimated 1,400 child fatalities in 2002 (US Department of Health and Human Services [DHHS], 2004). NCANDS defines “child fatality” as the death of a child caused by an injury resulting from abuse or neglect (DHHS). Sadly, research indicates that children younger than one year accounted for 41 percent of fatalities, while children younger than four years accounted for 76 percent of fatalities (DHHS). Even more troubling to note, the perpetrators of fatal abuse are by definition individuals responsible for the care and supervision of their victims (DHHS). According to a study in 2002, 79 percent of the time when a child fatality occurred, one or both parents were involved in the child abuse or neglect fatalities (DHHS). Although it is important for local authorities to determine who is abusing a child, it is also important to connect and combine the data from child abuse and neglect systems so that abuse and neglect may be properly defined and dealt with. Official statistics do not provide the whole story. For example, studies in Colorado and North Carolina have estimated that as many as 50 to 60 percent of deaths resulting from abuse or neglect are not recorded (Crume, DiGiuseppi, Byers, Sirotnak and Garrett, 2002; Herman-Giddens et al., 1999). According

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to these studies, neglect is the most under-recorded form of fatal maltreatment. Inconsistencies in the definition of key terms such as “child homicide,” “abuse,” and “neglect” cause the numbers and types of child fatalities to vary from state to state, study to study. Some deaths ruled accidental could be more accurately attributed to child abuse or neglect if more comprehensive investigations were conducted, or if there was greater uniformity in the coding of abuse on death certificates. Moreover, the response to child abuse and neglect fatalities is often hampered by inconsistencies, including the inaccurate reporting of the number of children who die each year as a result of abuse and neglect, a lack of national standards for child autopsies or death investigations, the different roles child protective services agencies in different jurisdictions play in the investigation process, and the use in some states of medical examiners or elected coroners who do not have specific child abuse and neglect training (DHHS, 2004). The statistics on child abuse and neglect demonstrate the need for a comprehensive approach to aid parents, guardians, and the state in more effectively protecting children. While ratification of the CRC would not create a uniform code of abuse and neglect, it would focus national attention on the importance of these issues. Periodic review by the Committee on the Rights of the Child would engage the federal government in analyzing systems throughout the states to assure that they were meeting CRC standards. Periodic review of the status of children’s rights has a salutary effect. In fact, many of the 192 countries that have ratified the CRC have begun to change their policies and laws regarding children in response to the Committee’s suggestions. For instance, in Rwanda prior to the ratification of the CRC, children being detained for alleged war offenses were held in adult detention facilities alongside adults, and the detained children did not have the right to legal defense. After the CRC periodic review, reforms were enacted, children are now housed in a separate juvenile facility, and lawyers are permitted to defend them (UNICEF, n.d.). Belgium and Germany both changed their laws in response to the CRC by extending national jurisdiction to cases of child prostitution and pornography (UNICEF). Similarly, in response to the CRC, Romania changed many aspects of its juvenile laws. Overall, the Romanian government reformed the child protection system and trained its magistrates for juvenile delinquency and child abuse cases. Scotland enacted two pieces of legislation, the Children in Scotland Act of 1995 and the Standards in Scotland’s Schools Act of 2000, giving children the right to express their views in a far wider range of decisions. These decisions included court decisions on parental responsibilities, local authority decisions for “looked after” children, and matters relating to children’s education. Adoption laws have also been amended to reflect the intent of the CRC (UNICEF, n.d.). Moreover, in Vietnam, the Ministry of Justice works with UNICEF and nongovernmental organizations to review the judicial process for juveniles, as well as to train judges, police, and other legal professionals on how to apply the CRC (UNICEF). Finally, new justice codes beneficial to children have been enacted in El Salvador, Peru, and Bolivia since the ratification of the CRC (UNICEF).

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What is Right for Children?

Conclusion As other countries have seen, far from threatening the rights and authority of parents, the CRC recognizes the primary role of parents in the care and protection of their children. States signing the CRC agree to assist and support parents in their vital role. Recognizing that children are human beings, entitled to the spectrum of basic human rights, makes the responsibility entrusted to parents more meaningful and accentuates the importance of the State supporting the rights and authority of parents in every way possible. The US should ratify the CRC and take the necessary steps to implement children’s rights in a more pronounced way because the existing measures in the US are not adequate to fully protect American children. Children are still dying at an alarming rate from abuse and neglect in the US, and children’s rights are being ignored on a daily basis. Although the US no longer executes people who committed their crimes when they were juveniles, the country still has a long way to go in the children’s rights arenas. Amnesty International and other children’s rights advocates have set out a list of ways for the US and other countries to implement the CRC into their governmental systems. According to the rights groups, the US, in ratifying the CRC, should pass legislation guaranteeing the rights set out and make available adequate resources to implement these rights. Timely reports should be submitted to the Committee regarding implementation of legislation so that the Committee can make recommendations as needed. Additionally, the US must ensure that children in detention or in the care of public or private institutions are protected from torture or cruel, inhuman, or degrading treatment. In furtherance of the previous suggestion, children who come into contact with the justice system must be subject to special procedures for juvenile justice based upon the CRC. The US must ensure that children are free from sexual exploitation and any other work that threatens the health and welfare of the child. Finally, the US, after ratification, must through legislation and other efforts make the best interests of the child a national priority. Rather than fearing the CRC as an unwelcome intrusion on parental authority, American parents should welcome the CRC as an ally in ensuring their children’s well-being.

Chapter 2

Child, Family, State, and Gender Equality in Religious Stances and Human Rights Instruments: A Preliminary Comparison Linda C. McClain Gender equality will not only empower women to overcome poverty, but also their children, families, communities and countries. When seen in this light, gender equality is not only morally right—it is pivotal to human progress and sustainable development. Moreover, gender equality produces a double dividend: It benefits both women and children … But the benefits of gender equality go beyond their direct impact on children. Without it, it will be impossible to create a world of equity, tolerance and shared responsibility—a world that is fit for children. (UNICEF, 2006, p. viii) The natural family—part of the created order, imprinted on our natures, … the bulwark of ordered liberty—stands reviled and threatened in the early 21st century. Foes have mounted attacks on all aspects of the natural family, from the bond of marriage to the birth of children to the true democracy of free homes … We affirm that women and men are equal in dignity and innate human rights, but different in function … The goal of androgyny, the effort to eliminate real differences between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create “Soviet Man” and by the Nazis to create “Aryan Man.” … We see the prospect of a great civil alliance of religious orthodoxies, within nations and around the globe … to defend our family systems from the common foe. (Carlson and Mero, 2005, pp. 5, 16, 33)

How do religious organizations and human rights instruments compare when envisioning the child, the family, and the state? What are their stances on the role gender plays in families? These questions invite impossibly broad answers, given the manifold relationships and regulatory questions implicit in the child, family, and state formulation. It complicates matters additionally to consider the meaning of equality and its proper domain. Thus, my chapter’s subtitle, “a preliminary

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What is Right for Children?

comparison,” signals that I offer here an exploratory, instead of exhaustive, survey. International human rights instruments declare a commitment to gender equality and to advancing the best interests and rights of children, but a gap persists between these ideals and the lives of women and children. For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981) (which the US has signed but not ratified) is a benchmark for the advancement of equal status for women. So, too, the United Nations’ Convention on the Rights of the Child (CRC) (1989), the most comprehensive international document bearing on children, seems to reflect an advance in international human rights formulations. It seems to have generated “an unprecedented degree of formal commitment on the part of governments,” as evidenced by its quick and virtually universal ratification (with the notable exception of the United States, which has signed but not ratified the CRC) (Alston, Parker, and Seymour, 1992, pp. v–viii). With the CRC as a cornerstone, the UN continues to sponsor summits on children, to issue declarations, and create action plans to make “a world fit for children.” However, “despite the near universal embrace of standards for protecting children,” “more than half of the world’s children are suffering extreme deprivations from poverty, war and HIV/AIDS, conditions that are effectively denying children a childhood and holding back the development of nations” (UNICEF Press Release, 2004). Clearly, a gap remains between universal standards and the reality for many children. A recent UNICEF report (quoted above) on the state of children connected this gap to the gap between human rights ideals of gender equality and continuing forms of inequality, disempowerment, and discrimination women experience worldwide in concrete areas like the household, employment, politics, and government. Indeed, it reports gender equality as offering a “double dividend”: advancing the equal status of women in the household and other domains can benefit both women and children (UNICEF, 2006). The report finds that women and men have different priorities in household decision making, and women, often disadvantaged in the bargaining process, are more likely to use their influence and resources to meet the family’s needs (UNICEF). It praises the role of the CRC and CEDAW for improving the status of women and children, but calls for continuing efforts to achieve The Millennium Development goals of “a world fit for both women and children” (UNICEF). What might help realize this promise? Pointing to the paradox of impressive human rights declarations and, contrarily, gross violations, legal scholar John Witte, Jr. (2001) argues for the need to enlist the unique resources of religions to ground a culture of human rights. Although his specific focus concerns the human right to religious freedom, his point is extendable to human rights for the child  Information on these sessions and on the documents emanating from the May 2002 Special Session, A world fit for children (UNICEF, 2002b) and from the commemorative session (UNICEF, 2007).

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and the family. Is the lack of a rights culture the problem? If enlisting religion as a resource could close the gap between rhetorical declarations and children’s lives, then there may be a stumbling block. Human rights declarations, particularly concerning children, may threaten rather than reinforce religious conceptions of family, and of parental rights and responsibilities (Anderson, 1996). Thus, Christian ethics scholar Terence Anderson (1996) draws the conclusion with specific reference to Christian conceptions of family and generalizes his point: the human rights framework is inspired by liberal conceptions of the primacy of the individual, of choice, and of self-development. It clashes with the concept of organic communities with mutual obligations found in many religions and creates adversary relationships within the family. In addition, the CRC’s “sanction of a high degree of state authority over families” threatens the religious freedom of Christians and “those of other faiths who believe that to be a community transmitting a particular way of life is central to their calling” (Anderson, pp. 49–50). He contends the CRC, “taken as a whole, is not … the best instrument for developing public policy that would protect children” (Anderson, p. 52). A more polemical form of this critique of the CRC is expressed by various conservative religious organizations in the United States. They attack the CRC and CEDAW as a threat to parental, cultural, religious, and national sovereignty and as a dangerous denial of sex difference. Those polemics are the subject of this chapter. My epigraph from the recent conservative call to action, “The natural family: A manifesto” (Manifesto), indicates conservatives invoke the “natural family” as a rallying cry to form a “great civil alliance of religious orthodoxies, within nations and around the globe” to defend the family “from the common foe” (Carlson and Mero, 2005, p. 33). Threats to the natural family, I explain, include international human rights instruments and domestic family law and policy trends. Human rights instruments express stances about the relative positioning of child, family, and state, as well as about the place of gender equality. Are religious conceptions of child, family, and state congruent or conflicting with human rights conceptions? The same question may be asked about viewpoints on gender equality as it shapes family life. The answers vary significantly. Indeed, conservative religious groups perceive the UN and many NGOs as anti-family and anti-religion. Observers describe this as “the conservative and progressive divide” between religious groups at the UN (Knox, 2002). This chapter focuses on the normative vision of the natural family held by several conservative Christian organizations in the United States and how that vision shapes their critique of the human rights projects. An intriguing feature of this vision is how such groups use certain human rights declarations about the family to critique others. They invoke Article 16(3) of the United Nation’s Universal Declaration of Human Rights of 1948 (Declaration), which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” as a benchmark to critique the CRC and other human rights efforts as hostile to the natural family. Some US governmental officials, defending the United States’ continual failure to ratify the CRC, sound a similar

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What is Right for Children?

theme. The CRC’s project of children’s rights, however well intentioned, threatens the vital role of parents and thus, the family, which government should support and respect (Horn, 2004; Horn, n.d.; Sauerbrey, n.d.). Embracing the Declaration’s language on family, officials espouse a foreign policy goal to promote and protect “strong families,” to empower women and children despite the US failure to ratify CEDAW (Sauerbrey, 2007). The natural family, as envisioned by the groups this chapter examines, has theological significance. Marriage, the family’s foundation, entails a proper gender complementarity between husband and wife; father and mother. These conservative critics of the CRC and CEDAW warn that such instruments embrace gender equality and threaten this complementarity, undermining the family and the vocation of motherhood. Indeed, conservatives warn such instruments threaten cultural traditions in the United States about gender roles, and thus about national sovereignty. They identify the promotion of gender equality, whether by domestic governments or by international bureaucrats, as a radical feminist agenda threatening the family. This stance ignores and expressly rejects (at times) the emergence of gender equality as a basic political and constitutional value within family law and constitutional law. As one step in a comparative project, I assess how this vision of the natural family compares with the conception of child, family, and state and the international human rights project as articulated by the United States Conference of Catholic Bishops (Conference). The Conference is difficult to characterize in terms of the “conservative/progressive divide” at the UN (Knox, 2002) or in simple right/left terms. On the one hand, there is convergence with the conservative religious groups on some issues, including marriage, parental authority, contraception, and abortion, and on the idea that individual rights threaten the family and its rights. On the other hand, the Conference elaborates a “family perspective paradigm,” which calls for partnerships between families and government and with other institutions of civil society to help families meet their important responsibilities (Conference, 1998) rather than hearkening back, as the Manifesto does, to an earlier era of the self-sufficient family. Moreover, the Conference emphasizes social justice and public responsibility for the poor and vulnerable. This chapter first explicates the missions and normative visions of family elaborated by Concerned Women for America (CWA), the Heritage Foundation, the Family Research Council (FRC), the Howard Center, and its affiliated World Congress of Families (WCF). It draws on the way these groups present themselves on their websites and on the idea of the natural family in the Manifesto. Second, it examines these groups’ objections to the CRC and CEDAW, including how their normative vision of child, family, and state and of proper gender ordering shapes these objections and clashes with contemporary political and constitutional values of sex equality. Third, it offers a preliminary comparison of the viewpoints these groups have on the natural family and on the human rights project with those of the Conference It concludes with some reflections and questions.

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Conservative Religious Visions of the “Natural Family” Concerned Women for America CWA describes itself as “the nation’s largest public policy women’s organization with a rich 29-year history of helping our members across the country bring Biblical principles into all levels of public policy” (About CWA, n.d.). Core issues for CWA include the “Family,” the “Sanctity of Human Life,” “Education,” and “National Sovereignty” (Our core issues, n.d.). Concerns over family definition and national (and parental) sovereignty drive CWA’s opposition, at the UN, to the CRC and CEDAW (Lerner, 2002; Wright, 2007). CWA’s Vision: Biblical Design of the Family CWA’s website states, “CWA believes that marriage consists of one man and one woman … [and] seek[s] to protect and support the Biblical design of marriage and the gift of children” (Our core issues, n.d.). The link on CWA’s website for “Family” lists hundreds of writings adamantly opposing same-sex marriage and making clear that the “Biblical design” of the family centers on marriage between one man and one woman (Thomasson, 2001). Some writings discuss the theological meaning of marriage. For example, “A Christian Declaration on Marriage” (2000) (co-authored by the National Conference of Catholic Bishops, the National Council of Churches, and the National Association of Evangelicals) describes marriage as “God’s first institution,” “established … in the order of creation and redemption, for spouses to grow in love of one another and for the procreation, nurture, formation, and education of children” (para. 2). Society’s stake in the well-being of marriage, this Declaration on Marriage explains, is that “when a marriage is true to God’s loving design it brings spiritual, physical, emotional, economic, and social benefits” to the couple, the family, the Church, and the “wider culture” (para. 4). The Declaration on Marriage illustrates the centrality of the ideas of creation and redemption in Christian thought about marriage and family (Browning, 2003). CWA leaders also endorse the Manifesto, which defends the natural family as “part of the created order,” as a necessary, “unambiguous statement about the family” (Featured endorsements, 2005–2006, para. 7). In CWA’s vision of the natural family, marriage is protective of women and children. As is explored further in this chapter, a recurring theme in CWA’s writings and advocacy at the UN is the imperative need to protect traditional gender roles in marriage and to defend motherhood against pernicious radical feminist ideas (Crouse, 2004). The Heritage Foundation The Heritage Foundation is one of the most powerful social conservative thinktanks in the United States. Its goal is to conserve “traditional American values” (Heritage Foundation, n.d.a). It does not explicitly identify its mission as promoting Biblical values, but its explication of such traditional values and ideas reveals

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What is Right for Children?

expressly religious views about child, family, and state and the respective roles and responsibilities of family, religion, and state. The Two Pillars of Family and Religion The Heritage Foundation describes marriage as “a fundamental institution, deeply rooted in all societies, which has been tested and reaffirmed over thousands of years” (Heritage Foundation: n.d.b). Heritage Foundation author Patrick Fagan explains marriage by reference to the Biblical idea that “man is made in the image and likeness of God, whose nature is to belong.” He asserts the religious importance that belonging plays in marriage and parenthood, declaring that persons come closest to divinity through such belonging. He contrasts this ideal with America’s “culture of rejection,” manifest in family fragmentation, abortion, the disinterest young women and men have in marriage, and “gulag prisons” filled with fatherless young men. He has praised the Manifesto for calling to rebuild structures that allow us “to belong to each other again,” so that when we “face God” at the end of our lives we can place before Him our efforts to belong. Fagan (1996) stresses the religious importance of belonging by explaining why married family life and religious practice are two vital pillars of society. He contends, “the core of the religious commitment is an intention to have a positive relationship with another Being, a transcendent … Being,” and theorizes that religion’s positive effects emanate from its contribution to persons forming “positive reciprocal relationships” with others in families, marriages, and elsewhere in society (p. 23). Fagan elaborates, “Religion performs the foundational work that ensures the success of secular society’s other four basic institutions: family, school, market-place, and government” (p. 27). He also argues, “many of the goals of social policy and social work can be attained, indirectly and powerfully, through the practice of religion” (p. 28). This social health argument bears obvious similarities to the social health arguments the marriage movement makes. Some governmental officials describe promoting “healthy marriage” as necessary to nourish healthy children, foster adult well-being, and reduce social pathology. (McClain, 2006, pp. 117–54). Fagan’s essay anticipates the current political interest in “faith-based initiatives” to enlist religious organizations to address social problems. He sounds themes familiar in calls to revive civil society: that the Founding Fathers viewed religion and family as “seedbeds of civic virtue” (McClain and Fleming, 2000; McClain, 2006, pp. 50–54). He asserts that the Founding Fathers did not intend that federal government establish a state religion, but they also did not intend to banish religion from the public square or “from the operations of the state” (Fagan, 1996, p. 24). In developing the salutary relationship between religious practice and family life, the essay focuses on consequences like lower rates of divorce and cohabitation and higher levels of marital happiness (including sexual satisfaction). Fagan asserts that “the religious practices of parents … powerfully   All the quotations in this paragraph are from the remarks by Patrick Fagan (n.d.), made at the press conference for “The natural family: A manifesto.”

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influence the behavior of children,” for example, reducing the likelihood of nonmarital pregnancies and births, crime and delinquency (pp. 11–13). The Family Research Council The FRC is a conservative religious organization. Its motto is to “Defend Family, Faith, and Freedom,” and like CWA, its mission statement is to bring “the JudeoChristian worldview” to re-shape public policy (Family Research Council, n.d.). Among FRC’s “Core Principles,” three concern the place of family: (1) “Life and love are inextricably linked and find their natural expression in the institutions of marriage and the family;” (2) “Government has a duty to protect and promote marriage and family in law and public policy;” and (3) “American democracy depends upon a vibrant civil society composed of families, churches, schools, and voluntary associations” (Family Research Council). The FRC’s website lists many papers by Dr Allan C. Carlson, Distinguished Fellow in Family Policy Studies at FRC and co-author of the Manifesto. The prominent place that Carlson’s listed work has on the FRC website suggests the influence of his view of the natural family. Religion, Fecundity, and Marriage Carlson contends that procreation and fecundity are vital aspects of marriage. The “unwritten sexual constitution of our civilization,” whose genesis in the sexual order was adopted early in Christianity, has been the bond between marriage and procreation (Carlson, 2004). Earlier laws prohibiting contraceptives preserved that constitution, but the notion of marital privacy in Griswold v. Connecticut (1965) was a “direct assault,” emptying marriage of meaning and denying natural law. In the wake of Eisenstadt v. Baird (1972) and Lawrence v. Texas (2003), the Court found “a right to uninhibited sexual expression” (Carlson, p. 7). These opinions sever procreation from marriage and/or glorify sexual experience apart from marriage; but because recriminalizing contraception is not a viable position, Carlson urges political strategies to oppose same-sex marriage and public policies to favor “child-rich homes” (p. 9). Carlson argues that the declining influence of religion in Europe is responsible for lower fertility rates and the diminished place of children (Carlson, n.d.a). A related culprit is the embrace of the “Swedish model” for society. This model, he contends, welcomes “the disappearance of motherhood as a vocation” and demands full gender equality, the priority of work over family, day care, and the like. Seemingly family-friendly policies like “generous day care, paid parental leave, child allowances and other welfare benefits” reflect “post-family, anti-child values” by degrading stay-at-home motherhood and replacing parental responsibility with state responsibility for children (Carlson, p. 8). Thus, Carlson urges that, in foreign policy, the United States, which has enjoyed a sustained increase in fecundity in relation to the greater religiosity of Americans (as compared to Europeans), should pursue an alliance with nations with strong “family morality systems” and, in domestic matters, adopt policies that stress marriage’s procreative purposes and view “large families, created responsibly through marriage,” as “special gifts to their societies deserving affirmation and encouragement” (p. 10).

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What is Right for Children?

The Family as a Home Economy Carlson’s writings propose the idea of family as a home economy or a source of productive activity. One source of family decline is the shift from the “productive home” to the “companionate home,” and he proposes to bring parents back into the home by home-schooling children (Carlson, 2003). Replacing common public schools with home education would be a “homecoming,” recovering a “vital family function” lost to “the aggressive state” and returning families to “the primal or natural social units” (Carlson, n.d.b, p. 8). Restoring motherhood as an honorable vocation is prominently featured in this scheme. Stay-at-home mothers in suburbia, Carlson (2003) writes, were the “linchpin” of the suburban way of life (p. 7). Anti-discrimination laws of the 1960s and feminism, according to Carlson, eroded this way of life (Carlson, n.d.b). The Howard Center and the World Congress of Families Carlson is President of the Howard Center, whose motto is “For Family, Religion, and Society” (“Howard Center FAQ,” n.d.). The Howard Center initiated the World Congress of Families (WCF). WCF affirms that “the natural family is established by the Creator, … is fundamental to the good of the society,” is “inscribed in human nature,” and is “centered on the union of a man and a woman in the lifelong covenant of marriage” (World Congress of Families III, 2004, p. 1). WCF’s aim is to unite people who will “work together to strengthen the natural family as the fundamental unit of society” (p. 1) and to address threats to the family. The Geneva Declaration (1999) rose out of the World Congress of Families II. It identifies “devaluation of parenting, declining family time, morally relativistic public education, confusions over sexual identity, promiscuity, sexually transmitted diseases, abortion, poverty, human trafficking, violence against women, child abuse, isolation, excessive taxation and below-replacement fertility” as dire threats to the family (p. 1). The Mexico City Declaration (2004), emanating from the World Congress of Families III, enumerates “challenges to the family’s very legitimacy as an institution” rising from “extreme individualism, easy divorce, radical homosexual activism, irresponsible sexual behavior, and the reinterpretation and misapplication of human rights” (p. 1). The Warsaw Declaration (2007) from the World Congress of Families IV contrasts the falling population rates in Europe as a “demographic winter” with “springtime”—and “rebirth”—of civilization when families are “faithful to their conjugal and parental vocations” (p. 1). It also embraces the papal document, the Charter of the Rights of the Family (discussed below). Speakers at WCF’s events echo these declarations. They criticize human rights instruments like the CRC and CEDAW as threats to the family (Balmforth, 1999; Saunders, n.d.).  Nonetheless, at the most recent World Congress of Families meeting, a gathering of “parliamentarians” issued a declaration calling upon their governments to implement fully a number of human rights instruments bearing on the family, including CRC (Declaration, 2007).

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“The natural family: A manifesto” The conception of the natural family elaborated by Carlson and the conservative religious groups discussed in this chapter finds vivid expression in “The natural family: A manifesto,” which anticipates “the prospect of a great civil alliance of religious orthodoxies, within nations and around the globe … to defend our family systems from the common foe” (Carlson and Mero, 2005, p. 33). The Manifesto has been endorsed by a number of conservative leaders and groups and one US Congressman since its release. It offers a theological and often apocalyptic political statement about the natural family. The Manifesto’s authors state, “[r]egarding the natural family, we deny any such thing as social evolution. The changes we see are either decay away from or renewal toward the one true family model” (p. 29). The Manifesto continues, “we are all called to be the … moral soldiers, in this drive to realize the life ordained for us by our Creator,” and promises “the time is close when the persecution of the natural family, when the war against children, when the assault on human nature shall end” (p. 35). However, it warns that the Manifesto’s “true allies” are those who embrace “the whole case for the natural family,” not just parts (“One cannot affirm the natural family while also defending … infant day care”) (p. 32). Family sovereignty is at the core of the Manifesto’s political vision. Thus, the Manifesto takes a dim view of state invasions of the home, under the guise of protecting children from parents, as well as of children “turned over to state-funded day care” and to public schools that mock chastity and fidelity and marriage (pp. 7, 11–12). What of state intervention to address family violence? The Manifesto acknowledges that “all families fall short of perfection and a few families fail,” but asserts that research makes clear that women and children are safest within the marital family: “The natural family is the answer to abuse” (p. 28). Households “framed by marriage,” in this political vision, are also “the primal economic unit” (p. 13). Carlson envisions home economy, a fertile, productive, intergenerational household (conjugal, but not nuclear), which is evident in the Manifesto as it looks forward to a world “restored in line with the intent of its Creator” (pp. 13–14). The Creator’s intended design for the family entails the gendered division of household labor. Indeed, the Manifesto identifies feminism as a force against the natural family and counters with an affirmation that the sexes are complementary, equal in dignity and innate human rights, but different in function. The Manifesto says in marriage, these “profound biological and psychological differences” become a source of strength and wholeness (p. 17). It follows that men and women should be allowed “to live in harmony with their true natures” and not be subject to “the aggressive state promotion of androgyny” (p. 21). The Manifesto affirms “women’s rights,” yet takes the familiar conservative

 These endorsements appear at http://www.familymanifesto.net. Carlson and Mero have expanded the Manifesto into a book (Carlson and Mero, 2007).

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rhetorical attack upon feminism as a form of totalitarian social engineering to a startling—and frankly, offensive—level: The goal of androgyny, the effort to eliminate real differences between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create “Soviet Man” and by the Nazis to create “Aryan Man.” (pp. 25–6)

This categorical attack on governmental efforts to redress sex discrimination and foster sex equality illustrates the conservative conviction that fostering equality within families is harmful. The vision the Manifesto sets forth is the primacy of the natural family and of the complementarity of male and female within the marital family. The state serves—and should not usurp the authority or functions of—the family, the primary locus of sovereignty. The institutional place that organized religion holds in this new society is curiously absent. Perhaps this is because the home itself, with home schooling and the return of mothers and fathers to the home, will be the first, most vital site of religious life. This zealous concern over guarding the prerogatives of the natural, gender-complementary family against usurpation also drives conservative religious groups’ opposition to the CRC and CEDAW. Conservative Religious Opposition to UN Human Rights Instruments: Defending the “Natural Family” Against “Anti-Family” Agendas The conservative religious groups discussed above have certain recurring themes in their opposition to the CRC and CEDAW. First, such groups use the Declaration as a benchmark to critique the CRC and CEDAW. Measured against the former, the latter reflect an “anti-family” agenda that threatens family, religious, and national sovereignty. A second theme is that the CRC, which gives children rights, usurps parental authority by empowering children to challenge their parents and authorizing governmental officials and UN bureaucrats to police parents. Third, the CRC and CEDAW attack motherhood as a vocation and promote a gender equality that is hostile to the family. Fourth, in attacking motherhood and denying sex differences, such treaties attack national and cultural sovereignty and impose a radical feminist form of social engineering that would never succeed if forced to go through the democratic process. Thus, they resist the UNICEF report’s linkage of CRC and CEDAW and characterize its idea of gender equality as a “double dividend” as “gender equality gobbledygook” that “merely re-packages the feminist agenda” (Crouse, 2007, p. 1).

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The Declaration Versus the CRC and CEDAW: Good Intentions Gone Awry Conservative religious opponents of the CRC and CEDAW distinguish between the good intentions and sound principles of the Declaration and the dangerous social engineering manifest in later human rights instruments, such as the CRC and CEDAW (Fagan, 2001). They favorably invoke Article 16(3) of the Declaration: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” (Fagan, p. 1). They approvingly refer to Article 16(1), which affirms “the right to marry and to found a family,” and they appeal to Article 25(2)’s statement, “motherhood and childhood are entitled to special care and assistance,” and the recognition in Article 26(3) of the right of parents to “choose the kind of education that shall be given to their children” (Fagan, pp. 4, 7). The Manifesto decries attacks on the Declaration, “a document which proclaims fundamental rights to family autonomy, to a family wage for fathers, and to the special protection of mothers” (Carlson and Mero, 2005, p. 26). The Manifesto infers that the family wage is for fathers because the Declaration uses the pronoun “his” in referring to a worker’s right in Article 23(3) to “just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity” and, in Article 25, that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family …” Fagan (2001) measures the UN’s “new countercultural agenda” against the Declaration’s pronouncements about protecting the family. In his view, the UN’s long-standing respect for national sovereignty, evident in the inclusion in treaties and documents of “language affirming a nation’s right to determine its cultural norms and practices,” has given way to a “countercultural agenda espoused in UN committee reports and documents,” particularly if the CRC and CEDAW are implemented (Fagan, p. 1). This agenda attacks “the natural rights of the family,” along with each nation’s sovereignty to determine “domestic policies on parental rights and the free expression of religious values and beliefs” (Fagan, p. 2). The CRC and CEDAW threaten the trio of “family, religious freedom, and national sovereignty” (Fagan, p. 1). It should be noted that the CRC echoes the Declaration, affirming the family as “the fundamental group of society,” and stating that the family “should be afforded the necessary protection and assistance” so that it can “fully assume its responsibilities” as the “natural environment for the growth and well-being of all its members and particularly children” (Preamble). How then does it go astray and, in so doing, threaten the natural family? Children’s Rights Usurp Parental Authority A common objection to the CRC is that, despite its rhetoric about protecting the family, it actually usurps parental authority by giving children rights and enlisting the state—and UN bureaucrats—as children’s protectors against parents

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(Marshall and Smith, 2006). The CRC, for example, states “the best interests of the child” shall be a “primary consideration” in “all actions concerning children” (Article 3). A CWA critique charges that this would “make Congress the national guardians of children, charged with seeking ‘the best interests of the child’ … and answerable to the United Nations” (UN Rights of the Child, 1997, para. 5). But “the government’s definition of a child’s best interests is often very different from a parent’s definition” (para. 5). Spanking would likely be labeled as a form of child abuse, which would have “severe legal implications for many American families” (para. 5). The FRC argues that the CRC has languished in Congress partially because of the fact that it potentially “would outlaw spanking.” It has urged its members to pray that “no spanking” laws proposed in state legislatures be defeated and parental authority upheld (Prayer targets, 2007). Another ground for criticism is the CRC’s various references to governments’ duties to respect parents’ rights as well as duties to direct children exercising their own rights “in a manner consistent with the evolving capacities of the child” (Articles 5, 14). A CWA critique charges that this wrongly envisions children as “autonomous agents who are capable, in all areas, of making adult decisions and dealing with adult situations” (UN Rights of the Child, 1997, para. 6). This perception stands “in stark contrast to the traditional concept, upheld in America, that children are ‘minors’ in need of parental protection” (para. 6). This “radical legal doctrine” gives children the same legal rights as adults and, in effect, lets government assume “the primary role of rearing your children” (paras 4, 7). The Attack on Motherhood and Sex Difference A third objection directed at the CRC, and even more frequently directed at CEDAW, is that they reflect an “anti-family” agenda that denigrates motherhood as a noble vocation and contradicts the provision in the Declaration that “motherhood and childhood are entitled to special care and assistance” (Article 25(2)). Such a provision, Fagan (2001) contends, recognizes that the family plays a central role that the state cannot replace and implies that society “should enable mothers to nurture their children and not push policies that would force mothers to forfeit precious time with their young children to go to work” (p. 4). How troubling then, that UN committees “disparage stay-at-home mothers and urge nations to make publicly funded day care widely available, even for newborns,” so mothers can work outside of the home (Fagan, pp. 3–4). A related critique is that CEDAW and the CRC (by directing states to educate the child concerning the “equality of sexes” in Article 29) require nations to indoctrinate children in gender neutrality. According to critics, this doctrine would prohibit children and teachers “from recognizing there are fundamental differences between boys and girls and that some roles based purely on sex, such as motherhood, are noble” (Wright, 2007, § 1). Similarly, CWA writers charge that the CRC’s goal of eliminating forms of discrimination against girls and improving

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their status (for example, by educating parents to treat girls and boys equally within families) wrongly dictates “how a family runs” (Hurlburt, 2000, p.2). The Attack on Motherhood as an Attack on Cultural and National Sovereignty The attack on motherhood, conservative critics argue, is also an attack on culture and national sovereignty. They critique provisions in CEDAW that forbid discrimination on the basis of sex; its assertion in the Preamble that “a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women”; and its call in Article 5(a) for countries “to modify social and cultural patterns of conduct of men and women” to eliminate prejudices and practices “based on … stereotyped roles for men and women” (Wright, 2007, § 1). UN reports, Fagan (2001) contends, “instruct nations to eliminate, through legislation, cultural norms that support the role of the mother at home” (pp. 7–8). This countercultural agenda, he charges, includes changing cultures by “changing sexual norms” through promoting sex outside of marriage, abortion, and legalized prostitution, and “redefining gender” by “reconstructing social norms” (p. 17). As evidence that UN officials charged with implementing CEDAW view the maternal role as “demeaning,” he cites a reference in a CEDAW report expressing “concern” that the Irish Constitution continued to reflect a “stereotypical view” of the role of women: the constitutional text refers to a woman’s “life within the home” as supporting the state and declares that the state shall seek to ensure “mothers shall not be obliged by economic necessity to engage in labor to the neglect of their duties in the home” (Fagan, p. 8). To ratify and implement the CRC and CEDAW, in this view, would allow “anti-family” NGOs to force on particular nations a radical feminist form of social engineering—a cultural colonialism—that would never succeed if forced to go through the normal democratic process. Speakers at WCF gatherings decry the overweening influence, within the UN system, of “radical feminists” and “homosexual rights activists” who would not be able to prevail at home or internationally in a fair and open process (Balmforth, 1999). This “anti-family” agenda includes moving away from speaking about marriage and “the family” to speaking of “families,” opening the door to legitimizing non-marital families and homosexual relationships. Similarly, CWA author Janice Crouse (2004) contends that the radical agenda includes “children’s autonomy from their parents” and “leftist ideas about equality and sexual freedom;” an agenda that clashes with United States “culture” and threatens the family (p. 2). CEDAW, she alleges, is a form of “neo-Marxist contemporary colonialism.” It dumps feminist ideologies on the Third World and allows unelected UN bureaucratic elites to intrude “into our lives … with a radical vision incompatible with the values and wishes of the vast majority of citizens” (Crouse, p. 2). Contrarily, CWA supports efforts at the UN to end sex trafficking (and has received federal money for its own “faith-based” work on this issue); yet, it contrasts this worthy focus on protecting vulnerable women

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and children with the UN’s usual “utopian spin and radical drivel” (Crouse and Wright, 2004, p. 2). CWA expressed dismay that UNICEF’s Executive Director, Ann M. Veneman, whose appointment by President George W. Bush was “supposed to signal a retreat from the feminists’ domination of the UNICEF agenda,” instead produced a report so focused on gender equality (Crouse, 2007, pp. 1–2). Point for point, CWA scorned the report’s identification of “pernicious” forms of gender inequality as merely “gender gobbledygook.” Finding it unbelievable that an entire section of the report was devoted to “equality in the household,” it alleged that the report finds motherhood itself “pernicious” (Crouse, p. 1). The Conservative Rejection of Sex Equality as a Political and Constitutional Value A basic tenet in the conservative attack against CRC and CEDAW is that convictions about gender difference are rooted in cultural and religious traditions, and the human rights instruments threaten to trample such traditions in the name of gender equality. In addition, the United States’ failure to ratify CEDAW is often justified in terms of arguments about US constitutionalism and federalism (Powell, 2005). But these warnings of cultural colonialism, sounded by conservative religious groups (as well as by some conservative legislators), reveal that another objection is culture: CEDAW will interfere with the United States’ right to cultural selfdetermination (Powell). A theme that unites conservative religious groups’ vision of the natural family and their opposition to the UN’s supposed “anti-family” agenda is the conviction that governments and international organizations’ efforts to promote gender equality and to eliminate stereotypes are, in actuality, dangerous forms of social engineering that would deny and eliminate differences between women and men, denigrate motherhood, and attack the gendered division of labor between women and men in the family and society. However, such conservative groups are not wholly against governmental regulation. Rather, they view efforts to shore up the natural family and gender complementarity and to steer males and females into the vocations of fatherhood and motherhood as proper because they are in line with human nature and the sexes’ essential identities. By contrast, legislation premised on equal capacity and opportunity distorts and confuses human nature. These arguments about US culture seem to overlook that sex equality is a feature not only of US family law but also of constitutional law (McClain, 2006, pp. 50–84; see also Case, 2002). For instance, Fagan’s (2001) critique of the UN’s agenda of combating stereotypes is in tension with recent decisions by the US Supreme Court (beginning in the 1970s), which held that the Equal Protection clause prohibits governmental reliance upon outmoded, stereotypical assumptions concerning women’s and men’s capacities and their rights and responsibilities in the home and society. In such cases, the Court took a more skeptical look at

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claims about gender difference, observing that states should no longer legislate on the assumption that women are destined only for the home and men for the world of work and ideas. Rather than view this skepticism about gender-based classifications concerning family roles as part of US constitutional culture, the Heritage Foundation sees it as simply the “feminist agenda in the United States,” paralleled by CEDAW’s efforts to use a bar on sex-based discrimination to bring about social transformation (Marshall and Smith, 2006, p. 10). Government, I have argued elsewhere, may and should promote sex equality as an important public and constitutional value (McClain, 2001, 2006). By contrast, conservative groups who argue “complementary but equal” and urge that government prepare males and females for their proper roles as fathers and mothers apparently deny the emergence of sex equality and equal rights and responsibilities as a feature of US political “culture.” As Powell (2005) observes, “cultural” objections to CEDAW or other instruments asserting women’s equality often treat culture as static and monolithic rather than subject to contestation, change, and internal dissent. When conservatives indict UN concern over countries’ laws reflecting stereotypical views about women’s role in the home and as mothers, they are implicitly attacking US constitutional law, as well as a substantial transformation in family law from a hierarchical model of marriage to a model of equal partnership. Federal legislation aiming to promote the equal employment opportunities of men and women is also incompatible with this vision, as is evident from Carlson’s attacks on Title VII for destroying the “family wage” system of male breadwinner/female homemaker (2003, 2006). While citizens may hold diverse views about gender and gender roles within the family and society, the political and constitutional value of sex equality bars federal and state governments from requiring or legislating based on the gendered division of labor once legally sanctioned in “traditional” marriage. Thus, it would offend sex equality constitutional requirements for government to undertake the gender education the Manifesto urges. Children’s Rights, “Familism,” and Subsidiarity What of the objections, by conservative opponents of CRC and CEDAW, rooted in parental authority and national sovereignty? To some extent, these resonate with objections not explicitly grounded in religion. In US constitutional jurisprudence, parents have primary authority and responsibility for children, but the government also has authority to foster their healthy development and to protect children’s rights. When this triangle of child, family (parents), and state confronts the new angle of UN responsibility for monitoring and encouraging compliance, questions  A line of US Supreme Court decisions have prohibited reliance on stereotypical assumptions concerning women’s and men’s capacities (see Orr v. Orr, 1979; Stanton v. Stanton, 1975).

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What is Right for Children?

of parental and national sovereignty and jurisdiction multiply (Stewart, 1998). Some critics contend that if the US ratified the CRC, it would violate parental liberty: charging states with protecting human rights and using such ambiguous terms as “best interests of the child,” or a child’s “evolving capacities,” opens the door both to empowering children to reject the exercise of parental authority and to injecting the state’s view of the child’s best interest into the family (Stewart, pp. 171–5). Communitarian scholars who criticize individual rights as a focus in US family law also criticize the CRC for its rights-based focus. The problem is “abandoning children to their autonomy” (Hafen and Hafen, 1996). The CRC’s recognition of positive rights also engenders criticism, given the US constitutional tradition of negative liberties (Stewart, 1998). Religiously based objections share these concerns about sovereignty and disaggregating the family into individuals. But they also focus on the special place of the family as a vital site of cultural and religious transmission and on the dangers of paternalistic state intervention, especially when bureaucrats have a different conception of child well-being than religious parents. In a similar vein, theologian Don Browning (2003) identifies the threat posed to the family by the rise of “bureaucratic rationality,” or the state taking on more and more functions that were once fulfilled by families and other institutions of civil society (pp. 218–19). This development conflicts with the Roman Catholic principle of “subsidiarity,” under which parents naturally take an interest in their children and should have primary responsibility for them. Yet, in contrast to Anderson (1996) and conservative religious critics, Browning detects “subsidiarity” at work in the CRC (pp. 218–19). For example, conservative critics attack Article 5’s reference to children’s exercise of rights, consistent with their evolving capacities; however, Browning points out that this Article recognizes the priority of parental and family rights with respect to rearing and socializing children and guiding their moral development, and it directs government to respect and facilitate the responsibilities, rights, and duties of parents as they help children exercise their rights. The conservative religious groups’ view of the natural family seems to insist more zealously on the family’s primacy. This is evident because they advocate stayat-home motherhood, a home-based economy, home schooling, and they indict paid child care and public schools. Their emphatic opposition to human rights instruments rests in part on “familism,” the conviction that “throughout human history, the family has been the fundamental component of a civilized society” and that “the traditional family is a design ordained by God” (Christiano, 2000, p. 46). Familism, some scholars argue, animates the so-called “new Christian right” (Christiano, p. 46). The historical roots of this familism in America are evident when religious metaphors describe the home as a church, a little congregation, a temple (Christiano, pp. 45–6). To understand better how this “familism” compares with other religious conceptions of family and subsidiarity and the respective positioning of child, family, and state, I now consider certain stances taken by the Conference. This is a preliminary but illuminating comparison.

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The United States Conference of Catholic Bishops Conservative religious organizations and the United States Conference of Catholic Bishops (Conference) agree on the primacy of the family—based on marriage as a natural society, part of the divinely created order and prior to the state (A Christian Declaration on Marriage, 2000). Both affirm the complementarity of male and female as fundamental to marriage and oppose same-sex marriage because it is contrary to the nature and purposes of marriage (Conference, 1996). Both articulate that the family has unique and irreplaceable functions, and both, by embracing some form of the principle of subsidiarity, argue that the shift of certain functions once carried out exclusively by families to other social institutions and by government is cause for concern. Additionally, some writings on the Conference website strikingly parallel conservative religious groups’ objections to the UN’s human rights project as reflected in the CRC and CEDAW. But Catholic critics, to a greater degree than other conservative religious opponents, advocate critical engagement with, rather than rejection of, this project. Notable divergences between the Conference and the conservative groups with respect to the articulation of family’s place in society include: (1) the Conference’s more realistic, supportive approach toward family diversity; (2) its lack of nostalgia for the era of the agricultural, self-sufficient family and its call for the contemporary family, which shares many of its responsibilities with other institutions and government, to develop partnerships with such institutions; (3) a somewhat more positive stance toward the changing roles of women in society; and (4) a greater emphasis upon the positive rights of families and the correlative responsibilities of society to provide the supports needed for families to carry out their responsibilities. To sketch the normative vision of family and then the stance on the CRC and CEDAW, I draw on three documents posted or referred to on the Conference’s website: (1) “Family and society: International organizations and the defense of the family” (Glendon, 1997); (2) the Holy See’s “Charter of the rights of the family” (1983); and (3) A family perspective in church and society (National Conference of Catholic Bishops’ Ad Hoc Committee on Marriage and Family Life, 1998). Glendon’s Defense of the Family Against “Anti-Family” Forces at the United Nations What stance does the Conference take on international human rights instruments? One clue appears in an article by Mary Ann Glendon (1997), who has represented the Vatican in various UN human rights gatherings. Glendon raises a critique parallel to the four objections that conservative religious organizations have  The United States Conference of Catholic Bishops was formed in 2001 by the merger of the National Conference of Catholic Bishops and the United States Catholic Conference.

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raised. First, as a benchmark to critique the CRC and recent UN human rights efforts, Glendon begins with the Declaration’s “pervasiveness” of references to the family as society’s “fundamental unit,” entitled to protection and to rights relating to family life (para. 4). The Declaration, she suggests, reflects “dignitarian” or “personalist” assumptions about “man and society” (para. 5). It treats the “bearer of individual rights not as a self-sufficient monad, but as a person situated in community and relationship” (para. 5). At the outset Glendon contends, “there is no evidence that the Declaration’s drafters expected the United Nations itself to play much of a role in protecting the family” (para. 2). By contrast, the UN and its various agencies are now “sprawling bureaucracies symbiotically entwined with large international lobbying associations,” but it is not obvious how such institutions can assist families (para. 2). The bigger problem, Glendon contends, is a “surprising trend” of a “many-sided assault on several fundamental principles” enshrined in the Declaration, including recognition and protection of the family (para. 3). The decades since 1948 have brought a “steady rise in diverse movements that sought to treat the family (and religion) as obstacles to human rights, rather than as subjects of human rights protection,” which lead to the present crisis that “family-friendly principles of 1948” are at risk of “being suppressed or distorted beyond recognition” (para. 23). A second parallel to conservative religious critiques is Glendon’s argument that children’s rights impair family rights. She identifies “the subtle erosion of the moral authority of parents” as problematic in the CRC and the 1995 Guidelines issued in connection with the International Year of the Family (para. 10). Together these documents look like “a deliberate effort to set individual rights in opposition to family relationships, to insert the state between children and parents, and to undermine the status of the family as a subject of human rights protection” (para. 10). Although the 1995 Guidelines referred back to language about the family as the basic unit of society, they also state that “the power of the family is and should be limited by the basic human rights of its individual members. The protection and assistance accorded to the family must safeguard these rights” (para. 9). Interestingly, this vision of family rights—rather than individual or children rights—is consistent with the “Charter of the rights of the family” (Holy See, 1983). A third parallel is Glendon’s defense of motherhood and her charge that feminists who failed at home are cultural colonialists. Glendon directs her ire in particular towards the draft documents emanating from Beijing’s 1995 UN Women’s Conference and the scant mention of “marriage, motherhood, or family life” except as “sources of oppression or obstacles to women’s progress” (para. 11). She argues that the UN Committee on the Status of Women has become “the tool of special interest groups promoting a brand of feminism … that had alienated the great majority of women through its inattention to the real life problems of work and family, its hostility to men and its disgraceful indifference to the welfare of children” (para. 11). Efforts made by a coalition led by the European Union to “deconstruct” the family and “remove every positive reference to marriage, motherhood, family, parental rights and religion,” the very sort of language that was “central to most

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of their own national constitutions” (para. 11), were also objectionable. Glendon views these groups as a new, “anti-family” class that seeks to preserve privilege, power, and to exert social control (paras 14–15). The portrait Glendon paints is of international “anti-family initiatives” that lead to an “iron triangle of exclusion” in the home countries of backers of this agenda: “excluding new life through abortion and sterilization … barring the door against the stranger through restrictive immigration policies; and … turning their backs on the poor through cutbacks in family-assistance programs” (para. 16). She further indicts this elite as seeing in the children of the poor “only a menace to the environment, a portent of social unrest and a threat to their own level of consumption” (para. 16). Glendon describes this new, “anti-family” class as a “bureaucratic-managerialtherapeutic class animated by little more than the desire to consolidate the unprecedented prosperity” it attained in the late twentieth century; as “the mobile, semi-educated, knowledge workers that populate every nation’s governmental agencies, corporations, universities, professions, mass media, and social service agencies” (paras 18–19). Rather than be in solidarity with the poor in their own countries, they have more in common with their cohorts in other countries. They “flock” to international organizations for favorable rulings, shunning the “ordinary political processes” of their home countries, which would “expose their agenda to the judgment of their fellow citizens” (para. 21). Here, the parallel to the charges of cultural colonialism and threats to national sovereignty made by CWA and the Heritage Foundation is striking. Glendon does not, however, counsel complete rejection of the CRC or the contemporary human rights project. Catholic Christianity calls for action in the world, she affirms, and the church has engaged the UN because of the good it has accomplished despite its flaws. The Holy See, unlike the US, has ratified the CRC (OHCHR, 2006), and the National Conference of Catholic Bishops (NCCB) has favorably referred to this human rights instrument. Glendon concludes her essay by echoing John Paul II’s call to families themselves to become “‘protagonists’ of what is known as ‘family politics’ and assume responsibility for transforming society” (para. 32), offering several admonitions as to how to do so, most of which involve the reassertion of family (and national) sovereignty with respect to children (paras 35–8). Charter of the Rights of the Family The “Charter of the rights of the family” (Charter), presented by the Holy See in 1983, predates by several years the UN CRC. It resembles the Declaration and other human rights instruments by referring to the family as “a natural and universal society,” possessing rights, and warranting governmental support (Charter, para. 2). Addressed principally to governments, but also to intergovernmental international organizations, the Charter describes itself as a “prophetic call in favour of the family institution, which must be respected and defended against all usurpation” (para. 4). But it is also directed at families in order to reinforce their

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“awareness of the irreplaceable role and position of the family,” to inspire them to unite “in the defence and promotion of their rights,” and encouraging them to “fulfill their duties” in a way that will make the family’s role “more clearly appreciated and recognized” (para. 9). Like the Manifesto, the Charter refers to the family as a “natural society” and “prior to the state” (Preamble (D)). Family is defined by “marriage, that intimate union of life in complementarity between a man and a woman,” freely contracted, indissoluble, and “open to the transmission of life” (Preamble (B)). Marriage is the “exclusive” natural institution to which transmitting life is entrusted, and it is also an intergenerational place, in which people come together to “harmonize the rights of individuals with other demands of social life” (Preamble (F)). As noted above, WCF endorses the Charter as expounding “the Truth about the family” (WCF IV, 2007, p. 1). What are the family’s rights in this document? The number of positive rights or preconditions for family life is noteworthy. Article 1 declares persons’ “right to the free choice of their state of life and thus to marry and establish a family or to remain single,” and includes the affirmative right to marry and have a family. Article 3 declares an “inalienable right to found a family and to decide on the spacing of births and the number of children to be born” (excluding “recourse to contraception, sterilization, and abortion”). Positive rights are the family’s “right to assistance by society in the bearing and rearing of children,” including the right of married couples with a large family to “adequate aid” and freedom from “discrimination” (Article 3). In comparison with the CRC, the Charter recognizes fewer rights for children. The family is the rights-bearing unit, and sometimes adult members of families hold rights as parents. Article 5 of the Charter affirms parents as the “first and foremost educators of their children.” It declares parental rights “to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child” (Article 5(a)). Positive rights include “necessary aid and assistance” to perform their educational role properly, including “public subsidies” for school choice (Article 5(a)–(b)). The Charter’s emphatic message of public responsibility appears in its declaration of a right families have “to be able to rely on an adequate family policy” (Article 9) and of a right to “a social and economic order in which the organization of work permits the members to live together, and does not hinder the unity, well-being, health, and stability of the family” (Article 10). Article 9 further states that families have “a right to economic conditions which assure them a standard of living appropriate to their dignity and full development” and a “right to measures in the social domain which take into account their needs.” The needs mentioned include those arising from contingencies, such as the premature death of a parent, abandonment by a spouse, accident, sickness, unemployment, as well as what Martha Fineman has referred to as “inevitable dependencies” (Fineman, 2004b)—“whenever the family has to bear extra burdens on behalf of its members for reasons of old age, physical or mental handicaps or the education of children”

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(Article 9(b)). (In contrast, the Heritage Foundation criticizes “social rights” of this sort (Marshall and Smith, 2006)). Article 10 recognizes a family’s right to an organization of work that fosters family unity and well-being. It refers to “remuneration for work” sufficient to maintain a family with dignity, through a “family wage, or through social measures such as family allowances or remuneration of the work in the home of one of the parents.” The Charter states that remuneration “should be such that mothers will not be obligated to work outside the home to the detriment of family life and especially of the education of the children” (Article 10(a)). Moreover, “the work of the mother in the home must be recognized and respected because of its value for the family and the society” (Article 10(b)). The Charter’s affirmation of the mother’s special role resembles provisions in the Declaration, often invoked by conservative religious opponents to critique more contemporary UN efforts to support women’s employment. The Charter also affirms a family’s right “to decent housing, fitting for family life and commensurate to the number of its members, in a physical environment that provides the basic services for the life of the family and the community” (Article 11). The NCCB (1998) refers to the Charter as expressing “fundamental parameters for legislation from a family perspective” (p. 47). But even as it sounds themes found in the Charter and other papal writings on the family, it attempts to apply the Catholic principle of subsidiarity in the context of the needs of contemporary families. In this respect, and in its approach to gender roles, work/family conflict, and family diversity, it also contrasts notably with the Manifesto. A Family Perspective Paradigm The NCCB’s A family perspective in church and society (A Family Perspective) (1998), addresses leaders in the Catholic Church and in social institutions, urging a “family perspective paradigm” to address challenges facing contemporary families (p. v). This perspective is a “systems orientation,” viewing individuals “in the context of” family and “other social relationships” and using family relationships “as a criterion to assess the impact of the Church’s and society’s policies, programs, ministries, and services” (p. 7). The perspective has four elements: (1) “The Christian vision of family life;” (2) “the family as a developing system;” (3) “family diversity;” and (4) “the partnership between families and social institutions” (pp. 7–11). The Christian Vision of Family Life According to this perspective, families have theological significance. Conjugal love is a “unique form of human friendship love” because it is “sacramental, redemptive, exclusive, fruitful, procreative” (NCCB, 1998, p. 16). The family is rooted in the “complementarity and equality” of husband and wife. This reference to equality self-consciously distances contemporary Catholic teachings about marriage as a “partnership of equality” from the earlier Canon Law’s “authority-focused view” of male headship as being

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the family’s cohesive force (p. 16). Family is “the domestic church”: it builds up God’s kingdom. It is defined as “an intimate community of persons bound together by blood, marriage, or adoption, for the whole of life” (p. 17). The church takes a “normative approach”: “The family proceeds from marriage—an intimate, exclusive, permanent, and faithful partnership of husband and wife” (p. 17). At the same time, family also includes households of more than two generations, as well as single persons and their family relationships, whether or not they reside together (p. 17). Drawing on the writings of Pope John Paul II, A Family Perspective elaborates the four tasks comprising the family’s mission in the world. First, the family is an “intimate community of persons,” a task calling for “faithful and permanent love,” challenging “exaggerated individualism” by “calling all members to self-giving,” and requires attention to the rights and dignity of every member (p. 18). Second, the family “serves life” by bringing children into the world, passing on values and traditions, and promoting “the development and potential of each member at every age” (p. 18). Third, “the family participates in the development of society by becoming a community of social training, hospitality, and political involvement and activity” (p. 18). Fourth, “the family shares in the life and mission of the Church by becoming a believing and evangelizing community, a community in dialogue with God, and a community at the service of humanity” (p. 19). The political role families have is also evident in the papal teaching that families should be “protagonists” of “family politics” and “assume responsibility for transforming society” (p. 19). Families should be “the first to take steps to see that the laws and institutions of the state not only do not offend, but support and positively defend the rights and duties of the family” (p. 18). The Family as a Developing System A Family Perspective envisions the family not as a mere “collection of individuals,” but as “a system of relationships, expectations and responsibilities by which people connect the very heart of who they are to other people” (p. 23). Family members are “radically interdependent,” and the Book of Genesis’s reference that God created “male and female” creates “the mystery that is known as the family” (p. 23). To understand such dynamics and help families, church and social leaders should focus on issues such as family strengths, family health, and the family life cycle, and they should recognize that families operate according to rules, which may be explicit or implicit (p. 24). Family Diversity The family perspectives paradigm—to a greater extent than the perspectives of conservative groups canvassed in this chapter—seems to accept family diversity and to embrace a functional approach to helping families. Similar to the Supreme Court’s observation in Troxel v. Granville (2000), the report observes that there is no longer a “typical” American family (p. 31). The report adopts a more functional approach to families, calling for a cultural shift away from a focus on structure to “the strengths and challenges inherent in each kind of family structure” (p. 32). For example, the report comments that “the values and

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traditions inherent” in many families’ “ethnic and religious heritages” are a source of strength (p. 38). It comments on the way black families have coped with “severe environmental stress” through a “wider supportive network” extending beyond the home to include intergenerational family members, friends, and church members who become “fictive kin” (p. 38). Families, “regardless of their structure,” face some similar challenges (p. 31). But families of different structures have special needs and problems. There are limits to the acceptance of diversity: families formed by gay men and lesbians are not mentioned (and elsewhere, the NCCB expressly rejects same-sex marriage (Conference, 1996)). In contrast to the Manifesto’s celebration of the self-reliant family, the report treats this as an unfortunate “myth” (p. 32). It also asserts that the myth that “families should be places of love and warmth and … essentially problem free” pressures families “to keep special needs and problems (e.g., marital conflicts) hidden” and only reluctantly turn to others for help (p. 32). This acknowledgment of family problems contrasts sharply with the Manifesto’s championing of the natural family as a protection against abuse. The report additionally addresses changing views about sex roles and their “relationship with the world of work,” which are featured among the “social trends” affecting families (p. 33). The report chronicles the shift in the cultural meaning of women working: in earlier times, a wife’s earnings were for “extras” and the husband’s wage supported the family (pp. 33–4). Today, two-worker families are becoming the norm. Women work not just out of economic necessity but also for self-fulfillment (p. 34). Further, “even women who opt to stay home to be fulltime mothers feel pressure in the form of a subtle prejudice” that assumes that a paying job gives meaning and purpose to life (p. 34). The social problem rising from this view about the primacy of paid work is that “parenting is placed on a part time basis” (p. 34). What is the solution? The report does not hearken back to the earlier cultural message. It urges that leaders make sure programs and policies help families deal with the “tensions of changing sex roles” and “take these new roles into account” (p. 39). It does not condemn the use of paid child care or call for the government to steer children into proper gender roles. The distinct Catholic focus on social justice informs the NCCB’s family perspective. The report notes that economic factors—such as poverty and the struggles of the working poor and middle-income Americans—are “the greatest stressor of family life, among all income levels” (p. 35). The report refers to the admonition to individuals and families in “Economic Justice for All” (1986) to “reflect on our personal and family decisions and curb unnecessary wants in order to meet the needs of others,” and to reflect more broadly on “the nature of our economic system” and whether it puts “maximizing profits” ahead of “meeting human needs and fostering human dignity” and protecting the environment (p. 37). The Partnership Between Families and Social Institutions  “Subsidiarity,” discussed earlier in this chapter, is an important principle associated with Catholic thought about the family and other institutions of civil society. A Family Perspective

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embraces this idea. It warns that social institutions “can never totally usurp family responsibilities” without enormous social and financial costs (p. 44). Nor should families be reduced to “bit players in their relationships with their own members” (p. 44). At the same time, it counsels realism about the many responsibilities that were once performed primarily by families and have now been transferred or are shared with government and other social institutions. The crucial contemporary task is to form “a partnership between families and those institutions that now share the responsibilities once held by families” (p. 41). A Family Perspective lacks the nostalgia for the agricultural family that the Manifesto would revive. It traces the shift in family functions from the nineteenthcentury agricultural-based family to the twentieth-century industrial family and, finally, to “the family in technological society” (pp. 42–3). The family in agricultural society was “the social institution in which important family responsibilities were met” (p. 42). However, the agricultural family’s multiple responsibilities did not mean family life was “easy” or “successful”: “At its best, people belonged to caring systems and had a clear sense of identity. At its worst, individual needs were not recognized because the families’ needs dominated; individuals, frequently women and children, were abused” (p. 42). The report concludes that the evidence argues that a range of services “became institutionalized precisely because the family was no longer able to exclusively shoulder all its previous responsibilities” (p. 43). Whatever the causes for these shifts, the relevant point is that a shrinking number of responsibilities were placed solely with families and there was a growing number of shared or transferred responsibilities. Families in industrial society still had a number of responsibilities “as theirs alone” (p. 43). By contrast, “the family in technological society” can claim only two responsibilities as “exclusively theirs”: (1) “reproduction;” and (2) “identity, affection, and love” (p. 43). The remainder of the “responsibilities that once constituted family life are now shared with a variety of institutions,” such as governmental social welfare programs, paid child care, and, for entertainment, television and other leisure-time industries (p. 43). The transfer of family responsibilities, however, does not tell the whole story: “institutions provide services,” but families are still “primarily responsible for these human needs”—for example, ensuring that a seriously ill family member gets the medical treatment she needs (p. 43). Families have also taken on new responsibilities. Industrial families had to coordinate the family’s use of institutional services, but that responsibility “has expanded for today’s technological family,” given such factors as “the major place of consumerism in family life, the family’s increased reliance on services, and its ever-increasing need for information” (pp. 43–4). Given the increased privatization of family life, the greater survival rate of family members, and the higher expectations of emotional fulfillment that people bring to marriage and family life, “the role of love, affection, and protective care in the family” has taken on a new importance (pp. 43–4). Families still have basic—even if not sole—responsibility for “economic support and basic welfare, health and mental health care, education and socialization, social control,

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recreation, reproduction, and formation of identify, affection, and nurturance” (pp. 45–6). Therefore it is in society’s best interest to enter “creative partnerships with families so that families can fulfill those responsibilities” (p. 46). The report directs employment institutions to realize that two-parent and single-parent families face “tremendous pressures trying to balance the demands of family life and work,” and the contention that “truly serious consideration” of innovative practices will not come about until employers realize that family well-being is not just the family’s issue, but also affects workplace productivity (p. 46). The report’s realism about family needs contrasts strikingly with the Manifesto’s concerns about educating girls for the role of mother and boys for the role of father, and conservative groups’ concerns that support for paid child care derogates from the special vocation of motherhood. Subsidiarity and a vision of the positive rights of the contemporary family feature strongly in the report’s discussion of a developing partnership between families and government. Governmental support of family rights, whether such rights are characterized as “developmental, environmental, or political,” are crucial because “families’ lives and government are … deeply intertwined,” yet governmental policies too often fail to take families into account (p. 48). In discussing such failures, the report mentions inattention to family diversity and changing sex roles. Most government programs are based on “outdated” assumptions about family structure and sex roles (p. 48). The report further calls for giving families a voice—“rightful input”—into decisions affecting their daily lives (p. 48). Conclusion What implications follow from this preliminary comparison of religious stances on child, family, and state with human rights instruments concerning the family? Can the resources of religion be enlisted to shore up support for human rights and for adopting domestic laws and policies that secure the well-being of children and families? Is the gulf unbridgeable between conservative religious understandings of the family and what would strengthen families and other understandings (whether liberal, feminist, or progressive)? If there is agreement across the ideological spectrum on the vital role of families in forming citizens and meeting their dependants’ needs, then why are disagreements about how best to support families so sharp? Addressing this question becomes increasingly important as conservative religious groups heighten their efforts to shape foreign policy on such issues as AIDS and sex trafficking. Explicating how the natural family features in conservative religious groups’ normative visions of family, as well as their objections to the supposed “antifamily” agenda promoted under the guise of UN human rights instruments, reveals concerns about threats to the primacy of marriage, parental and national sovereignty, and proper gender ordering. Common motivations behind such groups’ domestic and international agendas include “distrust of secular government, determination to

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preach and practice their beliefs without hindrance or restriction,” and “opposition to any perceived threat to ‘traditional family values’” (Martin, 2003, p. 337). Thus, even as such groups deride human rights projects as dangerous forms of social engineering hostile to US “culture,” they lodge this same attack against domestic laws and policies. This attack evidences a conviction that strong families require reinforcing a gendered division of labor and that women’s changing roles are part of the alarming transfer of family functions to the state. My explication of the NCCB’s “family perspective” indicates that less alarmist stances are possible concerning subsidiarity and gender roles. This chapter studies a small subset of a far broader spectrum of religious denominations and coalitions. A fruitful area of further study would examine how, along this spectrum, religions both disagree with and find positive support for the CRC and other human rights projects aimed at children, women, and families. Finally, to turn from religion to politics, identifying gender equality as a “double dividend” and linking the CRC and CEDAW, as the recent UNICEF report does, poses interesting questions about foreign policy, given that the US stands nearly alone in failing to ratify the CRC and that ratifying CEDAW seems equally unlikely in the near future (Blanchfield, 2006). In attacking the report, conservative religious groups, including the ones studied in this chapter, assert that Ann Veneman, Executive Director of UNICEF, a Bush appointee, reassured them that she would steer UNICEF away from the allegedly radical feminist agenda and back toward child survival (Crouse, 2007; Singson, 2007). What inferences, then, can one draw from the fact that, under her watch, UNICEF has expressly linked children’s well-being to fostering gender equality? In Veneman’s words: “Gender equality and the well-being of children go hand in hand. When women are empowered to lead full and productive lives, children prosper” (UNICEF, 2006, p. vii). Conservatives diagnose this stance as evidence of how deeply entrenched the radical feminist agenda is in the UN (Singson, 2007). A more optimistic reading is that even a skeptic about gender equality was persuaded, based on the concrete evidence about forms of disadvantage in women’s lives and their spillover effects on children, that empowering women in areas in which they face discrimination and disadvantage is a necessary strategy to close this gap (UNICEF, 2006, p. vii). Tempering this optimism, unfortunately, must be realism about the extent to which even terms like “empowerment” spark controversy over meaning and over what constitutes sex differences rather than disadvantage. Given the conservative fear of a human rights agenda compelling androgyny, it is ironic that one explanation of why gender equality matters to women and children is precisely because women in households make different choices and investments than men, which may be more protective of child wellbeing (UNICEF, p. 6). Controversy also breaks out with respect to what is best for children. For this reason, canvassing the resources, religious and otherwise, to help to generate a commitment to a world “fit for children,” as well as for the equal citizenship of women and men, must remain a work in progress.

Chapter 3

Rhetoric, Religion, and Human Rights: “Save the Children!” Barbara Stark

I began teaching international human rights law in 1990, and I have been buried in human rights junk mail ever since. The first information I received about the UN Convention on the Rights of the Child (CRC, 1989) was a flyer in my Knoxville, Tennessee mailbox. The flyer told of a United Nations plot to take children away from their parents (and Jesus) and put them under the control of the State. The flyer provided the phone number of a local Baptist church, where loving parents, like myself, had begun organizing a resistance. Religious groups in the United States appropriate the rhetoric of “save the children!” and leave liberals, progressives, and feminists behind. These religious groups link international human rights, including children’s rights, with the breakdown of the family, and fundamentalist religion with the preservation of the family. Feminism and human rights break down the family and, ultimately, children are worse off. Thus, strong families, grounded in strongly held religious beliefs and supported by local religious communities, are the best hope for “saving the children.” In contrast to this religious rhetoric, human rights rhetoric situates parents and children in a broader socio-political context. Most children in the United States are indeed worse off than their counterparts in other Western democracies, as illustrated by the most commonly cited indicators—economics, education, health, and violence. Contrary to the religious rhetoric, human rights rhetoric attributes this decline in children’s well-being to macro causes—increasing economic polarization, slashed social safety nets, globalization, and the mobility of capital—which strain families and fall particularly hard on the most vulnerable, including children. The human rights perspective is not a particularly radical or even controversial argument. Indeed, among many scholars, including liberals, feminists, and international human rights scholars, it is so obvious that it is hardly worth rehashing at yet another conference. The more interesting question is “Why does this argument remain anathema in the United States?” This chapter suggests that the answer to this question is grounded in the deep resistance to human rights rhetoric in the United States. The rhetoric of “save the children!” pre-dates the CRC. It survived the 2002 retirement of Senator Jesse Helms who effectively blocked ratification of human rights treaties for almost 40 years as the powerful Chair of the Senate Foreign Relations Committee. The United

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States’ resistance to children’s rights must be situated in the broader framework of the United States’ resistance to human rights. Like the earlier struggle for human rights (“then”), the contemporary campaign for children’s rights (“now”) is playing out in a larger international political and economic context. By comparing the forces that shaped the struggle then with those that shape the struggle now, children’s advocates can draw on strategies that were particularly effective earlier and avoid those that were not. Conversely, by recognizing the ways in which the campaign for children’s rights is different from the earlier struggle for human rights, children’s advocates can develop fresh approaches to new challenges. Part one of this chapter provides a historical overview of the human rights campaign in the United States after World War II, a campaign that provided crucial sustenance to the nascent civil rights struggle in this country. Part two of this chapter explains how the contemporary campaign for children’s rights is similar to that earlier struggle. Part three focuses on the differences between the two struggles, particularly honing in on the emergence of an activist religious right as a major player in the current struggle and the way that the religious right has transformed the domestic political landscape. As this chapter explains, the growing political power of the religious right, supported explicitly by the Bush Administration, is a key distinction between the human rights struggle then and the children’s rights struggle now. After World War II, the domestic civil rights movement was backed by the executive branch, which Cold War politics forced to recognize the movement as part of a larger international human rights struggle. Accordingly, the civil rights movement used the leverage of world opinion, reflected in and reinforced by international human rights law, to defeat domestic reactionaries, who sought to maintain racial segregation in the South under the guise of state’s rights. Now, children’s rights advocates are the target of an executive branch that sees children’s rights on the domestic, national level as a threat to parents’ rights. Similarly, on the international level, the Bush Administration saw children’s rights as part of a larger foreign movement to discredit and embarrass the United States. Thus, when the domestic children’s rights movement seeks to draw on the leverage of the world, it is criticized and stigmatized. Moreover, the United States’ failure to recognize international children’s rights cuts domestic groups off from their natural allies in the international community. Part One: The Human Rights Story The International Bill of Rights World War II was a catalyst for international human rights law. Unlike the rest of international law, which concerned the behavior of nation-states toward other nation-states, human rights law focused on the conduct of States toward their own people. States endorsed the radical notion of human rights in horrified response

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to the atrocities of World War II. For the first time in history, States conceded that their own people had rights beyond the rights granted under domestic law, rights that even the States themselves could not legally abrogate. Like the American Declaration of Independence, the Universal Declaration of Human Rights (Declaration), drafted in 1948, was originally intended as an aspirational statement. The United Nations Charter, drafted three years earlier, similarly adopted a hortatory tone with regard to human rights. While the United States was eager to declare its support for international human rights after World War II (and quickly recognized the need for other States to guarantee them), the United States was wary. As David Forsythe points out, “[I]n the 1940s and early 1950s, the United States was opposed to precise and binding obligations in the issue area of human rights. Fear of international scrutiny of its domestic practices, in the south and elsewhere, loomed large in United States calculations” (1991, p. 21). The United States was not the only reluctant State. It was not until the mid1960s, and the emergence of former colonies as newly independent States, that the Declaration took legally binding form. It was divided into two more specific instruments, the International Covenant on Civil and Political Rights (Civil Covenant, 1976) and the International Covenant on Economic, Social, and Cultural Rights (Economic Covenant, 1976). These instruments are multilateral treaties under which ratifying States ensure the human rights of their own people. Together with the Declaration, the two covenants comprise the International Bill of Human Rights, globally recognized as the definitive core of international human rights law. The Civil Covenant addresses negative rights, such as freedom of religion and expression and freedom from arbitrary arrest or detention. These rights are familiar to Americans because they are guaranteed by the Bill of Rights of the United States Constitution. The rights set out in the Economic Covenant, in contrast, have historically been marginalized in the United States. The Economic Covenant addresses positive rights, such as the right to health and the right to education. By ratifying the Economic Covenant, a government makes it a priority to assure all of its citizens an adequate standard of living. Although some commentators claim that the ideas captured by the Economic Covenant originated in the United States, tracing it to President Franklin Delano Roosevelt’s “freedom from want,” the United States is the only major industrialized democracy that has not ratified it. The United States’ refusal to ratify the Economic Covenant can be attributed to both the historical antipathy toward economic rights in the United States and to global politics during the mid-1960s when the covenants were drafted. Most scholars agree that the two covenants evolved from the Declaration “because of the East/West split and a disagreement over the value of socioeconomic rights” (Forsythe, 1986, p. 540). The bifurcation of rights into two covenants was further justified by differences in “the nature of the legal obligation and the systems of supervision that could be imposed” (Harris, 1991, p. 666). While it is a mistake to overstate the distinction between positive and negative rights, law that prescribes and law that prohibits usually require different approaches. The States accordingly

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agreed to recognize economic rights, which would be achieved through progressive realization, while implementing immediately the civil and political rights set out in the Civil Covenant. The United States, however, refused to ratify even the Civil Covenant until the end of the Cold War. The Leverage of the World Although the United States was unwilling to subject itself to the international norms set out in the human rights treaties, the executive branch was concerned about the international reaction to domestic practices. The Cold War became a catalyst for desegregation. The human rights arguments used by the United States against communism, especially our pride in our freedom and our notion of America as the land of opportunity, were undermined by the denial of basic civil and political rights to black Americans. The Soviets broadcast over 1,400 photographs of the American civil rights struggle to an appalled world. As Vicki Goldberg describes the Soviet campaign: “Those pictures of dogs and fire hoses were published in Europe, Africa, India, Japan. Photographs were especially powerful in countries where large parts of the population could not read” (1994, p. H31). As legal historian Mary Dudziak explains: At a time when the United States hoped to reshape the post war world in its own image, the international attention given to racial segregation was troublesome and embarrassing … [T]he international focus on United States racial problems meant that the image of American democracy was tarnished … Unites States government officials realized that their ability to sell democracy to the Third World was seriously hampered by continuing racial injustice at home. Accordingly, efforts to promote civil rights in the United States were consistent with, and important to, the more central United States mission of fighting world communism. As the Justice Department made clear in the Amicus Brief it submitted in Brown, desegregation had become a Cold War imperative. (1988, p. 61)

While the executive branch worried about our American image abroad, Congress was more concerned about the domestic reaction to international law making. An excerpt from the debate in the United States Senate Foreign Relations Subcommittee on the Genocide Convention reveals both Congress’ general distrust of international human rights law and its more specific concern about the possible impact of that law on domestic civil rights: If there is to be a succession of treaties from the United Nations dealing with domestic questions, are we ready to surrender the power of the States over such matters to the Federal Government? Is that the road to peace, domestic or foreign? … The report of the Civil Rights Committee appointed by the President, after considering the division of power over civil rights between the Federal Government and the States, in two places refers to the added power which may

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be given to Congress in the field of civil rights if the human-rights treaty is ratified and approved. (Rix, 1950, pp. 206–8)

Many in Congress were emphatically not “ready to surrender the power of the states over [civil rights] to the federal government” and certainly not to the United Nations. They supported Senator Bricker’s proposed amendment to the United States Constitution, which would require an Act of Congress before any human rights treaty could become United States law. The Eisenhower Administration defeated the Bricker Amendment by promising not to ratify any human rights treaties. Later presidents were not bound by this promise, of course, and President Jimmy Carter signed four major human rights treaties, including the Civil Covenant, the Economic Covenant, the Convention on the Elimination of All Forms of Racial Discrimination (Race Convention), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Despite President Carter’s support, none were ratified, in large part because Senator Jesse Helms vehemently opposed. It was not until 1992, after the collapse of the Soviet Union, that President George Bush broke the logjam. The United States ratified the Civil Covenant in 1992 and the Race Convention in 1994. The United States still has not ratified the CEDAW or the Economic Covenant. Part Two: Now Like Then … The campaign against the CRC is similar to that earlier campaign against human rights. Now, like then, human rights are portrayed as a foreign imposition, an affront to sovereignty, and an attack on domestic values. The response, again, is to rally the faithful, and reclaim the language of rights in order to do so. Again, the whole world is watching. Finally, now like then, the surface campaign reflects a deeper ongoing struggle about race and class in America. There’s an External Threat Now, like then, those opposing human rights evoke the imagery of an external threat, a fundamental attack on American sovereignty. Then it was communism, a global conspiracy to deprive Americans of their authority over domestic questions, such as civil rights. Now, it is UN bureaucrats seeking to subject American families to international (that is, “foreign”) norms. These norms will ostensibly deprive parents of their authority over their children. The analysis by Klicka and Estrada (1999) is illustrative: There is no doubt that [the CRC] is completely devastating to the traditional parents’ rights which our nation was founded upon. [This treaty] is the perfect vehicle to fulfill all the goals of the child’s rights organizations and bureaucrats who are working for an agenda that would eradicate parents’ rights. (§ 3)

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Corporeal punishment, for example, is condemned under the CRC. In contrast corporeal punishment by parents is legal in most American states, as long as it does not rise to the level of child abuse. Rallying the Faithful In response to this perceived foreign encroachment, there is a massive, wellorganized resistance. Then, the rallying cry was, “states’ rights!” Now, the rallying cry is “parents’ rights!” The same conservative groups that have been the most vocal defenders of “family values” in the divorce context have expended an astonishing amount of energy and resources in targeting the CRC (Renteln, 1997; Kilbourne, 1996). As the Home School Legal Defense Association asserts on its website: We’ve become more and more concerned about the sovereignty of the Unites States vis-à-vis the United Nations as expressed by its policies on religious liberty, human rights, children’s rights, and the family. The UN Treaty on the Rights of the Child is an example of the UN’s view of the family. We have opposed the UN Treaty on the Rights of the Child because it would strip parents of much of their authority to educate, train, and nurture their children according to the dictates of their conscience. (2005, § 16)

It is unclear precisely how the CRC would “strip parents of much of their authority.” Opponents do not rely on specific provisions of the CRC. Nor do these opponents cite analyses of its text or of its effectiveness. There are neither studies of its impact, or lack of impact, in other States, nor is there data regarding its incorporation in national laws. Rather, the appeal to the faithful is broad, simple, and straightforward, undiluted by nuance and uncomplicated by facts. It is a rallying cry, not an argument. The Whole World is Watching Now, like then, the whole world is watching. Then, as described above, the Soviets sought to exploit the civil rights struggle in the United States, to show people of color in the developing world that the United States was racist. Now, those who seek to portray the United States as a pariah State take every opportunity to point out that the United States is the only State, except for Somalia, which has failed to ratify the CRC. But the criticism is far less strident now. This weakening reflects fundamental and dramatic shifts in the world order. First, the United States is the sole remaining superpower, and no other State has the economic clout to compete or the military might to challenge its hegemony. Even as China pulls ahead as the world’s fastest growing economy, it still depends on the American market. Even as the American military seeks to restore credibility after Abu Ghraib and extricate itself from an

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unwinnable war in Iraq, it remains the best-trained and best-equipped fighting force on the planet. While many States may question the United States’ role in the world, these States cannot yet look to a Soviet Union or other alternative for support and protection. Second, many States that might be willing to confront the United States, such as Islamic States in the Middle East, are unlikely to do so on the issue of children’s rights. The position of our former conservative, faith-based administration on this issue, after all, was not so different from their own. Our allies in Europe, while endorsing a relatively liberal view of children’s rights in the human rights jurisprudence emerging from Strasbourg, are unlikely to focus on this as a key dispute. Although, it should be noted, these European allies were vociferous in opposing the juvenile death penalty in the United States. Unless it is a clear matter of life and death, however, the United States’ rejection of children’s rights is unlikely to generate strong condemnation. Children do not vote. It’s About Race and Class Now, like then, the deeper, underlying struggle is about race and class. There has always been a strong correlation between race and poverty in the United States. This correlation is the result of multiple, overlapping factors and is overdetermined; that is, because of the multiple factors contributing to black poverty, addressing them piecemeal is unlikely to be effective. These factors include, first, the legacy of slavery. Unlike other groups, African Americans did not come to the United States because of the promise of opportunity, but were enslaved and exploited. As emerging reparations jurisprudence demonstrates, the effects of slavery are powerful and enduring. Second, distinct but related, ongoing racism limits opportunities for blacks, and affirmative action programs are increasingly dismantled. Thus, while most poor children are not black, black children are much more likely to be poor. Economic Rights As noted, the Economic Covenant focused on economic and social rights, including welfare rights and the right to a job, familiar to European socialists but foreign to Americans. Instead of economic rights, we believed in the rhetoric of opportunity. We did not need social safety nets here. Rather, the boundless opportunity of America would assure everyone willing to work in America a comfortable standard of living, if not great wealth. For many in America, especially African Americans and Latinos, the rhetoric of opportunity lost its allure. For the first time since the census has been taken, income remains flat for five consecutive years. Poverty has grown (Leonhardt, 2005). Now, the rhetoric promises that globalization, or free market democracy, will bring prosperity to all. Even as paychecks shrink or disappear, even as struggling American businesses downsize and outsource, globalization puts the

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consumer goods on the shelves of Wal-Mart that were previously available only to the rich. Even as economists ponder the paradox of a jobless recovery, those without jobs, or those who have been forced to trade good paying jobs in the manufacturing sector for minimum wage jobs at McDonald’s, wonder how they are going to pay soaring fuel costs. Children are among the hardest hit. According to recent data compiled by the Children’s Defense Fund (2004), one in six children in America is poor, and one in three should expect to be poor at some point in his or her childhood. Poverty affects every aspect of a child’s life. Poor children are more likely to suffer from hunger and malnutrition. They are more likely to live in unsafe housing and attend overcrowded schools. They are more likely to become victims of violence. According to the Children’s Defense Fund (2004): The national crime rate has dropped nearly 25% since 1993, but more than one quarter of violent crime victims known to police in the United States are juveniles. Youth ages sixteen to nineteen currently experience overall violence, including rape and general assault, at higher rates than people in all other age categories. (para. 10)

While these figures refer to children in general, poor children are more likely to grow up in violent neighborhoods, or not grow up at all. The health risks faced by poor children, set out in the following chart, provide a stark and graphic example of the ways in which poverty diminishes quality of life. Table 3.1 Statistics based on data received from Children’s Defense Fund website, 2005 Outcomes Health Death in infancy Premature birth (under 37 weeks) Low birthweight No regular source of health care Inadequate prenatal care Family had too little food sometime in the last 4 months

Low-Income Children’s Higher Risk 1.6 times as likely 1.8 times as likely 1.9 times as likely 2.7 times as likely 2.8 times as likely 8 times as likely

In fact, the health risks faced by poor children in America are closer to those faced by children in the developing world than those of children in other developed States. Few in Washington, however, champion economic rights. Then, although the Soviets eschewed all human rights as bourgeois, economic rights were denounced in the US as a form of communism. Now, conservative groups argue that the best way to assure children’s economic rights is through

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responsible two-parent families. As many commentators point out, however, programs intended to support such families discriminate against blacks as a practical matter because of the disproportionate numbers of incarcerated adult black males and the disproportionate numbers of black children born to unmarried mothers. The Right to Education Nowhere does the underlying struggle about race and class, and the links between the two, play out more dramatically than in the context of the right to education. The long, tortured jurisprudence of this right is as close as we have come to recognizing any economic rights in this country. The right to education is assured under Article 13 of the Economic Covenant. Although there is no right to education in the federal Constitution, public education has been recognized as key to any meaningful conception of opportunity since the early nineteenth century (Stark, 2000). Although access was initially restricted to white males, by mid-century, white females also attended public schools. Despite these developments, there were no schools for black slaves in the South, and many states enacted laws against teaching slaves to read. In Boston, where black literacy was high, the Massachusetts Supreme Court in 1849 denied a claim by Sarah Roberts to be allowed to attend an integrated school (Roberts v. City of Boston). Justice Shaw, using language that the United States Supreme Court would echo in the infamous case of Plessy v. Ferguson (1896), held that there was no violation of the Massachusetts Constitution since the schools for blacks in Boston were “separate but equal.” The United States Supreme Court did not address the issue for another hundred years. It was not until 1954 that the Court rejected the doctrine of “separate but equal” in Brown v. Board of Education, which was decided at the beginning of the civil rights movement and the beginning of the larger, international human rights movement of which it was a part. As both Martin Luther King and Malcolm X understood, the realization of civil rights depended on the realization of economic rights. The arguments against civil rights in the Brown era were framed as claims for “state’s rights.” That is, the federal government should not interfere in what was historically state government responsibility. Over time, the argument developed into a claim that the federal government lacked the expertise, as well as a workable understanding of local conditions, to effectuate school desegregation. Thus, the Supreme Court softened the mandate: schools were to be desegregated “with all due deliberate speed” (Brown II, 1955). Fifty years later, the phrase is still the subject of litigation. While Brown I eliminated de jure segregation, de facto segregation remains ubiquitous. The CRC, like the Economic Covenant, requires the State to educate its children. Now, like then, the argument against State education is local control. The assertion is that schools should not be subject to abstract international norms. Rather, schools should be governed by those whose children attend them. Nor should an international treaty dictate the curriculum. The CRC, for example,

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requires that schools teach human rights. The religious right, in contrast, wants schools to teach intelligent design. Religious authorities in other States have also sought to increase their influence by establishing religious schools. Indeed, as the Committee on Economic, Social and Cultural Rights pointed out, in many parts of the world, including parts of Afghanistan and Pakistan, these religious schools are the only schools available. Part Three: Unlike the Earlier Struggle … It’s About Parental Autonomy The rhetoric of parental autonomy, or parents’ rights, pre-dates the CRC. In the 1986 case of Mozert v. Hawkins County Board of Education, for example, fundamentalist parents challenged Holt Rinehart texts used in public schools in Hawkins County, Tennessee. The parents argued the texts might encourage a child to become “a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian or an advocate of a ‘one-world government’” (Mozert, 1986). The parents asked that their children be excused from classes using such texts. Their request was denied on appeal on the ground that the State had a legitimate interest in teaching independent critical thinking and tolerance. The parents’ claim in Mozert would have seriously undermined these secular purposes of education and required a major overhaul of the public school curriculum. The Mozert parents may have lost the battle, but the explosive growth of the home school movement in the United States since the 1980s suggests they may have won the war. While the Mozert parents do not control the public school curriculum, they have had a major impact on the home school curriculum. The Home School Legal Defense Association (HSLDA), representing “tens of thousands of American families,” explicitly identifies itself as a “Christian organization” (HSLDA Mission, 2005). This is clarified in a letter written by HSLDA Chairman of the Board and General Counsel Mike Farris: We are a Christian organization … This colors our way of thinking about many things. Fundamentally, it is reflected in what we believe is truth … The truth is that God created the family. It is God’s view of the family that is reflected in our western civilization and in our law until very recently. If we tear down this Godbased view of the family, then all of the God-based principles in our society are ultimately at risk. (2005, § 9)

The perception remains, however, that parents’ rights are under siege. This was shown in the response to the Clinton Administration’s measured support for the CRC. The religious right addressed the foreign threat with renewed vigor. Indeed, the perception that parents are under attack is carefully maintained. As the HSLDA defines its mission:

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To preserve and advance the fundamental, God-given, constitutional right of parents and others legally responsible for their children to direct their education. In so doing, we rely on two fundamental freedoms—parental rights and religious freedom. We advocate for these freedoms in the courtrooms, before government officials, and in the public arena. Additionally, we assist other educational organizations in similar activities, where possible and appropriate. (HSLDA Mission, 2005, para. 1)

It’s About God As Professor Martha Minow pointed out 20 years ago, family law is “underneath everything that grows” (1985, p. 819). Professor Minow explained that family law was “underneath” both in the sense that it is viewed as less important than other law and that it, in fact, serves as a foundation for deeply held societal values. This is reflected in State jurisprudence, in which matters concerning children and family are left to religious or local authorities. For example, the State regards family law as less important than finance and trade. At the same time, paradoxically, family law is often regarded as critical by those seeking to shape the national identity. As described in a recent cover story in the New York Times Magazine, “With Jesus As Our Connector: Life on the Faith-Based Frontier,” “second generation mega-churches are the new social centers and town squares—providing schools and services and advancing their own notion of community” (Mahler 2005, 3). Their pastors and their leaders are directly involved in peoples’ lives. Evangelical religious groups in the United States are not organizing the poor. Rather, like the Radiant Church described in “Life on the Faith-Based Frontier,” they are reaching out to the mostly white middle-class inhabitants of the exurbs. Evangelicals also shape the debate, by reaching out to voters—American parents— about their children and their schools, issues largely neglected by liberals, feminists, labor unions, and the Democratic Party. Similarly, religious groups in other nations have sought political power and influence through family law. For example, Muslim clerics in Nigeria established religious shari’a courts in the north that have authority over family matters. Also, when the State of Israel was established, rabbis demanded that family law be left to religious leaders. Like the clerics and the rabbis, the rising religious right in the United States resists the assertion of state authority over family law. This is an important part of the agenda of the growing evangelical movement. The Whole World May Be Watching, But Who Cares? Human rights law is a powerful and growing international system of treaties and customs—an emerging global consensus. More than 180 nations have ratified the Civil Covenant, the Economic Covenant, the CEDAW, and the CRC. By incorporating human rights law, nations accede to an international bottom line. As a corollary, domestic law incorporating human rights norms will likely be compatible with a

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broad range of foreign law similarly incorporating these norms. It is increasingly likely to resonate, accordingly, with an increasingly mobile population. But the United States does not care. Desegregation was a Cold War imperative but “saving the children” is not a globalization imperative. While people in the Third World empathized with black Americans living under segregation, it is not clear that American children inspire similar compassion. When we talk about our children eating “garbage,” we mean junk food; when UNICEF talks about children eating garbage, they literally mean “garbage,” such as the rotting fish heads on which the street children living on the shores of Lake Victoria in Tanzania subsist. Not the Federal Government Unlike the Eisenhower Administration’s support for civil rights, the Bush Administration vehemently opposed children’s rights. Instead, the administration promoted its much-criticized “No Child Left Behind” program, which focuses on standardized testing and clamps down on social promotion. Education may be the closest the United States has come to recognizing socioeconomic rights, and children may be the most appealing recipient group, but precisely because it is on the frontier, it may fail. There is little political support for the rights of children, and although some continue to press for integrated, quality public education, many see it as an illusory goal and argue that voucher programs and charter schools hold greater promise for the poor, especially poor blacks (Kozol, 2005; Glazer, 2005). There are few constituencies for whom public education is the main priority, and these groups are stretched very thin. The Soviets are gone, and the East/West conflict that drove the State Department to recognize desegregation as a Cold War imperative is over. While the Supreme Court decision in Grutter v. Bollinger (2003) recognized diversity as a globalization imperative, the decision limited both the role and the scope of affirmative action, offering little support for public education in general. Table 3.2 Statistics compiled from information given on the Children’s Defense Fund website, 2005 Outcomes Education Math scores at ages 7 to 8 Reading scores at ages 7 to 8 Repeated a grade Expelled from school Being a dropout at ages 16 to 24 Finishing a four-year college

Low-Income Children’s Higher Risk 5 test points lower 4 test points lower 2.0 times as likely 3.4 times as likely 3.5 times as likely Half as likely

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Public education in America is in crisis. American students lag behind students in other industrialized nation-states in math, science, and basic skills. Poor children are especially likely to lag behind. In fact, many argue that public education is a failure. For many of the children of the rich and middle class, it has effectively been replaced by private schools. The children of the religious right are increasingly home schooled. Poor children are left in overcrowded, chronically underfinanced public schools in poor neighborhoods. The dubious promise of charter schools is often their only hope. Conclusion This chapter described some of the ways in which the current struggle for children’s rights parallels the mid-twentieth-century struggle for civil rights, both of which may be understood as part of the larger, emancipatory project of human rights. Then, like now, the rhetoric was of local groups under attack. In the earlier era, the underlying struggles over race and class were exploited by the Soviets and quickly grasped by the newly independent nation-states of the developing world. Drawing on the leverage of the world, civil rights activists turned public opinion against segregation, culminating in Brown v. Board of Education (1954). No one argues for mandatory segregation anymore. From another perspective, however, no one has to. American schools, like American residential neighborhoods, are increasingly segregated. The story of “then” and “now” is not a simple one. Then, the polarization was East and West. Now, the axis of polarization is contested. While liberals and human rights activists talk about economic polarization, their arguments have little momentum. First, the perception of class mobility in America persists, however false it may be. Second, Americans in general—even poor Americans—remain better off than much of the world. Third, and crucially, there is no superpower nation-state seeking to exploit America’s ongoing failure to assure the human rights of its own citizens. Rather, the axis of polarization shifted, facilitated in large part because of the growing role of religion, here and abroad. There are two basic rhetorical dichotomies: secular versus religious States, or godless versus saved. The former draws on Enlightenment notions of tolerance and humanism; the latter basically abandons the notion of a secular State, drawing instead on the rhetoric of the “clash of cultures,” popularized in the West by Samuel Huntington. The Bush Administration, unfortunately, supported the rhetoric of the religious right. It is as if Eisenhower refused to send federal troops to Little Rock to desegregate the schools. The leverage of the world is still a factor, but the United States has weighed in against human rights. Many, here and abroad, regard this as a shocking betrayal. The world’s sole superpower effectively renounced its own traditions. It stands, alone with Somalia, against the CRC. We have left it to the religious right to “save the children!” but if they do, who is going to save the rest of us?

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Chapter 4

Feminist Fundamentalism on the Frontier between Government and Family Responsibility for Children Mary Anne Case

The equality of the sexes is a fundamental commitment government must follow through on, not only in law making, but in its hortatory pronouncements, funding decisions, and necessary interventions into the private sphere, such as child custody and adoption decisions. Not only in public schools and governmentfunded educational programs, but in state-licensed private schools and home schooling, it must ensure that girls and boys receive equal opportunity. Evidence of commitment to sex equality should be at least as assiduously enquired into and at least as positively weighted as a prospective adoptive or custodial parent’s commitment to providing a child with religious training, something many decision makers seem to enquire into and weigh favorably, often without much apparent attention to the substance of the religious beliefs. As things now seem to stand, however, when repressive religious beliefs are pitted against secular feminist ones, the religious beliefs often seem to begin with a presumption to respect which is even more deserved, but often not granted, to the feminist ones. Therefore, at a time when so many different religious fundamentalisms are demanding legal recognition—particularly when it comes to control over children, whether within the family, in the schools, or in the broader society—I want to vindicate something I have come to call feminist fundamentalism, by which I mean an uncompromising commitment to the equality of the sexes as intense and at least as worthy of respect as, for example, a religiously or culturally based commitment to female subordination or fixed sex roles. Sex Equality is a Particular as well as a Universal Value I could build this vindication on international human rights norms, because many feminist fundamentalist commitments are not only in accord with, but also independently mandated by, these norms, while some cultural or religious  A version of this chapter will appear in the Utah Law Review’s 2009 Symposium Issue New Frontiers in Family Law.

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commitments to women’s subordination or to fixed sex roles conflict with these norms. For several reasons, I shall instead make my case on the basis of United States constitutional law. Nation-states like the US, as well as individuals, can have feminist fundamentalist commitments. Focusing on these commitments helps dissolve any perceived dichotomy between feminist or liberal universalism on the one hand and local cultural commitments on the other by highlighting the fact that we, the people of the United States, as well as those elsewhere in the liberal, feminist, constitutional West, have our localized cultural commitments. These commitments are at least as important to us, and as entitled to protection, as the local cultural commitments of others are to them. In seeking to dissolve the dichotomy between liberal universalism and cultural particularity, I only wish to bracket, not to deny, disparage, or obviate, universal human rights claims. The fact that some of our local norms are required by, and others are at least consistent with, universal human rights norms is an independent justification for demanding respect for our norms, quite apart from their cultural significance to us, just as the fact that some other cultural norms violate or are in tension with universal human rights norms is a basis for denying such norms respect, notwithstanding their cultural significance. My claim is simply that in addition to whatever force our norms derive from their consistency with universal rights norms, they can also derive additional independent force from the fact of their imbeddedness in and centrality to our particular culture. Equality and freedom with respect to sex and gender are high among the national cultural commitments of the United States, as well as of the other Western constitutional democracies I have studied as a comparativist. They are also, for some, religious commitments as well. The cultures produced by commitment to sex equality and liberty are at least as extraordinary, fragile, and in need of defense as cultures more generally recognized as unique and endangered, such as those of, for example, the hunter-gatherers of Papua New Guinea. Very few cultures over the history or the territorial expanse of the world have embraced commitments to sex equality, repudiation of fixed-sex roles, or integration of the sexes; and they remain at risk. I happen to be contingently lucky that my own personal feminist fundamentalist commitments are pretty close to those embraced by the constitutional culture in which I live, although I am just old enough to have developed them as my personal commitments before the US Supreme Court enshrined them in constitutional jurisprudence. There are two main ways of formulating the principle behind a norm against the denial of equal protection on grounds of sex. The first is that women should not be subordinated by the law or, more broadly, by men. The second is that sex should be irrelevant to an individual’s treatment by the law and, more broadly, to his or her life chances. On this latter view, “fixed notions concerning the roles and abilities of males and females” (Mississippi University for Women v. Hogan, 1982, p. 785) are anathema when embodied in law, even in law that does not in any articulable way subordinate women to men. It is this latter

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view, which repudiates fixed sex roles as well as female subordination, which has become our national constitutional orthodoxy, enshrined in an unbroken line of US Supreme Court case law since the 1970s (Case, 2000). My use of religiously inflected terms such as orthodoxy and anathema in this context is deliberately intended to press several analogies to the discourses of religion. For example, just as the new constitution of Iraq provides that “No law that contradicts the established provisions of Islam may be established” (Iraqi Constitution, 2005, § I, Article 2), the Constitution of the United States mandates that no law that contradicts the equality of the sexes may be established. Together with racial equality and the non-establishment of religion, the equality of the sexes is among the very few commitments the existing US constitutional order makes fundamentally binding on government whenever it acts or speaks. Moreover, just as a shared commitment to the principles of Christianity or to Islam can work itself out in importantly different ways among different denominations or communities of believers, so a commitment to sex equality, like commitments to freedom of speech or religious liberty, although widely shared among liberal constitutional nation-states, can be spelled out in importantly different ways by different constitutional cultures. My case for feminist fundamentalism could be made with respect to any number of other constitutional orders, including Canada and the European legal systems I have studied as a comparativist, but it would need to be made in a culturally as well as legally specific way. Thus, for example, a feminist fundamentalist perspective on the French legal system would have to take account of both parité and mixité, as well as the interaction of these specifically French feminist commitments with other fundamental French values. As French President Nicolas Sarkozy said, “The meaning, the values, of French ‘identity’ is clear. It means laicity, sexual equality, opportunity. I believe in a mix, not in communitarianism, and, when you forget those national values, communitarianism is what you get” (Kramer, 2007). That the French mix is somewhat different from the American, or, for that matter, the Dutch, the British, the Canadian, or the German, leads France, famously, to answer the question of whether Muslim girls may wear hijab in public school classrooms differently than these other nations have, although each of these nations is, like France, committed to the equality of the sexes. The US Supreme Court’s Articulation of Sex Equality as a Priority What it might mean in practice for feminist fundamentalism to operate as a necessary constraint on state action is, for any legal system, particularly tricky when that state action involves children. Many who are themselves personally and professionally committed to sex equality in law and life are also committed to honoring other values, including religious freedom, cultural diversity, personal and family autonomy, and sharp limitations on government interference in private life and individual choice. Properly interpreted, however, existing US law already commits us as a nation to sex equality as a priority.

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Although both religious freedom and family autonomy are protected by the Constitution of the United States, the Supreme Court has also made clear that: the family itself is not beyond regulation in the public interest … [a]nd neither rights of religion nor rights of parenthood are beyond limitation … Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience … Parents may be free to become martyrs themselves. But it does not follow 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. (Prince v. Massachusetts, 1944, pp. 166–70)

When the state does exert its regulatory power over children and the family, it must do so consistent with its fundamental commitments, including those to equality on grounds of sex as well as race. Among regulations of the family in the public interest are, for example, laws mandating that parents support their minor children. In the Stanton case, in 1975, the US Supreme Court held that it would be unconstitutional for Utah to require a divorced father to support his son until age 21, but his daughter only until age 18. The Court explained: A child, male or female, is still a child. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas … If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl. To distinguish between the two on educational grounds is to be self-serving: if the female is not to be supported so long as the male, she hardly can be expected to attend school as long as he does, and bringing her education to an end earlier coincides with the role-typing society has long imposed. (Stanton v. Stanton, 1975, p. 10)

In the nineteenth and early twentieth century, Justices of the Supreme Court had been willing to go along with society’s sex-role stereotyping. Concurring in a judgment that the state of Illinois could deny a license to practice law to Myra Bradwell, a married woman, Justice Bradley wrote in 1873: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of  In the Prince case, the Supreme Court upheld the application of laws prohibiting child labor against a woman who had taken her nine-year-old niece and ward onto the streets of Brockton, Massachusetts to preach and distribute religious pamphlets.

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the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. (Bradwell v. Illinois, 1873, p. 141)

As the Stanton case indicates, however, since the 1970s the United States Supreme Court, interpreting the Equal Protection Clause of the Constitution, has consistently held views such as those expressed by Justice Bradley in the Bradwell case to be not only outdated as a descriptive matter, but impermissible as a normative matter as a basis for governmental decision making. More generally, the Supreme Court has held all sex stereotypes to be anathema when embodied in law or in other government action. In one of his last important opinions, Nevada Department of Human Resources v. Hibbs (2003), Chief Justice Rehnquist affirmed that we in the United States have established so strong a constitutional orthodoxy on matters of sex and gender that Congress has prophylactic power under Section Five of the Fourteenth Amendment to enforce this orthodoxy on the states. As Rehnquist made clear, this orthodoxy mandates, not simply sex equality, but no governmentally endorsed sex-role differentiation in all matters, including those related to family and childrearing. Accordingly, to fight the long-standing, now heretical, “pervasive sex-role stereotype that caring for family members is women’s work” (Hibbs, 2003, p. 731), Congress can impose on the states as employers the Family and Medical Leave Act (FMLA, 1993). FMLA mandates that persons of both sexes, not just women, can get leave from their employers for what Martha Fineman calls their inevitable or derivative dependency, that is to say, for their own illness or that of close family members, as well as to care for their young children (Fineman, 1995a). The Hibbs opinion completes the circle opened in Stanton. When Justice Blackmun’s Stanton majority opinion declared: “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas,” there was a subtle lack of parallelism in the formulation (“only the male,” not “the male only”) (Stanton, 1975, p. 10). Women, the Stanton court held, were welcome in both the public and private spheres, but what of men? “Women’s activities and responsibilities are increasing and expanding,” Blackmun continued. Indeed they were, but were men’s to the same extent? In his majority opinion upholding the FMLA, Rehnquist perfects the parallelism, holding, in effect, that it is no longer “solely.… the female [who is] destined … for the home and the rearing of the family.”

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According to Rehnquist, Congress has prophylactic power to target through the FMLA “the fault line between work and family—precisely where sex-based overgeneralization has been and remains strongest”: Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver. (Hibbs, 2003, p. 736)

It is in several respects particularly noteworthy that Rehnquist was the author of the Hibbs opinion. Rehnquist was notoriously a latecomer to acceptance of the current constitutional law of sex discrimination’s repudiation of distinctions between the roles of men and women. While in the Office of Legal Counsel, he unsuccessfully urged the Nixon Administration to oppose the Equal Rights Amendment, accusing ERA supporters of “a virtually fanatical desire to obscure not only legal differentiation between men and women but, as far as possible, physical distinctions between the sexes,” as well as of “overtones of dislike and distaste for the traditional difference between men and women in the family unit, and in some cases very probably a complete rejection of the woman’s traditionally different role in this regard” (Legal Times, 1986, p. 4). As an Associate Justice, he regularly dissented from decisions striking down rules that distinguished on their face between males and females, although he did concur in Weinberger v. Wiesenfeld (1975), which, like Hibbs, concerned sex-distinctions in the benefits offered parents of young children. In that case, plaintiff Stephen Wiesenfeld, who was left with the sole responsibility for the care of his infant son Jason Paul when his wife Paula, the principal wage-earner for her family, died in childbirth, challenged a law offering Social Security survivor’s benefits only to widows, and not to widowers with young children. Because Rehnquist saw as the sole legislative purpose for survivor’s benefits to “make it possible for children of deceased contributing workers to have the personal care and attention of a surviving parent, should that parent desire to remain in the home with the child,” he found it “irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased contributing worker should have the opportunity to receive the fulltime attention of the only parent remaining to it” (Wiesenfeld, 1975, p. 655). Even so, Rehnquist was not yet fully convinced that a man would find his place in the home. The Wiesenfeld case was one of many sex equality cases argued by Ruth Bader Ginsburg, and the only one in which Rehnquist did not vote against the position for which Ginsburg had advocated. Years later, when Ginsburg had joined him on the Supreme Court, Rehnquist asked her, “Tell me this: did he really take care of the baby?” Ginsburg, who had officiated at the wedding of Jason

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Paul Wiesenfeld, himself now a lawyer, could assure Rehnquist that Stephen Wiesenfeld had indeed taken care of his son (Strum, 2002, p. 70). Rehnquist himself took on child care responsibilities late in life, leaving work early to pick up his grandchildren from school when his daughter, a single working mother, had child care problems. Perhaps this is what caused him to demonstrate what he himself wryly called “a capacity for growth” when it came to questions of sex discrimination (Greenhouse, 2003). Perhaps it was simply his respect for settled law, as articulated in his concurrence in United States v. Virginia (1996) in which he castigated the Virginia Military Institute for failing to take any action in advance of litigation to comply with the constitutional requirement of sex equality. In any event, although Rehnquist ordinarily gave great constitutional weight to federalism and states’ rights and, as a result, was reluctant to extend Congressional powers under Section Five, he saw the need for such power to combat “stereotype-based beliefs about the allocation of family duties” (Hibbs, 2003, p. 730). This is further evidence of the fundamental place that not only sex equality, but its instantiation in the repudiation of sex stereotypes, has in the United States constitutional order. The strength of our constitutional commitment to racial equality has led to constitutionally mandated limitations on government tolerance of and participation in private discriminatory acts, including those affecting children. Just as the Stanton case established that state actors cannot take societal sex role stereotypes into account in setting child support obligations, so, too, the 1984 Supreme Court case of Palmore v. Sidoti prohibited any racial discrimination in custody decisions, even when the best interests of an individual child might call for it. The child in question was the young daughter of divorced white parents in Florida whose father sought to gain custody when her mother married a black man. The Supreme Court acknowledged, “There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin” (Palmore, 1984, p. 434). It nevertheless held that the courts were precluded from taking racial prejudice into account in determining custody: “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect” (Palmore, 1984, p. 433). The strength of our constitutional commitment to racial equality has led to constitutionally mandated limitations on government tolerance of and participation in private discriminatory acts respecting the education, as well as the custody, of children. For example, after mandating that public schools no longer segregate pupils on the basis of race, the Supreme Court, by restricting local governmental attempts to close public schools and channel subsidies to private racially discriminatory schools, placed limitations on government’s ability to assist private actors in finding an end run around school desegregation (Griffin v. County School Board, 1964; Norwood v. Harrison, 1973). Just as it does with racial equality, government as decision maker must also act consistently with its commitment to sex equality. Thus, while government as

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speaker, actor, and dispenser of subsidies is free to take a variety of positions, among those it may now no longer take nor promote is that of Justice Bradley in Bradwell v. Illinois to the effect that, “[t]he natural and proper timidity and delicacy which belong to the female sex evidently unfits it for many of the occupations of civil life …” (Bradwell, 1873, p.141), even though such a position may still be fervently held by many people of faith. What might this mean in practice? Consider a few examples, some more hypothetical than others. At one extreme of the hortatory axis is the question what constitutional limits there might be on mere government pronouncements of principle unmoored from direct, binding connection to policy. In 1993, the commissioners of Cobb County, Georgia adopted resolutions proclaiming, among other things, “that ‘the traditional family structure’ is in accord with community standards … that ‘lifestyles advocated by the gay community’ are incompatible with those standards … and that Cobb County would not fund ‘activities which seek to contravene these existing community standards’” (Achenbach, 1993). If, by “traditional family structure,” the commissioners had explicitly indicated that they meant, not just a heterosexual couple, but a patriarchal one, with wives submissive to husbands and confined to the domestic sphere, as Justice Bradley urged, the resolution would violate existing US constitutional equality norms. “[L]ifestyles advocated by the [feminist] community” can no longer be “incompatible with the” official community standards of any unit of government in the United States. A sign saying “Welcome to Cobb County, Where a Woman’s Place is in the Home” would be a combination welcome mat/no trespassing sign with, in my view, serious constitutional problems. My colleague, Judge Richard Posner, apparently agrees with me that such a message would be problematic, since he goes so far in a recent opinion as to list “a woman’s place is in the home” together with “blacks have lower IQs than whites” among the messages whose psychological effects on children could be such as to allow a public school to forbid students inscribing it on T-shirts they wear to class (Nuxoll v. Indian Prairie School District 204, 2008, p. 15). Feminist Fundamentalism in Educational Programs The problems only intensify when government seeks to use its powers to fund or regulate to promote such problematic messages. Attention to such problems is particularly urgent at times when the federal government is interested in sending messages, to children as well as adults, about appropriate family structure and   Those “advocated by the gay community” have a more ambiguous status under current US law: so long as they do not transgress the limits set by the Court in Romer v. Evans (1996), units of government still have some degree of freedom in the extent to which they celebrate or condemn “gay lifestyles.” It should go without saying that in adapting the language of the Cobb County resolution to the rhetorical purposes of this chapter I do not mean to suggest that the resolution’s language is anything but hopelessly vague.

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sexual behavior backed by carrots and sticks. For example, assuming arguendo that “promoting marriage” through subsidies, hortatory and regulatory means is an appropriate activity for the federal government, it is still constitutionally constrained to promote only egalitarian marriage. Court challenges to programs promoting marriage have to date focused unsuccessfully on claims under the religion clauses (Christianson v. Northwest Marriage Institute, 2007). However, the fact that a government-funded program whose promotion of marriages in which wives are to be submissive to their husbands does not rely in a “pervasively sectarian” way on scripture for its subordinating message should not be enough to shield such a program from further constitutional scrutiny (Widiss, Rosenblatt, and NeJaime, 2007, p. 501). As Cornelia Pillard has argued: If government must not act on the belief that men are aggressive and thus better fit than women for military-style education, women are better mothers, or boys are more likely than girls to drink and drive dangerously, then it should follow that government may not seek to indoctrinate students with those same sexbased generalizations. (Pillard, 2007, p. 957)

Pillard’s focus is on the sex stereotypes associated with abstinence-only sex education, including the perpetuation as both a normative and descriptive matter of “the stereotyped double standards of virility versus chastity, homemaker versus breadwinner, subject versus object of desire,” but her point can be generalized to other aspects of the school curriculum, whether in the public schools themselves or in other government subsidized educational programs. Justice Souter, in dissent from his colleagues’ decision upholding a program of government-funded vouchers parents could use to pay for religious schools, wrote that not “every secular taxpayer [will] be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention” (Zelman v. Simmons-Harris, 2002, p. 716). I would go farther than Souter and say that it would already be unconstitutional for the government to fund this sort of teaching, in the same way as it has been held unconstitutional for the government to fund racial segregation (Norwood, 1973). Parents with religiously based objections to public school curricula presenting an untraditional view of sex roles have long been told by federal courts that they have no right either to force a public school to change its curriculum or to opt their children out of those portions of the curriculum containing messages of sex equality. Thus, in one leading case, born-again Christian Bob Mozert was unsuccessful in his court challenge to his children’s being exposed by their public school curriculum to “role reversal or role elimination, particularly biographical material about women who have been recognized for achievements outside their homes” (Mozert v. Hawkins County Board of Education, 1987). Apostolic

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Lutheran parents in another school district, upset that “schools are contributing to the Womans’ [sic] Liberation Movement by making [it] mandatory that the boys take home economics and the girls take shop,” similarly failed to persuade a court that they were constitutionally entitled to have their children excused from portions of the curriculum the parents found objectionable on religious grounds (Davis v. Page, 1974). But, in rejecting the parents’ free exercise claims, the courts in neither of these cases explicitly relied on constitutional sex-equality guarantees. In my view, the courts could have gone much farther, treating the schools’ choice of materials that challenged sex stereotypes not as merely permissible and as such immune from a free exercise challenge, but as constitutionally required to provide to both male and female students equal protection on grounds of sex. State-sponsored education is not merely permitted, but also required, to refrain from promoting a message of inequality between men and women. Although the constitutional argument is more complicated, the limitation should be no different when it shifts from the public school to those forms of private or home schooling that are authorized by the state as substitutes for public education. Unfortunately, when one moves beyond those institutions bound by Title IX, there has to date been comparatively little in the way of regulatory attention paid in the United States to ensuring that the education provided to students through state-regulated private and home schooling even minimally communicates or comports with norms of sex equality. But scholars such as James Dwyer and Kimberly Yuracko are right to insist that the state is under a constitutional obligation to protect children from receiving a discriminatorily inferior education on grounds of sex, whether or not that education is in a private or home school and whether or not it is dictated by the parents’ religious beliefs (Dwyer, 1998; Yuracko, 2008). Some might suggest that the US Supreme Court case of Wisconsin v. Yoder (1972), in which the Old Order Amish were allowed as part of their constitutionally protected free exercise of religion to withdraw their teenage children from school in contravention of school attendance requirements, stands in the way of the argument here. But subsequent decisions have made quite clear that the Yoder case will be essentially limited in its application to the Amish. Moreover, although the Amish resisted higher education for their children, they apparently did not distinguish between boys and girls in so doing, giving both sexes similar training. Scholars who studied them at about the time of the Yoder decision reported: Although the Amish girls always wear dresses and the little boys, after they are toilet-trained, wear trousers, there is little difference in the tasks they are taught to perform. Boys are encouraged to like horses and machinery, but children of both sexes accompany their father around the farm and help their mother with simple household tasks. (Hostetler and Huntington, 1971, p. 18)

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Had the Amish insisted on pulling only their daughters out of school without a high school diploma, while also insisting on sending their sons to college, the case would be more on point here. Sex Equality in Educational Programs is Linked to Equality for Gays and Lesbians The Apostolic Lutheran parents who unsuccessfully litigated in federal court to stop boys from taking home economics were worried about more than Women’s Liberation. They also expressed concern that: … boys between [the] ages of 12 and 16 are very vulnerable to effeminate or homosexual development if [a] certain environment is provided … [I]f students who already have possible unknown problems in this area were placed in this atmosphere condoned and imposed by those in authority it would certainly contribute to a particular students [sic] overall destruction of masculinity. Men are the head of the family not the homemakers. (Davis v. Page, 1974, p. 404)

Similarly, as part of a successful attempt to persuade Governor Arnold Schwarzenegger to veto the Bias Free Curriculum Act, which would have prohibited educational materials used in California schools from reflecting adversely on persons because of, inter alia, their gender or sexual orientation, Luis Goldamez, Latino spokesman for the Campaign for Children and Families, insisted: We can no longer allow girlie-men in this state or any state to dictate to our children what they’re going to teach them. We need to see them face-to-face and tell them, we have our pants on the right way, we are men and women, we are not confused. And if anyone needs to teach our children, it needs to be us parents, not girlie-men from this building or any other building. (WorldNetDaily.com, 2006)

One of the myriad ways that the equality of the sexes is linked to gay rights is that those with a religiously based insistence on promulgating fixed sex roles or female subordination often explicitly link it to a religiously based opposition to tolerance for, or recognition of, homosexual behavior and relationships. It behooves both feminist fundamentalists and advocates for gay and lesbian rights to be more attentive to and explicit about these connections. Consider, for example, US Secretary of Education Margaret Spellings’s decision to force out of the Public Broadcasting Service (PBS) television series Postcards from Buster an episode featuring a lesbian civilly-united couple from Vermont who run a maple sugaring operation with their three children. The episode featuring the Vermonters was called “Sugartime,” and there were snide suggestions in the reporting on Spellings’s actions that “sugaring” was thought

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to refer to an exotic sexual practice, although in fact, of course, the reference was simply to the routine production of maple sugar (Salamon, 2005). Although Postcards from Buster had received federal funding specifically to showcase the diversity of American families, and although the series had included, without objection from Spellings, a Muslim family who veiled their pre-teen daughter, as well as evangelical Christian and Mormon families, Spellings claimed, in a letter to PBS officials, that “many parents would not want their young children exposed to the life-styles portrayed in this [Sugartime] episode” (Jackson, 2005). No apparent account was taken of those “many parents” who might not want their children exposed to the religiously traditional “life-styles” portrayed in other episodes. Not only is Spellings’s decision constitutionally problematic viewpoint discrimination, feminists and proponents of equality for gays and lesbians have common cause to object to it. Feminist Fundamentalism in Child Custody and Adoption As has been clear for some time when it comes to state laws governing matters such as alimony and child support, sex equality norms also should constrain government on those occasions when the state necessarily adjudicates concerning the family. In the remainder of this chapter, I will work through examples, some more controversial than others, of what this might mean for parents and children. Among the questions I will consider is to what extent government, in its adjudication of custody as between already recognized parents or its placement of children for adoption, should take commitment or opposition to women’s equality into account. Before readers protest that I am proposing massive government intervention into constitutionally protected parenting choices, it is important for me to stress that I am focusing my attention here on situations where there is already of necessity governmental intervention. In such situations a policy of noninterference in the family or of leaving things up to autonomous individuals to decide for themselves is simply not an option. A custody dispute between two divorcing parents, for example, must be resolved—if neither parent is unfit, a court must decide between them in the best interests of the child. In deciding such cases, evidence of commitment to sex equality should be at least as assiduously inquired into and at least as positively weighted as a prospective adoptive or custodial parent’s commitment to providing a child with religious training, something many decision makers in adoption and custody cases seem to inquire into and weigh favorably, often without much apparent attention to the substance of the religious beliefs. It is notoriously difficult to determine what is actually happening as a general matter in family law cases, given how few result in reported decisions and how manipulable and vulnerable to judicial bias, conscious or unconscious, are the relevant standards, such as “best interests of the child.” From the few reported cases it appears, however, that when repressive religious beliefs are pitted against

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secular feminist ones, the religious beliefs often begin with a presumption to respect I want to insist is even more deserved, but I realize is often not granted, to the feminist ones. Consider, as a frightening example, the case of Laurie April Wang, who left her husband after his church subjected her to an exorcism, as it had another woman, “to rid herself of the ‘evil, unsubmissive spirits,’ the spirits which caused her to speak up for herself and to exercise authority rather than completely submit to her husband” (In re Marriage of Wang, 1995, p. 454). A court adjudicating her custody dispute was unwilling to consider whether her husband’s religious convictions and his efforts to pass them on to his son might adversely affect her relationship with her son, apparently because it “took the position that religion is beyond the pale of the court’s scrutiny” (Leaphart, dissenting in Wang, 1995, p. 452). Even courts that do, in the end, rule against parents who claim religious authority for the sexist beliefs and practices those parents seek to impose on their children often do so without giving any explicit consideration to the role constitutional norms of sex equality should play in their decision making. Thus, in Roberts v. Roberts (2002), a Virginia judge did terminate a father’s visitation with his son and daughter after hearing testimony by a clinical psychologist that the daughter “is particularly at risk of psychological damage because of [her father’s] telling her that women should not strive to accomplish what men accomplish and that they are supposed to be subservient to men” (p. 59); evidence that the daughter, an “excellent student,” did “better in school this academic year, during which no visitation has occurred, than she did last academic year, when there was visitation” (p. 58); and evidence that the father had told both children that they and their mother, whom he called “a sinner” and “of the devil” (p. 57), would all go to hell. The judge concluded that visitation with the father was causing “serious psychological and emotional damage to the children,” in no small part because “the values being taught to the children by [their father] are different from the values being taught to the children by [their mother]” (p. 60). Among these conflicting sets of values were that the mother “encourages the children to be whatever they want to be. [The father] tells [his daughter] women cannot do what men do” (pp. 59–60). But, even with respect to these values, the court insisted only, “Whichever set of values is right, and the court makes no judgment on which set of values is right, they are irreconcilably at odds” (p. 60). It may well be true that, as between “tolerance” and “fire and brimstone”— another of the enumerated conflicts in values between these particular parents—a court can make no judgment, but I would argue that a court is constitutionally compelled to choose encouragement of a daughter’s choice of occupation over a fixed and subordinating message that “women cannot do what men do.” That is not to say that the parent who most favors sex equality should always prevail, simply that a court must not remain viewpoint neutral as between sex equality and its opposite; it must put a thumb on the scales in favor of the parent who would give a daughter the same encouragement, liberty, and opportunity as a son.

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If the son or daughter makes use of this liberty to develop interests and ambitions traditionally and stereotypically not associated with his or her sex—if he develops an interest in nursing, or she in engineering—this should not be seen as a harm, but as a vindication of our commitment as a constitutional culture not to enshrine “fixed notions concerning the roles and abilities of males and females” (Mississippi University for Women, 1982, p. 785). Sociologist Judith Stacey has reported data suggesting that among the few differences between children raised in lesbian households and other children is that those raised in lesbian households, particularly girls, are somewhat more likely to “behave in ways that do not conform to sex-typed cultural norms,” have a “greater interest in activities associated with both ‘masculine’ and ‘feminine’ qualities and that involve the participation of both sexes,” and have greater interest in pursuing careers in fields traditionally dominated by the opposite sex (Stacey and Biblarz, 2001, p. 168). If these reported differences are to play any role at all in governmental decision making about lesbian parenting, they should cut in favor of, not, as some opponents of gay rights have argued, against, recognition of lesbian parents. Although my take on cases like Wang and Roberts is consistent with the analysis of scholars such as James Dwyer, who has written extensively about religious exemptions to child welfare and education laws as denials of equal protection to children of religious objectors (Dwyer, 1998), it is directly at odds with that of many scholars of the First Amendment. Most notably, Eugene Volokh has argued that the First Amendment requires that views such as those articulated by Messrs Wang and Roberts not be stifled (Volokh, 2006). The hierarchy of US constitutional values is not as Volokh suggests, however. It is not the free exercise or free speech clause that is on a par with equal protection on grounds of race and sex when it comes to the extent of the limitations it places on government action; rather, it is the establishment clause, and, in cases such as Wang and Roberts, the prohibition on government’s establishing a religion and the guarantee of equal protection on grounds of sex cut in the same direction—against the parent insisting on a religiously grounded commitment to female subordination. One of the reasons the First Amendment may be seen to complicate the analysis in cases like Wang and Roberts is that both involved conflicts over gender ideology reflected largely in the fathers’ discriminatory speech, rather than in any other alleged discriminatory treatment of children on grounds of sex. Harmful though it may be for Mr Roberts to tell his daughter that her options are more limited than her brother’s, it might have been even easier for a court to see the harm had her father also pulled her out of school in accordance with his ideology. Because religious liberty claims played such a central role in decisions such as Yoder, there is every reason to believe as a matter of law that a parent who limits a daughter’s education or loads her down with chores will get less respect from a court for this decision if it is only culturally, and not also religiously, grounded. Indeed, courts, many dealing with immigrant families in which not only gender role ideology but a parent’s genuine pressing need for help around the house may keep a girl out of school, generally seem to have fewer problems favoring

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the parent who equalizes educational opportunity when religion is not at issue. This causes consternation among some scholars, but I think it was, for example, perfectly appropriate for a Nevada court that awarded custody of a young Mexican girl to her US resident father in preference to her illegal immigrant mother to take into account, among other things, that while in her mother’s custody the girl had been forced to assume substantial care-giving responsibilities for her disabled brother (Rico v. Rodriguez, 2005). Government should disfavor in competition for children those who, for example, would make a girl do all the household chores while her brother can study or play. Though the cases that get press attention in this regard tend to feature families that are culturally, ethnically, or religiously exotic, from the polygamous Fundamentalist Church of the Latter Day Saints (FLDS) to Muslim and Mexican immigrants, recently released data on the chores performed by children show that, even in mainstream American families, girls in many households do in fact spend far more hours on household chores than boys, leaving boys more time to play and to study (Shellenbarger, 2006). Moreover, the chores girls are given to do are less likely to be paid and less likely to be marketable than those assigned to boys. Notwithstanding that, as Viviana Zelizer points out, in the nineteenth century families often took in foster children principally to have an extra pair of hands for farm chores and household tasks (Zelizer, 1985), we would today find unthinkable the adoption of a black child to be, in effect, a household servant for his or her white adoptive siblings. We should feel similarly about a girl expected to do likewise for her brothers. The case for feminist fundamentalism being outcome determinative in custody or adoption decisions is, other things being equal, stronger (a) when those competing for a child begin with presumptively equal rights in that child, as occurs in a custody fight between two recognized parents, or an adoption decision when there are multiple qualified adoptive parents; (b) when both ideology and actions are discriminatory; (c) when only culture, not religion, is used to justify the antifeminist contender; (d) when the child is a girl, although, as the Wang and Roberts cases show, a son can also be at risk; and most importantly (e) when the antifeminist acts or speech rise to the level of child abuse, so as potentially to justify a finding of parental unfitness. Even those who may find the examples I have thus far cited in this chapter unpersuasive would surely agree that there is some point on the continuum at which a parent’s speech or action in support of a commitment to female subordination or rigid sex roles would cross the line into abuse. For example, those who might not agree that it should count against a parent that he tells his daughter her place is in the home doing housework might feel differently if he kept her chained there day and night, an illiterate drudge, and might then favor state intervention, even if there was no recognized competitor for his daughter’s custody, and even if he gave religious justifications for so severely restricting her.

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The Texas FLDS Case as an Example of How Not to Apply the Discourses of Religion and Human Rights to Children Unfortunately, the fact that sex role differentiation with its roots in female subordination seems so “familiar” inhibits support for state intervention to combat it. Consider, for example, the reaction to the State of Texas’s April 2008 attempt to remove more than 400 children from parents who were members of the FLDS living on the Yearning for Zion Ranch. The state’s intervention was prompted by reports that a 16-year-old girl was being forced to marry a 49-year-old man. The state did find that “more than 30 of the 53 girls from 14 to 17 who were at the ranch are pregnant or have children” (Frosch, 2008). A quick overview of public commentary on the state’s action reveals that few, other than representatives of the State of Texas itself and self-identified survivors of polygamy, have been quoted in support of the state’s action, however. Pundits on both the left and right condemned the state’s intervention into the family and the community. I agree that the strict preconditions Texas law sets before children can be removed from their homes on an emergency basis were not satisfied in this case and that the Texas courts, therefore, had little choice but to order the children’s prompt return. But I am disturbed by the dismissive way in which the Texas Court of Appeals, whose decision that the children should be returned was upheld by the Texas Supreme Court, treated the Texas Department of Family and Protective Services’ allegations of danger to the children (In re Sara Steed, 2008). The Department took the position that “due to the ‘pervasive belief system’ of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse” (Steed, 2008, p. 6). But the Texas Court of Appeals repeatedly insisted that the Department had made no showing of “any risk to them other than that they live in a community where there is a ‘pervasive belief system’ that condones marriage and child-rearing as soon as females reach puberty,” as if this in itself were no big deal (Steed, 2008, p. 11). To help clarify why I find the court’s attitude so disturbing, imagine that instead of the “pervasive belief system” of the FLDS concerning adolescent female sexual activity with older males, the court had instead been faced with the pervasive belief system of the Sambia of New Guinea, who, as documented by anthropologist Gilbert Herdt, held and acted on the view that if young boys did not regularly   Compare this with Lynch v. Donnelly (1984), (Brennan, J. dissenting) (noting, in an Establishment Clause case, that, “because the Christmas holiday seems so familiar and agreeable,” the Court’s majority is blinded to the “distinctively sectarian” nature of the display of a crèche in the public square).   Therefore, I am not suggesting that the bottom line decision of the Texas courts— that by law the children should be returned forthwith to their FLDS parents—was incorrect. There did not seem to be evidence of imminent physical harm to all the children, nor did it seem that Texas had taken heroic measures to find a solution short of immediate removal, as the law requires. See In re Texas Department of Family and Protective Services (2008).

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fellate older males and ingest their semen, thereby replacing mother’s milk with male milk, they would never grow up to be proper men themselves (Herdt, 1987). Would the court have sent young boys back to their families so promptly after finding that they “were in [no] physical danger other than th[ey] live … among a group of people who have a ‘pervasive system of belief’ that condones,” not “polygamous marriage and underage females having children” (Steed, 2008, p. 10) as did the FLDS, but underage males regularly fellating older males as did the Sambia? Surely not. Perhaps this is because the FLDS’s “umbrella of belief” that for girls “having children at a young age is a blessing” (Steed, 2008, p. 9) is more “familiar and agreeable” to the Texas courts than the Sambian “umbrella of belief” that for boys, ingesting semen at a young age is a comparable blessing. It remains unclear where in the cycle of socialization into an “umbrella of belief,” such as that of the FLDS, courts are prepared to intervene so as to protect young girls. If the age of consent remains unchanged, impregnating them remains a crime. But, does the after-the-fact possibility of long sentences for statutory rape for men who have sex with young girls trained to believe they risk their salvation if they do not cooperate actually prevent harm to the girls? Shouldn’t some efforts be made to intervene earlier, before the girls are pregnant? Yet, even when one parent strongly objects to socialization into underage polygamy, courts seem reluctant to rule in favor of that parent. Consider the Pennsylvania Supreme Court’s disposition of the custody dispute between the divorcing Shepps. Their divorce had been occasioned by his conversion to a fundamentalist polygamous variant of Mormonism from the more traditional Mormonism both parents had previously practiced. A lower court had heard evidence that he had told his 13-year-old stepdaughter that her salvation depended on her practicing polygamy, and that when she turned 14 she should marry him, her stepfather. An intermediate appellate court then “specifically prohibited” him “while [his biological] child is a minor from teaching her about polygamy, plural marriages or multiple wives” because it found that “promotion of his beliefs to his stepdaughter involved not merely the superficial exposure of a child to the theoretical notion of criminal conduct, but constituted a vigorous attempt at moral suasion and recruitment by threats of future punishment” (Shepp v. Shepp, 2006, p. 696). But the Supreme Court of Pennsylvania reversed, saying that, even when it came to “religious beliefs, which, if acted upon, would constitute a crime” (Shepp, 2006, p. 703), their promulgation to a child could not be restricted unless it were “established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens” (Shepp, 2006, p. 706). I agree with the dissenting judge that such a showing had clearly been made in the Shepp case. As I see it, in both the Shepp and the Steed cases, court majorities were not only far too willing to be deferential to religious justifications, but also, in addition, far too unwilling to treat female subordination through traditional sex roles as something unusual and disturbing. Similarly, the court-appointed social worker in the Wang case found after an investigation that there “were no ‘bizarre

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activities going on’ at the Cornerstone Community Church but rather it was merely a fundamentalist church” (Wang, 1995, p. 451), notwithstanding testimony about the lengths, including exorcism of supposed demons, the church was prepared to go to ensure compliance with its “teaching that women are not allowed any authority, and that men must be allowed to make all the decisions” (Wang, 1995, p. 454). What may help account for the tendency of both left and right to support the FLDS against the Texas Department of Family and Protective Services is a related, though simultaneously diametrically opposite, phenomenon to that afflicting the court majorities; to wit, that both sides of the political spectrum tended to focus on those aspects of the FLDS’s situation with which they could most readily identify. The religious right could make common cause with the FLDS’s religiously based conformity to traditional sex roles and patriarchal authority; the secular left could focus instead on the ways in which the FLDS was non-conforming and culturally distinct. Each by extension could fear the implications for its own divergences from mainstream culture from any successful attempt to force the FLDS to move to the mainstream. A feminist fundamentalist take on the FLDS case, especially one informed by information available about the Yearning for Zion Ranch from sources in addition to those cited by the Texas courts, might instead see the case as an object lesson in what can go wrong when the constitutional mandate of equal protection on grounds of sex is not systematically and with full force applied in state regulation of the family and the education of children. A consistent story emerges from the autobiographies of Elissa Wall, whose court testimony about her forced marriage at age 14 helped put FLDS leader Warren Jeffs in jail as an accomplice to rape; of Carolyn Jessop, who successfully challenged the FLDS elder, whose fourth wife she became at age 18, for sole custody of the eight children she ultimately bore him; and of the four former FLDS women among the 18 “women who escaped” polygamy whose stories are told in God’s Brothel (Wall and Pulitzer, 2008; Jessop and Palmer, 2007; Moore-Emmett, 2004). We read in each of these accounts of girls “treated like an indentured servant, forc[ed] to do all the cooking, cleaning and babysitting” (Jessop and Palmer, 2007, p. 53), “condemned to a life of virtual slavery” (Moore-Emmett, 2004, p. 93), and taught that “a woman’s role is to be obedient without question to her husband” (Wall and Pulitzer, 2008, p. 188) and that “a woman had no right to speak out … even if her goal was to protect her daughter” (Jessop and Palmer, 2007, p. 53). These women write, not only of being denied education they specifically longed for and requested, but of receiving education, not only at home, but in FLDS-controlled classrooms, into complete submission to the brutality young boys are simultaneously encouraged to perpetrate upon them. Thus, for example, according to Carolyn Jessop, Warren Jeffs, who served as a teacher at the FLDS school before he succeeded his father Rulon as the community’s Prophet,

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brought one of his wives into the auditorium, which was packed with boys. [She] had a long braid that fell past her knees. Warren grabbed the braid and twisted and twisted it until she was on her knees and he was ripping hair from her head. He told the boys that this was how obedient their wives had to be to them. (Jessop and Palmer, 2007, p. 195)

These autobiographical accounts also give the lie to the FLDS claim that the state of Texas’s seizure of the children was uniquely disruptive to the otherwise stable and secure home life the FLDS children had always known. Their authors tell of home life in the community repeatedly disrupted by order of the Prophet, who expelled boys and men from the community, reassigned the men’s wives and children to other men in other households, frequently moved family members between and among enclaves in Texas, the Colorado/Utah border, and Canada, and then occasionally welcomed back those he had previously expelled from the community. Unfortunately, however, so long as so many judges continue to underestimate the harm even extremely sexist parents such as those of the FLDS can do, and to undervalue the voices for women’s equality raised against those parents by, among others, some of their ex-wives and mothers of their children, our legal system will have failed to live up to its constitutional commitment to offer all persons, including the girls and boys whose education, adoption, and custody the state regulates, the equal protection of the laws.

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Part II

Children in the United States: The Legal Context Introduction The majority of direct encounters for children and their parents with the legal system in the United States comes as a result of three circumstances: the child is an alleged perpetrator of an illegal act; the child is an alleged victim of abuse or neglect; or there is a change in the parents’ relationship requiring court involvement in decisions about the child’s custody. In these instances society, through its laws and legal institutions, is an active participant in specific decisions concerning individual children. The law gives the state an explicit interest and a well-defined role. The proceedings are legalistic and familiar in form, involving adversary interests, hearings, and the determination of an outcome based on evidence presented in individual cases. However, the legal system is also important in a less direct, more generalized way as it shapes the institutions which form the backdrop for day-to-day interactions between parent and child. Some of these interactions occur within the institution of the “private family,” while others are deemed more public in nature. Significant institutions through which society’s interest in the child are expressed form the contexts for considerations of state responsibility to the child independent of parental obligations. In fact, as several of the chapters in this section indicate, these analytically separate dimensions of state involvement with children and families should be viewed as interactive, often either mutually reinforcing or simultaneously undermining of each other. For example, if the state views its responsibilities to include little more than protection of children from the abuse or neglect of parents, social goods such as education, health care, housing, or adequate nutrition can be deemed the responsibility of those parents and not the right of the child and the obligation of the state to provide. To a large extent in the US the state is conceived as appropriately standing outside of and independent from the family. As a result, in either the direct (legal proceeding) or the generalized (societal institutional) expression of state interest in children, there is a possibility for condemnation of state action as inappropriate intervention into the family and usurpation of its natural prerogatives. This possibility is heightened in the US legal system because of its historic adherence to the concepts of family privacy and parental rights. If we move away from those concepts favoring parents as ultimate and, for most practical purposes, exclusive decision makers for children toward a more child-centered, contextualized perspective when making decisions about children, will that also require a

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reassessment of the inherent obligation of the state to provide a minimum level of social goods and services to children independent of family circumstances? Linda Keller begins this section with an examination of the successful campaign to abolish the juvenile death penalty in the US, which culminated in the US Supreme Court decision of Roper v. Simmons (2005). That decision, which outlawed capital punishment for offenders who were under the age of 18 at the time of their crimes, is a dramatic exception to the typical historical situation in the US, in which international opinion and jurisprudence have been ignored in domestic decision making. In fact, until recently, one of the more common reasons given for its failure to ratify the CRC was the fact that the US allowed the execution of offenders who committed their offenses before they turned 18, a practice the CRC prohibits. Many commentators share Keller’s hope that the Supreme Court has become more receptive to international and foreign law being used as persuasive authority on certain subjects. Keller sees Roper as instructive for a larger rights movement for children and details the multi-pronged advocacy strategy applied to reach its positive result. Sentencing children to death has not been the only drastic outcome for youth who commit serious crimes in the US, however. While the juvenile court system was originally created for rehabilitative purposes, approaches toward children in conflict with the law have become increasingly punitive. Particularly since the 1990s, the upper age of juvenile court jurisdiction has dropped below 18 in many states, and most states now automatically process large numbers of youth as young as age 12 or 13 in adult criminal court systems. Although these youth can no longer be sentenced to death, in many states they can be sentenced to life without parole. Bernardine Dohrn considers these harsh processes and the consequences facing young people who break the law, arguing that the logic and rationale of Roper should lead to reconsideration of three practices that have become common over the last 20 years in the United States. These harsh practices, which have not increased public safety or reduced juvenile crime, are (1) trying children as adults, (2) incarcerating children with adults, and (3) sentencing children to extreme terms of confinement. Dohrn argues that not only does the logic of Roper lead to the need for proportional and restrained punishment of adolescent offenders, so does international law. Annette Appell shifts our attention from the criminal justice system to the law of the family where children are the subjects of private custody disputes. She scrutinizes the traditional “parental rights doctrine,” considering who is benefited and who is harmed by its application and assessing whether it is still relevant, given the changing composition of American families. She raises questions about whether under the existing political, economic, and ideological structure in the United States continuation of the parental rights doctrine and the maintenance of family life in the private realm does the least harm, considering that there are other alternatives to apportioning rights as between parents and children. The chapters by Naomi Cahn and Susan Vivian Mangold follow up on the theme of parental versus other rights in regard to children. They each consider the traditional

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US approach, which is to conceptualize a triangle of interests in which parent, child, and state are placed in tension with one another, but the state is conclusively deemed to have a significantly smaller interest in the resulting balance. Cahn considers the impact of this current triangular analysis on children in foster care and persuasively argues for policies that view children in a relational context. She asserts that while children have individual rights, they are individuals who are members of families and communities, and honoring their rights and interests must occur in a context that respects their relationships. Cahn explores the impact of poverty on children and families and recommends approaches to child protection that do not disparately harm poor children. Cahn expands on these concepts and reframes the distinctions between the feminist and children’s rights movements. She challenges the belief that the goals of each are mutually exclusive, replacing that premise with frameworks that are mutually beneficial to women and children. Mangold also argues that the historical parent–child–state triangle is unnecessarily limited and that to truly protect children the triangle must be exchanged for a conception that embraces a much larger circle of care for children. Mangold explores the role of private providers in the child welfare system and demonstrates how their formal inclusion in the legal framework of decision making about abuse and neglect cases would enhance the protection of children, the accuracy of the process, and the legal representation of children. Woodhouse and Hardy narrow the focus on applying international standards to the rights of children in abuse and neglect cases. They provide a dramatic but common illustration of a child’s journey through the child welfare system as a subject of the proceedings without any independent say about how his life should be structured. The authors turn to the US Constitution, Supreme Court jurisprudence, and provisions of the CRC to provide an alternative approach that provides greater legal consistency and better outcomes than the current approach. Finally, Kimberly Jenkins Robinson and Martha Fineman consider children as participants in the US educational system. Although education is both mandated and regulated by law, children and parents do not have a right to education in the US. Robinson discusses why the right to education should be afforded to the child and proposes that Congress create a federal right to education in the US through spending legislation. Robinson turns to international human rights laws for inspiration on how a right to education would be implemented and enforced in the US. Fineman approaches the idea of a right to education from a different direction, exploring who is the holder of a child’s right to education, assuming such a right exists. She questions the extent to which a child’s rights or interests are or should be considered when decisions are being made about the child’s education. Fineman asserts that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children.

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Chapter 5

Using International Human Rights Law in US Courts: Lessons from the Campaign Against the Juvenile Death Penalty Linda M. Keller

In 1988, when the United States Supreme Court first banned capital punishment for those under the age of 16, international human rights treaty law was relegated to a mere footnote (Thompson v. Oklahoma, 1988). International instruments, however, played a key role in the more recent 2005 decision finding that execution for crimes committed under the age of 18 violates the Eighth Amendment, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted” (Roper v. Simmons, 2005). The majority opinion in Roper cited several international human rights treaties to support its conclusion, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Drawing on Supreme Court opinions and amicus briefs, this chapter explores how advocates against the juvenile death penalty moved international human rights standards from the periphery to the center of the debate. The chapter shows how a majority of justices of the Supreme Court is receptive to international and foreign law as a tool to confirm interpretations of constitutional provisions, particularly the Eighth Amendment. It examines the relevant treaties as well as impermissible reservations to treaties, customary international law, and jus cogens norms. It contends that the Roper majority legitimately used international law in the decision. In illustrating how the Court could have adopted a more radical interpretation of international law, this chapter demonstrates the potential for broader reliance on international law in the courts. Finally, the chapter suggests ways to use international human rights to advocate for children in the United States. The success of the campaign against the juvenile death penalty is a model for advocacy on other issues, such as reforming the juvenile justice system and enhancing economic rights for children.

  At the time of the death-eligible act. In general, the term ‘juvenile death penalty’ refers to the imposition of a sentence of death on a defendant who was a juvenile (under the age of 18) at the time of the crime of which he was convicted.

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Supreme Court Jurisprudence—Juvenile Death Penalty The juvenile death penalty offers a striking example of the role of international law in constitutional interpretation. First, the contrast between the Court’s decision in 1988 and its reconsideration of the issue in 2005 offers an illuminating illustration of the trend toward greater reference to international law. The splits on the Court also highlight the current debate over the propriety of using international standards and practice to analyze US law. Finally, the cruel and unusual punishment clause is particularly well suited to consideration of international standards, treaties, and opinion. Prior to discussing the juvenile death penalty cases, this chapter briefly explains some basic terminology of international law. It then examines the juvenile death penalty jurisprudence of the Court to situate the international law references within the various majority, concurring, and dissenting opinions. In this chapter, “states” will refer to the 50 states within the United States. Although it is common to refer to countries as states within international discourse, this chapter uses the term “nation” to avoid confusion. “International practice” refers to the predominate practice of nations, which may be dictated by domestic and/or international obligations. International law includes international treaties and customary law. Foreign law refers to the law of other nations as well as regional law, such as the law within the European Union. A nation may be a signatory or a party to a multilateral international treaty. A signatory is not bound by the provisions of the treaty as a party would be. Under the Vienna Convention on the Law of Treaties, however, a signatory nation must not undermine the “object and purpose” or the goal of the treaty (1980, Article 18). Within the United States, the executive branch has the power to sign the treaty; the Senate must ratify the treaty to make the United States a party. When the Senate ratifies international human rights treaties, it routinely attaches a package of reservations aimed at limiting the treaty’s effect within the United States. A reservation is a condition that purports to “exclude or to modify the legal effect of certain provisions of the treaty in their application” to the party (Article 2). The Senate attaches a “non-self-executing” reservation to human rights treaties, which the courts interpret as rendering the treaties legally unenforceable in the absence of implementing legislation. To date, the Court has not directly enforced a provision of an international human rights treaty; however, recent decisions, such as the line of cases regarding the juvenile death penalty, cite international practice or law. Thompson v. Oklahoma The Court first considered the constitutionality of the juvenile death penalty in 1988. In Thompson, the Court faced the question of whether the execution of   The Senate called this caveat a “declaration” but it seems to fall under the definition of a reservation. Regardless, the courts have not considered its label significant.

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a death sentence would violate the cruel and unusual punishment clause of the Eighth Amendment because the defendant was 15 years of age at the time of the crime. William Wayne Thompson was convicted of murder and sentenced to death, along with three older participants in the crime (Thompson, 1988, p. 819). The Oklahoma appeals court found that “once a minor is certified to stand trial as an adult, he may also, without violating the Constitution, be punished as an adult” (Thompson, 1988, p. 820). The Supreme Court vacated the state court’s judgment. The Court effectively held that the imposition of capital punishment on a defendant aged 15 years or less violates the constitutional right to be free from cruel and unusual punishment. International practice and treaties played a very minor role in the opinions of the plurality, concurrence, and dissent. To understand how international references fit in, one must understand the Court’s Eighth Amendment jurisprudence. A plurality of the Court, consisting of Justices Stevens, Brennan, Marshall, and Blackmun, held that the Constitution bars the execution of a person less than 16 years of age at the time of the offense (Thompson, 1988, p. 838). Despite the arguments of amici regarding international law, the plurality paid little heed to international treaties or practice in interpreting the Constitution. The plurality’s analysis focused on domestic indicators regarding “cruel and unusual” punishments. When evaluating whether a punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, the Court is guided by the “evolving standards of decency that mark the progress of a maturing society” (Thompson, 1988, p. 821). The Court examines objective indicators of a national consensus to determine whether society considers a particular punishment to be cruel and unusual. To determine the existence of a national consensus, the Thompson Court looked to state legislation, the practices of sentencing juries, and the acceptable goals of punishment. According to the plurality opinion, state legislation reflected a national consensus that 16 years of age marks the line between child and adult. With regard to capital punishment, the states that expressly established a minimum age in the capital punishment statutes required the defendant to be at least 16 years of age at the time of the crime. Most state legislatures had not expressly set a minimum age of eligibility. Rather, many states had two sets of statutes: (1) juvenile transfer statutes (allowing juveniles to be tried as adults in certain circumstances); and (2) capital punishment statutes (allowing for the imposition of the death penalty under certain conditions). When the juvenile transfer statutes combined with capital punishment law to render a juvenile eligible for the death penalty, there was no reason to believe the state legislatures intended this effect (Thompson, 1988, pp. 824–9). In its canvass of state legislation to discern the evolving standards of decency, the plurality briefly referred to international practice. The plurality cited restrictions on capital punishment—and juvenile executions in particular—in the United Kingdom, New Zealand, West Germany, France, Portugal, the Netherlands, the Scandinavian countries and the Soviet Union (Thompson, 1988, p. 831). According to the plurality:

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The plurality justified the reference to non-US sources by citing prior cases in which the Court “recognized the relevance” of the international community in interpreting the cruel and usual punishment clause of the Eighth Amendment (Thompson, 1988, p. 830, n. 31). The plurality did not, however, refer to international instruments in the text of the opinion. In a footnote, it merely noted that “three major human rights treaties” explicitly ban juvenile capital punishment: the International Covenant on Civil and Political Rights (ICCPR); the American Convention on Human Rights (American Convention); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention on Civilians) (Thompson, 1988, p. 831, n. 34). At the time, the United States had signed the first two treaties and ratified the third. The plurality did not conclude that the United States must abide by these treaty provisions as a matter of law or even discuss them in any detail. Instead, the plurality focused on the behavior of juries in sentencing defendants who were minors at the time of the offense. It concluded that jury sentencing behavior suggested that juvenile death sentences were so rare as to verge on arbitrary and capricious. It then considered whether the imposition of the death penalty on juveniles furthered the leading goals of punishment: retribution and deterrence. Because juveniles are less culpable and less likely to make rational decisions considering future consequences of behavior than adults, neither goal is advanced by imposing the death sentence on those under the age of 16 (Thompson, 1988, pp. 831–8). The punishment is disproportionate and fails to fulfill a proper purpose. Thus, the evolving standards of decency reflected in state legislation and jury practices, combined with the inefficacy of the juvenile death penalty regarding the goals of punishment, render the juvenile death penalty unconstitutional. Although Thompson argued there was a consensus against executing offenders under the age of 18, the plurality limited its decision to the case before it and drew the line at less than 16 years of age. This plurality opinion garnered four votes, leaving Justice O’Connor to supply the crucial fifth vote by concurring only in the judgment. Justice O’Connor declined to join the plurality opinion because the evidence did not adequately support a national consensus against the juvenile death penalty. Rather than concluding that the lack of a proven national consensus means the juvenile death penalty is not cruel and unusual punishment, Justice O’Connor found a way to reach the same result as the plurality. According to Justice O’Connor, the heightened scrutiny required of capital punishment statutes indicated that state legislatures must expressly establish a minimum age for capital punishment (Thompson, 1988, pp.

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849–58). As a result, the defendants who were less than age 16 at the time of the crime cannot be executed “under the authority of a capital punishment statute that specifies no minimum age.…” (Thompson, 1988, p. 858). Justice O’Connor gave international treaty law slightly more emphasis than the plurality opinion, but she used it only to rebut the argument of the dissent. The dissent contended that the Court should have presumed that legislatures considered the effect of juvenile transfer statutes on eligibility for the death penalty. Justice O’Connor countered this argument by reference to actions taken by the Senate. Congress lowered the age for potential transfer in the federal juvenile transfer statute to 15, but there was no evidence it intended to lower the minimum age for capital punishment. To the contrary, the Senate ratification of the Geneva Convention on Civilians set a minimum age of 18 for the imposition of the death penalty during military occupation. The Senate also passed legislation setting an 18-year-old cutoff for capital punishment for drug offenses. These actions, according to Justice O’Connor, “tend to undercut any assumption” that Congress intended to authorize the death penalty for some 15-year-old felons when it revised the federal juvenile transfer statute (Thompson, 1988, p. 852). Similarly, it should not be presumed that state legislatures intended to alter eligibility for the death penalty. This survey of the plurality and concurring opinions illustrates that international practice, and particularly international treaty law, were given short shrift. Although the dissent responded to these references to international law, it also relegated the discussion to the sidelines of the debate, that is, the footnotes. First, the dissent (written by Justice Scalia and joined by Chief Justice Rehnquist and Justice White) dismissed any reliance on the US ratification of the Geneva Convention on Civilians. Because it applies only to limited circumstances, it could not shed any light on whether a national consensus existed against the juvenile death penalty for all crimes (Thompson, 1988, p. 866, n. 2). Second, the dissent argued that the plurality’s reliance on international practice was “totally inappropriate” in establishing a national consensus, emphasizing that “[w]e must never forget that it is a Constitution for the United States of America that we are expounding” (Thompson, 1988, p. 868, n. 4). Without a national consensus within the United States, the standards of other nations cannot be imposed through the Constitution—no matter how “enlightened the Justices of this Court may think them to be …” (Thompson, 1988, p. 868, n. 4). Stanford v. Kentucky A year after the decision in Thompson, the Supreme Court considered the juvenile death penalty as it applied to those over the 16-year-old cut-off established by the Thompson judgment. In Stanford v. Kentucky (1989), the Court held in a five to four decision that the imposition of capital punishment on those aged 16 or 17 at the time of their offenses is constitutional. The majority here consisted of the Thompson dissenters (Chief Justice Rehnquist and Justices Scalia and White) and Justice Kennedy, who did not participate in Thompson. Justice O’Connor

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concurred in most of the majority opinion and in the result. The Stanford dissenters previously formed the Thompson plurality (Justices Brennan, Marshall, Blackmun, and Stevens). The majority opinion touched on international issues only briefly in a footnote, while the dissent moved international law into the text to discuss it more fully. In an opinion authored by Justice Scalia, the plurality began with analysis of the “evolving standards of decency” and dropped a footnote emphasizing that “it is American conceptions of decency that are dispositive …” (Stanford v. Kentucky, 1989, p. 369, n. 1). Citing his own dissent in Thompson, Justice Scalia reiterated that the sentencing practices of other nations are not relevant to determine whether the sentence is accepted in the United States (Stanford, 1989, p. 369, n. 1). Based on US statutes and jury practice, the majority concluded that there was no national consensus against the execution of those who were 16 or 17 at the time of offense. According to the dissent, the execution of offenders aged less than 18 years at the time of the offense violated the Constitution. The dissent recognized that the constitutionality of punishment is informed by indicators of contemporary attitudes toward punishment such as state legislation and jury practice. In contrast to the majority, the dissent emphasized that the “choices of governments elsewhere in the world,” along with professional organizations, merit attention as indicators of acceptable practice in a civilized world (Stanford, 1989, p. 384). The dissent considered legislation in other nations as objective indicators of contemporary standards of decency and concluded that the world community overwhelmingly disapproved of the juvenile death penalty. Specifically, the dissent pointed to the widespread abolition (either de jure or de facto) of juvenile capital punishment—and capital punishment per se—in Western Europe and elsewhere (Stanford, 1989, p. 389). In addition, the dissent brought the reference to international treaties into the text. It noted that “three leading human rights treaties ratified or signed by the United States explicitly prohibit juvenile death penalties” (Stanford, 1989, p. 389). The dissent referred to the ICCPR and the American Convention, the latter of which the United States signed but did not ratify. It also cited the Geneva Convention on Civilians, which the United States ratified. The Geneva Convention on Civilians limits juvenile executions during military occupation. The dissent even referred to the non-binding resolutions or decisions of United Nations bodies that exclude from capital punishment those under the age of 18 at the time of offense (Stanford, 1989, p. 390, n. 10). As in Thompson, the group of four justices now writing as dissenters did not claim the United States must comply with these treaties. International practice and international treaties merely aided in interpreting the evolving standards of decency. The dissent stated: Together, the rejection of the death penalty for juveniles by a majority of the States, the rarity of the sentence for juveniles … the decisions of respected organizations in relevant fields that this punishment is unacceptable, and its

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rejection generally throughout the world, provide … a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders. (Stanford, 1989, p. 390)

This “view” was not dispositive; it was considered in conjunction with the failure of the juvenile death penalty to meet the other Eighth Amendment requirements of proportionality and purpose. As a result of all these factors, the dissent concluded it is unconstitutional to impose a death sentence for acts committed under the age of 18. Roper v. Simmons In 2005, the Supreme Court revisited “for the second time in a decade and a half” the issue in Stanford: “whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime” (Roper, 2005, pp. 556–7). In an opinion authored by Justice Kennedy (who had been in the majority in Stanford), the Court determined (five to four) that the objective indicators of national consensus had changed since Stanford. Moreover, the Court found strong evidence that the death penalty was unconstitutionally disproportionate when imposed on those under the age of 18. In declaring the juvenile death penalty unconstitutional, the Court devoted an entire part (several pages) of its opinion to justifying the confirmatory power of international standards. The use of international human rights law in Roper is controversial. The Court referred to the Convention on the Rights of the Child (CRC), a treaty that the United States has refused to ratify since its initial signing over a decade ago. The Court also cited the ICCPR, a treaty to which the United States has specifically reserved the right to execute offenders who were under the age of 18 at the time of the capital crime. Although the Court did not find this law binding on the United States, it found that international human rights law and practice confirmed that the juvenile death penalty is cruel and unusual punishment. This provoked a virulent dissent from Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas), who contended that “[w]hat these foreign sources ‘affirm’ … is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America” (Roper, 2005, p. 628). To analyze the national consensus regarding execution of 16- or 17-year-old offenders, the Court reconsidered Stanford in light of the more recent decision in Atkins v. Virginia (2002). In Atkins, the Court held that the Eighth Amendment cruel and unusual punishment clause prohibits the execution of a mentally retarded offender. In so doing, the Court reversed its position in Penry v. Lynaugh (1989), where the Court held that the Constitution did not require a categorical exemption from the death penalty for the mentally retarded (Roper, 2005, p. 563). The Atkins Court determined that the contemporary standards of decency had changed so much that a national consensus now existed against the practice (Roper, 2005, p.

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563). The Atkins Court noted that international opinion weighed against executing the mentally retarded (Atkins, 2002, p. 316, n. 21). Similarly, the Court in Roper found that the national consensus had evolved vis-à-vis the juvenile death penalty, as confirmed by international law and practice. The Roper majority of Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer first referred to international law while reconsidering the evidence of national consensus. The evolving standards of decency were reflected by state legislation abolishing the juvenile death penalty, regardless of prior Senate actions that might preserve it. In an attempt to refute the finding of a national consensus against the juvenile death penalty, the State of Missouri cited the post-Stanford ratification of the ICCPR. The Senate attached a reservation that conditioned its agreement to the treaty with the stipulation that the prohibition on the juvenile death penalty not apply to the United States. The Court rejected the argument that the reservation preserving the death penalty for those under the age of 18 impeded a finding of national consensus. The Court first pointed out that the reservation was adopted in 1992. Second, it noted that Congress subsequently set 18 years of age as the threshold for eligibility for the Federal Death Penalty Act. As a result, the reservation “provides minimal evidence that there is not now a national consensus against juvenile executions” (Roper, 2005, p. 567). In addition to a national consensus against the juvenile death penalty, evidence supported a finding that the death penalty is disproportionate when applied to juveniles. Building on Atkins, the Court held that juveniles are like the mentally retarded in that their reduced culpability renders the traditional justifications of retribution and deterrence suspect (Roper, 2005, pp. 571–2). Following the logic of Thompson, the Court extended the ban on the juvenile death penalty to 18 years of age because this is the line society draws between adulthood and childhood. Finally, the Court asserted that its determination on disproportionality was supported by “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty” (Roper, 2005, p. 575). The Court first justified its consideration of non-US sources and then explained how various treaties and international practice support the ban on the juvenile death penalty. From Trop v. Dulles (1958) to Atkins, the Court considered the laws of other nations and international authorities as “instructive” when interpreting the cruel and unusual punishment clause (Roper, 2005, p. 575). The plurality in Trop noted that “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for a crime” (Roper, 2005, p. 575). More recently in Atkins, the Court recognized that the execution of the mentally retarded is almost universally disapproved (Roper, 2005, p. 575). In Part IV of the Roper opinion, the Court referred to several international human rights treaties. First, it cited the CRC, which prohibits capital punishment for crimes committed by those under 18. It noted that the CRC has been ratified universally except by the United States and Somalia. In addition, no nation has attempted to reserve the right to execute juveniles when ratifying the CRC (Roper,

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2005, p. 576). Second, it referred again to the ICCPR, which the Senate ratified with a reservation as discussed above. Third, it noted the American Convention, a treaty that the United States signed. Fourth, it cited the African Charter on the Rights and Welfare of the Child, which also prohibits the juvenile death penalty (Roper, 2005, p. 576). In addition, the Court referred to international practice. It noted that of the eight nations that have executed juvenile offenders since 1990, the United States is the only country that had not abolished or disavowed the juvenile death penalty. In addition, the Court cited the practice of the abolitionist United Kingdom as particularly relevant given the historic ties between the two nations (Roper, 2005, p. 577). Finally, the Court clarified that it was not treating international opinion as controlling, but merely confirmatory. The Court stated: It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. (Roper, 2005, p. 578)

In other words, the opinion of the world community provided “respected and significant confirmation” for the conclusions of the Court (Roper, 2005, p. 578). International law was treated differently by the two dissenting opinions. Justice O’Connor’s dissent argued that international law is relevant, while Justice Scalia’s dissent found the reference to non-US sources reprehensible. Justice O’Connor agreed with the majority that foreign and international law can play a confirmatory role regarding national consensus. She asserted that the Court has “consistently referred” to such law in its evaluation of the evolving standards of decency (Roper, 2005, p. 604). She pointed to the character of the Eighth Amendment, which draws on “maturing values of civilized society” (Roper, 2005, p. 605). Although some parts of the Constitution are unique to the United States, “this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries” (Roper, 2005, p. 605). Domestic and international values are likely to be in agreement on fundamental human rights, particularly when the international community has come to clear consensus. The international consensus can confirm the “reasonableness” of a US consensus. The problem here, according to Justice O’Connor, was that there was no national consensus to confirm. Although the evidence indicated that the nation, through its state legislatures, was moving toward such a consensus, the Court improperly and prematurely ended that process (Roper, 2005, pp. 605–7). Justice Scalia, in a dissent joined by Chief Justice Rehnquist and Justice Thomas, scorned the majority opinion as reflecting nothing more than the subjective moral views of “five Members of the Court and like-minded foreigners” (Roper,  The Court did not discuss whether any nations that are abolitionist in name have actually imposed or carried out juvenile capital punishment in practice.

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2005, p. 608). He contended that there is no national consensus against juvenile executions. Justice Scalia, who also dissented in Atkins, rejected the notion that there is any relevant inquiry beyond state legislation and jury behavior, neither of which supported a consensus here. He accused the Court of ignoring the view of US citizens, while taking undue account of international opinion (Roper, 2005, pp. 622–8). With regard to international treaties, Justice Scalia argued that the Senate’s reservation to the ICCPR refutes the finding of a national consensus against the juvenile death penalty. The 1992 reservation has not been removed from US ratification. Moreover, the rationale of the Court in looking to the CRC would abolish life imprisonment for juveniles, since the CRC bans the sentences of death and life imprisonment (Roper, 2005, p. 623). Justice Scalia also asserted that the Court cannot look to international treaties or foreign law without also looking into foreign practices. Reliance on foreign or international law or practice cannot be selective. The Court cannot accept the ban on juvenile death penalty without also accepting international practice regarding other issues such as the exclusionary rule or abortion, where the United States is out of sync with the rest of the world; a consequence of looking to international standards would be the drastic restriction or elimination of the exclusionary rule and abortion on demand (Roper, 2005, pp. 624–5). Although the Court stressed that international standards were merely confirmatory, Justice Scalia insisted that this was not true: “‘Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment—which is surely what it parades as today” (Roper, 2005, p. 628). Thus, the basis for the Court’s opinion must have been that the United States must match its laws to the laws of the world community, a basis that must be rejected (Roper, 2005, p. 628). Confirmatory Use of International Law Is Not Overreaching Contrary to the dissent’s characterization, the Court did not overreach in its reliance on international law in Roper—particularly according to proponents of international law as binding law that is enforceable in US courts. In the view of advocates for incorporation of international standards into US law, the Court has explicitly or implicitly incorporated international law into domestic law for centuries, as seen in early cases such as Murray v. Charming Betsy (1804) and The Paquette Habana (1900) (Koh, 2004, pp. 43–5). Under this conception of international law as “hard” law, the Court must enforce international human rights treaties that impose binding duties on the United States. The Supremacy Clause of the Constitution makes treaties part of the “supreme Law of the Land” (US Constitution, Article VI, cl. 2). As a result, treaty provisions must be upheld

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by the Court. In addition, customary international law imposes duties on all nations, particularly when the norm achieves the status of a peremptory or jus cogens norm (De la Vega, 2002). Under this “hard law” interpretation, the Court failed to give proper weight to international law by using it merely as confirmatory material. This section will present the more radical positions that the Court would have adopted in Roper if it were basing its judgment on international law as directly enforceable, binding law. By comparison, the confirmatory use of international law described above will seem innocuous. The Court could have taken any or all of the more controversial positions that abolition of the juvenile death penalty is required because: (1) the United States signed the CRC; (2) the United States ratified the ICCPR with an invalid and severable reservation; and (3) the United States is bound by customary international law, despite long-time objections to the norm. Whether these more radical arguments are valid interpretations of US and international law is beyond the scope of this chapter. The point is not to prove that these rationales are indisputably correct. The aim is to show how much further the Court could have gone if, as Justice Scalia claimed, the premise of the Court’s decision was “that American law should conform to the laws of the rest of the world …” (Roper, 2005, p. 624). If the Court were to adopt these positions in the future, it would give advocates for human rights even more ammunition in their fight within the courts; in addition to the confirmatory use of international law to interpret the Eighth Amendment, advocates could employ broader arguments based on the binding nature of international treaties and custom. Obligations as a Signatory to the CRC The Court could have determined that the United States must obey the provisions of international human rights treaties it has signed (CRC) or ratified (ICCPR). Under both scenarios, a nation must not undermine the object and purpose of the treaty. According to the Vienna Convention on the Law of Treaties (1980), a nation is “obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty … until it shall have made its intention clear not to become a party to the treaty … ” (Article 18). The United States accepts this provision as customary law. In fact, the United States “unsigned” the treaty of the International Criminal Court (Congressional Research Service, 2002) precisely because it planned to take steps to undermine the treaty and therefore   As noted above, the non-self-executing clauses have generally blocked direct enforcement of international treaties within the courts. Similarly, a “federalism understanding” attached to ratification of human rights treaties might impede enforcing the terms of an international treaty on the states (US Reservations, Understandings and Declarations to the ICCPR). International law skeptics also raise constitutional and sovereignty concerns. Compare, for example, John Yoo (2004) (analyzing potential constitutional violations) with Jordan J. Paust (1996) (arguing that concerns of skeptics are inapposite).

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violate its obligations as a signatory. Although some officials claimed there was no intent to undermine the treaty, the unsigning coincided with US efforts to limit the reach of the treaty by entering into bilateral agreements that prevent other nations from surrendering US citizens to the International Criminal Court. By contrast, the United States has not unsigned the CRC, which clearly bans the juvenile death penalty. The continued use of the juvenile death penalty arguably violates the object and purpose of the treaty: to protect children (Amicus Brief of President James Earl Carter, Jr. et. al., 2004, pp. 9–10). If the Court had accepted the argument that the CRC’s ban is binding on a signatory, it would have been a far more radical move than referring to the CRC as merely confirming its conclusions based on domestic legal analysis. Obligations as a Party to the ICCPR It would seem less radical (albeit still debatable) to find that a ratified treaty like the ICCPR imposes binding duties, but the US reservations to the ICCPR make its use particularly problematic here. The Court could have held that the ICCPR, a treaty ratified by the United States and part of the supreme law of the land under the Constitution, requires striking down the juvenile death penalty. The Court might have determined that the non-self-executing condition attached to ratification is illegitimate or ineffective in preventing an individual from using the ICCPR as a shield against the death penalty. When the United States ratified the ICCPR, however, it specifically reserved the right to execute juvenile offenders. A reservation is valid under the Vienna Convention on the Law of Treaties (1980) so long as it is not “incompatible with the object and purpose of the treaty …” (Article 19). The Court could have held that the US reservation is invalid as a matter of international law, as the United Nations Human Rights Committee has done. The Human Rights Committee, which monitors compliance with the ICCPR, determined that the US reservation is invalid and therefore severable. The Committee is a treaty body created under the ICCPR that makes recommendations in the form of general comments and in response to reports from nations obligated to file periodic compliance assessments. In both capacities, the Committee addressed reservations to the ICCPR. Ordinarily, improper reservations to treaties would be dealt with bilaterally: nations that object to reservations could prevent the treaty from coming into force between the reserving nation and the objecting nation. Here, eleven nations objected to the US reservation regarding the juvenile death penalty because it violates the object and purpose of the treaty; they did not, however, indicate that the treaty would not come into force between the nations and the United States (United Nations High Commissioner for Human Rights, 2004). Under ordinary interpretation of reservations, the reservation remains in force. Yet the aim of the ICCPR is not merely to protect citizens of other nations; a multilateral human rights treaty also aims to impose duties on governments for the treatment of their own citizens. Indeed, people are more likely to be victims of

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human rights abuses at the hands of their own government than others (outside of international armed conflict). As a result, the Committee evaluated reservations to the ICCPR more broadly. When the Committee considered reservations in general, it found that a reservation regarding the death penalty would violate the object and purpose of the ICCPR. First, reservations to non-derogable rights (rights that cannot be suspended under any circumstances) are immediately suspect. The prohibition on the juvenile death penalty falls within an article deemed non-derogable within the ICCPR. Second, reservations that violate peremptory norms are incompatible with the ICCPR; the ban on the juvenile death penalty is one such norm (Human Rights Committee, 1994, General Comment 24). Because a reservation to preserve the juvenile death penalty is incompatible with the ICCPR, it would be void and severable: the treaty “will be operative for the reserving party without benefit of the reservation” (General Comment 24). The reserving nation therefore remains a party to the treaty even if it never would have ratified the ICCPR without the (severed) reservation. The Committee specifically condemned the US juvenile death penalty reservation in a subsequent consideration of the US report on compliance with the ICCPR (Human Rights Committee, 1995). To sum up, the United States is required to ban the death penalty for offenders under the age of 18 as a party to the ICCPR in the opinion of the international body charged with interpreting the treaty. Viewed in this light, the Court’s reliance on this treaty as “confirmatory” is not overreaching. It is failing to give due recognition to a binding provision of a treaty ratified by the United States. Under this perspective, the Court did not go as far as warranted under international law. Obligations under Customary International Law Finally, the Court could have relied on customary international law to outlaw the juvenile death penalty. There is generally agreement on the concept of customary international law, but its contours and enforceability in US courts are controversial. Customary international law “results from a general and consistent practice of states followed by them from a sense of legal obligation” (Restatement (3rd) of Foreign Relations Law of the United States, § 102). This law is binding on all nations regardless of ratification of treaties, unless the nation persistently objects to the creation of the norm (§ 102, cmt.s d, k). For example, the prohibition of genocide is customary international law. A nation that has not ratified the Genocide Convention must still abide by the norm against genocide, unless it consistently protested this norm. In reality, although some nations have committed genocide, no nation in recent memory has publicly claimed it has a right to commit genocide. Similarly, until recently, no nation claimed a right to violate the prohibition against torture, also a customary international law norm (Restatement (3rd) of Foreign Relations Law of the United States, § 702). While nations practice torture, they typically deny that torturous acts were committed or argue that they are not “torture.” The Bush Administration did seem

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to question the norm by advocating the legitimate use of extreme interrogation techniques against suspects in the “war on terror”; however, the administration backed off from the documents that suggested impunity for official torture. Thus, it seems that no nation claims an exemption to the customary international law prohibiting genocide or torture. Moreover, if a nation did make such a claim, it would be rejected because the prohibitions against genocide and torture have attained the status of “peremptory” or “jus cogens” norms that are binding on all nations (Restatement (3rd) of Foreign Relations Law of the United States, § 102, cmt. k; § 302, cmt. n). The United States arguably qualifies as a persistent objector to the creation of a norm banning the juvenile death penalty (Restatement (3rd) of Foreign Relations Law of the United States, § 102, cmt. d). The United States resisted creation of the norm by attaching the reservation to the ICCPR and arguing against the juvenile death penalty ban during the drafting of the CRC. The federal government has made no efforts to reprimand states that retain the juvenile death penalty, let alone ban the practice at the state level. Nevertheless, the United States has not necessarily been consistent in its objections. For example, as the Court discussed in Roper, Congress set 18 as the cut-off for the federal death penalty; it has also ratified the Geneva Convention on Civilians as noted above. Even if the United States were to qualify as a persistent objector, it would still be bound by the customary norm if it were deemed a peremptory or jus cogens norm. If, as the Human Rights Committee determined, the prohibition on the juvenile death penalty were a peremptory norm, the US juvenile death penalty contravened this norm. Thus, the Court might have taken the radical step of holding that the United States must ban the juvenile death penalty to conform to a peremptory norm of international law. By comparison, the Court’s consideration of international law and practice in confirming its interpretation of the Constitution is relatively unobjectionable. The potential for more controversial holdings based on international treaties and practice shows that the Court could have gone farther in its reliance on international law. But even its weak use of international standards sharply divided the Court. There is obviously a core disagreement among members of the Court over the relevance of international and foreign law to constitutional interpretation. On the Roper Court, there were six votes in favor of using international law to confirm a finding of national consensus regarding human rights. It appears that both Chief Justice Rehnquist and Justice O’Connor have been replaced with jurists who share Justice Scalia’s hostility toward international or foreign law in constitutional interpretation. For example, the more recently confirmed Chief Justice John Roberts stated that he believed citing foreign precedents is improper because it “allows the judge to incorporate his or her own personal preferences, [and] cloak them with the authority of precedent” (Supreme Court Watch, n.d., para. 13). On the other hand, new justices may “succumb to the same influences” that have resulted in a majority of justices accepting foreign law in constitutional interpretation (Connell, 2004, p. 79). Regardless, the five votes remain from the

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Roper majority. Although changes on the Court might bring unpredictable treatment of international law in the future, there does seem to be a trend toward greater reference to international law. Even those who deplore the use of international and foreign law in constitutional interpretation believe that the trend will continue (Calabresi, 2004, p. 1106). Thus, advocates for children can use international practice and human rights law to buttress arguments regarding constitutional protections for children, particularly the Eighth Amendment. Using International Law for Human Rights Advocacy This section will first briefly highlight other recent decisions that refer to international materials, illustrating the increasing tendency to consider international law or practice in decisions that turn on domestic law. Second, it will examine selected amicus briefs from Roper to demonstrate potential policy arguments based on international considerations. Finally, it will show how specific international instruments might be utilized by advocates for juveniles. Other Cases Referring to International Law in Constitutional Interpretation As noted above, international standards played a role in the 2002 decision in Atkins v. Virginia, where the Court held that the execution of mentally retarded offenders violated the Eighth Amendment. The Court relied in part on the disapproval of the world community, particularly the European Union, to find that the practice had become unusual (Atkins, 2002, p. 316, n. 21). The dissenters, however, insisted that foreign laws and viewpoints were irrelevant. Justice Scalia called the references to the views of organizations, opinion poll respondents, and the “so-called ‘world community’” deserving of the “Prize for the Court’s Most Feeble Effort” to support its holding (Atkins, 2002, p. 347). In Lawrence v. Texas (2003), the Court held that a Texas statute criminalizing certain sexual acts between consenting individuals of the same sex violated substantive due process. The majority looked to international law to refute statements made in Bowers v. Hardwick (1986), which was overturned by Lawrence. In his concurrence in Bowers, Chief Justice Burger intimated that the history of Western civilization supported the validity of criminalizing sodomy. But even at the time of that decision, there was evidence that such laws were considered invalid in some nations. As the Lawrence Court explained, the European Court of Human Rights had already determined that sodomy laws violate the European Convention on Human Rights. Moreover, the right sought in Lawrence had previously been found to be “an integral part of human freedom” in other nations (Lawrence, 2003, pp. 572–3, 576–7). In response, the Lawrence dissent characterized the reference to foreign views as dicta—dangerous dicta because it implied that the Court might impose “foreign moods, fads, or fashions” on the United States (Lawrence, 2003, p. 598).

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Several justices considered international or foreign materials relevant to domestic interpretation in recent cases such as: Planned Parenthood v. Casey (1992) (abortion cases of other nations cited in partial concurrence/partial dissent to support argument that there is no fundamental right to an abortion); Printz v. United States (1997) (international practice cited in dissent to judgment striking down parts of the Brady Bill); Raines v. Byrd (1997) (international practice cited in opinion striking down Line Item Veto statute); Washington v. Glucksberg (1997) (international opinion cited in majority decision upholding Washington state law criminalizing assisted suicide; international practice cited in concurrence); and Grutter v. Bollinger (2003) (international understanding of affirmative action, including international antidiscrimination treaty, cited in concurring opinion as confirming majority’s belief in revisiting programs in the future) (Glensy, 2005, pp. 382–5). Various justices made these references to international law. Justices Ginsburg and Breyer are considered particularly open to consideration of international or foreign law, but other justices also refer to foreign sources (Glensy, 2005, pp. 398–9; Koh, 2004, pp. 52–3). As indicated above, five justices who endorsed the confirmatory use of international law and practice in interpreting the Eighth Amendment remain on the Court. Thus, advocates for children can draw upon international human rights as advocates against the juvenile death penalty did. Arguments of Amici in Roper Various amicus briefs raised policy arguments in Roper. Advocates for juveniles should consider these arguments to support reference to international standards that might expand protection for juveniles in the United States. For example, amici argued that the need for international cooperation on US priorities requires greater respect for international opinion and law. Former US diplomats drew on their experience to emphasize the risks to US foreign policy by continued use of the juvenile death penalty (Amicus Brief of Former US Diplomats, 2004). This group of distinguished diplomats, who previously represented the United States at home and abroad, argued that the juvenile death penalty “strains diplomatic relations with close American allies, increases America’s diplomatic isolation, and impairs important US foreign policy interests at a critical time” (ibid., p. 1). The persistence of the United States in retaining the juvenile death penalty gave rise to “sustained outrage” among foreign governments, particularly our close allies in Europe (ibid., pp. 21–2). This outrage manifested itself in a deluge of letters and petitions as well as disruptive demonstrations at embassies abroad. Diplomats were not only put on the defensive in meetings with their counterparts, they were also forced to spend time discussing the juvenile death penalty rather than advancing the US agenda. Economic sanctions were even threatened. For example, the chairman of one European delegation to the United States spoke of the pressure to invest only in states that do not carry out capital punishment.

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In addition to pragmatic concerns, advocates should consider US pride as a motivator. According to the diplomats, the juvenile death penalty cost the United States the moral high ground, calling into question its commitment to human rights. The insistence on maintaining the juvenile death penalty put the United States in the company of nations such as China, Iran, Pakistan, and the war-torn Democratic Republic of Congo. Even among nations that the United States has never considered to be its equals in human rights, the United States stood out as the most frequent violator of the norm against the juvenile death penalty. In addition, the United States stood alone as the only violator that had not taken steps to abolish the juvenile death penalty. Moreover, nations with far worse human rights records deflected US criticism by pointing to the US juvenile death penalty (ibid.) Building on the appeal to US pride, advocates might utilize the US tradition as a champion of human rights. As the former diplomats noted, human rights abuses erode the credibility of the United States as a promoter of human rights. This argument was also made with particular resonance by 17 Nobel Peace Prize Laureates (Amicus Brief of President James Earl Carter, Jr. et al., 2004). The Nobel Peace Prize Laureates emphasized the long history of US support in the fight for fundamental human rights. US efforts to support universal human rights, including the annual human rights reports assessing compliance by other nations, are commendable. The Nobel Peace Prize Laureates urged the Court to apply the same standards within the United States. In conjunction with appealing to US pride and reputation, advocates should consider the need for international cooperation in the global war on terror as a possible strategy for US compliance with international norms. In its amicus brief, the National Legal Aid and Defender Association stated, “After September 11, the good opinion of the world is no longer a matter simply of US pride; it is a matter of self defense and survival” (Amicus Brief of National Legal Aid and Defender Association, 2004, p. 19). The brief contended that “geopolitical reality” required that the United States work to regain the respect of the international community by abolishing the juvenile death penalty. In order to win support in the war on terror, the United States must ensure that its law and morality at least meet the standards of allies (ibid., p. 19). Other appeals to emotion might be effective. For example, Murder Victims’ Families for Reconciliation (MVFR) filed an amicus brief in support of the challenge to the juvenile death penalty. The group argued that justice for family members lost to violence, themselves victims of the ultimate deprivation of human rights, could not be attained by violating the human rights of others. It contended that if the Court considered the views of victims, it must include those victims’ families who have a deep belief in human rights. According to MVFR, the execution of a juvenile would impede efforts to honor the life of the victim. Instead, it would lower society to the same levels of brutality and violence that caused the suffering of both victim and victims’ families (Amicus Brief of Murder Victims’ Families for Reconciliation, 2004).

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Such tactics might prove useful in future litigation as well as in other venues. Although it is impossible to know how much weight was given to the arguments of amici, it is possible that the Court found them persuasive. At the least, the Court considered them. In several recent opinions, the Court cited amicus briefs while discussing international standards or practice (Atkins, 2002, p. 316, n. 21; Lawrence, 2003, p. 577; Roper, 2005, pp. 576–8; Sosa v. Alvarez Machain, 2004, p.733, n. 21; Thompson, 1988, p. 831, n. 34.). During oral argument in Roper, Justice Stevens specifically asked the state to respond to arguments raised in the brief of former US diplomats (Oral Argument, October 13, 2004). While it is difficult to predict the persuasiveness of future amicus briefs, they should be considered as one potentially significant approach by advocates of juvenile rights. Amicus briefs can, of course, offer the kinds of confirmatory or even hard law arguments discussed above. In addition, amicus briefs can raise policy considerations that might also be employed in arenas other than the courts. Advocates might make similar arguments for reform in other venues, such as Congress or state legislatures. For instance, one state representative argued that South Dakota should abolish the juvenile death penalty to make it clear that the state “cares more about human rights than the Democratic Republic of Congo … and let the world know that South Dakota is as progressive as Iran …” (Amicus Brief of Former US Diplomats, Statement of Rep. Ben Nesselhuf, p. 19, n. 36). The bill banning the juvenile death penalty in South Dakota passed prior to Roper. Now that the juvenile death penalty is no longer an issue in the United States, advocates for children should consider mobilizing these various constituencies as well as the international community against other US practices such as life imprisonment for juvenile offenders. The Implications of Roper’s References to International Law The majority opinion in Roper directly opens the door to reform of the juvenile justice system based on international standards. The majority’s reasoning might prohibit the imposition of life imprisonment for juveniles, which Justice Scalia pointed to as a criticism of Roper (Roper, 2005, p. 623). Advocates for children’s rights can utilize Roper to attack other injustices in the United States, in the same way that advocates against the juvenile death penalty drew on the Court’s decision outlawing capital punishment for the mentally retarded. Specifically, advocates should consider the Convention on the Rights of the Child (CRC), supplemented by the International Covenant on Civil and Political Rights (ICCPR). They should also take into account customary international law and consider creating a platform for change based on international human rights. As noted above, certain provisions of the Constitution lend themselves to interpretation based in part on international sources. In particular, the Supreme Court looks to international law and practice in interpreting the Eighth Amendment cruel and unusual punishment clause. Thus, international law regarding “punishment”

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of juveniles is a prime avenue for international human rights advocacy in US courts. Eighth Amendment: Cruel and Unusual Punishment The Supreme Court’s decision earlier this year [in Roper] to ban the juvenile death penalty, which took into account international attitudes about crime and punishment, has convinced prosecutors and activists that the next legal battleground in the United States will be over life in prison for juveniles. (Liptak, 2005b, p. A1)

According to an October 2005 study by the New York Times, about 9,700 individuals are serving life sentences for crimes committed as juveniles. Forty-eight states impose life sentences on juvenile offenders, while 42 allow life imprisonment without the possibility of parole (LWOP). A national study by Human Rights Watch and Amnesty International focusing on LWOP found at least 2,225 juveniles with that sentence. Although the rate of juvenile crime has decreased in recent years, it has become more common for juvenile offenders to be sentenced to LWOP for murder (including felony murder) (Human Rights Watch and Amnesty International [HRW/AI], 2005a). If the Supreme Court considered a challenge to LWOP for juveniles, it would likely follow the approach of Roper in interpreting the Eighth Amendment. In analyzing whether LWOP violates the cruel and unusual punishment clause, it would consider the existence of a national consensus against the punishment as well as the potential disproportionality of LWOP for juveniles. Assuming the Court would also look to international law as relevant to either or both inquiries, international treaties and practice would “confirm” a decision to abolish LWOP as Justice Scalia warned in Roper. Unlike in Roper, however, it is not clear that the Court would reach international considerations because a national consensus against LWOP for juveniles is not apparent. Since 1989, no US state limited or abolished LWOP for juveniles (HRW/ AI, 2005b, p. 102). By comparison, several states had abolished the juvenile death penalty between Thompson and Roper. As a result, the parallel between juvenile death penalty and juvenile LWOP is not as close as it might first appear (unless the Court adopts the stance it is accused of having by Justice Scalia— that is, ignoring domestic attitudes and merely imposing foreign opinion through constitutional interpretation). It is nevertheless possible that the Court would rely on disproportionality alone to render LWOP unconstitutional for juveniles. This approach would not be entirely without precedent. The Court held, for example, that capital punishment is unconstitutionally disproportionate for the offense of rape of an adult, noting that out of 60 major nations, only three retained the death penalty for rape (Coker v. Georgia, 1977, p. 596, n. 10). Yet, as in the juvenile death penalty cases, the Court looked first to state practice, finding that the infrequency

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of death sentences imposed on convicted rapists supported a determination of excessive punishment (Coker, 1977, pp. 593–6). Nonetheless, the discussion of international support for ending LWOP for juveniles might be a starting point for a campaign to change state laws (HRW/AI, 2005b, pp. 87–90) and evoke a national consensus. As illustrated in the campaign against the juvenile death penalty, state legislators were aware of international disapproval. As mentioned above, one South Dakota legislator specifically cited international opinion and practice to argue for abolition of the juvenile death penalty. Others might take a similar approach regarding LWOP for juveniles. Treaties signed and ratified by the United States are the first consideration to determine international attitudes on LWOP. The CRC prohibits “life imprisonment without possibility of release” under Article 37(a). Imprisonment is to be used as a last resort and for the shortest possible time (Article 37(b)). The CRC emphasizes promotion of the sense of the child’s worth and reintegration of juvenile offenders into society (Article 40). Every incarcerated child must be treated with humanity and respect, taking into account the child’s special needs on account of his or her age (Article 37(c)). Amnesty International and Human Rights Watch intimate that the United States must abide by these provisions as a signatory of the CRC (HRW/ AI, 2005b, pp. 99–104). The ICCPR, which the United States has ratified, requires that criminal procedures for children charged with a crime consider the age of the offenders and the “desirability of promoting their rehabilitation” (Article 14(4)). It also prohibits cruel, inhuman or degrading treatment of those detained (Article 7). All persons deprived of liberty must be treated with dignity and humanity (Article 10). According to Amnesty International and Human Rights Watch, LWOP is prohibited for juveniles because it removes any possibility of rehabilitation and is disproportionate punishment for children (HRW/AI, 2005b, pp. 95–7). Moreover, it seems that the United States initially agreed with this position because it sponsored Article 14 during the drafting of the ICCPR. Although it subsequently attached a reservation to Articles 10 and 14 when it ratified the treaty, it apparently included the limitation due to the difficulty of separating certain juvenile offenders from adults in prison. The United States reserved the right to treat juveniles as adults “in exceptional circumstances.” According to the explanation given by the Senate Committee on Foreign Relations Report on the ICCPR, the reservation was aimed at mode of detention; it did not refer to the length or severity of sentences (HRW/AI, 2005b, pp. 97–8). Thus, the Court could take the ICCPR into account to support a finding that LWOP for juveniles is unconstitutional. Furthermore, the norm may well have attained the status of customary international law (HRW/AI, 2005b, p. 107). As noted above, the CRC was ratified by all but two nations (the United States and Somalia). The practice of the world community indicates that LWOP is inappropriate for juveniles. Juvenile offenders are serving a sentence of LWOP in only three of the 154 nations with available information included in the study, besides the United States: South Africa (four); Tanzania (one); Israel (four to seven). Other nations have laws that would allow

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LWOP, but they are apparently rarely used. Some nations commonly considered similar to the United States, such as the 15 original members of the European Union, prohibit LWOP for juveniles. In addition to this international practice, the European Court of Human Rights held that LWOP for juvenile offenders violates the European treaty on human rights (HRW/AI, 2005b, pp. 106–8). As in Roper, international law and practice generally indicate that the international community concluded that LWOP should not be used as punishment for juveniles. Similar arguments might be made regarding “life with the possibility of parole” sentences for juveniles, given that parole is unlikely. For example, one in four persons serving a life sentence will never see a parole board, despite eligibility. In 14 states, fewer than ten individuals serving life sentences were granted parole; eight states released fewer than 24 in 2001, the last year data is available (Liptak, 2005c, p. A1). “The boards that the remaining lifers encounter have often been refashioned to include representatives of crime victims and elected officials not receptive to pleas for lenience” (Liptak, 2005c, p. A1). These statistics are particularly striking given that many sentences were imposed when “life” was widely assumed to mean less than 20 years. A survey of Michigan judges from 2002, for example, found that on average judges expected prisoners sentenced to life with the possibility of parole to be released in 16 years (Liptak, 2005a, p. A11). Now, release is unlikely. For instance, Jackie Lee Thompson killed his girlfriend in a fit of rage and fear at age 15. When he was sentenced in 1969, the judge advised him that if he behaved himself in prison, he could learn a trade and likely be released in a few years. At his recent parole hearing, Thompson’s request for release was supported by the victim’s father and a former manager at Thompson’s prison, who offered to arrange a job at his son’s business and to let Thompson live with the manager and his wife. Because of the decisive vote cast by the state Attorney General, parole was denied (Liptak, 2005a, p. A11). By comparison, in Western Europe, ten or twelve years is seen as extreme punishment, even for those serving nominally “life” sentences. “In much of the rest of the world, sentences of natural life are all but unknown,” according to criminal law expert James Q. Whitman (Liptak, 2005a, p. A11). Advocates can choose rhetorical strategies to advance the argument against life sentences for juveniles (Kennedy, 1991). For example, an argument based on ethos would rely on the credibility or unique knowledge of the author such as the former diplomats who were in a position to speak about the impact of the juvenile death penalty on foreign relations. Similarly, those who work with or study children sentenced to life in prison might offer a uniquely credible perspective regarding its effect on human dignity and the goal of rehabilitation. An argument based on pathos would appeal to the values of the audience, for example, to a belief in the United States as a champion of human rights or in the need for international cooperation in the war on terror. This kind of appeal regarding life sentences for juveniles might stress statements made by the United States supporting the principles of the CRC. Specifically, the United States asserts that despite nonratification, the country is committed to the welfare of children. As recently as

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1999, the US Representative on the UN Economic and Social Council proclaimed that “[t]he international community can remain assured that we, as a nation, stand ready to assist in any way we can to enhance and protect the human rights of children wherever they may be” (as cited in HRW/AI, 2005b, p. 100). Again, these arguments might be utilized in amicus briefs for the courts or in other arenas such as legislative bodies. In addition to life sentences, other issues related to punishment might be challenged under the Eighth Amendment based in part on international law. In particular, juveniles often face human rights abuses stemming from conditions of confinement. Juvenile offenders sentenced as adults in the United States generally serve time in an adult prison (HRW/AI, 2005a). Under the ICCPR, juvenile offenders must be detained separately from adults (Article 10(3)), and under the CRC, “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interests not to do so …” (Article 37(c)). Thus, it can be argued that the housing of juvenile offenders with adult criminals violates international standards. Other Constitutional Provisions and International Legal Standards for Juveniles Like the Eighth Amendment, other provisions of the Constitution might be interpreted with the aid of international materials to give further protection to children in the United States. For instance, “open-ended” provisions may be susceptible to references to international law or practice (Calabresi, 2004, pp. 1104–5). Substantive due process and equal protection cases are also open to comparative analysis; indeed, foreign comparative materials were cited in several cases dealing with civil rights issues such as the Miranda warning and abortion (Connell, 2004, p. 60; Fineman, 2004a, p. 2; Glensy, 2005, pp. 382–5). With regard to the equal protection challenges to affirmative action in the companion case to Grutter, Justice Ginsburg specifically inquired of the Solicitor General at oral argument whether the practice of other nations “operating under the same equality norm” should be considered. The Solicitor General distinguished the practice of other nations, but, as noted above, Justice Ginsburg did rely on international materials (Gratz v. Bollinger, Oral Argument, 2003). Scholars also anticipate that reference to foreign persuasive authority will continue to develop into other areas of the law (Glensy, 2005, p. 387). As a result, advocates should be aware of the international human rights protections afforded to juveniles. This section will therefore briefly highlight some of the other key provisions of the CRC and the ICCPR. First, the CRC protects rights commonly considered civil or political rights and might provide greater rights to children than US law. Pertinent civil and political rights for children include the rights to non-discrimination (Article 2); freedom of expression (Article 13); freedom of thought, conscience, and religion (Article 14); freedom of association (Article 15); privacy (Article 16); humane treatment (Article 37); and due process (Article 40) (Tinkler, 1992, pp. 475–504). The ICCPR also protects the right to free expression including access to

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information, which is found in CRC Article 17 (Nauck, 1994, pp. 690–94; Wilkins, Becker, Harris, and Thayer, 2003, pp. 420–21). In addition to civil rights, the CRC also protects rights that would be considered economic, social, and cultural rights. Given the general US resistance to the notion of economic rights, these provisions might expand protections for children in the United States. The economic rights include the right to health and facilities for treatment of illness (Article 24); the right to benefit from social security and social insurance (Article 26); the right to an adequate standard of living (Article 27); and the right to education (Article 28). Moreover, the CRC provides that nations have a duty to ensure that “children of working parents have the right to benefit from child-care services and facilities for which they are eligible” (Article 18). Nations must also take all measures to protect children from all forms of abuse and promote rehabilitation of victims of abuse (Articles 19, 39) (Davidson, 1998, pp. 188–90). Nations should give priority to the best interests of the child under Article 3, which also requires nations to ensure the assistance necessary for the child’s well-being, taking into account the actions of parents or other responsible parties. Similarly, the ICCPR provides that children have the right to “measures of protection” as necessary given their status as minors (Article 24). The wide range of rights protected under the CRC shows the many possibilities for incorporating international human rights arguments into advocacy for juveniles. Conclusion As the above discussion of the juvenile death penalty jurisprudence shows, the Eighth Amendment cruel and unusual punishment clause is particularly open to consideration of international law and practice. In terms of litigation, challenges to juvenile criminal sentences and conditions of confinement that fall under the Eighth Amendment hold the greatest promise. Advocates for children might also choose other avenues to increase rights for children, focusing on policy arguments supported by international standards. Strategic choices should be made by advocates based on the issue and circumstances, taking into account possible reliance on international law as well as international practice. Even if treaties are not directly enforceable and some constitutional provisions are less susceptible to consideration of international law, advocates should consider international human rights to help shape reform agendas at all levels. I suspect that with time, we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues, as we both appreciate more fully the ways in which domestic issues have international dimensions, and  For a critique of US laws and practice regarding adequate standard of living, health care, child care, and child abuse, see Law (1994). See also Calciano (1992) (describing child poverty, homelessness, and lack of health care).

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This was Justice O’Connor’s prediction in 2003. The increasingly interdependent nature of problems facing nations will give international practice and standards greater prominence. The needs of US foreign policy will likely drive all branches of government to pay greater attention to the international community. The ability of the United States to advance its interests across the world depends on other nations. The United States seems to have accepted that, in the era of globalization, international cooperation is required to govern commercial transactions or meet health threats such as the avian flu. Yet while the Bush Administration referred to the “global war on terror,” it apparently failed to fully grasp that international cooperation is vital to winning this fight. By contrast, advocates—and to some extent the United States Supreme Court—have recognized the benefits of international cooperation and the relevance of international standards. International law and practice can provide powerful policy arguments that may be increasingly accepted in the United States as globalization advances. Therefore, advocates for greater rights and protections for children within the United States should look to international human rights and relevant international practice to advance reform.

Chapter 6

The Lesser Culpability of the Juvenile Offender: Trial in Adult Criminal Court, Incarceration with Adults, and Excessive Sanctions Bernardine Dohrn

Without doubt, we are confounded by the question: “What kind of a person is a child?” It is a query that produces queasiness, unease, disequilibrium. Yet we were all children. Childhood, even the long swinging bridge of adolescence, is distinctive, evident. Why is the nature of childhood not more familiar? At first blush we want to define the meaning of “child.” This is where the trouble escalates. In the ten years spent drafting the United Nations Convention on the Rights of the Child (CRC), between 1979 and 1989, establishing a definition of child was a major area of contention until the very end (Cohen, 1998; Cohen and Bitensky, 1996; Todres, Wojcik, and Revaz, 2006; Van Bueren, 1995). That tension was not resolved until it was agreed to compromise in the negative: “… a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is obtained earlier” (CRC, 1989, Article 1). In scores of nations childhood ends with the onset of puberty, a definition that creates further dilemmas. In the United States, after all, children were only recognized as “persons” within the US Constitution in 1967, some 40 years ago (In re Gault). This raises the question: who were they before? How are the margins between childhood and adulthood contested, shaped, erased, and policed? How has the recognition of their personhood fared for children, for jurisprudence, for logic? The ingredient of crime accelerates the contradiction and tensions inherent in the conceptual paradox of the child. Children who steal or desecrate, children who batter, children who defy the law, shatter adult wishful notions of youthful innocence. Those who might create unrest or disturb the social order within, it is suggested, must be controlled. If they are immigrants, boys of color, the poor, or wayward girls, they are swiftly subjected to vilification, fear, and the rigors of caging, crushing, and constraining. If they are the children of families with resources, a different system of juvenile justice, a private system, springs into light. Those youthful lawbreakers are admonished, and treated in medical, military, or private institutions until they “grow out of it.” Their future life chances are protected. With privilege, the territories between childhood and adulthood are guarded and

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cherished. For the dispossessed, those children who were characterized by noted academics, politicians, and prosecutors as “superpredators,” as the “new breed” of remorseless, violent, and raging “pre-feral beings” (Dilulio, 1995, p. 31), for those children who are subjected to racially coded discourse and fear-mongering, the full punishment power of adult trial, sanctioning, and incarceration is unleashed (Bell, 1998). Their childhood is shortened. The rhetorical framing of who they are, their legal status in criminal court, and their punishments are each “adultified.” This chapter addresses the question of how US society deals with its young miscreants in ways that are fair, humane, and recognizably just. Our context is the contemporary expansion of the punishment power of the court and the law over children. The consequences of treating child offenders as adults—to them, their families, their communities, and society—are staggering, with no evident enhancement of public safety. This chapter argues for proportional, restrained punishment of adolescent offenders in both kind and amount. It also argues for substantive provisions for the treatment as children of all but a few children in conflict with the law. Fifteen years of innovation and reform have provided evidence that this can be achieved, with increased benefits to youth, their families, the taxpayer, and public safety (Annie E. Casey Foundation, 2008). The recent constitutional restraint on the ultimate punishment power of the State over children may open the door to such jurisprudence. In 2005, the US Supreme Court decided it was not permissible to execute a juvenile offender under the Eighth and Fourteenth Amendments to the Constitution of the United States. With the decision in Roper v. Simmons (2005), Christopher Simmons and 71 other juvenile offenders—the majority African American and Latino—were removed from death row, and their sentences converted to life in prison. The Roper Court held that evolving standards of decency provide sufficient evidence that the juvenile death penalty violates the Eighth Amendment, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Atkins v. Virginia, 2002, 311). Put concisely, the Eighth Amendment guarantees individuals the right not to be subject to excessive sanctions. The death sentence can no longer be applied to a young offender. From a global perspective, it is mildly embarrassing to celebrate the US abolition of a practice that the rest of the world abandoned long ago; this “relic of the past,” this “shameful practice,” as four Supreme Court Justices called it (In re Stanford, 2002, p. 968). For in 1990, only seven other countries continued to execute juvenile offenders: Iran, China, Yemen, Saudi Arabia, Nigeria, the Democratic Republic of Congo, and Pakistan. By 2005, the Supreme Court noted “the stark reality [is] that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty” (Roper, 2005, p. 575). The Court eloquently acknowledged, “it is fair to say that the US now stands alone in a world that has turned its face against the juvenile death penalty” (Roper, 2005, p. 575).

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The decision in Roper did not come easily. In 1983, the American Bar Association adopted a policy against the juvenile death penalty, at the initiative of Robert Shepherd and Victor Streib. By the late 1980s, dedicated lawyers successfully attacked the legal execution of juvenile offenders under the age of 16 in Thompson v. Oklahoma (1988). A year later, with a changed Supreme Court, the execution of 16- and 17-year-olds was upheld in Stanford v. Kentucky (1989). Stanford provided a roadmap for future litigation; in order to meet the “evolving standards of decency” standard of the Eighth Amendment prohibition of “cruel and unusual punishment,” only so-called objective criteria would suffice. The two clearest elements of objective criteria were the abolition of the juvenile death penalty by state legislatures and jury behavior in death-eligible juvenile cases. Victor Streib, who participated in this litigation, became the national expert, keeper of documentation about the juvenile death penalty, consultant to attorneys across the country, and zealous advocate. It would be more than a decade before he was joined by a new cohort of legal advocates. In the fall of 1999, at the Conference on the Exonerated: Wrongful Convictions and the Death Penalty, convened at Northwestern University School of Law, Professor Larry Marshall helped to organize the panel “Another Kind of Innocence” with Professor Victor Streib, author of the book Death Penalty for Juveniles. On November 29–30, 2000, a strategy meeting was held at the Children and Family Justice Center at Northwestern, composed of the National Juvenile Defender Center (then, the American Bar Association Juvenile Defender Center), Victor Streib, Human Rights Watch, the Juvenile Law Center, Randolph Stone of the Mandel Legal Aid Clinic of the University of Chicago Law School, international law experts Connie de la Vega, Anne James, and Sandra Babcock, as well as attorneys James Bell and Stephen Harper. We formed the Juvenile Death Penalty Initiative, as a conscious cohort to coordinate a multi-faceted strategy. For five and a half years, this small coalition of juvenile justice lawyers and advocates worked to abolish the legal execution of juvenile offenders in the US. Ultimately, scores of individuals and organizations, including attorneys Walter Long and Seth Waxman, Soros fellows Lauren Adams and Adam Ortiz, Sadie Rosenthal, Amnesty International and the National Coalition to Abolish the Death Penalty, played significant roles in the abolition of the death penalty for juveniles. The Annie E. Casey Foundation had the singular foresight to support the project. By 2005, this coalition included national NGOs, professional associations such as the American Psychiatric Association, the American Academy of Pediatrics, the American Psychological Association, the American Bar Association, the Child Welfare League of America, the National Mental Health Association, Children’s Defense Fund, Physicians for Human Rights, the National Association of Counsel for Children, Murder Victims’ Families for Reconciliation, and almost 30 major religious denominations. International support included the Council of Europe, the Bar Associations of England and Wales, scientists engaged in adolescent brain research, former US diplomats, and Nobel Peace Prize recipients from around

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the world who contributed amici briefs urging the end of the execution of young offenders. In expansive language, the 5-4 majority in Roper noted, “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions” (Roper, 2005, p. 578). While the renewed recognition of international law and human rights treaties in this astonishing Supreme Court decision is welcome and deserves further exploration itself, this chapter will focus on analyzing the strategic opportunities created for children’s rights by the reasoning and logic of Roper, particularly pertaining to juvenile justice. Three interconnected aspects of juvenile justice that have been “criminalized” or “adultified” are suggested as ripe for coordinated challenge: trial as adults, incarceration with adults, and extreme sanctions. The foundational principle of the juvenile court, the core of the Roper opinion, was elaborated over a century ago at the creation of the world’s first juvenile court (Marrus and Rosenberg, 2005). Children are different than adults and children’s misdeeds— even grave crimes—must be addressed in a separate system of justice that takes into account their age, their lesser culpability, and their greater ability to recover. Although it can be argued that Roper may be strictly limited to Eighth Amendment or capital claims, its language is that children are “categorically less culpable than the average criminal” (Roper, 2005, p. 567). It opens the door to reconsideration of the dangerous and failed policy, law, and practice developments of the past 20 years of the harsh criminalization of youth (Rosenheim, Zimring, Tanenhaus, and Dohrn, 2002; Tanenhaus, 2004). The Core Principle: Lesser Culpability/Less Blameworthy The holding in Roper is that juvenile offenders are less culpable than adults, less blameworthy, and not as morally reprehensible. As the Court noted, “[T]oday society views juveniles … as ‘categorically less culpable than the average criminal’” (Roper, 2005, p. 567). And “juvenile offenders cannot with reliability be classified among the worst offenders” (Roper, 2005, p. 569). Adolescents, according to the Court, are characterized by “impetuous and ill-considered actions and decisions” and are “overrepresented statistically in virtually every category of reckless behavior” (Roper, 2005, p. 569). The Court also described that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability” (Roper, 2005, pp. 572–3). It is valuable to remember that Roper, like the cases of all 72 juvenile offenders who were on death row, involved an exceedingly brutal murder. Christopher  Arguably the only innocent juvenile defender on death row in the past decade was Gary Graham, aka Shaka Sankofa, who always maintained his innocence. Graham, 17 years old at the time of the offense, was convicted of a murder at a grocery store during a

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Simmons, a 17-year-old white boy from Missouri, plotted with two younger friends. They broke into the home of Shirley Crook, an older woman whose husband was away; used duct tape to cover her eyes and mouth; bound her hands and feet with electrical wire; drove her to a state park and threw her from a bridge, drowning her in the waters below. The next day at school, Simmons bragged about the killing. Indeed, the Missouri prosecutor in Simmons’ criminal trial made an explicit plea to the jury to sentence Simmons to death because of his youth: “In rebuttal, the prosecutor gave the following response: ‘Age he says. Think about age. Seventeen years old. Isn’t that scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite the contrary’” (Roper, 2005, p. 558). Despite the extraordinary cruelty of Simmons’ crime, the Court noted three general differences between juveniles and adults, citing adolescent developmental research by Scott and Grisso (1997), Steinberg, Chung, and Little (2005), and Scott and Steinberg (2003): juveniles lack maturity and have an undeveloped sense of responsibility; juveniles are more vulnerable to negative influences and peer pressure than adults; and the character of a juvenile is not as formed as that of an adult. “When a juvenile offender commits a heinous crime,” the Roper Court wrote, “the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity” (Roper, 2005, pp. 573–4). Thus, both their growth capacity and their diminished culpability are relevant to determining the punishment for children who commit serious criminal acts. The law, however, reflects this ubiquitous knowledge about adolescents in profoundly ambivalent and inconsistent ways in civil, as well as criminal domains (Roper, 2005). For example, at various and illogical ages different states within the US prohibit or severely restrict adolescents from marriage, driving, drinking alcohol, voting, smoking cigarettes, enlisting in the military, serving on a jury, obtaining tattoos or piercings, viewing movies with advisory warnings, entering into enforceable contracts, and making their own medical decisions. It is essential to note that the categorical lesser culpability of adolescents is different from categorical lesser competence. Justice Scalia’s dissent in Roper criticized the American Psychological Association’s (APA) amicus brief for failing to distinguish between juveniles’ competence to make decisions about abortions and juveniles’ lesser culpability in criminal matters (Roper, 2005, pp. 617–18). In contrast to the position of the American Medical Association, Scalia notes that the APA asserts here that children are not competent to make vital decisions due to their adolescent immaturity, while in other contexts (such as consent for medical care), the APA supports adolescents’ rights to make major medical decisions. In fact, in vital constitutional and human rights matters of children’s rights to speech,

robbery where the principal evidence was an eye witness from across a darkened parking lot (Graham v. Collins, 1993). Graham was executed in Texas in the summer of 2000, during the election campaign of then Texas governor George W. Bush.

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to association, health care, education, privacy and participation, it is critical to distinguish culpability and competence. Powerful new brain imaging technology and research on brain development (Brief for American Medical Association, 2005; Feld, 2003; Gur, Gunning-Dixon, Turetsky, Bilker, and Gur, 2002) provide persuasive evidence that the adolescent pre-frontal cortex of the frontal lobe is not fully developed. The process of myelination, where the brain matter shifts from gray to white, starts in the back of the brain during adolescence and moves to the frontal cortex last. During this process, adolescents, in making decisions, rely on the amygdala, the part of the brain controlling impulse (Feld, 2003). Thus, the portion of the brain governing recognition of risk, anticipation of consequences, planning, and cognitive decision-making capacity is not fully developed until after the age of 18, even into the early twenties (Brief for American Medical Association, 2005). Although the Supreme Court in Roper (2005) does not directly cite the brain research presented in the amicus briefs, the holding of lesser adolescent culpability is reinforced and bolstered by the new research. In addition, harsher trials, incarceration and sentencing for juveniles failed to improve public safety (McGowan et al., 2007; Bishop, 2005; Fagan and Zimring, 2000; Lanza-Kaduce, Lane, Bishop, and Frazier, 2005). Much of the legislation passed by the states making it easier to try juveniles in adult criminal court and making them eligible for mandatory sentences, sentencing enhancement, and incarceration with adults took place after a brief tripling of juvenile homicides between1986 and 1993. Ironically, these severe laws were passed during the long period of decline in all juvenile crime and the return of juvenile crime levels to those of the 1960s (Fraser, 2000; Snyder and Sickmund, 2006). During this same time four new states joined the 26 which rejected the juvenile death penalty; furthermore, the federal death penalty statute excluded those under the age of 18 (Federal Death Penalty Act, 2000). Viewing juvenile offenders, even the so-called “worst of the worst,” as less culpable, understanding that their punishment must be proportional, and recognizing that youth and youthfulness is a major factor in determining appropriate punishment has major consequences for juvenile justice in the United States. As noted earlier, three pillars of current law and practice regarding children in conflict with the law become subject to challenge and reform by the conclusions, logic, and rationale of Roper: trial in adult criminal court, incarceration with adults, and extreme sanctions. These three elements are related in both principle and practice. As we will see, extreme sanctions are an immediate consequence of mandatory sentencing, which may be applied when a child is tried in adult criminal court. Another example of the relationship between the three pillars is that children in some states are incarcerated with adults because they have been tried and convicted in adult criminal court. Once juveniles are considered adults in the eyes of the law, they are widely treated as such upon incarceration, and automatically if re-arrested. It is crystal clear that the brunt of the unforgiving laws and policies catapulting young offenders into the adult criminal courts and prisons is borne by

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youth of color (Bell, 1998; National Council on Crime and Delinquency, 2007; Ziedenberg, 2001; Villarruel and Walker, 2002; Males and Macallair, 2000; PoeYamagata and Jones, 2000). The three pillars comprise a linked system of adult criminal justice for child offenders. Together they have eroded the core assumption of juvenile justice by subjecting significant numbers of children to adult criminal trials, adult incarceration, and adult sentences. The paradigm of childhood—no matter their age, size, developmental ability, or competence—is legally erased. Other key elements of the criminalization of youth are vitally important for juvenile justice reform but are not addressed by the three practices identified as most strategic in this chapter. Confidentiality in court proceedings, for example, has been eroded to the point where the youngest children have their names published by the media despite their presumed innocence and despite the apparent harm that may stem from this publicity. Police may interrogate youthful suspects, resulting in coerced confessions (Drizin and Colgan, 2001; Drizin and Tanenhaus, 2002). The length of time children can be incarcerated prior to a probable cause court hearing is one more area where children’s rights are diminished (Riverside County v. McLaughlin, 1991). Issues of competence to stand trial, to participate in the proceedings, or to assist the attorney (Grisso and Schwartz, 2000) are further subjects of scrutiny impacted by Roper. Schools are often notified when children are arrested outside of school hours or facilities. So-called “sexual predator” registries are an additional system impacting young offenders (Zimring, 2005). Cumulatively, these laws, policies, and practices that transform children into fictitious adults have altered the landscape for children in conflict with the law. It is proposed here that specific interlocking campaigns to reform the regimes of trying children as adults, incarcerating children with adults, and extreme sentencing of children, follow most coherently and persuasively from the conclusions, logic and rationale of Roper and would go a long way toward restoring a coherent, fair, and effective system of justice for children who transgress. To a large degree, these campaigns, research, litigation and law reform are well underway across the US. Becoming explicit about the common goals and alliances could strengthen this work. Children Tried as Adults, in Adult Criminal Court The reasoning, logic, and language of Roper offer powerful tools to implement campaigns to challenge the extensive trial of juveniles in adult criminal courts. Currently, some 250,000 children under the age of 18 are tried in adult criminal courts in the US each year (Campaign for Youth Justice, 2007). More than 240,000 of these youth are not individually transferred or waived out of the juvenile court system. Instead, they are automatically tried and sentenced in criminal court because they are defined as adults under jurisdictional laws in 13 states where the

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upper age of juvenile court jurisdiction is set at 16 or 17 rather than 18 (Corriero, 2006; Hartney, 2006; Snyder and Sickmund, 2006). In addition to this baseline statutory definition of a lower age of childhood for the purposes of juvenile court jurisdiction, three additional policies mandate or facilitate transfer or waiver of youth charged with offending to adult criminal court (or their exclusion from juvenile court jurisdiction). These three mechanisms for transfer of youth together constitute the other 10,000 youngsters transferred annually to adult criminal court, and their use increased significantly in the 1990s (Allard and Young, 2002; Coalition for Juvenile Justice, 2005; Fagan and Zimring, 2000; Griffin, 2003). First, judicial transfer or waiver occurs when juvenile court judges make the decision to waive or transfer the case to adult criminal court, on the motion of the prosecutor. In Kent v. United States (1966) the Supreme Court held that the judicial transfer decision required the due process guarantees of a hearing, a right to counsel, access to files used by the state, and a statement of reasons for transfer. The transfer determination was a “critically important determination” (Kent, 1966, p. 556) and the DC statute, which failed to provide basic due process guarantees, was held to be unconstitutional. Today, over 40 states have judicial waiver laws, often delineating the elements to be considered by the judge in deciding whether to transfer the youth (Marrus and Rosenberg, 2005). Judicial transfer may be mandatory, presumptive, or discretionary. Most states have judicial transfer laws. It remains the most available transfer option with 45 states and the District of Columbia providing for judicial waiver (also called certification, remand, or bindover) (Snyder and Sickmund, 2006). Once the exclusive or predominant method of transfer, over the past decade it has become a small proportion of the numbers of transferred cases. It currently accounts for only a small proportion of juvenile transfers (Snyder and Sickmund, 2006). Nevertheless, judicial waiver continues to play a role with very young offenders, especially in sensational cases (Snyder and Sickmund, 2006). For example, a 14-year-old charged with murder may, at the motion of the prosecutor, be subject to a judicial transfer hearing, prior to removal to adult criminal court. Second, juveniles may be tried in adult criminal court by laws variously called mandatory transfer, statutory exclusion, or legislative waiver (where the legislature specifies ages and creates a list of offenses that, once charged, must be transferred or waived to adult criminal court). By 2005, 29 states had enacted such laws (Snyder and Sickmund, 2006). Mandatory transfer is not restricted to murder and serious violent offenses. In Illinois, for example, mandatory transfer laws provided that 15- and 16-year-olds charged with selling drugs within 1,000 feet of a school must be tried in adult criminal courts (Ziedenberg, 2001). Over 97 percent of all “automatic” transfers in Illinois were from Cook County, and over 99 percent involved youth of color (“Illinois law gives judges more discretion …,” 2005; Ziedenberg, 2001). After numerous efforts to address this extreme racial disparity, the drug transfer law was modified, providing for adult criminal court judicial discretion to waive a case back from criminal court to juvenile court and for

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individualized review. Snyder and Sickmund (2006) point out that 36 states now have some form of this “reverse waiver.” Mandatory transfer or legislative waiver was originally promoted as more objective than judicial waiver, less subject to the discriminatory practices of juvenile court judges, but the change actually increased prosecutorial discretion, since charging decisions are within the prosecutors’ sole domain (Marrus and Rosenberg, 2005). Statutory exclusions now comprise the largest number of juvenile transfers (Synder and Sickmund, 2006, p. 113). It has been pointed out that legislative or mandatory waiver has in effect created an irrefutable presumption that some children, if they are of a certain age and have been charged with certain crimes, are not really children (Marrus and Rosenberg, 2005). This practice of mandatory transfer is unsupported by brain and adolescent development research and it conflicts with other (non-criminal) laws providing for juvenile authority (Marrus and Rosenberg, 2005). Notably, it appears to be in direct conflict with the Roper holding that juvenile offenders are categorically less culpable than adults. The third method of trying juveniles in adult criminal court, done at the sole discretion of the prosecutor, is called direct file or prosecutorial waiver. It is practiced in 15 states (Marrus and Rosenberg, 2005). Prosecutorial waiver follows from the concept of concurrent or shared original jurisdiction by both criminal and juvenile courts. Thirty years before Roper (2005), the constitutionality of such a provision in the District of Columbia juvenile code was upheld against due process and equal protection challenges based on a holding that the prosecutorial discretion was an exercise of the executive function (United States v. Bland, 1972). In Bland, the Court held that due process does not require “an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom” (Bland, p. 1337; see also Marrus and Rosenberg, 2005). The dissent in Bland, indeed, stated, “the transfer of the waiver decision from the neutral judge to the partisan prosecutor increases rather than diminishes the need for due process protection for the child” (Bland, p. 1343). Such prosecutorial waiver statutes may be limited by age and offense, or to violent or repeat offenders, or they may be broadly unrestricted. In Florida, for example, prosecutors sent over 2,000 youth to adult criminal court in 2001 (Snyder and Sickmund, 2006). Furthermore, 22 states and the District of Columbia have no minimum age for transfer to adult court (Snyder and Sickmund, 2006). Together these practices place a significant number of youth (both jurisdictionally and individually) outside the protections of a separate, special court for children. It exposes them to adult sentencing, mandatory sentencing requirements (including life without possibility of parole), incarceration in adult prisons, and an array of immediate, severe, and future risks (Winner, Lanza-Kaduce, Bishop, and Frazier, 1996; see also Campaign for Youth Justice, 2007). Further, 33 states plus the District of Columbia preclude youth previously convicted in adult criminal court  Illinois Revised Statutes (2008).

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from further access to juvenile court: “once an adult, always an adult”—no matter how trivial the second offense (Campaign for Youth Justice, 2007). Most states passed more severe laws for juvenile offenders during the 1990s (Snyder and Sickmund, 2006; Zimring, 2005) and these new laws made it easier or mandatory to transfer or waive a youth from juvenile court jurisdiction to adult criminal court. Through a massive effort to criminalize youth in the late 1980s and early 1990s, the saturation media coverage of school shootings (Ziedenberg, Brooks, and Schiraldi, 2000), and nightly sensational media stories allegedly about juvenile offenders (Dohrn, 2002), popular culture promoted fear of adolescents— in particular, adolescents of color. A significant number of juvenile offenders were removed from juvenile court protections (American Bar Association, 2001; Corriero, 2006): one in eight of all youth charged with an offense when jurisdictional laws are included. Combined, the practices result in at least five severe consequences for such youth. First, these youth are subject to mandatory sentences and generally harsher penalties if convicted and specifically convicted of felonies, which cannot as easily be expunged. Second, a felony record may result in disenfranchisement, loss of entitlement to college scholarships, bans on military service, restricted job possibilities or housing options, and denial of access to rehabilitative programs, education, or resources for reintegration with society (Ziedenberg, 2001). Third, youth tried as adults both reflects and also increases the likelihood of racial discrimination because sentencing as an adult most impacts African Americans (50 percent), Latinos (25 percent), and American Indians. White children compromise only 15 percent of those juveniles sentenced as adults (Ziedenberg, 2001). Fourth, research by the Centers for Disease Control makes clear that youth tried as adults are more likely to commit future crimes and more violent crimes than youth retained in the juvenile justice system: “Transfer of youth to the adult criminal justice system typically results in greater subsequent crime, including violent crime, among transferred youth; therefore, transferring juveniles to the adult system is counterproductive as a strategy for preventing or reducing violence” (Centers for Disease Control, 2007). Finally, these youth are catapulted into a criminal court system organized around adults. Public defender legal representation, probation, judicial experience, court staffing, and security practices are established based on adult competence, culpability, jury selection, guilty pleas, media presence, collection and management of information, and sentencing (American Bar Association, 2001). These cascading consequences are grave and concrete. The practice of trying children in adult criminal courts thus raises constitutional issues of proportionality, equal protection, and due process. Transfer laws and practices also violate children’s basic human rights and international law, including the Convention on the Rights of the Child (CRC), which provides that “State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children [italics added] alleged as, accused of, or recognized as having infringed the penal law …” (CRC, 1989, Article 40 (3)). In addition, the CRC provides for the rights of every child alleged as, accused of, or recognized as having infringed the penal

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law to be “treated in a manner consistent with the child’s sense of dignity and worth … And which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society” (CRC, Article 40(1)). Perhaps more significantly for the US, this widespread practice of transfer or waiver to adult criminal court is in violation of the International Covenant on Civil and Political Rights (ICCPR) (1966), ratified by the US in 1994. Article 10(2)(b) of the ICCPR states that “[a]ccused juvenile persons shall be separated from adults [italics added] and brought as speedily as possible for adjudication.” Article 10(3) provides, “[j]uvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.” Moreover, Article 14 includes the provision that “any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires …” The US ratified the ICCPR with a reservation (1994) which declares, that “[t]he United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14.” This reservation is striking in light of the fact that the current widespread practice of trying persons under the age of 18 years in adult criminal courts in the US hardly constitutes “exceptional circumstances.” More than 9,000 children are individually transferred or waived to adult criminal court each year. Even taking only those youth (and not the 200,000 other youth under 18 who go directly into the adult criminal courts in 13 states), the practice is not “exceptional” by any definition. Approximately one in eight youths charged with offending is currently being treated as an adult using the more expansive definition of youth transferred because of wholesale “adult jurisdiction” age legislation (Snyder and Sickmund, 2006), despite clear international law. These international standards are reinforced by non-binding but unanimously passed United Nations Rules regarding juvenile justice (UN Guidelines for the Prevention of Juvenile Delinquency, 1990; UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990; UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985), as well as by domestically promulgated juvenile justice standards (IJA/ABA, Juvenile Justice Standards, 1979), and arguably by the US Constitution (National Juvenile Defender Center, 2006). As the US Supreme Court noted in Thompson v. Oklahoma (1988, p. 835), “the reason why juveniles are not trusted with the privileges and responsibilities of an adult also explains why their irresponsible conduct is not as morally reprehensible as that of an adult.” In Thompson, the Court ruled that the execution of a person under 15 years is unconstitutional, noting that “[i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is more apt to be motivated by mere emotion or peer pressure than is an adult” (Thompson, p. 835). Thus, the logic and reasoning of Roper suggest that this pervasive practice of trying juveniles as adults is at odds with the principle that juveniles not receive

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excessive sanctions or disproportionate punishment because of their diminished culpability and their growth capacity. Children Incarcerated with Adults The constitutional and international legal reasoning of Roper indicates that children should never be incarcerated with adults. But the stark reality is that one in ten juveniles incarcerated on any given day in the US will be sent to an adult jail or prison (Hartney, 2006). There were more than 7,000 juveniles incarcerated in adult jails across the US as of 2004 (1 percent of the jail population). This is down from the high of 9,000 in 1999; the population of youths held in adult jails had quadrupled between 1990 and 1999 (Snyder and Sickmund, 2006). Most young jail inmates were being held awaiting trial as adult criminal offenders (Snyder and Sickmund, 2006), demonstrating the link between trying juveniles as adults and incarcerating them with adults. In fact the number of young jail inmates (under 18 years of age) being held as adults was 6,159 in 2004, up 21 percent from a decade earlier (Snyder and Sickmund, 2006). There are approximately 4,100 new juvenile admissions to adult prisons each year (Snyder and Sickmund, 2006). Between 1985 and 2002, the yearly new commitments of youth to state prisons increased by 22 percent, and this includes those youth under 18 in states where juvenile court jurisdiction excludes them at ages 16 or 17 (Snyder and Sickmund, 2006). Again, males (96 percent) and youth of color are disproportionately represented (African Americans accounted for 59 percent, whites 28 percent, and Hispanics 11 percent) (Snyder and Sickmund, 2006). Of the youth incarcerated in adult state prisons: 62 percent are held for violent offenses; 23 percent are held for property offenses; 9 percent are incarcerated for drug offenses; and 5 percent are held for public order offenses (Snyder and Sickmund, 2006). It is a fact that juvenile correctional facilities themselves are frequently inhumane, and in violation of legal mandates (Annie E. Casey Foundation, 2008; Abrams, 2005). The century-long struggle to have juvenile “training schools,” “correctional homes,” “reform schools,” or “residential placements” be anything other than ironic mischaracterizations is well documented (Tanenhaus, 2004; see also Lerman, 2002). However, there is near unanimity that children should not be incarcerated with adults. This was made clear in the 1880s when Julia Lathrop documented the conditions of children in adult penitentiaries. We know that incarcerating juveniles with adult criminals has two major consequences. The youth are at a greater risk of victimization for rape, assault, and suicide. And youth held in adult facilities are more likely to recidivate sooner, and with more serious offenses (Bishop, 2005; Fagan and Zimring, 2000; Redding and Howell, 2000). Youth in adult prisons are in a more dangerous place, regularly exposed to violence and exploitation. They are in an environment of large facilities, with warehousing procedures, negative messages from staff and correctional personnel,

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and less monitoring. Three major studies in Florida and two in New York and New Jersey compared youth transferred to adult criminal courts with youth charged for near identical offenses but who were retained in the juvenile justice system. The studies concluded that a significantly higher proportion of transferred youth re-offended substantially sooner and with a greater likelihood of being arrested for a serious felony crime (Fagan and Zimring, 2000; Lanza-Kaduce et al., 2005; Bishop, Lanza-Kaduce, Frazier, and Lane, 2001). For these reasons, the ICCPR mandates, “[j]uvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status” (ICCPR, 1966, Article 10(3)). US law on its surface similarly prohibits the incarceration of children with adults, but actually permits numerous exceptions. The Juvenile Justice and Delinquency Prevention Act (JJDPA) states that “no juvenile shall be detained or confined in any jail or lockup for adults …” (JJDPA, 1974, para. 13). This provision—known as the jail and lockup requirement—is undercut by regulations exempting from this provision juveniles who are being tried or convicted as adults (JJDPA, 1974; Hartney, 2006). Thus, federal law, written to discourage the incarceration of children with adults, actually permits detention with adults if the children, even before they are found guilty, are simply designated as adults for purposes of trial in adult criminal court. If youth is a relevant mitigating factor, “once the diminished culpability of juveniles is recognized” when “the case for retribution is not as strong with a minor as with an adult” (Roper, 2005, p. 571), it is evident that there is never a rational basis for children to be detained or incarcerated with adult offenders. Extreme Sanctions/Proportionality Sentences of life without the possibility of parole for offenders who were under the age of 18 at the time of the crime appear, by the same logic as Roper, to violate both the Eighth Amendment prohibition against cruel and unusual punishment and international human rights law. As of 2008, 2,484 juvenile offenders are serving sentences of life without possibility of parole in the US (Human Rights Watch/ Amnesty International, 2005b). This was first documented in a stunning joint report by Human Rights Watch and Amnesty International (HRW/AI) in 2005, and subsequently expanded by a flurry of state, age-specific, and human rights research (LaBelle, 2002). These inquiries and concurrent state efforts revealed that of the 2,225 juvenile offenders with life without possibility of parole sentences in 2005, 16 percent were 15 years old or younger at the time of the offense (at or below the age where the juvenile death penalty was prohibited in Thompson v. Oklahoma (1988)   The following data comes from excellent research and advocacy work (LaBelle, 2002). This work has been supplemented by: Equal Justice Initiative (2007); Leighton and De la Vega (2007); Human Rights Watch/Amnesty International (2008); and the Illinois Coalition for the Fair Sentencing of Children (2008).

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almost two decades ago); 59 percent of the juveniles with sentences of life without possibility of parole were first-time convictions (HRW/AI, 2005b); 25 percent were felony murder convictions, that is, they were convicted of murder because they were participating in a felony which resulted in a murder. The offense of felony murder is unknown in Europe and most modern legal systems (HRW/AI, 2005b). For example, take the case of Peter A., who was sentenced to life without possibility of parole at the age of 15 for his participation in the recovery of drugs allegedly stolen from friends of his older brother in Chicago, Illinois. At his brother’s instruction, Peter agreed to go with older youth to recover stolen drug proceeds. He helped to steal a van, where he sat in the back seat and waited. Peter remained in the van when others went into a building and entered the apartment. Peter heard shots fired and two people were killed. Peter was convicted of felony murder, a murder committed during the course of a felony, as the theft of the van was a felonious act in this case. Thus, he was also convicted for involvement in a double homicide, although another defendant was convicted of having fired the shots. The HRW/AI report (2005b) notes that 27 states have mandatory life without parole sentences; 60 percent of the juveniles serving life without parole sentences in the US are African American youth; and some states have no minimum age for life without parole sentences. Colorado, Missouri and Montana have a minimum age of 12 years old for the life without parole sentence, meaning that anyone 12 or older is eligible to receive the sentence in those states. The isolation of the US in this type of sentencing, as with the juvenile death sentence, is striking. Not a single other nation currently has juvenile offenders serving life without possibility of parole sentences. This sentence for juvenile offenders is also prohibited by the CRC. The Supreme Court in Roper cited the CRC, for the point that none of the 102 ratifying nations has taken a reservation to Article 37, which provides that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below the age of eighteen.” Furthermore, Article 40 of the CRC requires that any sentence be proportional to the offense, and that an offender’s age be considered in sentencing determinations. Indeed, in England and throughout Europe and Canada, extreme sentences are unknown for youth accused of murder. In a notorious English child murder incident, a nine-year-old boy and a ten-year-old boy kidnapped a two-year-old from a shopping mall, bludgeoned him to death, and left his body on a train track (V. v. United Kingdom and T. v. United Kingdom, 1999). The two young perpetrators were released from custody after the expiration of their youth. In considering the boys’ cases, the European Court of Human Rights (ECHR), referring to Articles 6.1 (right to a fair trial) and 5.4 (right to liberty and security) of the European Convention, held that the young defendants’ human rights were violated because they were unable to participate in their own defense and because their original sentences were lengthened by the executive branch. The   Peter A. is a pseudonym, but his story and photo are set forth in the HRW/AI (2005b) report (pp. 11–12).

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ECHR declined to hold that the circumstances of the boys’ trial as adults violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedom (European Convention), which prohibits “torture … or inhuman or degrading treatment or punishment” (V. v. United Kingdom and T. v. United Kingdom, 1999, 118). Yet, each day in the US, children 14 years old and younger are sentenced to die in prison. Their offenses are grave, often heartbreaking and inexplicable. Sanctioning such crimes is necessary, and punishment, even severe deprivation of liberty, may be appropriate. But sentencing a young offender to die in prison, without possibility of recovery, repentance, repair or rehabilitation, without periodic, meaningful reconsideration by an appropriate body knowledgeable about adolescent development, defies the reasoning of Roper that juveniles are categorically less culpable than adults and still have the capacity to change and grow. The Roper Supreme Court seemed to recognize the inappropriateness of this penalty in its statement, “it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person” (Roper, 2005, p. 572). The challenge to juvenile justice is to develop a mechanism which recognizes the severity of the harm that was a consequence of the child’s actions, acknowledges the suffering and loss for both victim families and for prisoner families, and provides for meaningful, periodic review and reconsideration of life without possibility of parole sentences for juvenile offenders. For example, a sentence of life for an adolescent who has committed a murder might mean serving a sentence equal to his age at the time of the crime (his life) plus one year, then to be reviewed for the possibility of release. Thus, a 16-year-old would serve 17 years before first being considered for re-sentencing or release. Release would not be mandatory, but neither would it be satisfactory to convene a pro-forma parole hearing with no real consideration of the possibility of release. What is required by international law is a meaningful, periodic review. Such a special juvenile sentencing review panel could include professionals with experience and expertise in adolescent development. Conclusion For juvenile offenders, the competing paradigms of childhood and adulthood have been in contention and conflict for over a century. Issues of crime and punishment, youthfulness and accountability, consequences and second chances are at the heart of basic constructs of humanness. The questions they raise defy easy answers. In sweeping ways, US laws and practice over the past two decades increased the likelihood of determinations that a child is no longer a child. New laws and practices created a legal fiction that a child is an adult for purposes of delinquency, crime, and justice. This terrain is unequally characterized by race and class, by protection and blame. Who has access to the protections of childhood and who is denied?

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Chapter 7

Parental Rights Doctrine: Creating and Maintaining Maternal Value Annette R. Appell

Many view the parental rights doctrine as an outmoded relic tinged with biological determinism and harmful repressive notions of privacy. A variety of critics find the doctrine to be harmful to children—individually and as a class—or an impediment to the formation of alternative families. Many feminists in particular are critical of biological connections and social conditions that couple women and children, placing them in a private realm where women bear primary responsibility for children, experience private subordination, and face limitations outside the home. The parental rights doctrine reinforces these connections by defining parents in relation to biology and creating a zone of privacy into which the state, and others, cannot unduly enter. Critics of the parental rights doctrine raise important concerns, but in doing so, undervalue the utility of parental rights to women and mothers, particularly those who do not fit dominant norms of womanhood or maternity. The parental rights doctrine presents a model for parenthood that privileges and protects biological mother-work and those associated with this work. The current model holds that mothers earn parental status by gestating and birthing and fathers earn it by caring for the born child or marrying the mother. Persons who earn this status retain it until they voluntarily relinquish the status or prove to be unfit. Parental status entitles its holders, rather than any other adult or entity, to make decisions for and about their children. The parental rights doctrine further prohibits other persons and the State from usurping the parental decision-making role because they are, or claim to be, superior parents. Parental rights, thus, protect women and their children from coercive state interference—interference that rarely serves children or their mothers. Moreover, parental rights is a woman-centered and empowering doctrine that serves important social and political interests and acts as one of the only barriers to dismissing mothers who do not meet dominant norms. This protection is most important in the context of child protection which provides the most intrusive and legitimate,  This chapter contains extensive excerpts from the author’s “Virtual Mothers and the Meaning of Parenthood” (2001). “Virtual Mothers” is a defense of the parental rights doctrine in response to a wide range of feminist, progressive, and non-progressive challenges to the doctrine.

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if often unprincipled, individualized interference with parental prerogatives. Furthermore, parental rights protection is particularly significant as federal and state child protection policies increasingly disregard the family and privilege adoption over the integrity of the family of origin. This chapter explores the maternal value in and political value of the parental rights doctrine. The first section illustrates that the parental rights doctrine is matrifocal in that the biological work of gestation and birth provides the model for parenthood and a person’s relationship to the mother or child determines parental status. The second section explores the nature of the parent–child relationship and the political and moral roles it plays in our constitutional system. The third section explains the utility of the parental rights doctrine to families who do not meet dominant norms—families especially vulnerable to State intervention. The concluding section argues that proposed alternative definitions of parent and grounds for intervention will further undermine non-dominant families and their role in the production of values, while leaving in place the very material and political conditions that subvert these vulnerable families in the first instance. The Matrifocal Parental Rights Doctrine Defining and regulating families is principally, though not exclusively, a state, rather than federal, prerogative. State laws govern family issues, but the US Constitution provides parameters limiting the states’ ability to define and regulate family rights and obligations. The Constitution does not expressly refer to families. However, the United States Supreme Court has interpreted the document to protect the integrity of certain families—mostly those related through biology or marriage (Caban v. Mohammed, 1979; Michael H. v. Gerald D., 1989; M.L.B. v. S.L.J., 1996; Smith v. Organization of Foster Families for Equality and Reform (OFFER), 1977; Stanley v. Illinois, 1972; Troxel v. Granville, 2000). In exploring parenthood’s meaning and privileges, this section addresses two issues: first, what is a parent? Second, what are the privileges flowing from this definition and attached to that relationship? In addition, it considers the limits of these privileges and when the state may interfere or reform the parent–child relationship. Defining Parents The notion of families during the United States Constitution’s formative periods, including the Bill of Rights and the Thirteenth and Fourteenth Amendments, surely contemplated a patriarchal household in which the father presided over and controlled his wife and their children. The Supreme Court, in a series of cases defining parental rights to custody and control of children, has continued to define families along these traditional lines, primarily recognizing families created through marriage and birth. However, this doctrine’s development in the context of parent–child relationships has defined the family in matrifocal terms. That

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is, parenthood, as protected by the Constitution, is understood in relation to the mother and incorporates the two female maternal aspects of childbearing: genetic contribution and nurturing. The jurisprudence presents childbearing as the parental paradigm and the mother as the anchor. It does so in three ways. First, the Supreme Court presumes that the woman who gave birth (biological mother) is a parent, regardless of marriage or any proof that she has cared for her child after birth or made legal declarations of parenthood. A woman establishes parenthood by carrying the fetus to term (Lehr v. Robertson, 1983). Although the Court has yet to review competing claims of women to the same child, it has not placed even long-term foster mothers on a par with biological mothers (Smith 1977). Indeed, the Court took the extraordinary step of extending procedural due process protections to a mother whom a trial court judged to be unfit (M.L.B. 1996). In that case, the Court held that the mother’s legal relationship to her children was so fundamental that the state must waive the costs of her appeal even though the action was brought by a private party, her ex-husband. Second, constitutional family privacy doctrine defines the non-maternal parent, the “father,” in relation to mother. A father is someone who has either (a) acted like a mother by contributing a gamete for and nurturing the child (biological or birth father) (Caban 1979; Stanley 1972) or (b) been married to the mother at the time of conception (legal father) (Michael H. 1989; Quilloin v. Walcott, 1978). For example, the Court held that the man in Stanley, who was not married to the children’s mother but who had cared for and lived with the children for most of 18 years, was a father and, therefore, entitled to a hearing before the state could remove the children from his care. Similarly, in Caban, the Court held that the biological father, who lived with the mother during and after conception and birth of his children and then continued to visit them after their mother remarried, had a relationship with his children “fully comparable to that of the mother” (Caban, 1979, p. 389) and could not be deprived of that relationship without a hearing or his consent. In contrast, the Court has refused to grant parental status to biological fathers who have merely contributed a gamete but have not provided significant care for the child or wed the mother. In Quilloin, the Court held that an unwed biological father, who never lived with the mother or the child, never legally claimed the child as his, and provided only sporadic support, had no parental rights and was, therefore, powerless to stop his eleven-year-old child’s adoption by the mother’s husband. Similarly, in Lehr, the Court held that a biological father who lived with the mother prior to the child’s birth, visited her in the hospital when the child was born, but did not live with or support the mother or child after birth, had no parental right to bar the mother’s new husband from adopting the child. In Michael H., a plurality of the Court held that the man who had a stronger, more consistent, and legally committed relationship to the mother (her husband at the time of conception, birth, and the lawsuit) had a superior paternal claim to that of

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the biological father despite the fact that the latter had maintained a relationship with the child and her mother before and after birth. Third, parent–child-like relationships that are based only on nurture, and not on biology and nurture of the child or the biological mother, are insufficient to establish legal parenthood over the claims of fit, legal parents who have not legally consented to the formation of the relationship. For example, the Court has recognized that deep and enduring parent–child-like relationships may arise with no biological connections, but it has not given those relationships the same status as birth relations (Smith, 1977). Indeed, the Court held in Santosky v. Kramer (1982) that the state has no interest in reforming families until, or unless, the biological parents have been proven unfit (pp. 766–7). The Court’s reluctance to grant certiorari to adoptive parents whose adoptions judges have overturned or denied, while ordering the children returned to their biological parents (Baby Richard v. Kirchner, 1994; DeBoer v. Schmidt, 1993; O’Connell v. Kirchner, 1995), strongly suggests that the Court does not recognize as parents persons who have no biological relationship to the child. The exception would be when a would-be parent has a relationship to the biological parent, such as existed with the nonbiological father in Michael H.. Thus, the constitutional definition of parent differentiates between women/ mothers and men/fathers. So far, the Court treats the mother’s biological connection (gestational and genetic) differently than the father’s biological (genetic) connection; the latter is not a sufficient or even necessary relation to create a legal parent. Fatherhood, as a constitutional matter, can be lost for failure to earn it by caring for the child or legally claiming the child, or it can be usurped by a person who shows affection for the mother by marrying her. Parenthood requires a biological connection between the mother and child and a nurturing connection between the prospective other parent and the mother or a nurturing and genetic connection to the child. The legal category “father” is thus more variable than “mother” because it includes both genetic and non-genetic paternal relationships regarding the child and could logically encompass a larger group of fathers than previously sanctioned. Fathers who have shown a commitment to the mother, symbolized by marriage, are paradigms for other domestic partners, whether marital or not, who have shown a commitment to the mother. It is not evident that marriage should be the only way of establishing non-biological legal fatherhood, or that “fathers” must be men. This rehearsal of the Court’s view of parenthood shows that although parenthood is biologically based, it must be earned. Mothers earn it through the nurturing biological acts of gestation and birth. Fathers earn it in one of two ways. Men who  One could also read Michael H. and the step-parent adoption cases, Quilloin and Lehr, as further reflecting a matrifocal definition of parent, for in those cases, it was the mother’s chosen (marital) partner that the Court considered as, or paved the way to become, the father. That is, those cases in effect allowed the mothers to choose the father. Nevertheless, in Caban the Court did not permit the mother to choose her new husband to be the father.

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are biologically (genetically) related to the child earn the status by caring for the child after birth. In addition, non-genetic and genetic fathers may earn parental status by making a commitment to the child’s mother, generally by marrying her. Although a person may become a father through marriage, marriage is not essential to maternity or to biologically based paternity. The acts of genetic contribution and gestation (nurture) instead form the anchor and paradigm for parenthood. Persons must relate to the child like a mother, through biological connection and nurturing, or they must relate to the mother through commitment and caring. Beyond the scope of this chapter, there is the looming question of who is the constitutional mother when the maternal acts of gamete donation and gestation are split. Supreme Court jurisprudence does not appear to countenance more than two parents (Michael H., 1989), so it is unlikely the Court would recognize both a genetic and gestational mother, at least when there is an involved father. The question becomes whether the Court would privilege the genetic or nurturing aspect of motherhood. The Court’s paternity jurisprudence suggests that it would privilege the genetic mother if she were married to the father, but might privilege the gestational mother if the genetic mother had no relationship to the father or gestational mother. In any event, in the absence of contest, when one or two people of any sex claim a child through adoption, civil union, or gamete and labor donation, they are parents. Extent and Nature of Parental Rights A parent has a constitutional right to direct the child’s care and upbringing, absent proof that the parent is abusing or neglecting the child (Stanley, 1972) or has failed to establish legal parenthood (Lehr, 1983; Quilloin, 1978). The parental rights doctrine protects parental decisions by presuming that parental choices regarding or affecting children are sound. The government may adopt general laws and policy relating to child-rearing, such as education of children, child labor prohibitions, and the establishment of minimum parenting standards (Prince v. Massachusetts, 1944). However, the constitutional liberty interest in the parent– child relationship cabins the state’s ability to legislate regarding child welfare and child-rearing (Meyer v. Nebraska, 1923; Parham v. J.R., 1979; Prince, 1944; Wisconsin v. Yoder, 1972). Thus, the state can coercively intervene in, or interfere with, family governance if it is to protect the child (that is, if the parents have fallen below minimum parenting standards), but cannot intervene merely because it has a difference of opinion with the parent about what is best for the child (Reno   When there is not an involved father, courts have held that the ova donor and the gestational mother are both parents (for example, K.M. v. E.G., 2005) but when a married couple engages a surrogate and implants the wife’s ova, fertilized by the husband’s sperm, the gestational mother is not considered to be a parent (Johnson v. Calvert, 1993).   “State” and “government” are used interchangeably to refer to federal and state (geopolitical organizations) legislative, judicial, or administration action.

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v. Flores, 1993; Troxel, 2000). This means that the state may not take a child away from parents or diminish parental autonomy without adequate cause and process (M.L.B., 1996; Santosky, 1982; Stanley, 1972) or, of course, parental consent. Moreover, the state cannot sanction another parent–child relationship through adoption, without proper proof and process (Caban, 1979). In these ways, families are private: parents have primary control over child-rearing, and the state may not usurp that control, unless there is sufficient cause and process or the parents consent to ceding control. The Court has been relatively constant in upholding the sanctity of the parent– child relationship, as illustrated most recently in Troxel. That case raised the question of whether a court could substitute its judgment for the mother’s regarding whether, and if so how much, third party visitation was in the best interests of the children. Two things are particularly noteworthy about the decision. First, at least eight justices affirmed that the Constitution protects the parent–child relationship from undue governmental interference, although a majority of the justices could not agree on a rationale for the decision. Second, these eight justices affirmed the existing line of privacy doctrine cases as establishing the primacy of parent–child relationships (Troxel, 2000) even though the justices and some constitutional law scholars have long questioned the validity and contemporaneity of these early cases (Ely, 1973; Troxel, 2000, Justice Scalia’s dissent, p. 92). Thus, the Troxel Court did not definitively identify what a family is or when precisely the state can intervene, but it did affirm that state action relating to the parent–child relationship has constitutional limitations even in an era of decisions which have diminished the rights of the federal government to curtail state authority (Kimel v. Florida Board of Regents, 2000; Printz v. United States, 1997; Seminole Tribe of Florida v. Florida, 1996; United States v. Morrison, 2000). A significant, if obvious, aspect of the matrifocal definition of parent is that caregiving (rather than solely genetic) relationships are necessary components of the parent–child relationship; these caregiving relationships may flow from mother to child, father to child, or father to mother to child. The relationship to a child is an integral aspect of the creation of the status (parent) and the contour of the right (parental). Parental rights refer to parent’s decision making that includes or affects their children. This decision making is the parent’s prerogative. Indeed, it is what parents as parents do. That is, categorizing someone as parent presumptively ties his or her interests to the child’s (Parmham, 1979; Santosky, 1982). This means parents’ decisions about, or affecting, their child are presumptively both cognizant of the child’s needs and in the child’s “best” interests. This parental right belongs to the parent and applies only to decisions regarding, affecting, or relating to the child. Although parental rights are relational—in the sense that they arise out of relationships and protect decisions made by parents for their children—they are not mutual: children do not share corresponding decision-making rights. That is, children’s decisions about their own parents or family status do not have clear constitutional protection, but children do have (some) individual constitutional

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rights that could interfere with parental control over them. Children have certain procedural protections against punitive state intervention. For example, in juvenile delinquency proceedings, children have a right to their own attorney (In re Gault, 1967), who is ethically bound to represent the child’s objectives, not the parent’s (American Bar Association, 2007, Rule 1.2). Children also have limited rights to reproductive freedom. For example, when a teenage girl becomes pregnant and seeks an abortion, her procreational rights may override her parents’ parental rights, should they disagree about the outcome of the pregnancy (Planned Parenthood v. Casey, 1992). Yet, she may have no right to make other medical decisions or decide she would rather have other parents. It is sufficient for purposes of this discussion that children may attain rights independent from, and in conflict with, their parents’ parental rights, as children become more like adults (that is, more mature). These rights may limit parental rights, though in a different way than third party or state intervention limits parental rights. In sum, the parental rights doctrine first defines parent matrifocally—in that the mother is the paradigmatic parent. She embodies both biological or genetic and caregiving aspects of parenthood through the work of bearing and birthing the child. Neither genetic connection or nurturing in themselves are sufficient to establish parenthood, but must exist in combination in relation to the child or to the mother (the parent who contains both biological and nurturing relationship to the child). Parents—not the state—make decisions about their children’s interests when the children themselves cannot physically, developmentally, or economically make their own decisions. But parents can lose their status if they choose or if they severely abuse or neglect their children. This exploration into the legal contours of the parental rights doctrine is designed to provide a foundation for the remainder of this chapter. The historical context, doctrinal development or even doctrinal coherence of this constitutional protection are not of concern here. Certainly, the doctrine is tainted by the anticommunist hysteria of the early 20th century (Woodhouse, 1992), the ethnocentrism of constitutional family (based on Anglo-American, middle-class, nuclear family structures), the problems attendant to privatizing dependency (Fineman, 1991; Franke, 2001), and the limitations of liberal legal philosophy (Callahan and Roberts, 1995–96; West, 2001). This chapter does not take on those issues, but instead suggests an ordering to critiques of parental rights doctrines that would first dismantle socio-economic paradigms of privatization before dismantling the aspect of those paradigms that protects the moral authority of the most vulnerable families. This apparently archaic, biologically-based legal construction of parenthood benefits both people who need its protection and protects some measure of pluralism in a liberal democracy. The next section assesses the analytic coherence of privileging family relationships within the context of liberal philosophy and the repercussions for mothers and children of abandoning this privilege.

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Value of Privacy Embodied in the Parental Rights Doctrine The Court’s family doctrine seems to have developed as an extension of personal autonomy principles and the political philosophies on which the United States government was founded (Brandon, 1999; Richards, 1980) and from common law family doctrine that treated families as entities into which the state could not intrude (Fineman, 1991). The origin and basis for these decisional privacy rights, derived from but not enumerated in the Constitution, have been the subject of much legal theorizing. The issue highlighted here, however, is decisional privacy doctrine’s grounding in a political and moral philosophy that values individual autonomy and informs the theoretical basis for the United States’ structure of government. According to this philosophy, the purpose of government is to maintain the political (if not material) conditions for people to determine the course of their own lives, through elected representative rule, guided by reason and limited by respect for individual liberty to determine one’s own morality or sources of meaning (Brandon, 1999; Richards 1980; West, 1990). The state, thus, has limited power to interfere with individual autonomy (Rubenfeld, 1989; West, 1990). This autonomy is important in itself but also instrumentally because it promotes a dynamic democracy that relies on autonomous citizens to govern (Brandon, 1999; Rubenfeld, 1989). How families fit into this model of individual liberty is a matter of interpretation based on different theories of the role of families vis-à-vis individuals and the state. One set of theories derives family autonomy from the family’s public functions (public family), while the other set derives from individual autonomy (autonomous family). These theories explain or justify the family’s protection from coercive state intervention based on competing views of the good life. Both sets of theories also support the parental rights doctrine and its matrifocal, biological basis. The public family theory holds that families are protected from undue governmental intervention because the family fulfills two important, related public functions: providing care for and nurture of the young, and preparing them for autonomous adulthood and citizenship in a pluralistic democracy (Brandon, 1999). Families are uniquely suited to perform these functions by caring for children in a communal context of self-sacrifice and duty and by raising children in diverse settings (Eichner, 1998; Prince, 1944). Children then mature into adults who possess pluralistic values and the ability to think critically because of their allegiance to family and community (Brandon, 1999). This rearing function enriches the government by creating citizens separate enough from the state to be capable of exercising the power to govern (Brandon, 1999; Dailey, 1993). In contrast, institutionalized or uniform child-rearing and values would presumably create citizens who would not question the state and who would not provide the diversity of opinions and values that can serve as a check on government (Dailey, 1993). By contrast, the autonomous family theory, while it also relates family autonomy to individual adult autonomy, is based on individual autonomy as an end in itself, as opposed to a means to democratic governance. Autonomy theory holds that

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decisions regarding family relationships and issues are protected because families are intimate associations created and controlled by autonomous adults (Lawrence III, 2005; Richards, 1980). The family is fundamentally important because it is “an aspect of human self-definition and moral choice” (Davis, 1997, p. 168). Families in turn support self-definition and moral autonomy by providing an environment free from state control of socialization and value production (Davis, 1994). Because these family associations are so intimate and fundamental to adult life, the state should have exceedingly good reasons to interfere, and once it does, the state must provide substantial process to protect individual choices about families (Davis, 1997). Whether this intimacy is an end in itself or a means through which people produce or exercise moral value, the essence of the family autonomy theory is that family relationships are the ultimate exercise of positive freedom to form and protect intimate associations (Davis, 1994; Karst, 1980). Each of these theories supports, at least in part, the parental rights doctrine. Under the public family theory, it is the parent’s role to raise and nurture children to become mature adults who are able to exercise political choice. The sine qua non of the public family theory is that children are both dependent and malleable. Therefore, they are in need of protection and formation. Parents, rather than the state, have responsibility in the first instance to care for and socialize children, with the goal of producing independent adults who are able to care for themselves and be productive citizens. Although the family fulfills a public function, this role requires a measure of independence from the state. Thus, the parental rights doctrine curbs the homogenizing effect of the state by ensuring that the state does not unduly interfere with parental decisions and does not entirely usurp the family’s political and socializing roles (Appell, 2004b). The public family theory does not, however, explain why families should be defined around biological relationships. Any non-discretionary and nondiscriminatory general rule that assigns parenthood to private citizens and minimizes state discretion in placing individual children would presumably promote the goals behind public family theories. Although other relatively determinate, non-discriminatory rules are imaginable, defining parents based on their biological relationship to the child is perhaps the clearest, simplest standard that also minimizes (though certainly does not eliminate) the state’s role in making individualized decisions about who constitutes a family. Additionally, this definition promotes diversity by minimizing discriminatory choice that could result in homogenization. When the state establishes less determinate rules, such as the best or most attached caregiver, it invites injection of contingent standards   Discrimination here refers to decision making based on values regarding race, class, morality, religion, sexual orientation, and the like. Discretion refers to decision making without determinate rules that grants greater latitude to the decision maker to assess different outcomes. If one of the main purposes of family privacy is to promote private value production, then rules that permit the state to choose parents based on its own values or to discriminate may well curb private values.

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that exclude or include persons in the category of parent based on value-laden judgments about what types of child-rearing and parents are most important for children. The interpersonal aspect of the current definition of father (nurturing relationship to the child or mother) is more problematic than the more determinate maternal definition because the less determinate standard increases the number of competing claims to fatherhood and makes the claims difficult to resolve. These claims require the state to exercise its own homogenizing values when making specific decisions about whether a parent is sufficiently nurturing or which person has a superior relationship to the child. However, the existing rule minimizes both state discrimination in defining parent and state discretion in applying the definition, while limiting the state’s role in administering the rule for distributing children. The family autonomy theory also supports parental rights doctrine. Because the theory is based on protection of decisions about intimate matters, such as the decision to bear children, the theory offers tighter analytic support than the public family theory for the deference to biologically based definitions of parent. The principle that choosing to conceive and raise a child is an expression of individual autonomy supports defining and protecting parenthood by linking biological and chosen interpersonal connections. Insofar as family autonomy promotes individual autonomy by creating a private zone of value production, those who are able to exercise autonomy within that context—that is, adults—should be free to do so, absent just cause for state interference. In this way, families are expressions of adult self-definition and associational choice, so state intervention should be minimal. The thornier problem for family autonomy theory is how to account for the parent, rather than the child, as decisional rights holder under the parental rights doctrine. Legally sanctioned control over another individual seems at odds with notions of individual autonomy that support family autonomy theories. True autonomy would make each family member a “parent”—a decision maker. Yet, the family autonomy theories are grounded in adult autonomy and subordinate children as extensions of adult intimacy and value creation. This autonomy problem may be more apparent than real for several reasons. It is not at all clear that children are autonomous in the moral, developmental or practical sense. Autonomy is not something children have but instead is something they will have (Arneson and Shapiro, 1996; Schapiro, 1999). The role—or right—of the autonomous parent is to transmit a value system to the child, a value system that likely replicates the parent’s own values. Indeed, to the extent that the autonomous family theorists view families as fora to inculcate values and create meaning, part of that freedom relates to the act of rearing—molding and socializing—children (Davis, 1997; Gilles, 1996). Once children reach a level of maturity that enables them to engage in adult-like behavior and share in adult-like obligations and responsibilities, they begin to share in some of the constitutional liberties adults enjoy. The more like adults children become, the less like children they are and the less control parents enjoy (Czapanskiy, 1999). This is not to say that children are without identity, will, subjectivity, and various aspects of

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autonomy, but instead that law and society construct children as dependants and assign parents to manage that dependency (Appell, 2008). In this structure, non-mature children who are incapable of acting autonomously require adult assistance in making or carrying out decisions. In the first instance, that is generally the parents’ role, though frequently supplemented by actual and fictive kin networks. If the parents do not exercise the authority to make, or assist the child in making, the child’s decisions, the question becomes who has that authority. If a judge or other adults substitute for the parents, the child is not much freer, just subject to someone else’s decision making about what is best for her or what she actually wants (Appell, 2004b). Yet there is no clear or universal standard for deciding what is best for children (Bartlett, 1988; Guggenheim, 1999). Moreover, many argue that the government has not proven itself adept at filling the parental role. Autonomous family theory holds that families, not the state, are the primary source of value production, so parents (or their designees) should be the decision makers for non-mature children. Both the public family and autonomous family theories regarding the role of families lead to the same result: raising children is a private matter. It is the parents’ role to decide what the good life is—how and with whom the child should live. Unless the parents are unfit to make those decisions or have consented to have others make or share in making them, the state may not second-guess those decisions or sanction the decision-making power of others. Constitutional design and theory do not support the state’s exercise of such power. The preceding explications of the parental rights doctrine’s philosophical groundings does not explore the philosophical underpinnings of that political philosophy or provide support for parental rights doctrine in empirical, sociological, psychological, or biological research. Instead, the foregoing establish the moral and political values underlying the parental rights doctrine: (1) the privacy of the parent–child unit is valuable because it serves the political function of rearing children to meet their basic needs and to become citizens morally independent from the state, which they will eventually govern; and (2) child-rearing is an exercise of individual autonomy. The practical importance of family privacy is illustrated in the next section. Although the practical benefits of the parental rights doctrine may appear as barriers to those who would revise the construction and permeability of families, the final section of this chapter will return to the political purpose of the parental rights doctrine to illustrate how diminishing family privacy will undermine such core liberal values as moral autonomy, pluralism, and equality.

  My reference to parents as decision makers obscures the cultural contingency of lines of nurture and authority in child-rearing. Indeed, fictive and actual kin frequently rear children through informal and perhaps tacit agreement by the parent. For the purposes of this chapter, I treat these caregiving arrangements as manifestations of parental choice to delegate or forego day-to-day child-rearing decisions and value production to kin.

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Families for Whom Privacy is Most Valuable The parental rights doctrine presents a model for parenthood that privileges and protects biological mother-work and those associated with this work. In a socioeconomic system that privatizes wealth and need, this biologically based legal construction of parenthood is a progressive tool for protecting the integrity of non-dominate families. The parental rights doctrine’s relatively determinate and objective standards for creation and dissolution of families protect families who are most vulnerable to intervention or dissolution. Thus, the parental rights doctrine is valuable and woman-friendly because it provides both a benefit that is available to those without financial wealth and a relatively objective barrier to unwelcome state intervention into, and dissolution of, families headed by women who do not fit dominant norms and are most likely to be caught up in the child protection system. Many commentators nevertheless view parental rights doctrine as regressive. These perspectives essentially view families as hidden, separate, physically and psychologically oppressive to women and children, and practically immune from outside intervention or governance (Appell, 2001). From this vantage point, perhaps family walls should be more transparent and permeable. However, many families that are more subject to privacy and autonomy incursions than other families do not share this vision of family life or the related assumption that public intervention is fair, equalizing, and helpful. Just as family formations are not monolithic, neither are the experiences of privacy. Family privacy and autonomy range along a spectrum marked by lines of class, race, gender, religion, and sexuality. Most simply stated, along this public–private spectrum, white, upper and middle class, marriage-based families receive the most privacy and protection from state intervention, while poor, non-marital families of color are most vulnerable to state surveillance and interference; in between, there are families headed by single parents, lesbian and gay parents, parents of color, immigrants, and poor white parents who do not fit the dominant norm of marriage-based intact family (Fineman, 1995b; Rubin, 1986). Because of their non-normativity, these families are not valued as families and therefore enjoy less privacy. African American women in particular share a history in which the very reproduction of children was not a family matter, but instead the production of a commodity to be bought and sold in the public marketplace. Female slaves gave birth to babies whom slave owners then sold (or kept) as labor power. Dorothy Roberts (1995) has noted the legacy of this challenge to African American maternity: “Black mothers’ bonds with their children have been marked by brutal disruption, beginning with the slave auction where family members were sold to different masters and continuing in the disproportionate state removal of Black children to foster care” (p. 146). This experience and image of mothers with little to no power to control the often permanent separation from their children starkly contrasts with the image of women seeking freedom from the private family and compulsory motherhood.

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In the divorce and custody context, families without fathers (or mothers) are also subject to public scrutiny, even if they are white and middle class. The best interests of the child standard, applicable in these proceedings, allows the state to assess family structure and functioning without regard to parental fitness. Once parents divorce, they may use courts to monitor parental behavior and direct child-rearing, including custody, visitation, and education. For example, courts have denied lesbian mothers and gay fathers custody of their children and even prohibited these parents from having their lovers be present or affectionate during visitation (Chambers and Polikoff, 1999). This oversight affects mothers more than fathers for two reasons: first, because mothers are usually primary caregivers, and second, courts will generally enforce the requests of fathers, regardless of their level of involvement or support of the child (Baker, 1998). Poor families of all races are public because they use, or must rely on, public resources and are more visible (Garrison, 1987; Karst, 2002; Roberts, 1995). The repercussions of this publicness include a special vulnerability to surveillance and external control, and, accordingly, a diminution of privacy and autonomy (Ehrenreich, 1993; Ikemoto, 1997; Rubin, 1986). The very receipt of needs-based social security benefits subjects women to limitations on their individual liberties, including the inability to assert protection under the Fourth Amendment, to treat abortion as a medical procedure, or to plan their own families (Albitson and Nielson, 1995). Families receiving welfare historically faced regulation of who could live in the family home and with whom the mother could create a domestic partnership (Federle, 1999). The Personal Responsibility and Work Reconciliation Act of 1996 (PRWRA) continues to govern mothers’ personal decisions, including whether to engage in reproductive sexual relations and whether to work outside of the home. PRWRA also permits states to condition benefits on certain parental conduct, such as attending parenting classes. Moreover, receipt of PRWRA’s Temporary Assistance to Needy Families, like its predecessor, Aid to Families with Dependent Children, requires parents to seek child support from noncustodial parents who must then contribute child support in an amount dictated by the state. Poor families are visible because they are poor. They tend to live in closer quarters, take busses, walk, wait in line, and arrive and leave their homes via the street or alley, rather than through two- or three-car attached garages. Even sociologists direct their gaze more frequently to poor families, particularly poor black families (Rapp, 1982). The very fact of poverty is noticeable while middle class is normative. Thus, the considerable public benefits that middle and upper class families receive, such as highways, tax benefits related to indices of wealth (including home ownership and personal contributions to health care costs), public playgrounds and good public schools, are entitlements and markers of self-sufficiency, while the benefits poor people receive are welfare for those who   Poor Latino families may be an exception in that they tend to have diminished access to social services (Church, Gross, and Baldwin, 2005).

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are maladapted and dependent (Fineman, 1995b). As such, poor families are less deserving of deference and in need of intervention, assistance (on the interveners’ terms), and monitoring. It may not be surprising then that poor families are more likely than middleclass families to experience the child protection system, a system of law that is more public than the domestic relations laws normally associated with families, such as laws governing inheritance, marriage, divorce, and custody between parents (Braveman and Ramsey, 1997). Although the domestic relations system sanctions state intervention into parental decision making and custody, it is a mechanism for private dispute settlement which typically presumes that the parents, not the state or third parties, will maintain custody and control of the child (Garrison, 1996). However, the child protection system involves the state as a party, generally prosecuting the action and obtaining custody of the child or supervision of the parent. Coercive judicial and administrative intervention, the disruption of family relationships, and a markedly reduced deference to parental custody and control distinguish the public system from the private family law system. The child protection system is arguably a descendant of the American (and English) poor laws, federal Indian law and post-Reconstruction-era laws, which in different contexts required poor, and Southern black, children to be bound out for labor, apprenticeship, and “better” lives and training than they would have with their own parents (Appell, 2004b). The newer system, like its predecessors, largely targets poor and minority families and often confuses poverty with neglect (Braveman and Ramsey, 1997). Indeed, of the approximately 560,000 children in state-supervised substitute care at the end of the twentieth century, 42 percent (239,516) were identified as “Black Non-Hispanic,” 36 percent (203,000) as “White Non-Hispanic,” 15 percent (84,924) as “Hispanic,” 2 percent (8,910) as non-Hispanic Native American, and 1 percent (6,304) as Asian/Pacific Islander (US Department of Health and Human Services [HHS], 2000). The race/ethnicity of the remaining 4 percent (25,346) of the children is unknown (HHS). Most of these children come from poor families (Committee on Ways and Means, 2000). The predominance of poor families, particularly poor African American families, in this system is not surprising, given their visibility, perceived need, and dependence on public benefits, all of which make families more likely to come to the attention of public authorities. Social scientists debate whether the prevalence of poor families in the child welfare system is primarily due to higher levels of abuse and neglect in poor families or to state decision-making bias (Drake and Zuravin, 1998; Korbin, Coulton, Lindstrom-Ufuti, and Spilsbury, 2000). In any event, assessments of child abuse and neglect are largely subjective, and the decision to intervene is related to the decision maker’s views about the viability of families and the benefits of intervention (Arad, 2001; Chasnoff, Landress, and  Although the private family law system also may be intrusive and coercive, the distinctions between these two systems of family law and litigation are stark and well documented (Gordon, 1992; Peters, 1997).

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Barrett, 1990; Vulliamy and Sullivan, 2000). Although definitive proof of race and class bias may elude some empirical researchers, evidence suggests that indicators of poverty may be confused with indicators of potential child abuse or neglect (Larsen, Horowitz, and Chasnoff, 1991) and that risk-assessors are unconsciously biased to see minority and socio-economically disadvantaged families as pathological (Zellman, 1992, p. 69). Racial and economic bias in child welfare is particularly evident in the detection and diagnosis of drug use during pregnancy. Pregnant poor and African American women are significantly more likely to be identified as drug users, even though the rate of drug use is relatively even across socio-economic and racial groups (Chasnoff et al., 1990; Larsen et al., 1991). Regardless of the propriety of child protective intervention, once the system has identified the families, they become more public than they were previously. State caseworkers supervise, survey, and assess these families. They make recommendations to courts to determine if, and when, the children should be removed from, or returned, home, and if removed, whether a court should terminate parental rights. Unlike the domestic family law system that presumes a basic unity of interests between parents and child, the child welfare system separates parents from children, providing greater financial benefits for children in substitute care than in home care (Garrison, 1987). In addition to being structurally anti-family, the child welfare system is often administrated without respect for family unity, strengths or needs (Beyer, 1996; Brooks, 1999). The psychological parent theory, which privileges children’s emotional ties to caregivers, has “never been closely followed in contexts of deciding whether to remove a child from her home for placement in foster or orphanage care” (Davis, 1996, p. 348). This devaluation of certain families is reflected in punitive, rather than helpful, practices and in a reluctance to return children to their families (Beyer, 1996; Brooks, 1999). Moreover, once the state coercively removes children from their families, it all too frequently fails to provide meaningful and sufficient services to support or reunify the families. On the contrary, the needed services’ unavailability and the inappropriateness of some provided services are well established (Saunders, Nelson, and Landsman, 1993; Walker, Zangrillo, and Smith, 1994). For example, drug use is cited as a risk factor in 20–90 percent of child protection cases, with the higher percentage in such heavily populated states as Illinois, New York, and California (Ross, 1998). Yet, those who need substance abuse treatment may find it unavailable or encounter long waiting lists (Ross, 1998). Moreover, substance abuse generally cannot be “cured” or resolved quickly (Ross, 1998). Although recovery is marked by relapses, the state may require parents to be absolutely drugfree at all times before they can have any unsupervised contact with their children (Larsen and Lederman, 2000). Similarly, inadequate food, shelter, and child care are frequently causes of child abuse or neglect, yet, child welfare services are not set up or funded to correct these material conditions (Saunders et al., 1993; Walker et al., 1994). In addition, PRWRA limitations will make it more difficult for poor families to obtain federal and state funding for poverty relief and child care (Pelton, 1999).

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Thus, once parents and children (and often siblings) are separated through state intervention, their prognosis for timely, if any, reunification, is poor. Minority children in particular typically spend more time in state care than white children (Albers, Reilly, and Rittner, 1993). The Adoption and Safe Families Act of 1997 (ASFA) mandate that the state seek termination of parental rights after a child has been in substitute care for 15 months undermines the integrity of these families, particularly in light of the well-documented inability of the child welfare system to provide timely services. Once the state terminates parental rights to one child, protection of the parents’ parental rights for their other children diminishes because ASFA expressly permits states to abandon family preservation or reunification attempts when the parents have previously had their rights to a child terminated. After the state severs the children’s ties to their parents, the children lose their legal ties to the remainder of the family, and they have no guarantee that they will become members of new families. On the contrary, every year the state creates hundreds, if not thousands, of orphans, children who have no legal parents (Guggenheim, 1995). These public children have no family privacy. Their parents are the state. Even children who maintain legal ties to their families may spend significant time in state care, while some never return home during their childhoods. Like legal orphans, these other public children, most of the half a million children in foster care, rely on the state to provide basic parenting functions: food, education, clothing, medical care, shelter, and, hopefully, a sense of home and family. Unfortunately, these public children do not always receive basic parenting from the state. Foster children may go hungry, without health care, without permanent or even long-term homes, and they may also suffer physical and sexual abuse by their state-supported caregivers (Chaifetz, 1999). Moreover, the state must assume the parental responsibility of preparing children who will reach majority in foster care to live independently (ASFA, 1997). Yet the approximately 20,000 children who reach majority in foster care every year are more likely than not to leave the foster care system dependent and vulnerable, without the skills or support systems to make homes for themselves (US Government Accounting Office, 1999). Children removed from their neglectful and abusive homes do not necessarily find a safe and nurturing harbor, let alone a new family. In sum, family privacy is elusive for many mothers and children. Some women must overcome significant financial and social barriers to becoming and being mothers. Some do not meet dominant norms of motherhood because they are poor, non-white, not married or otherwise fail to resemble mothers. Their public life experience is not particularly welcome or helpful. On the contrary, it exposes   The federal government no longer appears to track the number of legal orphans the states create, but for each year from 2000 through 2005 data show there was an average disparity of 16,000 between legal orphans who were awaiting adoption and the number of children adopted (US Department of Health and Human Services, 2007). As this disparity accumulates each year, the total number of legal orphans may be in the tens of thousands.

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families to further intervention and possible dissolution. With these public families in mind, the next section rehearses critiques of the parental rights doctrine and explain the harms of diminishing family privacy. Political Harms of Devaluing Family Privacy Non-dominant families’ experiences underscore the political importance of determinate rules, like those provided by the parental rights doctrine, for establishing and maintaining families. The state views women through its own biases which frequently equate the failure to meet mothering ideals with a reason to intervene. Moreover, the purpose of this intervention is not to effect the parent’s assessment of her and her family’s needs and interests. Instead, intervention second guesses, or directs, the mother’s decisions about her own and her children’s lives. In other words, decision makers are less likely to defer to parents who do not satisfy decision makers’ norms regarding what it means to be a parent. Alternatives to the parental rights doctrine replace or diminish the biological privilege with standards that equate parenthood with non-biologically-based caregiving or ease intervention grounds to promote children’s (or other) interests (Appell, 2001). Under these revisionist standards, whoever acts like or wants to be a parent is the parent. Divorced from biology, these standards make the parent– child relationship even more contingent, subjective, and indeterminate. Less determinate standards would give decision makers more discretion to intervene in and reform families than current doctrine affords, thus injecting the state into the arguably impermissible role of choosing between different conceptions of the good life. This intervention would have greater impact on parents who are already more vulnerable to intervention because they do not look like parents. This result is particularly problematic because the critiques of the parental rights doctrine would remove liberalism’s protection of family privacy while leaving intact other aspects of liberalism that reinforce bias and material disparities, which in turn make parents more vulnerable to state intervention. Alternatives to the Parental Rights Doctrine Alternatives to the matrifocal parental rights paradigm discount the unique biological and relational work of childbearing and instead permit establishment of parenthood over the objections of, and without having supported, the mother. These redefinitions of parent invoke less determinate, more subjective standards regarding current or future caregiving and discount the temporally and logically prior caregiving that establishes parenthood in the first instance under the matrifocal parental rights doctrine. By doing so, the revisionists discount the parenting work the initial parents have performed as a condition of obtaining parental status in the first place. Instead, the models place parents on a ground equal to, or lower than, others who may or may not have performed parenting work. In these ways,

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revisionist standards simultaneously lower the bar to intervention and minimize the biological aspect of parent‑child relationships while reconstructing families along purely social lines. These standards would also make children’s lives more public because, as a developmental matter, children need caretakers and decision makers. If their parents no longer have that authority, persons outside the family— judges, lawyers, prospective parents—exercise authority. Critics of the parental rights doctrine risk ignoring the earned aspect of biologically based parenthood— that caregiving is already an essential feature of existing definitions of parent and the scope of parental autonomy. Defining parent along revisionist, non-biological caregiving lines is particularly challenging when there are multiple candidates who have a relationship with the child. The lack of cultural and scientific consensus as to optimal caregiving, children’s best interests, and the relative importance of relationships exacerbates the difficulty in resolving these disputes. Standards that seem neutral, natural, or scientific may in fact simply be value judgments, frequently arising out of or constituting dominant norms of family and motherhood (for example, married, white, heterosexual, middle class). Commentators and decision makers who embody these norms may not appreciate this insight. Yet, families who do not embody these norms are less likely to survive scrutiny (Azar and Benjet, 1994). Indeed, since colonial times, public policy has sanctioned forced socialization of children and families into white, Anglo-Saxon norms (Appell, 2007). The parental rights doctrine’s definition of parent, though value-laden and socially constructed, is more objective (determinable) and more private (less government interference) than revisionist definitions. It is easier to determine who gave birth to a child than who is the truest or best caregiver. The revisionist devaluation of gestation and birth harms mothers, particularly because it neutralizes motherhood as a biological connection and devalues mothers compared to non-parents and fathers. Discounting the maternal contributions to childbearing frees parent–child relationships from sex (in any sense of the term) because the person (woman) who bears the child is no longer different from any other “parent.” This new virtual motherhood minimizes women’s role in the production of children and marginalizes the maternal focus of parenting definitions. Instead, this revised definition equates actual or prospective post-birth caregivers with mothers, thereby decreasing the maternal power in relation to the father or any other current or prospective caregiver. Mothering is no longer different than fathering, and a parent is someone who acts like, or wishes to be, a parent. These revisionist standards may also bind women to constricting social scripts (Chodorow and Contratto, 1992). Ideological visions of motherhood require that women appear to be completely devoted to their children and inhibit viewing the mother multi-dimensionally and as an individual separate from her child. Although women who fall outside of these dominant norms are more likely to lose their maternal rights, even mothers who meet the norm may lose their status if they deviate from the ideal of motherhood defined solely by selfless nurturing. When the measure is a mother’s maternal conduct and behavior, she loses the

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presumption that her choices are best for her child, while the state gains the power to evaluate whether her choices are good or selfless enough for the child (Chodorow and Contratto, 1992; Davis, 1996). To justify or re-earn their status, mothers will have to live up to certain idealized standards, perhaps subverting their own values and assessments of their children’s interests. Reviewing the Value of Family Privacy Of course, this increase in the state’s power to revise families diminishes family privacy. Diminution of family privacy contradicts both liberal rationales for family privacy—privacy as protective of individual autonomy and as instrumental to democratic citizenship. Imposition of state norms interferes with individual selfdefinition and reproduction. In the context of the continuum of family privacy, this imposition will primarily affect value production in poor and other non-dominant families because they are most vulnerable to surveillance and intervention. The state is not sufficiently representative of economic, cultural, racial, and sexual minority groups and does not respect the values of minority groups that do not mirror dominant norms (Jacobs and Skocpol, 2005). Thus, increased intervention undermines the role of these families in creating independent citizens because intervention would minimize or eliminate these families as sites of the production of values that diverge from the status quo. The presumptive devaluation of economically disadvantaged families and families of color contradicts liberal theories supporting family privacy. These theories view individuals as moral actors who define and create value. The theories also circumscribe governmental authority to restrict individual freedom and define values in ways that limit this freedom, except, of course, to prevent harm, protect others, or promote public welfare. Yet the responsibility for rearing children rests with individuals, usually parents, whose right and role is to create and reproduce value in and through intimate associations and to rear children in diverse settings that prepare them for life as democratic citizens. The parental rights doctrine’s presumption that parental decisions are in their child’s best interests protects diverse values that drive or inform the parent–child relationship. Coercive state intervention to redefine families according to state norms subverts parents’ own ideas about the good life for them and their children.10 The parental rights doctrine’s deference to parents is integral to the private production of values that constitutes a philosophical lynchpin of our constitutional 10 By state norms, I refer to the fact that courts resolve disputes about custody or parenthood and that courts or legislators define grounds for family reformation. These decision makers are most likely to base their rules on cultural or self-referential values, thereby interfering with private value production (see Azar and Benjet, 1994, pp. 250–52, 263–5) (describing cultural, race, and class bias in judicial, mental health, and child welfare professionals decisions). Even the psychological parent theory is both culturally biased and has expanded to areas beyond its scientific validity (Davis, 1996, pp. 353–62).

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scheme. However, this same political system also values private property and promotes individualized self-interest in a way that often correlates the degree of privacy and benefits one enjoys with the amount of property one has and how well one conforms to dominant parental norms. Dismantling family privacy while leaving in place the larger political scheme that permits autonomy-limiting income and power disparities will further challenge the integrity of poor and other non-dominant families that are already struggling to maintain their integrity and autonomy. These non-dominant families may try to conform, but they face great challenges to joining the ranks of the dominant because liberalism has failed to empower, provide adequately for, or improve social and material conditions for large numbers of men, women, and children (Becker, 2001). Elimination of non-dominant families is self-perpetuating, as it undermines the socialization of children who, especially as adults, may challenge state norms. Moreover, even as norms change over time, they continue to reflect those who are dominant. The categorization of the Irish and Polish people as separate and inferior races in late nineteenth- and early twentieth-century New York City is an example of the contingency of norms and persistence of bias in child welfare (Gordon, 1999). As persons of other races—particularly African Americans and American Indians—fill the places in this system that European immigrants once occupied, the patterns of intervention remain the same: poor families and families who deviate from the dominant ideology must fight to protect their own integrity. Parental rights doctrine, with its relatively objective standards, provides important, if imperfect, protection for these families. Viewing these revisionist perspectives in the context of public families thus reveals an anomaly. Proposed revisions to the parental rights doctrine challenge certain fundamental liberal principles while leaving other aspects of liberalism in place. In other words, these largely unchallenged aspects of liberalism promote or tolerate the very conditions that make families vulnerable to intervention. The causes and persistence of class, race, and gender inequalities are more complex and fundamental than the tenets of liberal theory. It is clear, however, that liberalism has not been very effective in overcoming these problems. On the contrary, American liberal notions of individualism promote individual responsibility, capitalism, and self-interest while resisting community responsibility, economic justice, and altruism (West, 2001). Judicial remediation of poverty, sexism, and racism has stalled while government assistance programs for the poor have practically insured that they will remain poor, and there is insufficient political will to provide an adequate floor for every individual (Karst, 2002). Moreover, racial and other minorities are less likely to have their values represented through elected officials (Karst, 2002; Guinier, 1991). These inequities in jurisprudential, legislative, and political power do not suggest that greater governmental intervention into families will reflect the pluralism of the population or that the state will understand, let alone respect, diverse conceptions of the good life. Revisionists simply give the state more power to reinforce and replicate dominant or majoritarian values and biases (whatever their content may be) at the expense of families who resist or apparently depart from these values.

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Families with less property and less political or normative dominance will lose their autonomy and perhaps dissolve altogether under a scheme that dismantles family privacy while preserving or promoting property and power disparities. Thus, the parental rights critics’ selective approach discounts the importance of private value production in a way that will disproportionately affect the most vulnerable and diverse members of the polity. One need not delve very deeply to see how diminution of parental rights is detrimental to, or will adversely affect, poor families and particularly poor families of color.

*** Supporting parental rights doctrine and using liberal philosophy to do so, need not imply that liberalism or the structure of the US government is the best (or even a good) way to achieve equality, justice, or the good life. Nor does this chapter condone the privatization of children and of dependency. Instead, it cautions abandonment of the limited protections liberalism provides family integrity, until there is a system that is premised less upon biased race, class, and gender distinctions and expectations. Increasing the state’s role in defining and assessing families within this system will merely reinforce these inequities. There is no reason to suppose that the state will hold non-dominant families any dearer under more subjective standards, particularly in the context of existing systems of inequality and subordination. On the contrary, these non-dominant families already experience state intervention pursuant to more (though not very) determinate rules for intervention. Less determinate standards would further compromise the ability of such families to maintain their integrity and to keep their children out of substitute care. These standards could also lead to greater state involvement in child-rearing more broadly, limiting parents’ abilities to create and inculcate pluralistic values. Moreover this limitation could have a homogenizing effect on cultural and moral diversity because families that do not meet dominant cultural and moral norms would more likely be excluded from parenthood. In the absence of a more radical challenge to prevailing political, economic, and ideological structures in the United States, we should be cautious about dismantling liberalism’s autonomy-based protections for individual liberties, particularly family privacy, that help promote moral and political equality and counteract the silencing effects of economic and social inequality. Revisionist family standards fail to address these inequalities while targeting the most accessible and perhaps personal aspects of autonomy. These selective attacks on liberalism are troubling because they fall hardest on non-normative families and because removing families from the realm of privacy reduces autonomy and empowers the state to decide how to and who will rear children, without addressing the very conditions that create and maintain inequality. This power transfer could enhance the majority’s authority to define families, leading to the exclusion of non-normative families and undermining individual autonomy. Such selective revisions to liberal theory would be unbalanced and unjust.

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Chapter 8

Placing Children in Context: Parents, Foster Care, and Poverty Naomi Cahn

While the goals of the child abuse and neglect system have consistently focused on children’s safety, its policies and practices have shifted historically on a continuum between child removal and family preservation. Many of the early child-saving organizations in the mid-nineteenth century sought to aid poor mothers and their children with the goal of keeping the family together, but other movements saw mothers as the enemy, as the people who beat and neglected their children, as those from whom their children needed to be protected. Although the most recent debates over the federal approach to abuse and neglect have been similarly framed around child removal and family preservation, the implicit assumption in federal law has been that children’s entitlement to safety requires that they be removed from their unsafe families of origin. The Adoption and Safe Families Act (ASFA) (1997) reiterated prior law in requiring states to make reasonable efforts to preserve and reunify existing families, but placed new emphasis on permanency planning and adoption. Rather than the previous focus on pursuing reunification before adoption, the ASFA allows for simultaneous pursuit of “reasonable efforts to place a child for adoption or with a legal guardian [and] reasonable efforts [to reunify]” (§ 671(a)(15)(F)). Moreover, if reunification efforts would conflict with a permanency plan, then the plan takes priority. The legislation also provides incentive payments to states to increase the number of children adopted out of foster care. The ASFA reflected a major shift in federal policy toward abused and neglected children and is a dramatic change away from efforts to preserve families toward efforts to create new families for the children. Particularly for poor and African American children who are disproportionately subjected to the foster care system, the efforts towards permanency planning result in unfair and untimely disruptions of their relationships with their parents. According to the US Census Bureau, 13 million children in the United States, or 17.8 percent of American children, lived at or below the federal poverty line in 2004 (US Census Bureau, 2005). Additionally, more than one-half of the children in foster care in 1999 qualified for federally assisted foster care, which is tied to eligibility for welfare benefits (Barbell and Freundlich, 2001). Unstable sources of parental income are the major determinant of children’s removal from their parent’s custody, while the severity of child maltreatment is not as strong an indicator (Barbell and Freundlich, 2001).

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Children’s rights to grow up in a safe environment should continue, of course, to be central to any reforms in the abuse and neglect system. But those rights must be placed in the context of, first, children’s familial interests of maintaining contact with their parents, siblings, and other relatives, and second, the policies and practices of the existing child welfare system. Removing children from their families of origin may disrupt the otherwise strong emotional bonds between family members and have a particularly severe impact on the child. While the framework for theoretical discussion of the abuse and neglect system often focuses on tensions between parents’ familial rights and children’s protective rights, between family preservation and child removal, this framework obscures the overlapping interests of parents and children. The ASFA represents a shift towards child rescue and remains an overreaction to a perceived bias towards family preservation. Displacing the continuum of preservation and protection by focusing on children in context may result in more humane child protection practices. Indeed, the historical development of federal support for foster care over the past century shows shifting priorities between in-home and out-of-home care, even though prevention is more economically efficient than removal. The tensions between supporting a child inside her family and outside her family are enduring. This chapter advocates a returned focus on children as members of an existing family within a larger community as the means for grounding the child welfare system. It is thus paradoxical to pursue reunification with that family and also to pursue adoption. Each disposition may be appropriate for any particular child at a specific time, but pursuing both charts is an inconsistent course. Emphasizing the child in context should result in allocating more resources for the child’s successful return (or even better yet, for preventing removal altogether) and for allocating more resources to support families. This chapter begins with an overview of federal involvement in foster care, starting with the 1909 White House Conference on Dependent Care, to show the historical relationship between aid to children and in-home care. Part two discusses the relationship between poverty and the abuse and neglect system. Part three provides a fuller examination of the implications of the 1997 changes in abuse and neglect policy for poor children. Part four concludes by suggesting alternative approaches to the current abuse and neglect system that will keep children safe in their families, exploring the many means for dissolving the perceived dichotomy: protecting children and preserving families. Federal Involvement in Foster Care On January 25, 1909, President Theodore Roosevelt convened the White House Conference on the Care of Dependent Children, which had a goal of formulating policies to care for poor neglected children who were not juvenile delinquents (Crenson, 1998). At the end of the conference, the participants, including Jane Addams, Booker T. Washington, and Theodore Dreiser, proposed to make payments

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to poor parents so their children could stay at home rather than be removed to an orphanage. Conference members did not specify the source of payments, although they advocated private relief (Skocpol, 1992). Two years after the conference, Illinois and Missouri adopted mothers’ pension laws. Many states followed soon thereafter. These pensions were paid to widows who qualified on various moral grounds for financial relief (Skocpol, 1992), and a 1931 survey found that more than 95 percent of the recipients were white (Onwuachi-Willig, 2005; Cahn, 1997). The mothers’ pension laws certainly received an impetus from the White House Conference, but they built on Progressive Era beliefs that idealized motherhood and the family. As one of the Progressive Era women’s magazines explained, mothers’ pensions provided compensation to women just as wages provided compensation to men: “[A man] is paid for his work; she for hers. And she should be paid by those for whom she does it—all the citizens of the state” (Crenson, 1998, p. 264). Although the pensions were limited in their coverage, the mothers’ pension movement thus represented an effort not just to alleviate poverty but to keep children out of orphanages and foster care. Matthew Crenson (1998) notes that, as early as the 1860s, orphanages gave money to families to enable care for children so that the orphanage would not become overcrowded. It should be duly noted that the development of foster families occurred during the latter part of the nineteenth century as well. Other early twentieth-century governmental efforts were similarly designed to promote maternal care of children. Beginning with these early mothers’ pension laws, there has been a strong link between aid to dependent children and the assumption that this aid would allow children to be cared for at home, the most suitable environment for them. Similarly, as traced in a 50-year history of the efforts of the Federal Children’s Bureau, child welfare agencies shifted their focus from outside placement to maintaining children at home. In providing federal aid to dependent children, the government was clearly attempting to provide support so that children could stay within their families when those families were appropriate recipients of aid. States developed their own standards as to which families qualified for aid. Based on the widespread variation in the standards for qualification, including attempts to preclude nonmarital children from receiving aid, in January of 1961, the Secretary of Health, Education, and Welfare prohibited states from terminating aid to children if their homes had been found unsuitable (Ross and Cahn, 2000). So strong was the policy of providing support only for children who lived at home that until 1961 a child was ineligible for Aid to Dependent Children (ADC) unless she was living with her parent or a close relative. A child who had been removed for abuse and neglect, then, was no longer eligible for aid under the federal program. In 1961, Congress enacted legislation expanding ADC and changing its name to Aid to Families with Dependent Children (AFDC). The legislation was designed to allow children who were needy due to parental unemployment to receive aid. As part of this massive revision to aid for needy children, Senator Robert S. Kerr of Oklahoma proposed to the Senate Finance Committee that children removed from their homes for abuse and neglect pursuant to a court order be eligible for continued federal aid

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(Cahn, 1999). Senator Kerr observed that he had offered this amendment because some state courts might feel a psychological barrier to removing a child from an abusive or neglectful home because that child would lose federal aid and become dependent on the state or locality instead. The Finance Committee echoed his concern, explaining that it was worried that the unavailability of continued federal aid had interfered with courts acting in the child’s best interests; prior to the 1961 amendment, the only federal money available for foster care came from Title V of the Social Security Act. There was relatively little debate over the foster care amendment. The primary controversies on the Senate floor concerned the availability of continued federal aid to a child placed in a foster home where she was receiving religious instruction, as well as the potential federal interference with state foster care programs. Senator Kerr explained that the federal government was not intending to interfere in any way with state laws and policies concerning foster care, nor with intrafamilial relations. Instead, he wanted to ensure that courts felt free to act in the child’s best interests without feeling financial constraints. Moreover, the amendment contemplated only private, state-licensed foster care homes, not institutional care, and thus religious instruction would not be an issue (Cahn, 1999). Since 1961, the federal government has become increasingly involved with foster care and has consistently attempted to influence state foster care programs. As the population of children in foster care increased dramatically during the 1970s, Congress held hearings on how to manage the crisis. In 1980, Congress removed the federal foster care system from Title IV-A of the Social Security Act and established a separate program under Title IV-E through the Adoption Assistance and Child Welfare Act (AACWA). The AACWA attempted to federalize state foster care programs by establishing comprehensive standards, and it emphasized the importance of providing reasonable efforts both to prevent a child from being removed from her family and to return her to her family. It also regularized federal reimbursements for state-approved foster care. Under the AACWA, states were required to submit a plan to the US Department of Health and Human Services (HHS), which provided that in each case, “reasonable efforts will be made … (i) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (ii) to make it possible for the child to return to his home” (§ 671). Moreover, in order to remove a child from her home, states were required to show that the removal occurred because staying in the home would be “contrary to the welfare of such child” and that reasonable efforts to keep the child at home had been made (§ 672). In the hearings that culminated in the 1997 ASFA legislation, witnesses repeatedly emphasized the problems resulting from provisions in the 1980 law requiring reasonable efforts be made to reunify troubled families. Witnesses to the hearings before the House Ways and Means Committee recounted the physical, emotional, and sexual abuse visited upon children as a result of their return to the custody of biological parents suffering from substance abuse, mental illness, or other conflicts preventing their full assumption of responsibility for the care

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of their children (Cahn, 1999). Foster parents and adoptive parents described their efforts to extricate children from troubled homes, only to face recalcitrant judges, social workers, and other actors in the foster care system who enforced compliance with family preservation and reunification policies devised pursuant to the statutory mandate to make reasonable efforts to reunify families. Moreover, the problems stemming from family preservation and reunification policies were not limited to the abuse inflicted upon children when their biological families resumed custody. Heads of government agencies, attorneys who represented children or parents in the foster care system, and prospective adoptive parents outlined the destabilizing effect of placing children from troubled families in multiple foster homes, while government or non-profit agencies administered services to the parents to successfully reunite them with their children. To those individuals who testified at the hearings, the reasonable efforts requirement in the 1980 legislation had been interpreted by many jurisdictions as a requirement that agencies undertake all possible efforts to reunify or preserve the family unit, without regard to the welfare of the children (Cahn, 1999). The ASFA (1997) seeks to prevent children from spending excess time in foster care and to promote adoption. To accomplish the first goal of preventing foster care drift, as well as the second goal of freeing children for adoption, the ASFA requires, among other things, that a state seek to terminate parental rights for children who have been in foster care for 15 out of the previous 22 months. It also requires that a permanency hearing be held within 12 months of a child’s entry into foster care, in contrast to the AACWA, which required simply that a dispositional hearing be held within 18 months. The permanency plan required by the ASFA must include a schedule for: (1) returning the child to her parent, if that is an option; (2) placing the child for adoption and terminating her parents’ rights; or (3) referring the child for permanent placement. As an additional method of promoting adoption, the legislation authorizes financial incentives of up to $6,000 per child adopted. Finally, the Act clarifies that children’s safety concerns are the paramount consideration in any family preservation, foster care, or adoption effort. Problems with the Return to Removal Although each end of the policy continuum—removal and family preservation— has overlapping goals of keeping children safe, the removal focus risks ignoring the socio-economic (as well as the familial and community) context of most children involved with the protective services system. Poverty and the Abuse and Neglect System: The Relationship Between Poverty and Child Protective Services The tensions between the two different meanings of the child welfare system—the welfare system that provides aid to children and the welfare system that protects

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children from abuse and neglect—are longstanding. Historically, there has been a strong link between race, child abuse and neglect, and poverty. Poor and African American families are disproportionately more likely to be charged with child neglect; black children are twice as likely to be removed from their families as are white children (Appell, 2004a; Roberts, 2003). In 2001, blacks constituted approximately 12 percent of the population, but 38 percent of children in foster care were black; however, 75 percent of the population was white but only 37 percent of the children in foster care were white, and Hispanics were 12.5 percent of the population but represented 17 percent of the children in foster care (Brown, 2006). As discussed below, African American children are involved with the system longer than white children (Foster Care, 2003). Furthermore, African American children are more likely to be placed in residential or group care than in foster care and are less likely to be reunified with their families (Annie E. Casey Foundation, 2004). Studies show that children in families with incomes less than $15,000 per year are 45 times more likely to be victims of substantiated neglect than children in families with incomes greater than $30,000 per year (Chipungu and Bent-Goodley, 2004). The reasons for this variation are unclear, although it is certainly not poverty alone that causes abuse. Instead, it appears that poverty interacts with a series of other factors. The association between poverty and neglect is particularly strong. Children may be removed for poverty alone. One Illinois study found that almost 10 percent of children were removed because of “environmental neglect,” which is broadly defined as a lack of adequate food, shelter, or clothing (Shook, 1998), rather than any deliberate actions on the part of the parent, and another 12 percent were removed for lack of supervision. These are resource problems, not abusive or neglectful parents. If there is adequate funding for life’s necessities, poverty alone will not cause neglect. Similarly, if parents received adequate support to care for their child, for example, to pay for day care or after-school programs, then this will ameliorate the lack of supervision problem. A study of child abuse in Denver found that children in single-headed, African American households were more likely to be reported for abuse than were white children living in two-parent households who had been abused (Jenny, Hymel, Ritzen, Reinert, and Hay, 1999). Physicians missed child abuse in white children at a rate of about 40 percent, and for black children, 20 percent (Jenny et al., 1999, p. 623). While there were comparable rates for single-headed versus twoparent families, I think these studies show the abuse and neglect system is not administered even-handedly. They also show there is a high correlation between poor families and that system. In addition, over one-third of children in New York City’s foster care system receive public welfare. Welfare Law and the Abuse System Furthermore, the disappearance of Aid to Families with Dependent Children and its replacement by the Temporary Assistance to Needy Families (TANF) program

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created more possibilities for poor people to interact with child protective services. New opportunities for involvement with child protective services result from several sources (Courtney, 2005). First, the welfare-to-work program requirements result in a series of difficulties for parents. Early speculation indicated the program might lead to parents leaving their children unattended due to the lack of good child care (Matthews, 1999). When parents are ineligible for public welfare and are unable to work, they are also unable to provide food and shelter for their children, which leads to the potential encounter with child protective services. Once a child is removed, the requirements needed for a reunification plan in conjunction with a work plan may make it difficult for a parent to comply with both. These dualsystem families may find it difficult to attend child protective court hearings or to visit their children in foster care. Although data are somewhat ambiguous on these issues, early analyses showed that TANF appears to have resulted in a change in childrens’ entry into the neglect system, with some states showing an increase in abandoned children or children receiving inadequate supervision from working parents (Congressional Research Service (CRS), 2002). However, a large study finds that higher benefit levels were associated with lower levels of neglect and fewer children in foster care (CRS, 2002). Moreover, welfare recipients who work appear to be at higher risk of having their children placed in foster care, and the reunification process is longer, perhaps because of the multiple demands of the differing public programs (Green, 2002; Nam, Meezan, and Danziger, 2006). Second, drug testing requirements for TANF applicants may prevent families with substance abuse problems from applying for benefits, thus resulting in greater poverty and more contact with the child protection system. Child abuse and neglect studies indicate between one-third and two-thirds of all substantiated reports involve some form of parental substance abuse. Third, with a decrease in the number of families on public assistance there may be more voluntary placements in foster care as parents try to help their children by placing them elsewhere. As this chapter shows, the abuse and neglect system is integrally tied in with child poverty, and changes in each system affect the other. Problems with the Adoption Emphasis The ASFA isolates a significant moment in a child’s life—the incident of abuse or neglect that led to removal—from the child’s lifetime relationship with her parents, her extended family, and her community. In order to facilitate adoptions, the ASFA provides for speedier termination of parental rights through a variety of mechanisms. These provisions are eloquent on paper, but ill-advised in practice. First, the ASFA assumes that a certain amount of time in foster care means that the parents are, and will continue to be, unable to care for their children. Once a child has spent 15 months out of the prior 22 months in foster care, the state is required (with a few exceptions) to initiate proceedings for termination of parental rights. Such an assumption is unwarranted under many circumstances (Cahn, 1999; Ross, 2004b). The length of time for permanency planning, especially because

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it is not based on any substantive ground, ignores the relationship between the child and her parents. It overlooks the actual reasons a child may be in foster care and is unmoored from any “reasonable efforts” to return the child to her family. States could use the length-of-time ground even when parents are responding to services and the child would like to return home. As Marylee Allen from the Children’s Defense Fund explained at hearings on the ASFA, “[c]onsider a situation, for example, where a parent has successfully completed substance abuse treatment, has begun weekend visits with the children, had one child returned and will have the other two children returned within the next two months” (H.R. 867: The Adoption Promotion Act of 1997, pp. 33–4). Instead of helping children, terminating parental rights based on length-of-time could be affirmatively harmful to children and the stability of their relationships. Second, in implementing the ASFA, states have considered and adopted legislation that is particularly punitive to families of origin. For example, in Arkansas the welfare agency can only continue to pursue reunification when the parent is making “significant, measurable progress” under the goals of the case plan (Arkansas Code Annotation 2006, § 9-27-338(c)(5)). The statute places the burden of proving a “genuine, sustainable investment” in completing the provisions of the case plan and complying with court orders on the parent; if she fails to meet her burden the agency need not pursue reunification. As one Arkansas court explained, “[w]e agree that the plain language of [the statute] does express an order of preference for permanency goals, and that adoption is the preferred disposition” (Arkansas Department of Human Services v. Mays, 2004, p. 6). Louisiana legislation requires that the case plan contain documentation of the “compelling reasons for determining that filing a petition for termination of parental rights would not be in the best interest of the child, when appropriate” (Louisiana Children’s Code, 2005, Article 675, B.5). In Nevada, a parent’s failure to comply substantially with the terms of the reunification plan within six months of the child’s placement is evidence that could lead to termination of parental rights (Nevada Revised Statutes, 2005, § 128.109(1)(b)). Similarly, in Arizona parental rights are terminated if the child has been in an out-of-home placement for nine months and the parent has substantially neglected or willfully refused to remedy the circumstances that caused the out-of-home placement (Arizona Revised Statutes Annotation § 8-533, 2005). Parental rights may also be terminated when the parent has participated in the reunification services, but has been unable to remedy the circumstances that caused the out-of-home placement after 15 months. In Delaware parental rights can be terminated if the parent fails to “visit regularly with the minor” for a period of six consecutive months (Delaware Code Annotation, 2005, § 1103). In Alaska reasonable efforts to reunify the family are not required when the parent has failed during the preceding 12 months to participate in family support services (Alaska Statutes § 47.10.086, 2005). As of September 30, 2000, 131,000 children in foster care were waiting to be adopted; the parental rights of 75,000 of these children had been terminated and they had been waiting an average of almost two years for adoption (Allen and Bissell, 2004).

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Third, the ASFA seems to blame the length of time children stay in foster care on their biological parents’ inability to pull their lives together, independent of any hoped-for intervention by social workers seeking to offer the requisite reasonable efforts. This intervention is highly improbable in light of the severe funding shortages and urban child welfare systems’ high caseloads. Families are simply not receiving the necessary services; they are not refusing to comply with the offered services. Even where child maltreatment has been substantiated, approximately 40 to 60 percent of these cases receive no additional services (Cahn, 1999, p. 1203). Fewer than 10 percent of child welfare agencies are able to find substance abuse treatment programs for most of their clients within 30 days (Cahn, 1999, p. 1203). In one study two-thirds of states reported the lack of appropriate services for parents once a child entered foster care. In particular, programs treating substance abuse posed a major obstacle to permanency planning (Allen and Bissell, 2004). In addition to the critical shortage, the programs that do exist are not designed for women who want to continue to parent, so they may not be able to provide sufficient support (Eichner, 2005). Given that the children’s case plans inevitably require treatment for their parents, the unavailability of programs means that children will remain in foster care and, thus, delay or terminate reunification. Further there is no requirement for providing additional services to parents and children to facilitate reunification, yet at the time Congress was considering the ASFA, there were lawsuits in almost half the states because of inadequate child welfare systems (Ross, 2004b). There are a limited amount of funds available for providing inhome services—versus the much larger amount available for maintaining children in foster care—making it difficult for states to place any priority on these issues (Scarcella, Bess, Zielewski, Warner, and Geen, 2004). In addition, judges have enormous discretion in deciding whether the state has met the reasonable efforts requirement, and they rely on the testimony of underfunded child welfare workers. In many decisions, it is the child welfare agency’s failure to offer adequate services, rather than the parent’s failure to comply with reunification efforts, that explains the lack of reasonable efforts (Kim, 1999). Families’ Identity, Children’s Interests In arguing that the law should respect the integrity of the family unit, I want to place this concept in the context of children’s interests. Of course, in addressing how best to respect children there are many different frameworks and many disagreements on what should be the focus. Parents can only be defined in relationship to children. Respecting families does not mean jeopardizing children. It is not a choice in which we respect either parents or children; their rights generally do not conflict. Instead of reifying a dichotomy between the interests of parents and the interests of children, we should recognize that, in most cases, they overlap significantly. Martha Minow (1996) reminds us of the importance of not basing politics solely

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on one’s identity. General cultural assumptions that children are cared for by their parents serves to respect children’s interests. Respecting “rights for children” requires “concern about the importance of connection, care-taking, and social relationships,” as well as acknowledging the “critical role of relationships with adults” (Minow, 1986, pp. 3, 18). Parents and Children’s Interests Even when their interests diverge, respecting children’s interests and safety does not mean overlooking adults’ interests. Nor should recognizing adults’ interests mean trivializing children’s interests. While it is critical to respect children’s rights and relationships, make decisions that are in their best interest, and listen to them, I believe that parents’ rights can also be respected without classifying children as “property” or ignoring the children’s actual interests. Whether one recognizes the interests of parents or the interests of children, either view recognizes the needs of both the individual and community, of both autonomy and family. Parents develop complex emotional and psychological bonds with their children that should be respected by the law (Fineman, 1999). Even when children do not live with them, parents can develop significant relationships with their children that benefit both the parent and the child. There is a bond that develops out of parents’ connection to their children which, in turn, becomes part of how parents define themselves. This bond can develop in many different ways, and it does not automatically develop because of a biological connection. While children undoubtedly need stability and continuity to thrive, the recognition of a connection between children and their biological parents is not inherently destructive. Respecting this bond is respecting the emotional connection. It is very different from giving parents rights because they own their child, as was true when fathers “owned” their children’s labor. While I agree that “inchoate possessory rights” (Woodhouse, 1995, p. 2520) do not entitle a parent to continue to abuse her child, I do not think that notions of children as property are what is underlying the removal of abused and neglected children. Instead, I believe that children are too often removed without an adequate examination of how to support their biological parents. Such examination is necessary so that children’s lives are minimally disrupted. There can be no universal presumption that parents will always want what is best for their children, although this remains a good working hypothesis (Fineman, 1999). An abusive mother who wants custody of her daughter creates a very dangerous situation. In the short term contact would be harmful. In the long term, however (and depending on the nature of the abuse, of course), the mother’s wishes could be partially accommodated through carefully structured visitation protecting the daughter. The mother has some affective interest that differs from a property right in maintaining contact with her child and the child often has some affective interest in maintaining contact with her mother. If the mother, nonetheless, attempts to continue the abuse, then she clearly should not be allowed continued access to her children.

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Divorce is another context where parents are separated from their children. We accord the non-custodial parent visitation rights, even at the potential expense of the child’s best interests. I believe that we do this in recognition of the non-custodial parent’s relationship to his child. Even though some of our most influential child psychologists argue to the contrary, courts believe that two parents are best for every child. I think we hold such a deep belief, in part, because we want to find some way of granting the non-custodial parent some rights in her child. Furthermore, the child’s best interests are not unmoored from the identity of her parents. State statutes require that the parents’ wishes be considered in child custody litigation. The parents’ wishes are not determinative, nor should they be. But a custody standard that did not consider how the parents feel about their child would be a travesty. Assuming the parents want to remain connected to their children because children “belong” to them like “property” demeans the conception of parenthood. So does removing a child from a familial situation because of neglect resulting from poverty. The dichotomy between “child-centered” law, focusing solely on children’s best interests without deference to their parents, and “childrenas-property” law, focusing only on those to whom the children belong, is false. Advocates of a child-centered focus bring critical attention to issues concerning children by forcing us to listen to children and attend to their needs. While it is somewhat harder to defend the children-as-property perspective, I think it suggests that parents have rights that must be respected. These positions exist on a continuum and child welfare policy should respect the interdependent nature of the rights of children and parents. Children generally need their parents and their parents depend on support from others. Moreover, a sole focus on parent or child, or even a focus solely on the parent– child relationship, overlooks the child as a member of a family and a community. A family includes not just parent(s) and child, but also siblings, grandparents, and other relatives. In determining removal, foster care placement, reunification, and adoption, the child’s interests must include a consideration of her relationships with these other people. Looking at children in this context considers their relationships to parents, siblings, and other relatives. While this has led to increased use of kinship care, it should also result in fewer removals and more emphasis on reunification. Poor Children, Poor Parents The foster care system is primarily populated with poor children. The goal of permanence, of getting children out of the limbo of foster care, has enormous symbolic value. Adoption symbolizes a complete change in a child’s family structure. Her biological parents’ rights are terminated and she receives a new birth certificate reflecting her adoptive family as her birth family. All ties with her family of origin are severed and she is able to begin a new life. Outside of the child welfare system, constitutional and statutory law generally support the proposition that parents are the

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most appropriate custodians for their children. Our protection of the family through notions such as family privacy and integrity has, however, depended on the family’s class (Fineman, 1999). Wealthier families have always received more protection for their familial-based decision making, as the very history of public welfare to children shows. The history of aid to poor women is replete with attempts to control their lives by conditioning public welfare on their compliance with morality requirements that involve state supervision of their lives. There are arguments for protecting children regardless of the parents’ situations. For example, Elizabeth Bartholet (2000) argues that it is important to move abused, perhaps even neglected, children into other homes where they will receive the nurturing they need, rather than leaving them with their biological parents. In contrast, Dorothy Roberts (2002) argues for more intensive resources directed at keeping children in their families. She advocates better public support for children and community-based and guided interventions. This debate echoes other issues involving parents and children and the appropriate structure for recognizing children’s rights. A line of Supreme Court cases guarantee parents a constitutional right to raise a child in the manner they choose. In Meyer v. Nebraska (1923) the Court held that the right of liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life … to marry, establish a home and bring up children” (Meyer, 1923, p. 399). In Pierce v. Society of Sisters (1925), the right is phrased as harking back to Meyer: The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children … 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. (Pierce, 1925, p. 535)

Similarly, in Farrington v. Tokushige (1927) the Court held that restrictions on teaching foreign languages in Hawaii deprived Japanese parents of the right to direct their children’s education. In addition, in Wisconsin v. Yoder (1972) the Court observed that parental control over their children’s religious and educational upbringing has “a high place in our society,” and the state’s interest in education must be balanced against “the traditional interest of parents with respect to the religious upbringing of their children” (Yoder, 1972, pp. 213–14). In Troxel v. Granville (2000), the Supreme Court reiterated that parents have a basic right to raise their children and that the decisions of fit parents should receive great deference. Each of these decisions occurred within the context of a nuclear or natural family. However, when an unmarried father challenged an intact nuclear family, he lost (Michael H. v. Gerald D., 1989). Parents’ basic rights become attenuated as soon as the parent or parents’ fitness comes into question (tenBroek, 1964; Wyman v. James, 1971); indeed, this is the premise of child abuse and neglect statutes. While courts pay deference to the notion

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of parental control, the state can remove children from their parents for abuse and neglect, require some form of schooling, and establish a minimum work age for children (Ross, 1996). Moreover, the Supreme Court has recognized that children have some basic minimal rights as well that can be asserted on their own behalf. Scholars have debated the issues involving children’s rights when they conflict with parental rights. The Court has largely reinforced the notion that the traditional family unit provides adequate constitutional protection for children. Particularly in the substantive due process context, the Court has tended to equate children’s interests with those of their parents and to protect children derivatively, through such doctrines as parental autonomy and familial privacy. Similarly, when it comes to children’s rights to receive adequate services to prevent abuse and neglect, the Court has generally reinforced the state’s decision-making process rather than children’s rights (DeShaney v. Winnebago County Department of Social Services, 1989; Suter v. Artist M., 1992). Parents’ basic rights, however, remain based on the form of the family and also on class. As Jacobus tenBroek (1964) originally pointed out more than 40 years ago: We have two systems of family law … One is public, the other private. One deals with expenditure and conservation of public funds and is heavily political and measurably penal. The other deals with the distribution of family funds, focuses on the rights and responsibilities of family members, and is civil, nonpolitical, and less penal. One is for underprivileged and deprived families; the other for the more comfortable and fortunate. (tenBroek, 1964, pp. 257–8)

This two-tiered model pervades every aspect of family law as a result of, first, the different laws that apply to rich and poor; second, the differential administration of any applicable law; and third, the different patterns of usage of existing laws, which seem affected by class. In the foster care context this dual system is transparently clear; federal foster care funds are not even available for children who are not eligible for public aid. Abuse within wealthier families is simply not subjected to the same level of scrutiny. The interdependence of class and parental rights is illustrated by Wyman, a 1971 Supreme Court decision. Ms Wyman, a public welfare recipient, refused to allow her caseworker to visit her home. She told her caseworker that she would provide any information that was relevant to her continued receipt of welfare, but that the caseworker could not make a home visit. At the time New York state law required home visits to public welfare recipients once every three months; the various purposes were to verify information concerning eligibility for welfare, provide professional counseling, and prevent welfare fraud. Additionally, New York law specified that a child would only be eligible for aid “if his home situation is one in which his physical, mental and moral well-being will be safeguarded and his religious faith preserved and protected” (Wyman, 1971, p. 312). Although a three-judge district court struck down the home visit requirement, the Supreme Court reversed that decision. The opinion focused on distinguishing a true Fourth Amendment search—the visitation at issue was not forced, compelled,

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or backed up by criminal penalties (Wyman, 1971). There was, not surprisingly, a strong dissent by Justices Marshall and Brennan, explicitly confronting the class implications of the case. They explained: [I]t is argued that the home visit is justified to protect dependent children from “abuse” and “exploitation.” These are heinous crimes, but they are not confined to indigent households. Would the majority sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse? Or is this Court prepared to hold as a matter of constitutional law that a mother, merely because she is poor, is substantially more likely to injure or exploit her children? (Wyman, 1971, pp. 341–2)

However, the dissenters also noted that the home visit was justified to ensure adequate information to confirm the family’s eligibility for public welfare. Ironically, the federal regulations specified that the parent should serve as the primary source of that information. The intrusiveness of the home visit and the alleged necessity of independent verification indicate that a poor mother is not to be trusted to comply with public welfare requirements concerning money or her child. Given the number of children who are removed for poverty alone, a sole emphasis on best interest of the child also leads to class and race bias. Instead, children must be viewed in their familial contexts—their relationships to their siblings, parents, relatives, and community—and must be supported in these contexts. Removing a child from her family disrupts all of these relationships. While removal can certainly be justified where there is severe abuse or where the child will not be safe, for most families there are means short of long-term removal that will provide benefits to the child. This is particularly relevant for African American children, whose foster care placement rate is twice as high as that of white children. An overwhelming majority of white children (72 percent) in the abuse and neglect system receive in-home services, while only 44 percent of African American children receive in-home services (Cahn, 1999). The dimensions of this disparity do not reflect differences in the population of children referred to the child welfare system. Indeed, the Department of Health and Human Services concluded in 1997 that “even when families have the same characteristics and lack of problems, African American children, and Hispanic children to a lesser extent, are more likely than white children to be placed in foster care” (Cahn, 1999, p. 1212). In addition, African American children spend more time in foster care than do white children (Roberts, 2002). The disproportionate representation of poor and African American children in the abuse and neglect system shows that something other than the need for more permanency is wrong with the system. Thus, one response to claims of an excessive focus on parents’ rights to keep their children is to point out the race and class-based nature of the family integrity doctrine. In response to the children’s rights perspective, Dorothy Roberts (2002) provides another view; she argues that it is in fact a violation of children’s rights

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to remove them from their families of origin. For example, federal law favoring adoption “does not further the interests of most children in foster care” (Roberts, 2002, p. 257) who would be better served by remaining with their parents. Instead, she identifies children’s rights as part of a larger struggle against oppression, so that all children will be valued. She does not deny that child abuse and neglect are bad for children; rather her solutions are not to remove children from their parents but to provide support so that parents can raise their own children. Instead of viewing children as separate entities from their families and communities, they should be placed in context. The premise of both the foster care system and TANF is to provide support for the child in whatever familial unit she is currently living, rather than to provide support to the familial unit (Ross and Cahn, 2000). The willingness to focus solely on the individual child reflects much broader social, legal, and philosophical notions about the child as a future deserving citizen of the state, who is valuable regardless of the suitability or desirability of her parents (Prince v. Massachusetts, 1944; Zelizer, 1985). Instead, recognizing children’s developmental needs requires recognizing their relationships with others. Suggestions for More Humane Implementation Placing children in a relational context requires careful thinking about alternatives to traditional foster care and adoption, acknowledging both the importance of family preservation and removing the child when the family is unsafe. One comparatively recent innovation is an increase in use of kinship care, allowing relatives rather than strangers to care for children after removal. While this allows a child to maintain connections with her family, it attempts to ensure the safety of her familial placement. Others suggest changing the standard for intervention such that child protection authorities could not remove children unless placement in foster care would be more effective than remaining in the home situation (Cahn, 1999). Such a proposal grapples with the foster care system’s inadequacies as well as the benefits of maintaining a child’s family of origin. An additional protection, which would be particularly helpful for poor families, would mandate courtappointed counsel for all parents involved with the abuse and neglect system, from the initial suspicion of neglect through all subsequent proceedings. There are many additional mechanisms that keep children safe without terminating their familial ties (Eichner, 2005). There are many kinds of interventions before a child is removed that may be effective in preventing her removal. Examples include parenting classes, home visiting, helping parents find housing and jobs, coordinating public welfare services and domestic violence interventions, and providing more intensive substance abuse programs. Even after substantiation of abuse or neglect, studies have found that the majority of children in out-of-home care could safely live at home (Guggenheim, 2000).

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Several states have implemented screening programs in which the child welfare agency investigates only the most severe cases of alleged abuse and neglect, while other cases are referred for family assessment and support. A broader vision of child welfare services would involve support for children’s existing needy families and would place less focus on punishing those families (Guggenheim, 2000). One of the many shortcomings of the child abuse prevention system is a failure to look at other family members and the larger socio-economic contexts in which children grow. Dorothy Roberts (2005) advocates a community approach to handling child abuse and neglect, with services generally available to all members of the community. Additional solutions expand upon this contextual approach. A widely noted decision concerning New York’s child protective services system found that the system was disproportionately removing children from battered women. The women were blamed for their victimization and their children were placed in foster care (Nicholson v. Williams, 2002; Ross, 2004b). The higher rate of incarceration among African Americans (Butler, 1997) means that parenting issues are particularly difficult; changing how child protective services deal with incarcerated parents would also help racial disparities in the child welfare system (Cahn, 2000). While more than 64 percent of incarcerated mothers had lived with their children prior to incarceration, fewer than half of all mothers in prison had ever had personal visits with their children (Mumola, 2000). When men go to prison, their children are most likely to live with their mother; when women go to prison, the children are most likely to live with other relatives or to be placed in foster care. Women are decontextualized and treated as prisoners without the recognition that imprisonment does not necessarily “mean that a parent cannot continue a loving, committed relationship with his or her child” (Schneider, 2002, p. 54). There are a series of different strategies that states, localities, and non-profits can undertake both before a child is removed and afterwards to encourage reunification. These strategies do not necessarily involve additional state and federal expenditure on abused or neglected children. Instead, they involve reallocating existing resources. Given the disparities between the amounts of money expended when a child remains in her home as opposed to being placed in foster care, maintaining in-home placements could be supported without additional money. Spending the money well before a child is removed, such as when the risk is initially identified, could prevent escalation of the abuse or neglect as well as a foster care placement. It is critical to eliminate race-based disparities throughout the system in considering changes to abuse and neglect services. That is an extremely difficult premise to implement within our contemporary culture. Using more communitybased interventions is one effective method of distilling the racism pervading the abuse and neglect system. In addition, child welfare agencies need training and monitoring on these issues. States are increasingly implementing “alternative responses” which focus on response to the family’s needs and prevent further maltreatment, rather than documenting abuse or neglect and imposing

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interventions (Shusterman, Hollinshead, Fluke, and Yuan, 2005). Involving the family in planning various interventions commits family members to change (Huntington, 2006). Pre-Removal Child welfare systems generally involve three functions: protective services, foster care and adoption services, and family support (or preservation) services (McCroskey, 2001). The federal government allocates approximately 10 percent of its child protective services budget to family preservation and reunification. The remainder is spent on foster care and adoption promotion (US Department of Health and Human Services, 2005b). Although both the AACWA and ASFA mandate intensive pre-placement services, the structure of federal funding for child welfare remains grossly skewed in favor of subsidizing foster care rather than promoting preventive programs. Family preservation may involve specific, crisis-oriented services, or as many of us advocate, an approach that focuses on the child within her familial context. Family preservation can encompass a variety of services, such as improving parenting skills and preventing foster care placement (McCroskey, 2001). Given the relationship between poverty and neglect, more public welfare funds and better support for poor working parents might obviate the need for any involvement with the abuse and neglect system. The Child Protection Agency Child welfare agencies have a variety of tasks, despite frequent understaffing and low funding. In 1996, immediately prior to the ASFA, child welfare agencies in 21 states were subject to court supervision based on their failures with respect to their child abuse and neglect systems. For example, the foster care system in the District of Columbia was placed in court-ordered receivership in 1995, and the New York City foster care system has been under legal attack for its failure to protect children. Professor Leroy Pelton has suggested restructuring the child protective services agency to focus on children’s issues rather than on investigative and lawenforcement processes (Pear, 1996). Such a reconstruction might make clients more comfortable in seeking and accepting preservation services if they know they are getting help rather than subjecting themselves to a high risk of child removal. Several states have implemented screening programs in which the child welfare agency investigates only the most severe cases of alleged abuse and neglect, while other cases are referred for family assessment and support (Waldfogel, 1998). Emphasizing Community Involvement States are also experimenting with greater community involvement, such as working with local community centers to provide better and more targeted

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services. Several cities experimented with an intensive Community Partnership with Protecting Families, which involved individual family plans and community networks (Daro, Budde, Baker, Nesmith, and Harden, 2005). An early evaluation showed some limitations in the program’s implementation and that the rate of families’ subsequent involvement with the abuse and neglect system appeared comparable to that of non-involved families (Daro et al., 2005.) Yet, there was a positive impact on caseworkers and families’ perception of self (Daro et al., 2005). Community centers that provide parenting support could also offer health care, child care, and more general monitoring. The concept of kinship care builds upon the strength of the child’s extended community. Early Prevention Efforts Prevention of abuse and neglect is a critical priority. Family preservation services are “comprehensive, short-term, intensive services for families delivered primarily in the home and designed to prevent the unnecessary out-of-home placement of children or to promote family reunification” (Child Welfare League of America, n.d., para. 1). Though varied, these programs generally provide: family counseling; training in parenting skills; housing assistance; and instruction on financial budgeting, stress management, child development, and health and nutrition issues. These prevention services are offered in the home so workers can observe and help the family in a comfortable environment. According to the Child Welfare League of America, family preservation program evaluations around the country report approximately 80 percent of families who have received family preservation services remain together after one year. In addition, these services appear to improve family functioning and may reduce or delay the number of foster care placements (National Family Preservation Network, n.d.). Although there are legitimate fears based on the historical misuse of early intervention and the potential for overly zealous intervention with respect to recipients, it is possible to develop programs that are sensitive to culture and that provide support to families rather than further legal involvement. Professor Martha Minow (1994) suggests that local communities work with social scientists to plan culture-specific strategies to meet the families’ needs. Increasingly, social workers are recognizing that community-based approaches can improve schools and create jobs, and can also provide better environments to help children flourish (Roberts, 2005). Home visiting programs have become increasingly popular within the last decade; thousands have been initiated to accomplish a variety of goals (Gomby, Culross, and Behrman, 1999). Most programs provide parents with social support and parenting skills education. Beyond these common characteristics, programs differ in the level and type of services offered and in their specific goals, duration, onset, and intensity of services. Programs may last from several months to several years.

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Finally, turning to substance abuse issues, a major problem for pregnant, drugaddicted women is the lack of treatment facilities. Providing treatment before the child is born would be invaluably helpful for substance abusing women and their families. Children do not need to be removed in order for parents to receive treatment. Child welfare entities and their community-based agencies can provide services such as family and individual therapy, parenting education, and schoolbased services. The State of Illinois provides “recovery coaches” for parents with substance abuse problems who have children in foster care. These coaches help the parents complete treatment, avoid relapse, and negotiate the various treatment and service systems (Allen and Bissell, 2004). Poverty and Neglect Additional preventive services aim to provide sufficient resources so that the family is able to support children. Given the correlation between poverty and involvement in the abuse and neglect system, addressing a family’s financial needs is an extremely effective method for deterring child abuse. The provision of adequate housing and other resources might help to reduce the number of neglect and abuse problems. Using homelessness as an example, if lack of a home serves as a basis for denying public welfare benefits to mothers, the family’s poverty is only exacerbated. States should be precluded from bringing a neglect petition based on a family’s homelessness, ensuring a distinction between actual neglect and poverty. A comparable problem occurs when TANF forces mothers to work outside of the home and the lack of adequate child care leads to neglect. States are beginning to develop policies to coordinate these two aspects of child welfare—the public aid and the abuse and neglect systems (Andrews, Bess, Jantz, and Russell, 2002). Thus, for example, child welfare caseworkers need access to public welfare resources in order to support the child’s family. In 1990, the federal Family Unification Program was created to provide special accommodation to meet the housing needs of children at risk of placement in foster care because of homelessness or other housing problems (Allen and Bissell, 2004). Under the program, a small number of family unification vouchers are made available to families for whom the lack of adequate housing is a primary factor in the separation from their children or in the prevention of reunifying the children with their families (Family unification vouchers, 2003). Child Abuse and Woman Battering There is a strong nexus between adult and child domestic violence; however, there is often disjointed coordination between the domestic violence and child welfare systems (Meier, 2003). Indeed, my domestic violence clients often felt that reporting the violence against them to public authorities might result in the removal of their children. Where there has been a report of child abuse, in determining whether

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to provide services or remove children, the child welfare worker should evaluate who is doing the battering. If it is the mother’s boyfriend or another male in the household, then it may be more appropriate to remove him than the children. Child welfare prevention efforts often require supporting a battered mother so that she can separate from the batterer and provide safety for herself and her children. They also require domestic violence and child abuse training, as well as protocols that are sensitively integrated. For example, a local domestic violence center can provide help to parents of children in the abuse and neglect system. When their partners batter them, women may be accused of neglect or failing to protect their children from witnessing the abuse. The child protective services agency may threaten the women with removal of their children unless they comply with mandated action, or the children may actually be removed from the household. A landmark decision challenging New York’s child protective services system’s practices found that the system was disproportionately and inappropriately removing children from the custody of battered women; the women were being blamed for their victimization, and their children were placed in foster care (Meier, 2003; Nicholson, 2002; Ross, 2004b). New York City’s Administration for Children’s Services claimed that battered women were responsible for engaging in the abuse and for exposing their children to it (Nicholson, 2002). Consequently, they removed the children from their mother’s care. None of the plaintiffs had physically abused their child. Most of the children were removed from their mother’s care because the mother had either remained with the abuser or had extricated herself from the battering situation but not found a stable environment in which to live. Notwithstanding the mothers’ care for their children, the City generally sought to remove the children before removing the batterer (Nicholson, 2002). However, as numerous experts testified at the trial, removing the child is illadvised and a dangerous disruption of the mother–child relationship (Nicholson, 2002; Ross, 2004b). Post-Removal The increasing use of kinship care and encouraging relatives to care for children upon removal allows a child to maintain connections with her family. It also attempts to ensure the safety of her familial placement, keeping the child within a familiar community but in a safer environment. In fact, the ASFA recommends the use of kinship care, and children in kinship care are less likely to receive multiple foster home placements. The Family-to-Family program in Cleveland allows birth parents and foster parents to work with the child welfare agency to prepare the best long-term plan for the child using both community and familial support (Cahn, 1999). One foster mother involved in this program said she initially believed that she could provide better care for her foster child than could his biological mother, in part due to her greater resources. After watching him interact with his mother, she knew that she

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could never give her foster child what his biological mother could. He was in foster care for four years while the two women worked together. Longer term foster care is not inherently a bad idea. For older children in particular, foster care may preserve a sense of family and community. If children are placed in one foster family rather than multiple placements, they are able to develop close relationships with both families. Early parental rights termination can be detrimental, in particular for older children who are less likely to be adopted. Parental rights termination also means the rights of other relatives are likewise terminated. When adoption is clearly warranted, the possibility of adoption with contact, or open adoption, is an option through which the biological parent and child retain some connection and legally enforceable contact. That is, the adoption occurs but the biological parent can still remain in contact with her child. Allowing contact between the birth parents and the adoptee can help birth parents cope with feelings of loss, mourning, and grief without imposing a threat to the adoptive family. Adoption with contact provides legal recognition of the web of relationships forming a child’s different families. Open adoption, in the foster care context, can encourage biological parents who are unable to care for a child to voluntarily relinquish their parental rights without completely severing their connection to the child. A number of states have recently enacted legislation designed to validate and enforce such open adoption agreements when both the adoptive and biological parents consent to contact. Other states have passed slightly different statutes authorizing a court to award post-adoption visitation to a child’s biological relatives whenever such visitation is in the child’s best interest. Almost half of the states currently have legislation allowing enforceable adoption with contact agreements (Child Welfare Information Gateway, 2008). While there are various ethical concerns in negotiating an open adoption, it remains useful to consider this alternative to complete termination of parental rights. However, in other situations, perhaps the parental rights should not be terminated unless there is a strong belief that the child will be adopted; otherwise, the courts may be isolating children from relatives with whom they have close ties. The Alabama abuse and neglect system provides some ideas for improving the system. As a result of a lawsuit forcing the social services agency to change its practices, a consent decree specifies that the abuse and neglect system’s primary goal is to allow children to remain with their families of origin so long as they are safe (R.C. ex. rel. Alabama Disabilities Advocacy Program v. Walley, 2005). The child abuse and neglect agency is required to provide intensive in-home services. This helps keep the children at home. Such services include accompanying a parent to an Alcoholics Anonymous meeting, teaching parents how to help their children do homework, and various forms of counseling. By changing their orientation, the child abuse and neglect workers “learned how to look beyond the often abundant negatives and engage families in a genuine partnership by identifying their strengths” (Cahn, 1999, p. 1221). If children are removed from the home, the new system supports contact between foster children and their families of origin.

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In Alabama, the number of children in foster care declined from 4,625 in 1992 to 3,650 in 1996, and the average time in foster care also decreased (Cahn, 1999). Other states have developed initiatives that help reunify families when appropriate. In Arizona, a Housing Assistance Program provided support for families where housing was the primary barrier to reunification. As a result, almost 12 percent of the children in foster care between 1991 and 1995 were reunited and the state saved more than $1 million in foster care and related expenses (Cahn, 1999, p. 1222). The federal government makes a limited number of housing vouchers available through the Family Unification Program. The vouchers are awarded to families whose lack of housing is a primary risk factor for their children’s removal into foster care, or for which lack of housing is the primary risk factor preventing reunification (Allen and Bissell, 2004, p. 61). Innovative thinking presents possibilities to change the way we think about child abuse and neglect and provides hope for the poor children most likely to be subjected to that system. Creative solutions allow children to remain safely in their families of origin, respecting the parent–child relationship. Ultimately, increased attention to children in their families and communities through early education programs and improved support for parents should decrease the numbers of children in the abuse and neglect system (Eichner, 2005), as will changing the structure of federal financing for abused and neglected children to emphasize family preservation and reunification. Conclusion Within feminism there has been some tension between those who define themselves as protecting children by focusing on children, and those seeking to protect children by placing them in a familial context. This dilemma appears most visibly with respect to whether children should remain in their families of origin. There are advocates for children who believe that children should be removed from mothers with drug or alcohol addictions, regardless of how these women perform as parents. There are advocates for children who believe children should be adopted as quickly as possible and that parental rights should be terminated as soon as possible after a child is removed. This position clearly threatens parents’ rights. Within the feminist community, we have addressed issues concerning women’s special connection to children in several ways. When it comes to abortion, we have (in general) firmly supported women’s right to choose. In child custody at divorce, we have splintered: some advocate maternal deference, some joint custody, some best interests of the child, and some advocate primary caretaker. For child abuse and neglect, we have focused on battered mothers who abuse or neglect. In adoption, we have begun to focus on the biological mother’s interests as well as those of the adoptive mother and the adoptee. This delicate balance—protecting children without subordinating women, or put another way, protecting women without subordinating children—is very difficult. The needs of two outsider groups clearly

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conflict at certain points, as do the issues at the heart of this book, because race, class, sex, and sexuality are critical to define the interests of women and children in this context. We should not be paralyzed by this conflict. If we refocus to make children safer in the context of their families, both women and children should benefit. Putting the emphasis on children in the context of families and communities helps to change the law and the law’s focus on punishing mothers. Along these lines, it is critically important to provide sufficient financial support so that women and their children together can escape abusive situations. Neglect by itself, in the absence of abuse, correlates with poverty. Providing better financial support for women will help in neglectful situations. Our ultimate goal should be to eradicate the situations causing neglect. With this conflict reframed, we can re-examine the child protective services system. Instead of a focus on respecting the parent–child relationship and preventing abuse and neglect, federal policy towards foster care and adoption seems to have been predicated on stereotypes about foster care, adoption, abused and neglected children, and mothers. It establishes dichotomies: the good mother is capable of reforming herself within one year or else she is a bad parent. Parents and children are adversaries in the abuse and neglect system. Foster care is bad for children so they need to be freed for adoption. These stereotypes have a particularly strong impact on poor children because they are most likely to appear in the child protection system. Outside of cases that involve severe abuse or neglect, family preservation—both pre-removal and post-removal—remains the preferred solution. The origins of the foster care system as an effort to preserve families and allow children to stay in their families of origin reflects the impulse throughout American law that children belong with their parents. The disproportionate use of the abuse and neglect system against racial minorities and the subsequent removal of children for poverty alone indicates the dangers of not presuming family integrity. The goals of the 1980 legislation—safety and family connection—remain in the child’s best interest. Families have strengths that can be supported so that children are not unjustly removed. Rather than providing for only two options— termination of parental rights and adoption, or reunification—on the misguided assumption that they can be pursued simultaneously, federal law should encourage alternatives such as open adoption or longer term foster care placement. Moreover, the strict time frame wherein states must act on parental rights has a particularly harsh effect on poor children, who are often removed from their homes for neglect stemming from poverty rather than for severe abuse. Federal law should presume children are best cared for in their families and communities of origin and should include the presumption that these families deserve the support to enable them to act in the child’s best interest. Ultimately, individuals, families, and communities are all profoundly affected by the actions of child protective services and the system of adoption. A family-based perspective for all facets of these systems is important (Cahn, 2002). Removing children from

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their homes has implications for the children as individuals and as members of a family; examining family functioning, rather than individual performance, provides the appropriate lens. Thus, offering support to parents helps children; improving education for children helps them as family members. Children and their parents need not be seen as autonomous and potentially conflicting rightsbearers in order to respect the interests of both in their shared relationship, and to protect them from harm.

Chapter 9

Expanding the Parent–Child–State Triangle in Public Family Law: The Role of Private Providers Susan Vivian Mangold

The parent–child–state constitutional framework was developed in a series of Supreme Court cases that defined when the state could constitutionally intervene in the family. Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), Prince v. Massachusetts (1944), and Wisconsin v. Yoder (1972) are landmark cases establishing the parameters of state intervention through a balance of rights and responsibilities among parents, children, and the state (Davis, Scott, Wadlington, and Whitebread, 1997; Mnookin, 1985; Mnookin and Weisberg, 1995). In particular, this chapter challenges that three-party framework as it applies to the dependency system, the social services, and legal system that authorizes and provides for state intervention in the family, based on allegations of child abuse and neglect. Wilder v. Bernstein (1988) and Smith v. Organization of Foster Families for Equality and Reform (OFFER) (1977) focus on some of the important actors in addition to the parent, child, and state in the dependency system. These “important others,” including foster parents and private provider agencies, are discussed in these cases but the parent–child–state doctrinal structure is not explicitly challenged. A review of these cases, along with the history of the dependency system and its current operation, reveal the closed parent–child–state triangle as an incomplete model for the complexity of family law, especially as it applies to abused and neglected children in the dependency system. The argument for inclusion of private agencies as stakeholders with an important, recognized role in dependency proceedings is ultimately based on the assessment that such inclusion promotes the protection-based best interest of  This is an edited version of Mangold’s (1999a) article entitled, “Challenging the parent–child–state triangle in public family law: The importance of private providers in the dependency system.”  This chapter will use the term “dependency system” to describe the whole range of social and legal services provided to children at risk of abuse and neglect at the hands of their caretakers. The term “child protection” will be used in this chapter to describe only the front end of the dependency system—reporting, investigating, and record keeping of allegations of abuse and neglect.

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children. The implications of this more inclusive framework are extensive and this chapter discusses one possible implication: the effect of an enhanced role for private providers on the representation of children. Some criticize the increased participation of private agencies in the dependency system. Historically, cultural bias has been a constant concern. In the current system, that bias remains ever present. Private provider agencies evolved from their paternalistic predecessors, but they are still institutional actors, often funded and staffed from outside the community where they work. This chapter attempts an honest portrayal of the agencies, including their ongoing cultural bias, and determines that their increased visible participation is a positive reform, especially when the agency is made accountable by participation in dependency hearings. A second critique of enhancing the legal role of private provider agencies is that the already complex, chaotic dependency system should not be “fixed” by adding to it another party that brings with it attorneys, agendas, and interests separate from those of the children. Again, this chapter determines that the extensive involvement of private providers is already part of the system. Giving them a voice in legal proceedings will provide more direct access to information and services that can better serve children and their families. The Parent–Child–State Triangle Cases Developing the Parent–Child–State Triangle In the first half of the twentieth century, three Supreme Court cases dealt with the rights of parents or legal guardians to exercise authority and control over the upbringing of their children in the face of state laws limiting that authority. These cases have long been considered key to understanding family law, establishing a tripartite balance of rights and responsibilities among the parent, child, and state (Davis et al., 1997; Mnookin, 1985; Mnookin and Weisberg, 1995). However, the parent–child–state balance of rights fails to account for the other rights holders driving and deciding these cases. Among these additional rights holders are private provider agencies, such as the Society of Sisters, named plaintiff in the second of these cases (Pierce, 1925). Barbara Bennett Woodhouse (1992) developed the complicated history of the first two foundational family law cases, Meyer (1923) and Pierce (1925), to dispel the accepted understanding of these cases as liberal icons protecting the rights of parents against the overreaching regulation of the state into the private family. Instead, she asserts that these cases can also be understood as protecting the patriarchal notion of family long embedded in American family law. Martha Minow (1987) also questions the accepted wisdom of these cases as beginning a long, consistent line of family law cases developing the parent–child–state balance of constitutional rights. She interprets this conventional understanding of these cases and their penumbra as ignoring the complicated debates raging within the

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families and groups that brought the litigation. Parsing out the rights of parents, children, and the state as autonomous and individual rights holders obscures the relational rights inherent between and among these parties. By questioning the parent–child–state framework assumed in these cases, I build on the work of both Woodhouse and Minow. The accepted doctrinal approach is impoverished because it ignores the complexity of family law inherent in the cases and, later, in their application. The parent–child–state triangle of rights is only part of the story. While Woodhouse points to alternative motivating factors behind the judicial decisions and Minow discusses the limits of the framework, there are other parties exercising vital duties explicitly discussed by the Court but somehow lost in the constitutional theory of family that only considers the parent, child, and state. Private provider agencies were a strong force behind these cases and remain a strong, if seldom acknowledged, force in family law throughout its history to the present time. The Court in Pierce explicitly recognized their rights but never fully developed or explored these rights (1925). These providers are not merely subcontractors whose rights are properly assumed under the rights and responsibilities of the state. Instead, private provider agencies are important stakeholders in the dependency system, fulfilling parent and child needs that go beyond mere contract obligations owed to the state. In Meyer, the Court overturned the conviction of a parochial school teacher who violated a state law requiring that all subjects be taught in the English language until the eighth grade. The Meyer (1923) Court stated “it is the natural duty of the parent to give his child education suitable to their station in life; and nearly all the states, including Nebraska, enforce this obligation by compulsory law” (Meyer, 1923, p. 400). The rights implicated included both the teacher’s right “to teach and the right of the parent to engage him so to instruct their [sic] child” (Meyer, 1923, p. 400). The Court also recognized that the state’s rights and duties, “to improve the quality of its citizens, physically, mentally, morally is clear but the individual has certain fundamental rights which must be respected” (Meyer, 1923, p. 401). The Court cited extreme state control to assert that some limit of state power must be assumed, “and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution” (Meyer, 1923, p. 402). Two years later in Pierce, the Court further developed the jurisprudence of state intervention into the parent–child relationship. In Pierce, a state law that required children to attend public school was deemed unconstitutional (1925). Pierce was not brought by parents challenging the law in an effort to stop the state from requiring them to send their children to public school. Instead, the Society of Sisters filed the lawsuit. [The Society is] an Oregon Corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its

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What is Right for Children? property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. (Pierce, 1925, p. 532)

The Pierce (1925) Court recognized the rights of parents and their duty to their children and the state. In the parlance of today, the Society of Sisters would be called a private provider agency. The Court described this private provider’s activities as an “undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly, there is nothing in the present records to indicate that they failed to discharge their duty to their children and the state” (Pierce, 1925, p. 534). The Court went on to state that, “[u]nder the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922, [mandating that children attend public schools] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control … 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” (Pierce, 1925, pp. 534–5). This oft-quoted phrase recognizes an exchange of rights and duties between parents and the state on behalf of children. The parent–child–state triangular balance is introduced constitutionally. This doctrinal framework is accepted as the constitutional contribution of the Court in Pierce , but it ignores the importance of the rights and duties of the provider agency, the Society of Sisters, that were so integral to the Pierce decision. The Court in Prince (1944) built on the foundation laid by Meyer and Pierce by further articulating the parent–child–state framework. The Prince Court held valid a state law prohibiting child labor against a legal guardian’s assertion that the law violated her right to raise the child as she saw fit. The legal guardian claimed the law also violated the child’s right to practice Jehovah Witness beliefs by selling religious magazines. The Court limited the holdings of Meyer and Pierce to an exchange of rights and duties among parents, children, and the state: Previously, in Pierce v. Society of Sisters … this Court had sustained the parent’s authority to provide religious with secular schooling, and the child’s right to receive it, as against the state’s requirement of attendance at public schools. And in Meyer v. Nebraska … children’s rights to receive teaching in languages other than the nation’s common tongue were guarded against the state’s encroachment. 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   In this case, Appellant was caretaking aunt. The three cases building the parent– child–state framework of rights and responsibilities are all brought by “others” (See also Meyer, 1923 (stating plaintiff is teacher); Pierce, 1925 (stating plaintiff is private provider agency)).

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obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life that the state cannot enter … It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare … (Prince, 1944, pp. 166–7)

The Prince Court focused on the limits of state and parental control over children, thereby obscuring the holding in the earlier cases that included rights and duties of other rights holders, namely teachers, schools, and private providers. By relying on a narrow, three-party holding in Meyer and Pierce, the Prince Court established the parent–child–state framework for considering liberty rights and concurrent duties. The 1972 case of Wisconsin v. Yoder posed similar constitutional issues in the context of a successful challenge to compulsory education laws imposed on the Amish. In this case, the lower court convicted a group of Amish parents under a Wisconsin law requiring attendance at school until the age of 16. The parents argued that sending their teens to school past the eighth grade violated their Amish beliefs and lifestyle. The Supreme Court agreed with the parents, and relied upon the parent–child–state balance established in Meyer, Pierce, and Prince. The Court stated in relevant part: There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age sixteen unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious formative years have a high place in our society. (Wisconsin, 1972, pp. 213–14)

The Court quoted and relied upon Meyer, Pierce, and Prince extensively in a decision that worked within a balance of rights and responsibilities between parents and the state to further develop the triangular doctrinal framework. Indeed it seems clear that if the state is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the state will in large measure influence, if not determine, the religious future of the child. Even more markedly  The rights of children were not considered explicitly by the majority but they were raised by Justice Douglas in his dissent. The framework developed was a triangle of rights and duties on behalf of, but not owed to or by the child.

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than in Prince, therefore, this case involved the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce, in which the Court observed: 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 … 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 …(Pierce, 1925, pp. 534–35)

To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. (Wisconsin, 1972, pp. 232–4) In Santosky v. Kramer (1982), and then in DeShaney v. Winnebago County Department of Social Services (1989), the Supreme Court addressed parental rights and duties and state rights and duties toward children in the dependency system, and imposed the parent–child–state framework on public family law. In Santosky, the Court held that the standard necessary to involuntarily terminate parental rights was “clear and convincing evidence” (Santosky, 1982, p. 769). Even when children were in the dependency system and their care was subject to procedural safeguards at each juncture, the importance of the parental right to the care and control of their child could not be severed absent a showing by the state of clear and convincing evidence of unfitness. The Santosky Court again relied on a line of cases, beginning with Meyer, Pierce, and Prince, to demonstrate historical recognition of parental rights and stated: Freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment … The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relations are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family matters. (Santosky, 1982, p. 753)

In DeShaney, the Court declined to find a state duty to protect a child who was in the custody of his father, not in state custody, when the child suffered permanent serious injury at the hands of his father. Winnebago County Department of Social Services was repeatedly informed of both incidents of abuse and the risk of further

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abuse, but the agency did not remove the young child from his father’s care (DeShaney, 1989). The Court reasoned that the state right to intervene, investigate, and monitor the situation did not implicate a duty to protect the child who remained in his father’s care. In accordance with the parent–child–state framework developed in the Meyer–Pierce–Prince line, the state did not take on the custodial right and, therefore, did not hold the accompanying duty to protect the child. The right of control was left to the father, and the child could not make out a liberty claim for denial of a duty to protect based on the father’s acts of private violence. These Supreme Court decisions determined the wide parameters of the parent– child–state relationship. Although the interests of additional parties were present in several cases—the teacher and schools in Meyer, the private provider Society of Sisters in Pierce, the caretaking aunt in Prince—the decisions stand for a line of family law cases that develop a framework for analyzing parent, child, and state rights and responsibilities in the face of state intervention. Although these additional parties were intimately involved in the cases and in the lives of the children affected by the challenged laws, the decisions are accepted as family law precedent that operates as if only parents, children, and the state were affected. Cases Developing the Role of Private Agencies Two cases conceptualize the complexity of the dependency system by depicting the prevalent, often independent, role of private provider agencies and, thereby, challenging the traditional parent–child–state framework. In both Wilder v. Sugarman (1974) and Smith v. OFFER (1977), the Court considered various aspects of the role of private agencies in the system. In Wilder v. Sugarman (1974), later Wilder v. Bernstein, the newly formed American Civil Liberties Union (ACLU) Children’s Rights Project brought its first suit to challenge the relationship between New York City and religiously affiliated foster care agencies. The various opinions in the years of the Wilder litigation portray a picture in which the private provider is sometimes the same as the public agency (Wilder v. Bernstein, 1986), sometimes its more able colleague (Wilder, 1989), and sometimes its adversary (Wilder, 1992; Wilder, 1989). The ACLU maintained that the predominantly Catholic and Jewish foster care agencies favored children of those religions to the detriment of other children in need of placement, and argued that this practice disproportionately harmed African American children (Wilder, 1995). This claim was based in part on the assertion that the religiously affiliated private agencies provided better service via subcontracts with the public agency than the public agency provided directly (Chambers and Wald, 1985; Guggenheim, 1990). The case resulted in a restructuring of the system to place children in foster care in New York City without giving preference based on the religious affiliation of the child or agency (Wilder, 1986). In Smith, the ACLU filed a complaint at the urging of a foster parent, Madeleine Smith, another important “other” kept in the shadows of public family law. She suffered from arthritis but had long cared for the Gandy children as her foster

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children. The private agency that placed them sought removal of the children based on the concern that Ms Smith’s arthritis was becoming a problem for her ability to care for the children (Smith, 1977; Chambers and Wald, 1985). The complaint by the ACLU on behalf of Ms Smith and the children demanded a full hearing before removal (Chambers and Wald, 1985). The private provider agency, Catholic Guardian Society, was a key participant in initiating the removal and in the litigation, but was not represented as a party. Its rights were purportedly subsumed under those of the public agency with which it subcontracted to provide foster care services. Because the city and state responded with due process protections for foster parents at risk of losing the foster children they raised, the Court did not ultimately reach the question of whether foster parents had a liberty interest at stake. If they did hold such an interest the Court reasoned that the procedures put in place were sufficient to satisfy any such liberty interest (Chambers and Wald, 1985). The Smith Court acknowledged the prevalence of private provider agencies when it stated that “in New York City, eighty-five percent of the children in foster care are placed with voluntary child care agencies licensed by the state” (Smith, 1977, p. 825, n. 11). The Court went on to note that “the foster child’s loyalties, emotional involvement, and responsibilities are often divided among three adult figures—the natural parents, the foster parent, and the social worker representing the foster care agency” (Smith, 1977, p. 826, n. 16). This court-created triangle does not include the public agency or state at all. The Court also pointed to potential problems of cultural bias and discrimination in the system by recognizing the overrepresentation of the poor and minorities. Over 50 percent of the children in care in New York City were from female-headed households that received Aid to Families with Dependent Children at the time of the suit, and over 75 percent of the children were black or Puerto Rican (Smith, 1977, pp. 833–4). After Smith, the constitutional framework underpinning family law remains limited to the parent–child–state triangular balance of rights and responsibilities. The liberty interest of foster parents and important others, including the private provider agencies, remains unclear. Although the importance and prevalence of private providers was acknowledged and recognized in both Wilder (1992) and Smith, they do not emerge as rights holders with corresponding duties owed to the parent, child, and state. This myopic view of family law remains, despite the fact that important others, including private providers, have been an integral part of family life and family law since colonial times. The Emergence of Private Providers in the Development of the Legal System to Respond to Child Abuse and Neglect Evidence of the role of important others in the lives of families and, in particular, in the identification and protection of children can be traced from the earliest colonial days. Several examples of third party intervention into child-rearing illustrate the

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presence and importance of participants outside the parent–child–state triad. These examples, drawn from the last three centuries, do not give a full history of child protection, but emphasize the presence and importance of participants outside the parent–child–state framework (Garrison, 1987). Colonial Indentures to Ensure the Proper Raising of Children Since the earliest colonial days, individuals and entities outside the family played a role in monitoring families in the community by offering informal guidance to those deemed ill-equipped to raise their children properly (Bremner, 1970). Individuals also contracted with authorities to assume the paternal responsibility to raise children who were involuntarily removed from their parents’ homes. The contemporary concept of the “private” family and the parent—child–state balance of rights and responsibilities belie the role of other caretakers evident since earliest colonial times. These colonial others predate the private providers that emerged as active caretakers of children in the nineteenth century. Colonial fathers were charged with the proper upbringing of their children, responsible for educating and training them to be productive citizens of the community. Fathers who failed to properly instruct their children could lose custody of them. As early as the 1640s, the colonial laws authorized public authorities to remove children from their families and place them with other families who could raise them in a manner deemed appropriate. Colonial laws allowed private intervention into the parent–child relationship to assure that child-rearing was appropriate for raising employable, moral children. Tightly woven religious communities provided moral guidance and often acted with public authorities to provide supervision of family life. For as much as the good education of children is of singular behoofe & benefit to any Commonwealth; and whereas many parents & masters are too indulgent and negligent of their duty in that kinde. It is therefore ordered that the Select men of everie town, in the severall precincts and quarters where they dwell, shall have a vigilant eye over their brethren & neighbours, to fee, first that none of them shall suffer so much barbarism in any of their families as not to indeavour to teach by themselves or others, their children & apprentices, so much learning as may inable them perfectly to read the english tongue, & knowledge of the Capital lawes … Also that all masters of families doe once a week (at the least) catechize their children and servants in the grounds & principles of Religion … And further that all parents and masters do breed & bring up their children & apprentices in some honest lawful calling, labour or imployment, either in husbandry, or some other trade profitable for themselves, and the Common-wealth if they will not or cannot train them up in learning to fit them for higher imployments. (The book of general lauues and libertyes concerning the inhabitants of the Massachusetts, 1648, p. 11)

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In 1642 Massachusetts Bay enacted a law enforceable through the courts, that children could be removed from their parents’ home involuntarily based upon the manner in which parents were raising them. If any of the Select men after admonition by them given to such masters of families shal finde them still negligent of their dutie in the particulars aforementioned, whereby children and servants become rude, stubborn & unruly; the said Select men with the help of two Magistrates, or the next County court for that Shire, shall take such children or apprentices from them, & place them with some masters for years (boyes till they come to twenty one, and girls eighteen years of age compleat) which will more strictly look unto, and force them to submit unto government according to the rules of this order, if by fair meanes and former instructions they will not be drawn unto it. (The book of general lauues and libertyes, p. 11)

Town authorities removed these children and placed them in an apprenticeship or indenture, called “binding out.” These indentures, or contracts to bind out children, could be arranged voluntarily by parents seeking training for their children or involuntarily by authorities that removed children from parents whose childrearing was seen as inadequate (Bremner, 1970). Involuntary indentures required local authorities to contract with families to care for the removed children. These arrangements were the first use of contracting to care for children whose families were considered unable to properly raise them. Because the family unit was considered a form of governance and social control at that time, such involuntary indentures were not really public–private contracting as we understand it today. Yet, such early colonial arrangements are evidence of substitute care for children facilitated by local authorities; the same is true with modern out-of-home care of children. Colonial methods to remedy perceived dereliction in the raising of children relied on personal persuasion and local authority. Local legal authorities often blurred the line between voluntary and involuntary binding out of children. For example, in the1671 cases of the children of Edward Sanderson, the selectman in Watertown, Massachusetts ordered the binding out of the children “with the consent of their parents, if it may be had, and if the parents shall oppose them to use the help of the Magistrate” (Bremner, 1970; Mason, 1994). Throughout the eighteenth century, public authorities acted on behalf of poor, emancipated slave and contract labor children to bind them out to masters who provided acceptable supervision and training. These arrangements predated a uniform child protection system, but they introduced interventions challenging parental care or providing substitute care that would later be assumed by nineteenth-century anti-cruelty agencies. Historical beliefs of appropriate childrearing triggered the colonial interventions. Accepted notions of family life, which began to question the propriety of severe corporal punishment and physical assaults, prompted the later anti-cruelty agency actions. Interventions to protect

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children from abuse and contemporary definitions of neglect were more broadly and uniformly applied through a wider array of private agencies, state action, and federal legislation in the twentieth century. Intervention Based on Abuse and the Development of Private Agencies The middle of the nineteenth century brought cases of criminal prosecutions against parents for beating their children. These prosecutions introduced an era when the legal system began to intervene in family life to protect children from physical assaults at the hands of their parents. At this nascent stage of development of a legal response to child abuse, many children considered “poor” or “neglected” were already under public supervision. The states then began to prosecute cases of physical assaults by parents on their children and to refer some of those children to the community resources available for neglected children. These criminal prosecutions are contemporaneous with the famous 1874 case of Mary Ellen (Costin, 1991). The case was brought by leaders of the New York Society for the Protection of Cruelty to Animals, heralding an era of private philanthropic agencies acting on behalf of abused children (Cohen, 1992; Costin, 1991). The Society leaders argued to the Court on behalf of Mary Ellen, a young girl whose care was at issue, that children, as members of the animal kingdom, were entitled to protections at least equal to those provided animals (Costin, 1991). Henry Bergh, founder and president of the Society, and Elbridge T. Gerry, counsel for the Society, fashioned the arguments. The case succinctly depicts the roles that important others could assume on behalf of children: awareness of abusive activity in private families, investigation on behalf of children, rescue, prosecution, and placement. The New York Times article of April 10, 1874 opened: It appears from proceedings had in Supreme Court yesterday, in the case of a child named Mary Ellen, that Mr. Bergh does not confine the humane impulses of his heart to smoothing the pathway of the brute creation toward the grave or elsewhere, but that he embraces within the sphere of his kindly efforts the human species also. (“Mr Bergh enlarging his sphere of influence,” 1874, p. 8)

The news articles explained that the child was discovered by Etta Angell Wheeler, who was on an “errand of mercy” to a dying woman. She was told by the woman of the desperate cries of a child in the next tenement building. Wheeler tried repeatedly to gain entrance to the apartment to see the child. She was eventually let into the flat when Mr Connolly, the man of the house, was not present, and she was able to observe and have a short visit with Mary Connolly, his wife, and Mary Ellen. Reports indicated that Wheeler went to several institutions to seek help for the child, before she found Bergh and pleaded for his assistance (Costin, 1991). It was known at the first hearing that Mary Ellen lived with Mary and Francis Connolly and they were charged with cruel abuse against her, but they were not her natural parents (“The mission of humanity,” 1874). How this casual custodianship

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affected the willingness of the agency, Court, and public to champion prosecution of the Connollys is not clear. On the second day of the court proceedings, Mrs Connolly took the stand and detailed how the child came into their custody (“The mission of humanity,” 1874). Mrs Connolly testified that she was formally married to Mr Thomas McCormack who was now deceased. They had three children together, all of whom were deceased. Mrs Connolly testified that the Commissioner of Charities and Corrections, who released the child to them, never inquired as to her relation to the child. He had the name of Wilson down as the child’s natural mother (Bremner, 1970). Mrs Connolly reportedly testified that she never knew the whereabouts of the mother, but from time to time heard from her husband’s drinking buddies that she was still living downtown. Mrs Connolly further testified that she never received a cent to care for the child. She reported annually to the Commissioner of Charities and Corrections on the condition of the child, missing the reporting requirement only twice. The case was originally prosecuted against both Mr and Mrs Connolly. Mary Ellen’s ill health, lack of proper clothing, and frequent abuse with whips, scissors, and slaps must have been known, if not perpetrated, by both adults in the home. Even if this could not be proved, it was only Mrs Connolly, on a day when Mr Connolly was not present, who allowed Mrs Wheeler into the apartment to discuss Mary Ellen. Only Mrs Connolly ever appeared in court. Only she was ultimately tried and sentenced for the abuse (“Mrs Connolly, the guardian, found guilty,” 1874, p. 8). This celebrated abuse case targeted the “mother” caretaker. No male was held accountable. The case signals the entry of private philanthropic agencies into the legal system on behalf of abused and neglected children. It also foreshadows the treatment of mothers and lack of attention paid to holding fathers accountable before dependency courts (Ashe, 1995; Ashe and Cahn, 1993; Enos, 1996; Fineman, 1995a; National Center on Women and Family Law, 1993). The publicity surrounding this case led to important results for the future of child protection. The activities of private provider agencies acting on behalf of abused and neglected children increased significantly. A private provider agency, the New York Society for the Prevention of Cruelty to Children, was formed in the same year, with Elbridge Gerry as its counsel (Bremner, 1970). By 1880, 33 such societies existed in the United States (Gordon, 1983), most of them in the business of rescuing both animals and children. As Bergh explained: The protection of children and the protection of animals are combined because the principle involved, i.e., their helplessness, is the same; because all life is the same, differing only in degree of development and expression; and because each profits by association with the other. (Costin, 1991, p. 213)

These early efforts aimed to rescue children and, sometimes, prosecute the adults who brutalized them. The societies did not see as their mission the housing or care of children or the treatment of the families. As Gerry explained:

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The SPCC was simply created as a hand affixed to the arm of the law, by which the body politic reaches out and enforces the law. The arm of the law seizes the child when it is in an atmosphere of impurity, or in the care of those who are not fit to be entrusted with it, wrenches the child out of these surroundings, brings it to the court, and submits it to the decision of the court—unless, on the other hand, it reaches out that arm of the law to the cruelist, seizes him within its grasp, brings him also to the criminal court and insures his prosecution and punishment. These are the functions of our societies. (Costin, 1991, p. 219)

The early use of criminal courts to prosecute abuse provided a legal response to child abuse and neglect on two fronts: civil procedures to place needy children in public care and criminal actions on behalf of abused children. Private agencies filled vital roles at each stage of the criminal and civil process: rescuing, placing, and working with children and their families to prevent further instances of abuse. Philanthropic agencies continued and grew throughout the early twentieth century when states also began to play a role in the protection of children, often in concert with the already established agencies. Twentieth-Century State and Federal Legislation Until the mid-twentieth century, private provider agencies championed interventions on behalf of abused and neglected children. States made fledgling efforts on behalf of individual children, but neither the civil nor the criminal response was uniform or broadly applied. State criminal prosecutions for abuse continued without any federal legislative guidance into the 1970s. A seminal event in the history of the legal response to child abuse and neglect was the 1962 publication of “The battered child syndrome” by Dr Henry Kempe. Kempe was a pediatrician who worked with pediatrics and radiology and identified causes of suspicious injuries to children (Kempe, Silverman, Steele, Droegemuller, and Silver, 1962). With new evidence about injuries that could only be caused by abusive behavior, states moved to codify their response. Between 1963 and 1967, every state passed a statute requiring some form of reporting of incidents of child abuse. Like early rescue efforts, these laws focused on incidents of abuse, not on treatment, prevention, or larger social issues contributing to child maltreatment (Nelson, 1984). Dr Kempe played an integral role in the 1973 US Senate hearings and in the design of the Child Abuse Prevention and Treatment Act (CAPTA, 1974), the first federal legislation addressing child abuse and neglect. His early focus on the most extreme forms of abuse, his early clinically contained diagnosis of the problem, and his later gendered discussion of the spectrum of the syndrome as a failure of “mothering,” were adopted by the legislators looking for a politically plausible bill to address child abuse (Kempe, 1971). This narrow focus fit well into a parent– child–state vision of child abuse and neglect when the key intervention would be by a public agency into a private, abusive family. Even within the framework of this limited ground for intervention, in which larger causes of abuse and neglect

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and service-oriented responses were not considered, private individuals played a key role in being delegated to report abuse. In 1973, the Senate Subcommittee on Children and Youth of the Committee on Labor and Public Welfare held hearings in Washington and at children’s hospitals around the country on the proposed Act (Mondale Hearings, 1973). Both the House and Senate introduced bills, but the Senate subcommittee, chaired by Walter Mondale, held the main hearings. In a letter of transmittal to the Senate Committee Chairman, Mondale explained the need for the legislation: The Subcommittee held hearings in Washington, New York, Denver, and Los Angeles. Members of the Subcommittee personally visited victims of child abuse in hospitals and observed firsthand the operations of multi disciplinary child abuse teams in several cities. We were appalled to learn how many abused and neglected children there are and how little is being done to help them and their troubled families. Statistics vary widely, but there is little question that thousands and thousands of youngsters suffer severe physical and emotional abuse every year. This is a problem that cuts across social and economic barriers. It occurs in all kinds of neighborhoods. Yet there was no focused Federal effort to deal with the problem. Nowhere in the Federal government could we find one official assigned full time to the prevention, identification and treatment of child abuse and neglect. (Mondale Hearings, 1973, p. 2)

Toward the end of the hearings in Denver, Mondale explicitly explained his reasons for limiting the discussion to the most serious cases of physical abuse: You know, I agree that the problem of child neglect and disadvantage goes far beyond the abnormal battering that we have discussed. But as one who has tried to take the total view and failed, I feel more and more we have to attack these problems one by one. I worked for five years on the Child Development Act, which was my bill, and I fought for it. It was designed to focus on disadvantage and the problems of welfare and working-mothers, the strengthening of the family, the nutrition problem, the health problem, the health of the mother during pregnancy, the whole bag … What distresses me is that the environment we are working in couldn’t be worse, because we have a President who says that human programs are romanticism, that they are robbing America of its Godgiven belief in self-reliance. You know, I thought what we were trying to do was to assist people to be self-reliant, to help them with problems which destroy their capacity for that objective in American life. So we not only had the child care bill vetoed but we had some very harsh rhetoric about how we were trying to break up the American family, installing a national system of communal living; you’ve heard all the rest. (Mondale Hearings, 1973, p. 300)

Under Mondale’s tight stewardship, the hearings on the first federal legislation to address child abuse were limited to examining child abuse as instances of deviant,

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severe physical abuse within families by parents, depicted as mothers. These could be contained and addressed with a limited governmental response that was, in Mondale’s view, all that was politically feasible at the time. The larger role of service providers in alleviating the causes and consequences of abuse and neglect were kept out of the discussion. Instead of adopting a model for government involvement which sought to help children and their mothers by identifying the context for abuse and providing a circle of community responses to help prevent abuse and neglect, the law focused on politically acceptable mechanisms (Minow, 1986; Woodhouse, 1996). The focus was on reporting and investigating incidents, thereby mandating a police-like response in which the state investigated private families. This form of mandated state intervention followed the parent–child–state framework. Justification for intervention was family behavior, not maintenance of the welfare of children. The state’s limited role was to intervene into the family when there was abuse and neglect, perpetuating the triangular framework by ignoring the larger community context and the availability of community resources for treatment. CAPTA initiated a federal response to child abuse. It formulated the mandates for the development of a bureaucracy within the Department of Health, Education, and Welfare (HEW) (now called the Department of Health and Human Services) to gather information and expertise on the problem of child abuse, a largely undocumented subject at the time (Mondale Hearings, 1973). It also provided funding through HEW for state demonstration projects that were broadly defined in terms of federal directives for their operation. CAPTA also contained provisions that established a grant program, thus, altering the future federal–state relationship in addressing child abuse. Unlike the demonstration projects, eligibility for grants required states to follow a series of mandates in order to receive the funds. Those provisions concerned reporting, investigating, confidentiality of record-keeping, and law enforcement cooperation. These provisions were the earliest version of the more complete and complicated federal-to-state reimbursement system which funds state dependency systems today. The key state response to child abuse became the mandatory reporting, investigating, and record-keeping system that is commonly known as the child protective services system. While all states had some form of reporting law in place before CAPTA, few met the more rigorous CAPTA requirements before 1974. CAPTA, in effect, maintained continuing attention on reporting laws, confidentiality, and investigation. By limiting the scope of the 1973 hearings to address the most serious forms of physical abuse, the subcommittee members created a dialogue with witnesses. The position of the legislators made a child protective services system, not a treatment system, necessary and viable. By focusing exclusively on the extreme end of the abuse/neglect spectrum, the Senators logically responded with the police power of the state justified by the parens patriae power. They did not consider the preventive, treatment, and placement services provided by private agencies and other community resources because, perhaps accurately, such an approach was not perceived as politically feasible at the time.

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Following the passage of CAPTA, the number of children reported as abused and neglected exploded, and state-based foster care systems flooded with children placed as a result of reporting and investigation through child protective services. Senator Cranston summarized the situation before the Senate in 1979: The number of children in foster care in 1977 was approximately 500,000, nearly three times the number of children in foster care as compared to 1961. In only one of every five cases does the services plan for these foster children recommend a specific length of placement. In other words, the so-called temporary provision of foster care has no definite target date for ending the placement and for placing the child in a permanent family setting. Over half the children in foster care have been away from their families for more than two years, about 100,000 children have spent more than six years of their lives in foster care. Nearly one-fourth of the children have been in three or more foster family homes. Even in cases where the agency had developed a plan for returning the child to his or her home, in one-third of the cases, there was no plan for visits between the child and the parent or another person who would care for the child if returned home. There are more than 100,000 children in foster care awaiting adoption. (Statement of Senator Cranston)

In many cases, reports and investigations were prompted by incidents of neglect— usually children left unattended. Without the development of a spectrum of services to assist families, foster care was the expedient and perhaps sole resource to address these children’s safety. Concerns that children were unnecessarily placed outside their homes and were languishing without permanency in foster care led to passage of the Adoption Assistance and Child Welfare Act of 1980 (AACWA). This federal law imposed the mandate that states provide a plan to the federal government requiring the state-based public agency to make “reasonable efforts” to prevent placement or achieve reunification for children temporarily placed in foster care. The law also provided for adoption subsidies to encourage the adoption of children out of foster care who could not be reunified. State laws codified the reasonable efforts language in their laws. If states failed to meet the mandates of the law, they would not be eligible for matching federal reimbursement for their foster care expenses. As a consequence of the fiscal incentives offered in AACWA, family preservation efforts flourished and the number of children in foster care began to decrease (Children’s Defense Fund, 1994). Private provider agencies were an integral component of the dependency system that now increased its focus on prevention and treatment. They provided not only foster care but also an array of in-home services such as case management, homemaker services, child care, and mental health services. As the menu of needed preventive services increased because of the new focus on family preservation, the work of private provider agencies expanded.

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In the 1990s, the number of children in foster care began to increase once again. While the reasons for this are complex, the increase is usually attributed to the crack cocaine epidemic in the inner cities and the increasing percentage of children living in desperately poor conditions with young, unmarried mothers. A series of highly publicized brutal deaths of children who were known to a public agency and provided with preventive services instead of being placed in foster care led yet again to an outcry for reform of the system (New York State Commission, 1996). The Adoption and Safe Families Act of 1997 (ASFA) responded partially both to the outcry for swifter removal from abusive homes and for expedited adoptions. The new law provides exceptions to the reasonable efforts requirement when aggravated circumstances are present. The section providing for the exceptions appears uncontroversial at first glance, citing torture, death of another child, or sexual abuse as examples; but leaving it to the states to define aggravated circumstances may result in a broad range of exceptions. The federal and state legislative and executive branches regulating the changes to the dependency system from 1960 recognized the states’ reliance on private provider agencies. Accompanying the development of a federal–state regime to mandate and regulate the provision of services to abused and neglected children were changes in federal law that eventually allowed public agencies to contract with private providers for services reimbursed with federal dollars (Burd and Richmond, 1979; Gibelman, 1998; Kettner and Martin, 1998). In 1962, amendments to the Social Security Act allowed public agencies to subcontract with other public agencies to deliver needed services (Public welfare amendments, 1962). In the 1967 amendments to the Social Security Act, subcontracting extended to allow contracts between public agencies and private agencies. The federal mandates in 1974 and 1980 put even more pressure on state-based public agencies to provide an array of services, and therefore to subcontract with private agencies available to provide those services. Federal law simultaneously removed obstacles to reimbursement for these services by allowing federal dollars to reimburse the public agencies for these subcontracted services. Recently, the law changed to expand the range of agencies eligible for reimbursable dollars. The 1996 Personal Responsibility and Work Opportunity Reconciliation Act, commonly known as Welfare Reform, quietly amended the Social Security Act to allow for-profit agencies to subcontract with public agencies to provide child welfare services (Bernstein, 1997; Mangold, 1999b). No concurrent legislation or regulations have been promulgated regarding limits or oversight for the for-profit entities. Unlike the private non-profit agencies that have provided services in a variety of ways since the mid-nineteenth century, these for-profit interests are relatively new players in the child welfare system. Their impact on the role of private providers in the dependency system is uncharted, but their presence suggests interesting comparisons and contrasts for future research (Butterfield, 1996).

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Current System Allowing Participation by Private Providers The Current System The child protective services system, which is the front end of the dependency system, is triggered by a report of abuse or neglect as defined in state law under the requirements of CAPTA (1974). Reports are made by voluntary or mandated reporters to hotlines that federal law requires every state to operate. Voluntary reports are called in by neighbors, friends, family members—anyone who suspects child abuse or neglect on the part of a caretaker. If the reporter provides adequate information to the hotline operator, the report triggers investigation by the local child protection agency. Private individuals are vitally involved to activate the child protective services system through reports, but the public agency maintains hotlines and initial investigations. Mandated reporters are crucial to the child protective services system. Through mandated reporting, the parens patriae power of the state conscripts professionals who work with children to become partial state agents in protecting children from harm. These reporters generally are persons who work in professions or roles that bring them into contact with children (CAPTA, 1974). If these professionals suspect or believe that children with whom they come into contact in the course of their employment are suffering from abuse or neglect, confidentiality and privilege are forfeited and the professionals are mandated to report the abuse or neglect to the state-operated child protection system. Some states require that professionals who work with parents and have reason to suspect abuse are also mandated to report. These professionals are not merely invited to participate on behalf of children, they are required to do so, regardless of their professional opinion as to the wisdom, value, or safety of reporting (Levine and Doueck, 1995). In effect, the state forces professionals to participate and invites the non-professional community member, the modern-day Etta Angell Wheeler, to report voluntarily. This reporting system was not a novel creation in the 1960s; rather, it was an evolving codification of the child protection system developed since colonial times and expanded by private philanthropic agencies at the turn of the century. Approximately three million children are reported abused or neglected annually. Depending on the severity of the allegations, child protective services workers must respond within the period of time required by state law to determine whether there is sufficient evidence to support the allegations. If the workers find that there is not sufficient evidence, the reports are considered unfounded and the cases are closed. Of the three million reports in 1995, investigation by agencies confirmed that abuse or neglect occurred in approximately one million cases. In other words, each year, over two million cases are investigated but no further action is deemed necessary (US Department of Health and Human Services, 2004). If a public agency worker confirms a report, often referred to as indicating or substantiating the report, the agency decides what further action is necessary. In

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many cases, the perpetrator is removed from the home by the time the investigation is completed, so no further services or supervision is required. In other instances, the family may have the option of voluntarily accepting services from the agency, services often delivered by a private provider agency as a subcontractor to the public agency. These services may range from parenting classes and periodic visits to the home, to out-of-home placement of the child. By federal law, the agency must make reasonable efforts to keep the family together, but if services are not available to keep the child safely at home despite reasonable efforts to provide such services, the child may be removed (CAPTA, 1974). Once a child is removed to out-of-home placement, the case must be reviewed periodically by the court or by administrative review (CAPTA, 1974). If the family refuses voluntary services in the home or refuses to voluntarily place the child, the public agency may petition the court to find that the child is abused or neglected and to mandate a disposition. The disposition can include services in the child’s home and/or out-of-home placement for the child (CAPTA). A system of procedural requirements comes into play to provide periodic dependency hearings on the parent’s rehabilitation, the agency’s efforts, and the child’s safety (CAPTA). The judge in such proceedings rarely considers the arguably important issues of child support, joint custody, or domestic violence in formulating mandatory orders, but advocates against domestic violence are increasingly encouraging such considerations (Model Code on Family Violence, 1994). The ultimate protective tool of the system is removal of the children from the home. In extreme cases, this can lead to termination of parental rights, an order that frees a child for adoption. Private provider agencies participate by delivering both voluntary and courtordered services to families. Unless they are already involved in an ongoing way with a family when new allegations arise, they do not usually participate in the front end of a case. It is the public agency that receives reports, investigates, and maintains records on perpetrators and children. Private agencies enter at the point of disposition and deliver the services that are agreed upon or mandated. In larger cities, the public agency may subcontract with over 200 different private agencies to provide foster care, counseling, a variety of family supervisory functions, and a host of other services targeted to improve parenting and to protect children. The work of private non-profit provider agencies predated the establishment of state-based child protection systems and dependency systems. With the breadth of federal and state mandates, the complexity of each individual case, and the growing volume of cases, the modern dependency system could not function without these private providers. Court Participation by Provider Agencies Laws governing the operation of dependency proceedings in the states often allow for participation by private providers before the courts (Lazo-Miller, 1996; Smith, 1977; Walsh, 1981). Without these laws, private providers as subcontracting agents of the public child welfare agency would not have an independent role

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in dependency proceedings. They would remain background actors who deliver services to children in their homes or in out-of-home placements, depending on the dispositional plan for the child. By granting a voice to private providers in the courts, the dependency proceeding changes from one where the parent, child, and state are before the court to one where an interested additional stakeholder participates. By allowing an additional participant in determining the dispositional needs of a child, a unique and important voice of the best interest of the child is heard by the court. States allow private agencies to participate at three main junctures: dispositional reviews, termination, and adoption hearings. Laws designed to encourage permanency and move children toward adoption enhance any court involvement for private agencies. If the laws instead focused on keeping cases out of court, children at home, and preservation services in the home, then private providers would remain in the legal shadows, acting behind the scenes as providers of those services. Termination and adoption bring cases into court, and give private providers a presence in the courtroom. In this way, the state laws bring before the court direct information on the delivery of services from the point of view of the service provider. It is important to note that states usually allow private provider participation at the dispositional and post-dispositional phase of the proceedings. It is less common and more controversial, in light of the rights of parents, for such agencies to participate at the adjudicatory stage where the jurisdiction of the court and the right of the public agency to intervene into the parent–child relationship is first tried and established (Goldstein, Freud, Solnit, and Goldstein, 1986). When private provider agencies are involved with families, it would help to have them involved at the earliest possible hearings, in order to provide necessary information to the courts. The private providers should be active participants in all proceedings, not only in post-adjudicatory hearings, although they would be involved before the adjudicatory hearing only in those cases where the families are under the supervision of public agencies before petitions are heard at the adjudicatory stage. In such instances, provider information from earlier involvement with families is important and should be before the courts. Without private agency presence, the public child welfare agencies retain the responsibility of proving or disproving the continuing need for services and the manner of those services, using the providers to help with the case if necessary. Giving direct access to the providers allows a view of a child’s best interest unfiltered by a public agency’s resource allocation concerns. A few states, such as Nebraska, New York, Virginia, and Illinois, by law make private providers full parties once children are in placement. Other states such as Arizona, Hawaii, Illinois, and Wisconsin, require that private providers receive notice of all dispositional review hearings and be allowed by the court to participate in the hearings. A few states, such as Arkansas, Nebraska, North Carolina, and Texas, mandate a dispositional review report from the private provider, as well as from the public agency. All of these laws allow participation by a fourth actor

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in the system. That actor, the private provider agency, is closer to the delivery of services than the public agency in many cases. A single private provider agency or a variety of private providers working with a single family, have access to the parents, children, and information gleaned from different clinical settings. The laws bring in the private providers because they are in a position to inform courts on the needs and welfare of the children and to help move the cases more swiftly to permanent disposition. Many states, including Kansas, New Jersey, New Mexico, and South Carolina, allow private agencies to petition the courts to terminate the rights of parents. This is the most final of the parens patriae actions of the state. Agencies seeking termination of parental rights are often the same agencies entrusted with providing reunification services to families until parental rights are terminated. The complexity of the private provider’s role can result in allegiances with any of the other parties before the court. Some states’ laws, such as Iowa, North Carolina, and Wisconsin, allow for private providers to participate in court proceedings after the rights of parents have been terminated. This gives the courts access to the service providers in an effort to keep children who are legally without parents from languishing in foster care. These laws have no effect on parental rights, because the courts have already terminated those rights. At this late stage of the proceedings, children’s wishes are important as to which placement they wish to make a permanent home, but questions of reunification are no longer before the courts. It is private providers who usually investigate adoptive homes and prepare home studies for the courts. The laws that include private providers in post-termination proceedings bring the private providers before the courts and before other parties to a greater or lesser extent, depending on the latitude of the statutory scheme (Overton, 1993). State attorneys general also play a role in auditing the activities of non-profit agencies, including private provider agencies. The additional accountability through active participation in dependency proceedings adds protection for those services that are mandated by law and then subcontracted for performance by private providers. Independent participation by private agencies protects their autonomy. Private providers preceded the existence of public child welfare agencies and they often provide discrete services or access to an under-served community. These important roles could be diminished if the private agencies increasingly tailor their spectrum of services in response to public contracts. Private non-profit agencies under contract with government have consistently been shown to be more flexible, more responsive, less stigmatizing, and better able to satisfy consumers of their services than state agencies. The preference for private provision of service is attributed to a number of factors, most of them not mutually exclusive: the higher status of many private providers; a rationalization based on the need to see services as effective; the smaller size of most private service providers; lower expectations of small, funds-limited, private agencies; the personal, idiosyncratic, or culturally specific nature of some private providers; the sense of greater confidentiality and safety (for example, information gathered and services provided by a private agency are

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less likely to instigate action by protective service workers or a cut-off of benefits); the increased sense of freedom to use or not use a privately provided service; and the increased sense of empowerment and influence that recipients experience in small, private organizations (Gronberg, Chen, and Stagner, 1995; see also Kramer, 1989, 1994; O’Looney, 1993). Autonomy of the private subcontracting agencies from the public agency with which they contract is best maintained when the private providers can independently address the court in a voice separate from that of the public agency. This autonomy, despite a subcontracting status, is important to maintain the unique mission of private providers. The Impact of an Enhanced Role for Private Providers in Dependency Proceedings—Representation of Children Because of their historic importance and their current vitality, private provider agencies should be given a role commensurate with their duties in dependency proceedings. Having private providers fully and independently represented before the court would have many implications for the child welfare system. One effect would be on the representation of children. Allowing private providers an independent voice in the courtroom makes it less problematic for a child advocate to represent the child’s wishes rather than the advocate’s notion of the child’s best interest. The Child Abuse Prevention and Treatment Act (CAPTA, 1974) ties delivery of federal matching funds to the requirement that a guardian ad litem be appointed for children in all dependency court proceedings. Regulations promulgated to interpret this provision of CAPTA state that the guardian ad litem must “represent and protect the rights and best interests of the child” (Child Abuse and Neglect Prevention and Treatment Rules, 1998). The ambiguity in this terminology left open to interpretation whether attorneys must be appointed to represent children or if others in the community can take on this role (Appell, 1996). Even when an attorney is appointed, as is required in many states, the role of that attorney in the proceedings is unclear. It is also to be questioned whether the lawyer must operate in a traditional lawyer–client relationship to fully protect and exercise their child client’s rights, or if the lawyer generally, or at least in some instances, can represent some notion of the child’s best interest (Buss, 1996; Duquette and Ramsey, 1987; Ramsey, 1983). Scholarship and commentary on the appropriate model of representation of children in dependency proceedings assumes one of two positions (Buss, 1996). The first posits that children should be treated as autonomous clients and their positions should be zealously represented before the court. This is called the “autonomy,” “empowerment,” or “expressed interest,” view. A second position advocates that children, as not fully competent clients, need to be protected and a position of their “best interest,” whether or not it coincides with their expressed interest, should be advanced in dependency proceedings (Federle, 1996). Proponents of the autonomy or empowerment model advocate that children should be carefully interviewed

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and their attorneys should put their expressed interests before the court. This view argues that a lawyer’s professional role dictates such advocacy on behalf of the client and that any other model which allows for the opinion of the lawyer to dictate the proper position is illegitimate (Federle, 1996). Many commentators state their preference for an autonomy-based model of representation but import a variety of caveats. Some argue that a lawyer should be excused from following her client’s wishes when the client is too young, the matter is too important, or the proceeding is too chaotic to assure that all proper information will be before the court (Ramsey, 1983). Usually these concerns are most keen when the issue before the court is whether a child should be returned to her parents. The concern is that young, impressionable children will wish to return to their parents against their own best interest. Some commentators suggest that when these concerns are present in a case, the child’s attorney should take a position that seeks to protect the lawyer’s opinion about what is in the child’s “best interest” (Margulies, 1996a). Others argue that the lawyer should act as an investigator and objectively ensure that all information is in evidence before the court so that a judge can properly decide what is in the child’s best interest. At least one commentator urges that lawyers for young children follow the dictates of the underlying substantive law (Guggenheim, 1984). The first caveat, that capacity must be considered before a child can be represented as an autonomous client, is the most prevalent. It led to a debate over the proper age at which capacity can be presumed (Ramsey, 1983), who should determine capacity (Margulies, 1996b), and the attempts a lawyer can make to discern a sense of the child’s wishes even when the child is considered impaired (Margulies, 1996a). The second caveat, that a child’s lawyer can be excused from the traditional lawyer role when the stakes are too high for the child’s safety, usually imagines a situation where placement or reunification is before the court and the child is urging a position which would place her with her parents (Ramsey, 1983, pp. 301– 20). This occurs at the dispositional or dispositional review stage of proceedings, precisely when the private provider can begin to play an active part in the court process. The active participation of a private provider lends a second voice, in addition to that of the public agency, to a position opined to be in the child’s best interest. It can also bring before the court the agent that could keep a child at home with additional safeguards. Children’s lawyers should advocate for an active role for private providers, both to free the lawyers to properly represent their child client’s wishes and to bring before the court all the relevant parties that can protect the child’s welfare. The active participation of private provider agencies also alleviates the third caveat. In the chaotic, crisis-driven dependency system, the concern is raised that the adversarial system cannot be presumed to act properly. Critics suggest that not all of the information will be brought out by the overburdened child welfare agency, and the child’s position, if prepared in a thorough and aggressive manner, will be given undue weight. Even if both the parental representatives and the

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public agency prepare fully, the child’s attorney can be seen as a third party whose decision lends determinative weight to the position of one or the other party. This can be problematic when the child’s attorney follows her client’s wishes instead of her own opinion about what is in the child’s best interest, and the other parties do not fully develop the facts and present dangers which lead the attorney to reach that opinion. Participation by private providers can counter this concern by creating an additional stakeholder in the proceeding. As noted, the private provider does not merely take the position of the public agency. State laws granting private agencies the authority to petition the court and prepare reports for it contemplate an independent, knowledgeable voice. As the participant closer to the delivery of services than the public agency, the private agency is in a position to put valuable information before the court. Many state laws mandate such a report. Other commentators see the role of a child advocate, even an appointed attorney, to be to represent a child’s best interest regardless of the child’s expressed interest (Peters, 1996). This position finds the possible incompetency, underlying substantive law, and nature of the proceedings to be persuasive in releasing the lawyer from her traditional role and taking a subjective best interest approach. Arguments for a best interest approach diminish when the influential role played by private providers is considered. When an actor in addition to the public agency is charged with coming before the court to plan for the child’s best interest and is given authority to plan for permanency, attorneys representing children can more safely represent their child client’s wishes zealously. This is especially true whenever the wishes of the child are opposed to the professional social work or mental health opinions that argue for permanent removal. The social worker or caseworker for the private agency is in a position to critique the needs of the child and the capabilities of the parents in a professional, daily, clinical manner. A guardian ad litem is not in a position to duplicate this kind of approach. Private providers should have a role in an expanding array of hearings, so that they may represent the best interests of the child before the court. This is a positive development both in protecting the needs of children and in encouraging zealous advocacy by attorneys appointed to represent children. First, by adding additional stakeholders to the balance in the adversarial process, the child no longer sits as the third, often decisive party whose position may be given undue weight if his attorney supports the parent or public agency position. Second, the private provider is often closer to the delivery of services than the public agency and is free from concerns about public resource allocation and other distractions which may influence a public agency’s position. Third, the evidence presented by the private agency can help the judge make an informed decision. The independent participation of private providers should be encouraged at dependency proceedings.

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Conclusion Private provider agencies have played a vital role in the protection of abused and neglected children for over 100 years. The integral role played by a variety of actors outside of the family, especially the role of private provider agencies, challenges the myth that the parent, child, and state exclusively share rights and responsibilities. The role of foster parents, relatives, and other non-traditional caretakers in raising children is acknowledged, but the role of private provider agencies is one also worthy of legal recognition. By opening the closed triangle of the parent–child–state framework to include other caretakers, responsibility and resources for children can be more clearly explored and understood. Private providers are an integral part of this wider circle and can provide valuable services and evidence to better serve dependent children and their families. The important, unique role played by private agencies has largely been ignored in legal literature. Because the literature assumes that private agencies are subcontracting agencies of the public agencies, it does not consider the independent impact that private providers have on the traditional parent–child–state tripartite balance of rights or on the representation of those rights before the court. Their role in the dependency system affects the authority and accountability of the public agency as well as their own autonomy. Their role also has implications for the protection of children’s best interests and for the rights-based representation of children in dependency cases. This central role in the dependency system, both historically and currently, demands that private provider agencies have an active role in dependency proceedings after children are adjudicated. This public positioning of the private agencies makes them more accountable to the court and other parties, and serves the best interests of children by bringing directly into evidence the intimate information the providers have on children and their families. Private providers are representatives of the community beyond the private family. State-operated agencies, on the other hand, are recent entrants in the dependency system, consolidating the public authority that long supported the work of private agencies. Exclusive control of the design and content of services to families by public agencies is neither accurate nor desirable; other community voices are vital in the exercise of protecting children. The public agency should not be seen as an equal with parents and children in determining the rights and responsibilities of family members. By eliminating the imagery of the triangle, the core autonomy of families is better visualized. Similarly, by placing that family within a larger circle of the community, the public agency is just one of the many actors in the community that are involved in the protection of the child and other family members. The private agency is a key component of the community resources available to children and their families, and the law should recognize its crucial role in this circle of care.

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Chapter 10

Advocating for Children’s Rights in a Lawless Nation: Articulating Rights for Foster Children Barbara Bennett Woodhouse and Brooke Hardy

The US’s Disregard for Human Rights In terms of embracing international human rights norms, Americans come from a lawless nation. In the aftermath of the American invasion of Iraq, reports have surfaced, accusing the US of participation in various rights abuses. American public opinion seems to be torn between winning the “War on Terror” by whatever means necessary or adhering to the rule of law. Our conflict is both external and internal. The nation is more sharply divided now than it has been at any time in its modern history. We are divided not only by our political ideologies but by our attitude towards human rights. Critics here and abroad charge that the trauma of 9/11 caused a sense of panic leading to a willingness to jettison human rights and to violate both domestic and international legal norms. This arrogance towards legal norms did not develop overnight. For years before 9/11, many of our most powerful political leaders have demonized the courts and lawyers, fostering isolationist hostility toward international law and international institutions (O’Connor, 2006). The UN Convention on the Rights of the Child (1989) (CRC) is only one example of the US’s rejection of human rights documents. The CRC is supported by the American Bar Association and by hundreds of other organizations from the American Academy of Pediatrics to the Soroptimists. But critics claim the CRC will undercut parental privileges and erode state powers. Conservatives on the religious right blocked its ratification throughout the Clinton years, and the Bush Administration not only refused to ratify the CRC, but threatened to veto any documents containing the mere mention of children’s rights. To justify this, that administration said that children in our enlightened democracy already enjoy all the legal protections that are good for them. The BushAdministration argued that American children do not need human rights  Barbara Bennett Woodhouse, Hidden in Plain Sight: The Tragedy of Children’s Rights from Ben Franklin to Lionel Tate (Princeton: Princeton University Press). This chapter is reprinted by permission of Princeton University Press.

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because the US Constitution endows their parents with inalienable rights to family autonomy as a facet of the “liberty” assured to all persons under the Fourteenth Amendment. Granting children rights would upset this constitutional balance and do more harm than good. And, of course, children in state custody will be well treated by their protectors—so they do not need rights. However, events such as the detainees’ abuses at Abu Ghraib and Guantanamo show how hollow these promises of kindly treatment have become without the rule of law limiting the State’s power. The Bush Administration’s attitude toward the CRC predated the current human rights conflicts both at home and in Iraq and mirrors our arrogant attitude toward the UN and, in particular, international human rights documents like the Geneva Convention. Our children are deprived of internationally recognized rights. Americans are eager to claim moral superiority and express shock when outrages are revealed; yet there is a profound gap between our rhetoric and reality. Our arrogance towards legal constraints creates a climate wherein persons, especially children, are deprived of basic human rights. The conflict in Iraq and the fiscal crisis we currently suffer as a direct result have completely diverted our attention from children’s issues. In Congress and in state legislatures, bills that could offer services and protection for children never come to the floor. They are buried with the epitaph, “died in committee.” In this time of conflict and transition, childrens’ needs, interests and rights are largely ignored and systematically whittled away. In this chapter, we will focus on the rights of children in state foster care. Martha Fineman (1999) has very eloquently expressed the risk that children’s rights may open the door to the state’s intrusion on caregivers’ autonomy. But when children are in state custody, parental autonomy has already been violated, and children are already very vulnerable. Disempowering the child can often leave the family unit without its most ardent defender. Introducing Tony: Every Inch a Person! To illustrate the gap between rhetoric and reality, and to show why children in the US need rights, consider the case of a 13-year-old child named Tony. This is not his real name, but he is a real child whose story appears in greater detail in Hidden in Plain Sight (Woodhouse, 2008). Tony was not very tall or strong for his age, but he was intense, intelligent, and unusually articulate. Removed from his mentally ill mother’s care at age four for medical neglect, Tony had spent the previous nine years in foster homes. His mother visited him regularly but remained unable to provide him with adequate care. The attorney for Child Protective Services (CPS) in the state where Tony lived, prodded into action by the Adoption and Safe Families Act (ASFA) (1997), decided to petition the court to terminate Tony’s mother’s parental rights to meet the statute’s accelerated time frame for closing cases. A termination of parental rights (TPR) is the ultimate sanction—the “death penalty” of family law (In re C.W., 2004, p. 1179). The judge asked a pro bono

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interdisciplinary team, of which I, Barbara Woodhouse, was a member, to evaluate Tony’s mother to prepare for the TPR hearing. We were to determine whether Tony’s mother would ever be fit to care for her child. To be clear, I did not serve as Tony’s lawyer. My job was to advise the child psychiatrist and the social worker as they completed their assigned tasks. But Tony knew I was a lawyer and he had a lot of questions about his rights. Politicians who treat children’s rights as a joke should have 30 minutes alone with Tony. While pundits theorize about the impact on family autonomy of recognizing children’s rights, children like Tony are growing up with no rights and no family. For Tony, state intervention in his home life was a given—he lived each day with the state looking over his shoulder. He was stigmatized before his peers as a “state child” with no real home of his own (Haley and Malcolm X, 1965, p. 21). Whatever measure of “family” life he could claim was entirely at the state’s mercy. Tony was not the only child living under these circumstances. The Department of Health and Human Services (DHHS) posted data in 2003 documenting 523,000 American children in foster care. Their mean age was 10.2 years, and median age was 10.9 years. Black children represented 35 percent and Hispanic children represented 17 percent. White children comprised 39 percent. Tony was typical of these children in many respects. The majority, 239,810 children (46 percent), lived with non-relatives in foster homes. Another 121,030 children (23 percent) remained with relatives in foster placement, 51,370 children (10 percent) were placed in institutional settings, and 45,700 children (9 percent) were placed in group homes (DHHS, 2005). By law, each child was required to have a case plan stating a goal for that child’s future (ASFA, 1997). The majority of children, 246,650 (48 percent), had a case goal to reunify with their parent or primary caregiver, while 24,090 children (5 percent) had a case goal to live with another relative, and 103,460 children (20 percent) had a case goal to be adopted. Another 43,250 children (8 percent) had case goals for long-term foster care, emancipation 31,037 (6 percent) or guardianship 15,470 (3 percent). And the files of 48,530 children, or 10 percent of the total, lacked any case plan goals at all. During fiscal year 2003, 40 percent of the 297,000 children entering foster care were between 11 and 18 years old. Substantially more children entered the system than exited in 2003—297,000 children versus 281,000 children. Of those who exited, 66 percent were reunified with a parent or other relative, 18 percent were adopted, and 8 percent were emancipated. Sadly, as the DHHS study revealed, the states had actually lost 4,070 foster children (2 percent) (DHHS, 2005). Tony clearly needed a lawyer. In fact, he did have a family court-appointed lawyer. But this appointed lawyer had a caseload of several hundred child clients and was not returning Tony’s phone calls. Tony, a resourceful boy, saved many tough questions and he asked me, as a lawyer, to provide answers. I was the bearer of bad news, having to explain to him that his state’s laws denied him standing to oppose TPR, permanently severing any legal relationship with his mother and all other biological family members.

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He showed palpable disbelief and outrage: “She’s my mother, ain’t she? Ain’t I got no rights?” he demanded. “Look here,” he said, pointing to the text of a pocket size United States Constitution. “It says here ‘all persons born in the United States are citizens.’ And it says ‘nor shall any State deprive any person of life, liberty or property or equal protection of the laws.’ Ain’t I a person? Ain’t this my life? Ain’t I got rights?” Tony was not plagiarizing. I doubt he had ever read Soujourner Truth’s 1851 speech marked with the refrain, “Ain’t I a Woman?” (Truth, 1881). His cry, like hers, rose from the heart of his own experience—of frustration and injustice in a system treating him inhumanely, as an object instead of person feeling pain, loss and desperation. Tony’s complaints about the foster care system had begun long before the state filed TPR. Why, he asked me, had the state not made any attempt to locate his father during the nine long years that he spent in state custody? Did he not have a right to know his own father? On his own initiative, about a year before we spoke, Tony had discovered where his father was living. He telephoned him in another state, and they spoke. Before they were able to meet in person, Tony’s father passed away. Now this adolescent boy, so collected and poised, explained the significance of this loss. Bereft, he broke down in bitter tears, mourning the lost relationship. How could I explain, especially in his grief, while a long line of Supreme Court cases has addressed the father’s rights to know their children, that the Supreme Court has never declared a foster child’s right to know his father? The TPR that brought our team into Tony’s case had a vicious domino effect on his life. The TPR was a knee-jerk reaction to the ASFA’s emphasis on permanency, but it bore no rational relation to Tony’s life. Tony was an articulate 13-year-old, making a persuasive argument that a TPR at this late date was illogical in his situation. In four years, he told me and anyone else who would listen, he would be going to college. He did not want to be adopted by a stranger. He wanted to get an education, get a job, and make a home for himself and his younger sister; a home in which their mother would be welcome. Tony’s long-time foster mother understood and supported Tony in his efforts to resist the TPR. A few weeks before our meeting, the state agency suddenly decided that her home was “out of compliance” with its regulations. Tony’s social worker called him one morning and instructed him to put his belongings in a bag and bring them to school. She explained that he was being moved to a “respite shelter,” and she wanted to avoid a scene with his foster mother. Tony refused. He knew enough about bureaucratic double talk to understand respite as a synonym for limbo. He demanded to know where he would be sent, and why. He demanded a chance to object to the move and told the caseworker that if she wanted him, she would have to come and get him. Technically, in refusing to follow orders, he could be declared a status offender—or a “child in need of supervision”—and therefore subject to detention in a locked facility. If he resisted physically, he would be charged with assaulting a government official, a felonious act. For a child in state custody, being sent from the “dependency” system into the “delinquency” system marks the end of

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childhood. While adults cannot be evicted for failure to pay rent without a court hearing, in many states, a child can be sent away from home without a hearing and without a reason. US constitutional doctrine has been painfully slow in recognizing children’s rights, preferring to discuss children’s legal protections in terms of “the interests of the child” and the state’s stake in advancing the child’s welfare generally. But Tony’s heartfelt pleading forced me to confront his question. While there are plenty of high flown articles discussing children’s human rights and volumes filled with cases interpreting rights as they apply to adult persons, constitutional doctrine has so far failed to provide children with a clear blueprint of their constitutional rights. Deprived recourse under the CRC, how can US lawyers for children frame and argue the issues that Tony’s case raised in terms of constitutional doctrine? Building an Argument Based on the US Constitution Despite the administration’s rejection of human rights norms, conservatives and liberals still take great pride in our own homegrown Constitution. However, unlike modern constitutions, such as South Africa’s Constitution (1996, ch. 2, § 28), ours is silent on issues regarding children’s rights. Child advocates must build an edifice of rights, reading between the lines of a document from the eighteenth century. We must argue that the concept of rights for children, while absent from the text, is firmly rooted in constitutional precedent and American values: liberty, equality, and fundamental fairness. The United States Supreme Court has established a number of landmarks to consider the shape children’s rights might take. Under In re Gault (1967), we know children are persons within the meaning of the Fourteenth Amendment and that due process is guaranteed for both adults and children alike. Due process rights are also not limited to the criminal context. The Supreme Court has used precedents like Mathews v. Eldridge (1976) to determine whether the fundamental interests of family members received appropriate protection in civil cases involving state intervention in the family. In cases challenging absolute parental authority, like Parham v. J.R. (1979), the Court acknowledged the child’s right to due process in civil commitment. While procedures due to children are not necessarily identical to those afforded adults, it suggests the Court believes children must be assured basic fairness. We also know that children have equal protection rights, based on education cases like Brown v. Board of Education (1954) and illegitimacy cases like Lalli v. Lalli (1978) and Clark v. Jeter (1988). These cases establish that the law cannot treat children differently based on their membership in a group that has been historically subjected to discrimination or based on the circumstances of their birth. While no case has held that children are, per se, a suspect class, the Supreme Court, in cases like Plyler v. Doe (1982), has shown special regard for children in situations where they are being deprived of a crucial good, such as education.

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Children in state custody, as indicated by Youngberg v. Romeo (1982), also have claims to a safe environment and for protection against abuse. While the Court has addressed children’s procedural due process rights, children’s substantive due process rights remain largely unexplored. We do know, from the cases on abortion and contraception, that mature pregnant minors have a right to procreational choice, while immature minors have a right to an abortion decision based on their best interests. In Hodgson v. Minnesota (1990), the Supreme Court recognized that mature minors are entitled to protections equivalent to those afforded to adults. In other areas, the Court has treated children’s substantive due process rights as if they were identical with or subsumed in those of parents. A case in point is Michael H. v. Gerald D. (1989), where the Court treated the child’s claims to a family relationship as simply the mirror image of the parent’s. But attorneys for children can draw on the great old tradition of Justices like Holmes and Brennan by artfully employing dicta and dissents to move an emerging right from the margins of the judiciary’s radar screen to the center. For example, the plurality’s holding in Moore v. City of East Cleveland (1977), protecting the rights of a grandmother and grandchild to live together, is a step along the way to a broader, more child-centered definition of family relationships. Dicta in cases like Smith v. Organization of Foster Families for Equality and Reform (OFFER) (1977), which addressed the rights of foster families, and most recently Troxel v. Granville (2000), which addressed visitation between grandparents and their grandchildren, indicate that children do have constitutional rights to relationships with family members both within and beyond the narrow nuclear family model. We should not neglect the Bill of Rights as we review the contours of children’s rights. The first ten amendments to the United States Constitution are a rich source for children’s rights protections, including free speech and religion, and for privacy and security against state intrusion in their homes and persons. In cases like Tinker v. Des Moines Independent Community School District (1969) and Wisconsin v. Yoder (1972), the Court has addressed the religious and free speech rights of children and youth. In cases like New Jersey v. T.L.O. (1985) and Ingraham v. Wright (1977), the Court has considered a child’s right to be free from unlawful searches and harsh corporeal punishment or at least to have a hearing before such intrusions on bodily integrity take place. Even where the Court has failed to accord complete protection to children’s rights, it has acknowledged that they are citizens and persons under the Constitution, and as such, possess fundamental rights. Children in State Custody: An Ambiguous Relationship As is apparent from this brief overview of cases, the Supreme Court has recognized procedural due process rights for some children in some forms of state custody. But the notion of “custody” is ambiguous when applied to children. Adults are presumed free unless and until taken into state custody. The notion of custodial interrogation developed in criminal process to explain when and how an adult

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comes into such a relation with the state as to trigger various rights. The question is whether the adult knows he is not free to leave and is in the power of the state. But how well does this theory translate to children’s status? At one extreme, we could argue, as have Amar and Widawksy (1992) and Frances Olsen (1985), that every child in the custody of any adult, including his parent, is in state custody. To the extent that law empowers adults to control children, then all custody, even parental custody, is state sponsored and state supported and should trigger constitutional protections. At the other extreme, one could argue, as did Justice Scalia in Reno v. Flores (1993), that children in state custody cannot claim constitutional protections because they have no liberty interest to begin with. He reasoned that every child is legally in the custody of some adult and therefore has no expectations of liberty. The more balanced view recognizes liberty interests in cases where children are in the power of an agency or state actor, having been placed there by force of law or by decree of a court. These cases involving children who claim their rights were infringed by the state present a variety of different configurations. Imagining a triangular diagram of child, parent and state, in some cases, as in Tinker, where the state agent was the school, the child and parent were unified in their opposition to the state’s actions. In others, the state and the parent appear allied against the dissenting child, as in commitment cases like Parham. In still other cases, the child and state are allied against the parent, as in cases involving children seeking state action to terminate a parent–child relationship so they can be available for adoption (Kingsley v. Kingsley, 1993). In each of these scenarios, the parent is present as a voice for the child’s best interest. But what about the 64,000 children who are state orphans where both living parents’ rights have been terminated but the child remains in foster care? For these children, the threat of neglect or abuse at the hands of the state is at its most stark and unmitigated. There are two obvious approaches the Supreme Court might take to children in state custody. One approach is to treat the state as a benevolent parent—the doctrine of parens patriae points in that direction by analogizing the state to a loving father (Reno, 1993). In this scenario, the child’s best interest is served by allowing his caretaker custodians (usually a state agency) to make decisions about child-rearing. If the child has any independent constitutional rights, they will be asserted by the state, just as they would be by adult family members. The state’s judicial second-guessing of the parens patriae decisions should be avoided, just as we avoid second-guessing parents. The other obvious approach is to analogize the foster child to a prisoner—a person held in state custody against his will. Here, the traditional jurisprudence would provide strong protections approaching those accorded to adults. Various Supreme Court decisions give insight into variations in “custody,” its meaning and implications. Two demanding closer attention are DeShaney v. Winnebago County Department of Social Services (1989) and Reno. In DeShaney, the Court refused to find a special relationship between the state and an abused child who had been released to his father’s custody but remained under state

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surveillance. The Court noted, however, that its ruling did not apply to children in foster care. Lower courts have split on whether a child in foster care is in a special custodial relationship to the state. In Reno, as I have already said, the Court opined that children lack liberty interests. But this comment appeared in dicta written by Justice Scalia, who is not known for judicial restraint, and the case itself dealt with illegal alien children—not citizens of the United States. A Blueprint for Tony’s Bill of Rights A showing that the child in foster care is in state custody opens the door to many rights-based arguments, but it is not the be-all and end-all. Attorneys for children should not be shy when arguing for a full panoply of rights. As an example, we offer a version of rights we shall call “Tony’s Bill of Rights.” First, a child in foster care must have standing to demand action. Some states give the child’s attorney or guardian ad litem (GAL) broad powers to petition for a new placement, for reunification, or for a TPR. Others do not. The case of Gregory K., originating in Florida, illustrates the injustice when denying the child to stand and act on his or her own motion (Kingsley, 1993). In a decision rivaling Joseph Heller’s Catch 22 (1961), the appeals court found the adoption Gregory sought was in his best interest but that he had no standing to seek it (Kingsley, 1993). Originally the Department of Health and Rehabilitative Services (HRS) agreed and wanted to terminate Gregory’s mother’s parental rights and allow the foster family with whom Gregory had been living for the last three years to adopt him. When it encountered opposition from his mother, HRS reversed its position and decided to try “family reunification.” Gregory, shocked and angry, obtained his own counsel who petitioned for a TPR and adoption. The Florida District Court of Appeal reversed the trial court’s decision that had granted Gregory standing, but it allowed the adoption to go forward, finding that his lack of standing was a curable error that could be fixed by having a “next friend” as the petitioner. Without Gregory’s active intervention, the reunification plan would have gone forward and there never would have been a TPR or an adoption petition. What this case illustrates is that children, as persons under the Constitution, must have standing to assert their rights and must have access to their own attorney. Second, a child in foster care has a right to a voice in decisions regarding placements. Ironically, the child in state custody has far less voice under current rules than the child in a private divorce case. Virtually all states provide, in some manner, for the court to hear and consider the child’s preference at divorce. Compare the chaotic state of the law for children’s participation in family service plans and dependency court hearings. Even where laws are on the books, children’s rights to a voice are rarely honored in practice. Child advocates should push for recognition that these rules are constitutionally based and not mere window dressing. Third, the child has the right to form and maintain intimate relationships, and the state has a duty to preserve them—or at least to not destroy them without a

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compelling reason. Many cases, including Moore and Troxel, hold that adult family members have rights to intimate association and family privacy. Justice Stevens’ dissent in Troxel lays out a blueprint for arguing that children also have such rights. The Court in Smith suggested in dicta that foster children are entitled to due process protections when removed from a long-term placement. Yet, as an example, one of the authors spoke recently with an attorney representing two teenaged girls who oppose reunification with a sexually abusive parent. The judge in the case does not think they are entitled to an attorney to argue against the state’s reunification plan. Fourth, the foster child has a right to know his roots. If anyone doubts the importance to many children of knowing their roots, consider Tony’s answer to the question “Why does it matter to you to know your grandfather?” Tony thought the question was pretty stupid, but he answered it. “My Dad he’s dead and my Granpa he’s the only tie I got to my father’s side. I want to know him, I want him to tell me what my Dad was like when he was comin’ up.” As he said this, Tony broke into tears. The lack of symmetry between the protection of a father’s rights to know his child, and the child’s rights to know his father is striking. We go to absurd lengths before infringing on an unknown father’s rights, requiring diligent searches for any man who might be the father before a child can be placed for adoption and disrupting adoptive placements if unknown fathers suddenly appear. Yet Tony drifted for nine years in state care while the state remained deaf to his pleas to help him find his father. I argue that the state has an affirmative duty to the children in its care to locate their missing parent. Fifth, the foster child has a right to exit state care into a family of his own. Again, I will point to Florida’s Gregory K. as a case in point. Gregory became famous as the child who divorced his parents. The implication was that children were seeking to ride the wave of no-fault divorce. But Gregory was alleging abandonment and neglect, not just a unilateral decision that the “marriage” was not working (Kingsley, 1993). What standard should apply to a child’s petition to terminate parental rights? Must the child present clear and convincing evidence that the parent is unfit or incapable of providing care? This is the standard the United States Supreme Court set in Santosky v. Kramer (1982). However, the majority opinion adopted the assumption that the parent and child have identical interests in maintaining the family ties and that the interests only diverge when the state has met its burden of proving unfitness. I believe the dissenters had the better argument—that children who have been abused or abandoned may have interests strongly divergent from their abusers (Santosky, 1982). In a case where the child is an articulate individual with views and positions of his or her own, we should certainly jettison the presumption of unity. The child’s expressed private interest in a loving family of his own counterbalances the private interest the parent has in reunification. In cases where the child seeks the TPR, a preponderance of the standard evidence would strike the proper constitutional balance. Conversely, the child’s opposition to a TPR should carry independent constitutional weight, even if the parent fails to contest the TPR. Yet some courts have denied standing to act for children like Tony who wish to argue that a TPR is unnecessary or detrimental.

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Conclusion Under the principles of the CRC, Tony would be entitled to have a voice in matters affecting his interest. He would have a right to representation. He would have the right to know his identity and the right to family life. He would have a right to maintain contact with both his parents. All decisions about his legal status would have to treat his best interest as a paramount concern. In the US, none of these rights are secure because we have rejected the basic premise that children need or are entitled to human rights. The highpoint of the children’s rights movement in the United States occurred in the Clinton Administration, but even then, the isolationist resistance was too powerful to overcome. With time, perhaps the weight of international consensus in regards to our nation’s lawlessness and the universality of human rights abroad will open the door to Tony’s human rights at home. Until that day, those of us fighting for fair treatment of children in state custody will have to get along without a human rights canon. We must continue to use every ounce of persuasiveness and creativity available to cobble together a domestic constitutional argument for rights that are internationally recognized as lawful in every nation but our own. American child advocates must not abandon the fight for the CRC. If we do, our children will be left behind in the human rights march. Much as apartheid South Africa was isolated by its backward policies toward people of color, the United States is becoming a pariah because of our backward policies toward children. I am an optimist, and I can only hope that the absurd spectacle our nation has as a human rights abuser will create a backlash against lawlessness. Sooner or later (I hope it is sooner), we must make peace with international law and with human rights for all people, including and especially children.

Chapter 11

A Proposal for Collaborative Enforcement of a Federal Right to Education Kimberly Jenkins Robinson Our progress as a nation can be no swifter than our progress in education. John F. Kennedy

In a nation that professes a strong belief in equal opportunity, many public schools in the United States fail to offer children a high-quality education. Low-income, minority, and urban schoolchildren typically attend markedly inferior schools relative to their more affluent and white counterparts (see Carter, Reddick, and Flores, 2004). Research demonstrates that higher teacher quality results in better student achievement but studies show that schools with higher numbers of poor and minority students employ less experienced and less qualified teachers (Ryan, 2004). More than 50 years and a host of educational reform efforts have passed since Brown v. Board of Education (1954), yet children in poor and disproportionately minority communities still receive vastly unequal educational opportunities (Hochschild and Scovronick, 2003; Ladd and Hansen, 1999). Disparities in financial resources for schools and districts affect the quality of educational opportunity both within and between states. The burden of interstate disparities falls disproportionately on disadvantaged students who typically have greater educational needs (Liu, 2006). On average, urban districts report higher expenditures than suburban districts, but urban districts spend less money on regular education because they pay more for special education and repairs for older buildings and equipment (Hochschild and Scovronick, 2003; Petrovich, 2005). Given the disparities in educational opportunities, it is not a surprise that the achievement of many low-income and minority students remains below their more affluent and non-minority peers. Black and Hispanic students complete high school at lower rates than white students, which is particularly troubling because high school plays a determinative role in how individuals will integrate into the workforce and the remainder of society. The achievement gap along racial lines persists even for students from the same socio-economic background (Rothstein, 2004). Students in urban districts often have lower test scores and higher dropout rates (Hochschild and Scovronick, 2003). The public has not ignored our schools’ inadequacies. In the 2000 presidential election, voters ranked education as their top priority. An overview of recent public   This chapter, ©2007 by Kimberly Jenkins Robinson, was originally published in the UC Davis Law Review, vol. 40, pp. 1653–1746, © 2007 by The Regents of the University of California. All rights reserved. Reprinted with permission.

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opinion polls reveals that generally “the public … remains very concerned about the performance of American public schools and supports federal leadership in education reform” (McGuinn, 2006, p. 192). Congress passed the No Child Left Behind Act of 2001 (NCLB) with bipartisan support, largely because lawmakers agreed that the problems plaguing the nation’s schools should be addressed at the federal level. NCLB requires schools and districts to disaggregate assessment scores by major income and minority groups. The law also holds schools and districts accountable for achievement of those groups by requiring corrective steps if any major subgroup does not achieve the established performance guidelines. However, the law has numerous shortcomings which do not allow it to address longstanding disparities in educational opportunity. This chapter proposes an innovative approach for directing the expanding federal role in education. The proposed approach encourages states to address disparities in opportunity that prevent disadvantaged students from achieving their full potential and builds on the understanding reflected in the NCLB that the federal government will remain critical in public education reform. The proposal re-examines an avenue for federal involvement that the US Supreme Court considered in several cases and scholars have debated for more than 30 years: a federal right to education. San Antonio Independent School District v. Rodriguez (1973) explicitly offered the Supreme Court the opportunity to recognize education as a fundamental constitutional right when poor, minority schoolchildren residing in districts with “a low property tax base” (Rodriguez, 1973, pp. 4–5) challenged the constitutionality of the Texas school financing system. The Court refused to recognize a federal right to education because the Constitution neither explicitly nor implicitly recognized education as a fundamental right. The Court indicated that it lacked the expertise to second-guess complex judgments about educational policies. The Court identified several reasons for deferring to the legislative judgment captured in the school finance scheme, including concerns about the appropriate distribution of power between the federal and state government. Numerous scholars have disagreed with the Court’s ruling in Rodriguez and argued that the United States should recognize a federal right to education (see Chemerinsky, 2004; Sunstein, 2004). However, those arguments envision a courtdefined and enforced reform effort. In contrast, this chapter contends that Congress should recognize a federal right to education through spending legislation that the federal and state governments collaboratively enforce. This reconceptualization of the enforcement of a federal right to education draws upon the enforcement mechanisms for a right to education in international human rights law. This chapter proceeds in four parts. The first part briefly considers the major federal attempts to address inequities in educational opportunity and explains why current federal education legislation will not eliminate persistent disparities in educational opportunities. The first part also presents arguments for why federal action is necessary to address these disparities. The second part considers the human rights enforcement mechanisms for a right to education. The third part then proposes how these models could inform the development and enforcement

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of a federal right to education in the United States. The fourth part explores some of the strengths and weaknesses of this chapter’s proposed approach. The Federal Vehicles for Addressing Educational Inequities for Disadvantaged Students and Why a New Federal Approach Is Needed The efforts to address inferior educational opportunities for minority and lowincome schoolchildren over the last half century focused on desegregating public schools, reducing inequities through school finance litigation, and providing additional federal funding to low-income children. While these approaches have resulted in important achievements in the efforts to improve education and to reduce disparities in educational opportunity, many disadvantaged schoolchildren continue to receive a substandard educational experience and substantial interstate and intrastate disparities persist. As this chapter proposes federal legislation to address these concerns, this part highlights the two principal federal approaches to disparities in educational opportunity: school desegregation and legislation to assist low-income children. School Desegregation Civil rights advocates initially believed that the 1954 victory in Brown v. Board of Education (Brown I) heralded an end to the separate and unequal educational opportunities for minority schoolchildren. In that decision, the Court held that states denied minority schoolchildren “equal educational opportunities” (Brown I, 1954, p. 493) when they provided separate schools for white schoolchildren. In striking down the segregated schools, the Court acknowledged the importance of education as the mechanism for exposing children to the building blocks of citizenship, introducing children to cultural norms, and developing the skills necessary to enter the workforce. In light of education’s importance, the Court explained that “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms” (Brown I, 1954, p. 493). To guide lower courts in implementing this groundbreaking decision, the Court in Brown v. Board of Education (1955) (Brown II) ordered the states to admit minority schoolchildren to public schools on a non-discriminatory basis “with all deliberate speed” (Brown II, 1955, p. 301), a standard that the Court alleged represented an acknowledgment of the complexity of the changes that districts must implement. However, this language opened the door for districts opposed to the decision to move exceedingly slowly or not at all. Those who sought to implement Brown I and Brown II faced violent and sustained opposition. Many federal courts did little to respond to this violence and instead delayed resolving desegregation litigation or approved superficial changes. In the face of this resistance, the Court slowly began issuing decisions that signaled it would not tolerate such opposition. Ultimately, though, the Court’s decisions

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needed the support of legislative action to achieve meaningful desegregation, particularly in southern parts of the US. The 1964 Civil Rights Act was a powerful weapon against segregation. The Johnson Administration actively enforced the Act’s prohibition of discrimination by bringing litigation against school districts that received federal funds and by terminating funding for non-compliant districts. The integration of large districts that contained urban and suburban schools led the South to achieve the greatest desegregation gains (Orfield and Eaton, 1996). White flight and demographic changes that left schools with too few white students to integrate slowed desegregation in the North, if it occurred at all (Orfield and Eaton, 1996). Where desegregation occurred, African Americans received improved educational opportunities, such as access to experienced teachers and an enriched curriculum. Minority students in desegregated schools experienced superior educational and occupational outcomes, including higher scores on national tests, higher high school and college graduation rates, improved college admissions records, and higher status jobs (Kluger, 2004; Mikelson, 2005). The mid-1970s brought several Supreme Court decisions that circumscribed and undermined desegregation (Milliken v. Bradley, 1974; Board of Education of Oklahoma Public Schools v. Dowell, 1991; Freeman v. Pitts, 1992; Missouri v. Jenkins, 1995). With these decisions, the Court minimized judicial involvement in education and restored power to state and local governments. The subsequent release of many school districts from court supervision marked a return to racially segregated neighborhood schools and inferior opportunities for many minority students. Desegregation litigation is no longer a viable option for addressing disparities in educational opportunity. Few districts have sufficient enough evidence of discrimination to warrant new litigation and federal courts have consistently been releasing districts from desegregation decrees. As Jennifer Hochschild and Nathan Scovronick (2003) make clear, “This effort is largely over; black children must pursue the American dream by a different route” (p. 36). Furthermore, in Parents Involved in Community Schools v. Seattle (2007), the Supreme Court held unconstitutional the racial classifications used for student assignments by Seattle and Louisville to create diverse schools. The opinion leaves little room, if any, for school districts to use racial classifications to create diverse schools and to avoid racial isolation. Some districts have sought, and in light of the decision other districts may seek, to pursue these goals through other means (Robinson, 2009). Federal Legislation to Assist Disadvantaged Students Historically, the role of the federal government in education “has been fairly limited and primarily directed toward special programs, usually targeted at particular populations such as the poor or the disabled” (Ryan, 2004, p. 987). Federal legislation in education experienced a watershed when Congress passed the Elementary and Secondary Education Act of 1965 (ESEA). Title I, the heart of the ESEA, initially gave over $1 billion to schools with substantial concentrations of poor children to assist in their basic education. It aimed to improve the educational opportunities

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provided to poor schoolchildren, achieving this goal by providing additional resources to school districts based on the number of low-income children enrolled in the district. Some scholars conclude that Title I positively affected students by helping revise society’s expectations of low-income and minority students while helping the students change their self-perception and their academic achievement expectations (Jennings, 2000; Kaestle and Smith, 1982). Although ESEA expanded the federal role in education, that role remained limited. President George H.W. Bush set the stage for an expansion in the federal role in education in 1989 when he convened the nation’s governors at a meeting in Charlottesville, Virginia. At the meeting, the nation’s governors embraced voluntary national education goals designed to increase the nation’s international competitiveness. By embracing these goals for all children, President George H.W. Bush and the governors signaled an important philosophical shift for reform. They envisioned a broader effort to improve the educational outcomes for all students, instead of focusing on a particular population. These efforts ultimately served as the foundation for an expansion of federal involvement in education by promoting a national agenda of high achievement standards for all students. When Congress reauthorized ESEA in 1994 by passing the Improving America’s Schools Act (IASA), it built on the growing support for standards-based accountability. IASA directed states to set the same goals and standards for Title I students as for other students and to develop accountability systems, including rigorous content and performance standards and statewide achievement tests. NCLB (2001) went further in requiring standards-based accountability. Under NCLB, states must develop “challenging” academic standards in math, reading, and science and assess whether students meet state standards in these subjects through annual testing. States must disaggregate the results on the basis of students’ race and ethnicity, major income groups, disability, and limited-English proficiency. States must ensure that these groups achieve proficiency on state standards by 2014 and must establish a timetable for adequate yearly progress (AYP) toward this goal. Schools that receive Title I funding must undertake an increasingly demanding set of interventions when students in any of the groups do not make AYP. NCLB also mandates that all states publish report cards that show graduation rates, determine assessment data for each subgroup, describe the performance of each school district, and identify schools with intervention programs. Furthermore, NCLB requires districts receiving Title I funds to hire only highly qualified teachers for core academic subjects starting with the 2002– 2003 school year, and that teachers hired before that time must be highly qualified by the end of the 2005–2006 school year. In exchange for these measures, states and districts receive more flexibility in their use of federal aid, and the poorest school districts receive additional federal funds. NCLB represents an important first step in addressing the longstanding achievement gap between poor, minority, and limited-English-proficient students and their peers. If schools use tests as a tool to diagnose how to revise teaching to meet students’ needs, the achievement gap will gain increased attention and

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may be reduced. Although NCLB is the most substantial federal intervention in education, the statute is unlikely to succeed in closing the achievement gap. NCLB does not require states and districts to directly remedy key disparities in educational opportunity between and within states. Furthermore, NCLB allows each state to set its own standards and proficiency levels. This flexibility led some states to set standards very low to avoid the label and stigma associated with failing to meet the state’s standards. The flexibility given to states “has led to the bizarre situation in which some states achieve handsome proficiency results by grading their students against low standards, while other states suffer poor proficiency ratings only because they have high standards” (Peterson and Hess, 2006, pp. 28–9). The disparity in the rigor of the standards could leave a student labeled “proficient” without the necessary skill sets to become a productive and employable citizen. The Need for a New Federal Approach to Disparities in Educational Opportunity Some may question the need for federal action to address the disparities in educational opportunity. Unfortunately, the provision of inferior educational opportunities for many poor, urban, and minority schoolchildren is an accepted part of the American educational landscape. However, as William Koski and Rob Reich (2007) have noted, “it is nearly indisputable that educational resources— facilities revenues, experienced teachers, instructional materials, curricula—are not distributed equally among our children and those with the least frequently fall into predictable categories” (Koski and Reich, 2007, p. 554.). These disparities have persisted for more than 50 years after Brown I. This demonstrates that state and local governments will not eradicate these disparities. Therefore, the federal government remains the most likely level of government to address these concerns because it possesses the greatest ability to redistribute wealth (Ryan, 2004). Some may contend that the existing disparities in educational opportunity do not matter, based upon such evidence as James Coleman’s often cited 1966 study, Equality of Educational Opportunity, which found that once students’ background characteristics were held constant, variations in school resources did not determine disparate outcomes for students. More recently, Eric Hanushek (1998) has made similar arguments. This argument is persuasively countered by substantial research that demonstrates that “money well spent improves educational outcomes …” (Hochschild and Scovronick, 2003, p. 55). Increased state spending directed toward schools in poor districts correlates with improved test scores. While financial resources alone are not determinative, researchers since Coleman have shown an assortment of ways in which school finance can be used to raise student achievement (Ladd and Hansen, 1999). Disparities in educational opportunity and outcomes for various subgroups within American society do not represent the only concern facing the nation’s schools. Comparisons between American students’ achievement and those of other nations reveal that US schools have significant room for improvement.

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An overview of several international assessments shows that 15-year-olds in the US typically rank below average or average on many measures, including math, science, and reading, compared to their peers in other industrialized countries (Lemke and Gonzales, 2006; National Center for Education Statistics, 2006). Only the federal government can adopt a nationwide approach to the substandard academic performance of United States students. The second part explains how international human rights enforcement mechanisms can help guide a new approach to a federal right to education in the United States. International Human Rights Enforcement Models as Guideposts for Enforcing a Federal Right to Education Since the mid-twentieth century, the international community has recognized a right to education as an essential component of human rights. The Universal Declaration of Human Rights of 1948 (UDHR), a non-binding resolution of the General Assembly of the United Nations, first established the right to education. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966) and the Convention on the Rights of the Child (CRC) (1989), neither of which has been ratified by the United States, contain two important formulations of this right. This part highlights key components of the enforcement mechanisms for the ICESCR and the CRC, because the collaborative approach they employ serves as a foundation for the collaborative approach to a federal right to education recommended in the third part. The Definition and Enforcement of the Right to Education in the ICESCR: Overview of the ICESCR The ICESCR (1966) recognizes education as a human right and lists the “full development of the human personality and the sense of its dignity” and effective participation in society as key goals of this right. It further specifies the nature of the right at each education level, including the primary, secondary, and postsecondary levels. The committee responsible for monitoring implementation of the ICESCR, the Committee on Economic, Social, and Cultural Rights (CESCR), charges each Party to the ICESCR with monitoring its educational system to ensure that it serves the objectives of the right to education. The CESCR further clarifies the obligations under the right to education with four dimensions: (1) availability (education must be available in sufficient quantity for the students in the State); (2) accessibility (education must be accessible to everyone without discrimination, as well as be economically and physically accessible); (3) acceptability (the substantive provision of education must be “relevant, culturally appropriate and of good quality”); and (4) adaptability (it must be sufficiently flexible to adjust to the evolving needs of society) (CESCR, 1999). The ICESCR also prohibits race,

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sex, national origin, and other forms of discrimination in the provision of rights under the Covenant. CESCR Comments explained that States must eliminate both intentional and de facto discrimination. The ICESCR acknowledges that some Parties lack the resources to provide the full scope of economic, social, and cultural rights upon ratification, and thus, it allows for progressive realization of those rights “to the maximum extent of [the Party’s] available resources” (Article 2, para. 1). However, this acknowledgment does not relieve the Party of its obligation to implement the Covenant. To the contrary, the CESCR unequivocally rejects the assertion that progressive realization tolerates inaction, instead emphasizing that Parties must implement the Covenant as quickly, specifically, and effectively as possible. The ICESCR Enforcement Mechanism The ICESCR requires Parties to submit to a monitoring committee periodic reports that identify the steps the Party has taken to implement the ICESCR and the difficulties encountered in implementation. The CESCR, which is comprised of 18 human rights experts, meets at least twice a year to review these reports. The CESCR issued guidelines identifying the information required in the reports, including whether there are any disadvantaged groups who do not receive equal access to education. In addition to receiving information through the reporting process, the CESCR also receives information from non-governmental organizations (NGOs) that submit information about a State’s non-compliance with the Covenant. The CESCR also may invite knowledgeable representatives from UN agencies to provide a written statement or oral testimony during the session in which the Party is examined by the CESCR. Given Parties’ unwillingness to admit violations of human rights, information supplied by NGOs often represents a critical component of the monitoring process. After a Party submits a report, it appears before the CESCR to discuss the report and answer questions. Afterward, the CESCR adopts official concluding observations to assess the Party’s fulfillment (or lack thereof) of its obligations and includes recommendations on steps the Party may take to realize the rights in the Covenant. The CESCR has adopted a number of procedures to follow up on its recommendations, including requesting Parties to identify the steps they have undertaken after CESCR examination and asking Parties to accept one or two CESCR members to gather necessary information. To assist Parties in fulfilling their Covenant obligations, the ICESCR directs them to draw upon international economic and technical assistance to fully implement all aspects of the rights guaranteed in the Covenant. The CESCR instructs Parties to identify their needs for technical assistance or international cooperation in their reports, and the CESCR’s Concluding Observations sometimes include recommendations that a Party obtain technical assistance from an appropriate UN agency. The CESCR also may recommend establishing a

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national plan. Beyond these suggestions, the CESCR typically does not make any specific recommendations to resolve concerns. Instead, it recommends that Parties pay attention to the ICESCR’s obligations and allocate the appropriate funds to their education systems. The reporting process is the sole enforcement tool for the ICESCR. The CESCR’s observations encourage a constructive, non-adversarial, cooperative dialogue about a Party’s compliance with the Covenant (Alston, 1990). The Observations “serve as the basis for a national debate on how to improve the enforcement of the provisions in the Covenant” (Beiter, 2006, p. 356). Primary responsibility for enforcement of the ICESCR lies with the Party. The CESCR’s reports in recent years brought attention to a number of education issues including significant illiteracy and school dropout rates, disparities in educational quality along lines of nationality or race, inferior educational opportunities for the poor, inadequate facilities, and disparities in the quality of education between rural and urban areas (see Economic and Social Council, 1998; 1999; 2000; 2001; 2003; 2005). Limited attention to economic, social, and cultural rights has hampered implementation and enforcement of the ICESCR. Although 154 countries ratified the ICESCR, most have “fail[ed] to take steps to entrench those rights constitutionally, to adopt legislative or administrative provisions based explicitly on the recognition of specific economic and social rights as international human rights, or to provide effective means of redress to individuals or groups alleging violations of those rights” (Steiner and Alston, 2000, pp. 237–8). This problem arises in part because the CESCR has not adequately defined standards for compliance with the Covenant’s provisions, and this ambiguity hinders assessment of implementation. Furthermore, one weakness of the reporting mechanism is that not all Parties take their reporting obligations seriously. Some Parties submit their reports late or not at all and many reports lack detail and focus on achievements rather than admit shortcomings (Beiter, 2006; Chapman, 1996). In addition, Party reports often ignore the reality of the way policies interact with the exercise of rights by individuals and disadvantaged groups. The CESCR typically bases its Concluding Observations on State reports representing the Party’s official position rather than a full assessment. Despite these shortcomings, the reports are important in several ways. Preparing the reports requires Parties to assess their progress in implementation. The periodic nature of the reports facilitates an ongoing assessment rather than a solitary review of implementation. The CESCR’s independent review and recommendations encourages Parties to make additional improvements. Rather than abandon the reporting system, some scholars suggest ways to restructure it, such as encouraging increased participation of NGOs, and requiring a full description of implementation beyond legal requirements (Beiter, 2006; Steiner and Alston, 2000). Some suggest that governments establish qualitative and quantitative indicators including specific time frames for achieving goals (Beiter, 2006; Steiner and Alston, 2000). Finally, scholars contend that having the CESCR

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identify economic, social, and cultural rights violations may ensure effective monitoring of these rights because “human rights violator” is a label that Parties would seek to avoid (Beiter, 2006, p.652; Chapman, 1996, pp. 36–7). The Definition and Enforcement of the Right to Education in the CRC The CRC, ratified by all nations except for the United States and Somalia, sets an ambitious agenda for education rights. Its provisions on education begin with the acknowledgement that the “Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity” (CRC, Article 28). Like the ICESCR, the CRC specifies the content for this right to education at the elementary, secondary, and post-secondary education levels. The CRC defines the goals of the right to education as the development of the child’s mental and physical abilities, personality, and talents “to their fullest potential” (CRC, Article 29). Additionally, education must be designed to prepare “the child for responsible life in a free society” (CRC, Article 29). The Committee on the Rights of the Child that guides enforcement of the CRC (“the Committee”) explained in its official comments that each child has not only the right to access to education but also the right to an education of good quality. Similar to ICESCR, several articles and principles in the CRC guide the interpretation of the right to education and its goals. Parties must implement the CRC free of discrimination on the basis of such characteristics as the child’s or parent’s race, sex, and language. Under the Committee’s observations and recommendations to Parties in response to Parties’ reports, non-discrimination under the CRC includes a commitment to eliminate de facto and societal discrimination. A Party must submit a report within two years of initial CRC ratification and every five years thereafter. The Committee and Party then engage in a constructive dialogue that involves the Party answering the Committee’s written questions both orally and in writing. To supplement the information provided in Party reports, the Committee may seek outside assistance from UN bodies and NGOs. The Committee can then offer the Party recommendations for improvement and may suggest that the Party receive technical assistance. A review of the reports in recent years reveals that, like the CESCR, the Committee focused attention on a number of educational concerns governed by the CRC, including significant illiteracy and school dropout rates; disparities in educational quality based on nationality, race or status; inferior educational opportunities for the poor; inadequate facilities; and disparities in the quality of education between rural and urban areas (see Committee on the Rights of the Child, 2005c; 2006). The Committee often recommends that the Party seek technical assistance from an agency, such as the UN Children’s Fund, to assist the Party in addressing these concerns. The Committee also sometimes suggests that a Party develop a national education plan or an independent mechanism, such as an Ombudsperson, that would receive and act on complaints of violations.

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Beyond these suggestions, the Committee typically does not make any specific recommendations to resolve issues. Instead, it notes that Parties must reflect the CRC’s ideals in their legislation, administrative, and judicial decisions, as well as in policies and programs relevant to children locally and nationally. Some scholars have criticized the CRC’s enforcement mechanism as weak because the enforcement tools are limited (Freeman, 2000; Silk and Makonnen, 2003). Other scholars have noted positive accomplishments under the CRC, citing the legal reforms that countries instituted to comply with the CRC, how the ratification and reporting process raises awareness of the issues in the CRC, and how the Committee’s advice on compliance creates a record for the international community (Abraham, 1996; Rios-Kohn, 1998). Scholars have noted that the CRC has had a positive effect on States’ laws and customs and a number of impressive initiatives and achievements have occurred around the world (Rios-Kohn, 1998). For example, nations such as Ireland, Nepal, New Zealand, Tunisia, Uganda, and Vietnam revised their constitutions or passed a body of laws specifically about children to bring their laws into compliance; other countries revised existing laws. Countries also established national coordinating and monitoring systems that guide national compliance by monitoring children’s rights. Given almost universal ratification of the CRC, the treaty creates a moral obligation for nations to uphold its provisions. While some countries still do not comply, others have undertaken reforms that should bring their countries into conformance with the treaty. These accomplishments suggest that the absence of punitive enforcement mechanisms has not prevented the CRC from being an impetus for important changes. The Individual Complaint Mechanism in the ICCPR Critics have identified the inability to file an individual complaint as a weakness of both the CRC and ICESCR (Balton, 1990; Beiter, 2006). Thus, it is helpful to understand how an individual complaint mechanism functions under the International Covenant on Civil and Political Rights (ICCPR). The ICCPR includes an Optional Protocol that authorizes individuals who claim to be victims of violations of the Covenant to file a written complaint with the Human Rights Committee (HRC), the body that enforces the ICCPR. The complainant must first exhaust all possible domestic remedies. The ICCPR does not permit anonymous complaints, and the HRC will not review a complaint that another international committee is considering. A working group of HRC members determines whether the complainant has complied with these requirements and gives the accused Party an initial opportunity to provide its observations about the communication. Once the working group deems the communication admissible, the HRC submits the complaint to the accused Party and the Party must clarify the issues raised and respond within six months. The HRC sends the Party’s response to the complainant who may respond. The HRC does not receive oral testimony nor can it undertake independent fact-finding; instead, it considers complaints during

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closed meetings in light of the available written information. The HRC resolves the complaint by sending its “views” to both the individual complainant and the Party and by publishing them. The HRC does not have authority to negotiate a settlement between the complainant and the Party, but the information exchange involved in the petition process may result in resolution of the dispute. In cases where it has found a violation, the HRC’s recommendations have included a Party providing an appropriate remedy for the victim, taking steps to prevent future violations, and informing the HRC of actions it has taken within 90 days. In its comments to country reports, the HRC has asked Parties to revise existing laws. The HRC’s recommendations do not bind the Parties. There appears to be a mixed record of compliance with HRC recommendations. The strength of the HRC’s recommendations “lies in the international standing and moral authority of the Human Rights Committee and in the essence of the commitment assumed by States upon ratification of the Covenant and Protocol” (Heffernan, 1997, p. 102). Rethinking Enforcement of a Federal Right to Education The enforcement mechanisms of human rights treaties provide instructive models when considering how to develop a collaborative approach to define and enforce a federal right to education in the United States. The following section explains how a federal right to education should be defined and contrasts this chapter’s proposed approach with those of other scholars. The section after that describes the four components of the proposed collaborative enforcement model. Then the next section contends that this collaborative approach should be adopted through Spending Clause legislation and that the proposal meets constitutional requirements for such legislation. Defining a Federal Right to Education Congress should recognize a federal right to education that guarantees equal educational opportunity within each state. In addition, a US right to education should emulate the CRC and embrace the development of the child’s mental, physical, and social abilities to his or her fullest potential. This goal would be included in a preamble to the statute and serve as the guidepost for implementation of the legislation. The legal requirement would mandate that states provide equal educational opportunity. The goal of full development of children would encourage states to increase educational opportunities and discourage states from engaging in substantial leveling down of expenditures, which occurred in some districts after some school finance decisions required equality in the school finance system. This recommendation stands in contrast to some scholars who suggest that the United States should recognize a right to a minimum adequate education with a focus on basic skills (Brunell, 2005; Walsh, 1993). Setting the standard at such a low level would not help the nation to develop the full intellectual capacity of

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children, acquire the societal benefits that come from providing all children with a high quality education, or end the injustice that accompanies the current disparities. NCLB’s emphasis in its preamble on a “high-quality education” and “challenging state academic standards” represents a congressional consensus that the federal role in education should set ambitious goals; otherwise, existing deficiencies will remain entrenched. The statute also should include as its purpose the reduction of interstate disparities because, as education law scholar Goodwin Liu (2006) has documented, the burden of these disparities disproportionately impacts disadvantaged children who have the greatest needs. Inclusion of these disparities as a goal of a federal right to education accomplishes two objectives. First, the federal panel that reviews state plans will keep an eye on interstate disparities as it reviews state plans and makes recommendations to states to remedy substantial, harmful disparities. Second, congressional recognition that interstate disparities should be reduced could spark some states that provide educational opportunities below the national norm to improve what they offer, particularly if Congress sets aside funding specifically to address interstate disparities. Recognizing a federal right to education that guarantees equal educational opportunity would benefit the nation in many ways. First, substantial disparities in educational opportunity along class and race lines impede the full educational development of many children. Reducing these disparities should encourage states to provide educational opportunities based upon the needs of students, which are greater in disadvantaged communities than in affluent communities. Second, combining efforts to achieve equal educational opportunity with a goal of encouraging children to achieve their full potential should foster the development of rigorous educational standards instead of the low standards currently set by many states. Third, providing a federal right to education on the basis of equal opportunity would remedy the fundamental unfairness of the current system that has hampered the ability of disadvantaged students to pursue higher education, professional jobs, and ultimately the American dream (Koski and Reich, 2007). Finally, disparities in educational opportunity can also undermine the dignity and self-worth of the students who receive inferior educational opportunities, while providing equal educational opportunity would help to redress these injuries. The United States would not be the only country to recognize a federal right to education. Many other countries recognize a right to education on the basis of equal opportunity that aims to develop all children to their fullest potential as a fundamental human right (De la Vega, 1994). Thus, federal recognition of this right would bring the United States into harmony with what many other countries have accepted and would make US law and policy more consistent with human rights law. A Collaborative Enforcement Model for a Federal Right to Education Congress should enact federal spending legislation that implements a collaborative approach to a federal right to education, rather than a judicially defined and

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enforced right to education as proposed by many scholars (see Brunnell, 2005; Chemerinsky, 2004; Palumbo, 2004). The absence of lawsuits against states and districts would encourage federal, state, and local governments to collaborate to improve educational opportunities. This section outlines the key components of the collaborative enforcement model. Before discussing the proposed model, readers should consider two points. First, for those who do not believe that the federal government should recognize a federal right to education, the collaborative enforcement model proposed in this section could still address other educational concerns. Second, policy makers have adopted collaborative enforcement models in other areas, suggesting that a collaborative approach merits consideration. Reporting Obligation In recognizing a federal right to education on the basis of equal opportunity that embraces as its aim the development of a child’s mental and physical abilities to its fullest potential, Congress should require states to assess how to best achieve this right while allowing states to retain the flexibility to adopt different approaches. Some states will have begun to develop expertise on these issues because school finance litigation has required them to determine what it takes to provide students with an adequate education. By allowing flexibility in how states achieve this right to education, the proposed approach would respect the expertise and authority of state and local governments in education while recognizing that federal action is necessary to remedy the educational inequities deeply entrenched in American society. Once Congress recognizes the right, states should submit initial and then periodic reports to a panel of education experts convened by the federal government. The initial report should analyze how the state will guarantee the federal right to education and periodic reports should discuss progress the state has made toward guaranteeing the right. The inclusion of periodic reports recognizes that implementing the right will occur over time, ensuring that progress continues on a regular basis. Similar to the CRC and the ICESCR, Congress should develop reporting guidelines that specify the information required in state reports. Those who develop the guidelines could draw from the scholarly literature on how existing human rights reporting guidelines should be improved (Beiter, 2006; Steiner and Alston, 2000). For example, the panel could assess whether a state guarantees equal educational opportunity by developing qualitative and quantitative measures for such educational resources as the provision of qualified teachers and staff; funding; conditions of facilities; disparities in course offerings; and extracurricular offerings. Congress could require states to provide disaggregated data on disparities in educational opportunities for the state, district, and school level. States should also identify obstacles to achieving the right to education, including financial, political, and policy obstacles. To ensure that states provide equal educational opportunity, the panel should encourage states to reduce significant disparities in educational opportunity that are not based upon the needs of children or legitimate pedagogical choices. The panel should also examine state reports to ensure that any diminished

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opportunities do not systematically fall upon a specific population of children, such as low-income, minority, or rural schoolchildren. This reporting requirement builds on the requirements under NCLB , which require states and districts to make public report cards on student achievement on state assessments. States should submit their reports to either a federal or independent panel of experts supported by federal funding. Panel members must possess broad expertise on education policy issues including school finance, teacher quality, and the unique needs of disadvantaged students. In reviewing reports, the panel should assess whether the state provides the right to education on the basis of equal opportunity, identify any successful efforts to provide a right to education as well as impediments to guaranteeing this right, and recommend how a state could improve its provision of the right to education. The expert panel should have the capacity to conduct independent fact-finding and to receive oral testimony, in contrast to the panels that enforce the ICESCR and the CRC. In addition to obtaining information from states, the panel should consider information submitted by non-profit, non-partisan, and independent organizations. The panel’s identification of states in violation of the federal right to education, along with publicity about such violations, would encourage states to take remedial action. The panel’s recommendations should not be binding. Instead, the panel should encourage states to develop their own approaches to the panel’s concerns. In doing so, states could choose among a myriad of options in providing the federal right, including revising their school finance systems, improving accountability systems, and offering vouchers (Robinson, 2002). Technical Assistance In addition to a state reporting mechanism, the panel, in cooperation with the federal government, would respond to state reports by encouraging states to identify effective solutions and appropriate technical assistance. The panel could connect states with scholars, researchers, and nonprofit organizations with expertise on the challenges confronting states. Each year, the federal government collects data to determine the current state of education, and the Department of Education frequently disseminates education success stories. The federal government could build on its role as a repository of data on educational best practices by recognizing the common obstacles to the provision of the federal right to education and identifying avenues to avoid those obstacles. This process would eschew a one-size-fits-all approach, provide information on possible reform strategies that have proven successful in other states, and facilitate direct collaboration between the states. Financial Assistance and Withholding Funds The federal government should provide states with substantial financial assistance in addition to technical assistance. The financial assistance should reward states that make good-faith efforts to provide the right to education. The federal government should also provide financial assistance to states that encounter obstacles but make progress toward their goals. Financial assistance would serve as an incentive for states to take action to guarantee the federal right, and the amount would only provide a portion of the funds needed

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to cure most educational challenges confronting states. Additional federal financial assistance for states would address one of the primary criticisms of NCLB: the lack of adequate funding to achieve its comprehensive approach. This chapter recommends that withholding federal funds should be a last resort under the proposed enforcement model. Warnings and technical assistance should precede any withholding of funds. The panel should define when a violation of the federal right has occurred, who bears the burden of proof, and a procedure for recommending that Congress withhold funds from a state. Congress should withhold a percentage of federal financial assistance from states unwilling to take steps toward full implementation of the right to education. To remain consistent with the constitutional limits on Spending Clause legislation discussed below, Congress should withhold a small but significant amount of financial assistance when necessary to encourage state remedial action, but it should not withhold all education funding. The federal government should not condition funds upon the state following the recommendations of the expert panel because those recommendations would represent only one possible course of action among many. Instead, Congress should withhold funds from those states that fail to take effective steps to remedy identified shortcomings. The panel should also establish criteria for withholding funds when a state provides an educational system of significantly inferior quality to that provided in other states. Complaint Mechanism Congress should establish a complaint mechanism whereby groups or individuals can report a violation of the right to education. This mechanism would ensure that administrators do not miss violations of the right to education because a state fails to disclose the violation. The system should first require a complainant to exhaust state remedies, such as seeking relief from the state legislature or Department of Education; however, it should waive this requirement if the complainant has encountered substantial delays in receiving a remedy. The panel of experts should review the complaint, receive a response from the state, investigate facts, and receive necessary testimony. The panel should then issue findings and recommendations for the state. The panel should widely publicize its findings and recommendations, which top federal officials, including the President, could highlight in public speaking engagements. While states possess latitude to choose among effective options, failure to institute remedial measures should constitute a basis for withholding a percentage of federal education funding to the state. Congress should define failure as a lack of action by the state to take steps to address the identified shortcomings. Thus, while the panel could not order a state to take a particular action, it would have a strong stick to encourage compliance. Establishing a Federal Right to Education Through Spending Legislation Congress should recognize a federal right to education through spending legislation. The Supreme Court set very limited requirements for spending legislation by requiring that such action must be “in pursuit of the ‘general welfare’” (South

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Dakota v. Dole, 1987, p. 207), unambiguous, and related “to the federal interest in particular national projects or programs” (South Dakota, 1987, p. 207). Spending legislation also must not violate other constitutional provisions or be “so coercive as to pass the point at which ‘pressure turns into compulsion’” (South Dakota, 1987, p. 211). Many scholars view these requirements as rather weak limitations on the spending power. If the current lenient standards for spending legislation remain, this chapter’s proposal would satisfy the requirements. First, Congress shapes what is or is not within the general welfare and courts defer to the judgment of Congress. Thus, legislation establishing a federal right to education would advance the general welfare because experts consistently view a strong education system as an important pillar for the foundation of the nation. The federal government has repeatedly demonstrated its interest in improving the quality of education and encouraging equal educational opportunity through past education spending legislation that has not been successfully challenged. Second, this approach easily satisfies the “unambiguous” requirement by advocating for clear conditions on the funding provided under the proposed legislation. Third, the requirement that a statute must not violate any “independent constitutional bar” will be satisfied because the proposal in this chapter would not encourage states to take unconstitutional actions, such as encouraging infringement upon the free speech of local governmental entities. Finally, several features of this chapter’s proposal satisfy the requirement that the legislation must not be compulsory. In South Dakota, the Supreme Court upheld the constitutionality of a statute that conditioned 5 percent of federal highway funds by establishing a minimum drinking age of 21. The Court determined that the statute did not exceed the boundaries of coercion to become compulsion because Congress conditioned the required action on a small percentage of highway funds. Similarly, any funding withheld under the statute proposed in this chapter, while significant in dollar amount, should comprise a relatively small percentage of education funding overall, thereby preventing the program from becoming compulsory while still encouraging state action in furtherance of the right to education. A second feature that prevents this proposal from being compulsory is the non-binding, advisory nature of recommendations issued by the expert panel. Furthermore, states may choose to reject the funding available under the statute. With these limitations, the proposed approach would pass constitutional muster like other exercises of congressional spending authority in recent decades that have “increased the extent to which [Congress] places conditions on recipients of federal aid” (DeBray, McDermott, and Wohlstetter, 2005, p. 10). Moreover, courts have upheld the constitutionality of far more coercive spending statutes than the mechanism proposed here. Ultimately, by focusing the federal government’s attention on a collaborative approach through the Spending Clause, this Article’s proposal places the federal government in a position consistent with its historical role in education. Under this proposal, state and local governments would continue to serve as the primary

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decision makers in education, while federal involvement and oversight would encourage the states to take effective action that would address unequal educational opportunities and poor quality schools. If the federal government focuses on encouraging states to improve the quality of schools, reducing disparities in the quality of educational opportunities, and developing expertise on how quality can be improved, such investments would reap substantial rewards for this nation. The Case for a Collaborative Approach to a Federal Right to Education This part considers a few of the principal advantages and disadvantages of the proposed collaborative approach. It examines why adopting a collaborative approach that builds upon cooperative federalism is an effective way to develop and implement a right to education. It identifies the advantages this approach presents over a litigation-centered approach. It then considers the politics associated with the recognition of a federal right to education and concludes with an argument for reformulating the federal role in education. The Benefits of Collaboration and a Legislatively Defined Approach to a Federal Right to Education Cooperative federalism envisions the federal and state governments negotiating shared authority and responsibility for a policy reform (Elazar, 1991; Kenyon and Kincaid, 1991). While dual federalism would view education as the exclusive province of state and local governments and coercive federalism might seek new congressional authority to directly control education, cooperative federalism recognizes the need for each of the levels of government to share responsibility for progress to be made. Negotiations between federal, state, and local governments determine how to allocate responsibility. Each level of government brings its unique contribution to the negotiation table and has the ability to influence the outcome. Cooperative federalism provides a mechanism for national attention and reform without federal dominance over those reforms, while also allowing the federal government to establish a framework for state action without transforming the states into mere extensions of the federal government (Elazar, 1991). The collaborative approach proposed in this chapter builds upon these virtues of cooperative federalism. Congress should herald the importance of remedying educational inequities by recognizing a federal right to education while continuing to allow state and local governments to control most education policy. The proposed approach encourages the federal government and states to work together to develop effective solutions to the barriers that states encounter in providing the federal right to education. Congress then supports states as they implement approaches tailored to their unique circumstances. The proposed approach, which harnesses the benefits of cooperative federalism, represents a more effective alternative than a litigation-centered approach. A

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collaborative, legislative approach developed after educating the nation about the critical need for remedying educational inequities might avoid some of the backlash that court-defined approaches can engender and experience greater success in bringing about lasting change. Congressional expression of the will of citizenry may represent the only effective counterbalance to state and local interests to maintain the status quo. When a democratically elected body determines that the country must undertake substantial education reform to address harmful inequities, state and local governments, and ultimately the American public, may find a federal right to education more palatable. Additionally, when a democratic process defines the right to education, the citizenry through the legislature may revisit and refine the adopted approach to address shortcomings and incorporate insights from experience and new research. If courts define and enforce a federal right to education, they could deny the public the opportunity to shape the right to education and how it should evolve over time. A collaborative approach to a federal right to education would also preserve more state and local control over education than a litigation-centered approach. The education of schoolchildren involves one of the most closely held functions of state and local governments, and many Americans view local control over education as an important virtue of the American education system (Hochschild and Scovronick, 2003). The Supreme Court has repeatedly noted the importance of local control for ensuring community support of education and achieving educational excellence through local experimentation (Milliken, 1974). Actions that interfere with local control are typically met with intense resistance (Reed, 2001). For example, school finance litigation illustrates the limitations of what courts can achieve when their decisions lack substantial local political support. While such litigation has helped to usher in reform in some instances, it failed to bring about lasting reform of the funding inequities that exist in many states (Dayton and Dupre, 2004). Such reform requires political will and support so that those within the state will embrace and advance its goals rather than undermine and overturn the changes. Although the legislation would include substantial incentives for states to participate, states would retain the freedom to reject federal money and its accompanying pressures to provide the federal right to education. When the national oversight panel identifies concerns about the provision of the federal right to education, the panel would exercise restraint by offering recommendations on potential reforms while leaving states the authority to respond to these concerns. This flexibility preserves states’ ability to experiment in education. Defining and implementing a federal right to education through Congress also represents a superior approach to litigation because judges lack the in-depth knowledge about education that effective judgments and enforcement will require. The Court acknowledged its lack of expertise to decide complexities in education policy in Rodriguez. While some courts have determined what outcomes education systems should achieve to satisfy adequacy requirements in school finance litigation, “often the question of outcomes and the question of ‘adequacy of what’

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and ‘how much’ are left to legislatures and governors to determine” (Ladd and Hansen, 1999, p. 112). Under the enforcement model proposed in this chapter, education experts would assess and propose modifications. There are many reasons why this chapter’s proposal excludes a judicial remedy from the development and enforcement of a federal right to education. Most importantly, a judicial component would undermine the cooperative spirit central to this chapter’s thesis and invoke a defensive posture in states, which typically encourages the states to deny any shortcomings and defend the status quo. The collaborative approach seeks to bring policy makers together to develop effective solutions. Financial assistance should foster transformation and innovation among states that want to access the funds allocated to reward successful reforms. The collaborative framework proposed here also avoids the piecemeal nature of litigation. Progress does not remain forestalled while waiting for attorneys and their clients to pursue a remedy in each of the 50 states. Other reasons that the proposed approach is superior to litigation include the fact that courts have difficulty in gathering and assessing the relevance of facts outside the litigation. Courts also lack the tools for orchestrating political compromises that include people outside the litigation. Finally, when courts become involved in budgetary issues, their inability to ensure additional expenditures, which are the province of the legislature, can encourage agreement to expenditures at a low level, which would undermine addressing educational inequities in a manner that enables children to reach their full potential. By utilizing a collaborative approach to address only one issue, this chapter’s proposal avoids the criticism that the human rights enforcement approach represents a weak enforcement mechanism. For example, human rights agreements utilizing a collaborative approach address many rights and obligations in one treaty and entrust enforcement of the treaty to one body. In contrast, the panel of education experts recommended in this chapter would solely focus on whether states guarantee a federal right to education, thereby guaranteeing greater enforcement than human rights treaties have already achieved. In addition, geographically distant committees typically enforce human rights treaties and these bodies can be disconnected from the political and fiscal realities facing the Parties. In contrast, the collaborative enforcement model proposed here would operate within the national boundaries and would cultivate an understanding of the current fiscal and political constraints that states face. Thus, the panel would possess a more effective means of publicizing its findings and recommendations, increasing the likelihood that the state will feel pressure to respond to the findings and recommendations. Finally, some may question whether this chapter proposes recognition of a “right,” given its reliance on Congress to create a right to education through the Spending Clause rather than advocating for the courts to recognize such a right. While this chapter does not propose a judicially defined and enforced right, such as the right enforced in Brown I that forbids state-sponsored segregation, a federal right to education would still represent a “right” because it would include the same “legal powers or legal obligations of government officials” that other rights

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include (Sager, 2004, p. 88). In focusing on the legislature to define the federal right to education, this chapter agrees with the scholars who support the protection of economic and social rights primarily through the legislature and who eschew theories that render the courts the sole arbiters of rights. This approach reaps the important benefit of keeping the definition and evolution of a federal right to education accountable to the American people through Congress. The Politics of a Collaborative Approach to a Federal Right to Education One of the most strenuous objections to this chapter’s proposal may be that the nation would never embrace establishing a federal right to education, even if Congress gives state and local officials flexibility on how to achieve that right. In addition, the existing scholarly research indicates that many scholars agree that the judicial branch may be the most likely branch to address this issue (Chemerinsky, 2004; Lerum, Moreira, and Scheinkman, 2005). Both history and recent events suggest that Congress may be willing to enact federal legislation to promote equal educational opportunity. Historically, Congress proved its willingness to promote equal opportunity through such comprehensive legislation as the Civil Rights Act of 1964. In education, Congress consistently enacted legislation to protect the rights of the least powerful among us when the states failed to do so through such legislation as the Elementary and Secondary Education Act of 1965, Title IX of the Education Amendments of 1971, and the Individuals with Disabilities Education Act (1975). In the 1960s and 1970s, those seeking equal educational opportunity obtained their objectives through legislation, with the courts providing enforcement for most of these statutes. More recently, NCLB grew out of America’s voters identifying education as a top priority and a political consensus that the federal role in education needed substantial reform. NCLB’s sweeping provisions requiring each state to address the achievement gap in exchange for federal funds are particularly remarkable because Congress passed the legislation with bipartisan support. Moreover, NCLB’s substantial increase of federal involvement in education invites reconsideration of an array of options to restructure that involvement. This chapter contends that expanding the understanding, definition, and enforcement of rights represents a viable new approach for addressing longstanding concerns about persistent educational inequities and the quality of American education. Furthermore, while this proposal diverges from NCLB in important ways, the collaborative enforcement model would build upon the foundation laid in NCLB. Legislation that garnered substantial support, but ultimately did not pass, offers further reason to believe that Congress may take action to promote equal educational opportunity. In 2001, 42 members of the Senate voted for an amendment, introduced by Connecticut Senator Christopher Dodd (D-Conn.), to the bill that became NCLB; the bill would have required states to provide comparable educational services to all schools, and it included a federal court remedy for any parent or student injured by a failure to comply with the bill.

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Congressman Chaka Fattah (D-Pa.) initiated similar legislation in the House of Representatives in 2001, 2003, and 2005, but those bills did not succeed. These facts, along with the historical willingness of Congress to promote equal educational opportunity and the substantial changes and increased federal involvement in NCLB initiated and passed during a Republican presidency and Republican-controlled Congress, indicate that “more than a few of our elected leaders are prepared to countenance the use of federal power to redress some of the consequences of Rodriguez” (Kozol, 2005, p. 251). Legislators may be waking up to the need for national action to address a national problem in light of state refusal to address the shortcomings of the American education system. Furthermore, the support for the Dodd legislation that would permit plaintiffs to sue states for failure to enforce its provisions suggests that recognition of a federal right to education enforced through a collaborative approach might win even more support, particularly when considered in light of some of the successes of recognizing a right to education at the state level through school finance litigation. Reform advocates could develop a successful campaign to address inequitable educational opportunities if the nation experienced a wake-up call similar to the one it received after the release of the 1983 report A Nation at Risk, which sounded a national alarm by declaring that “the educational foundations of our society are presently being eroded by a rising tide of mediocrity that threatens our very future as a Nation and a people” (National Commission on Excellence in Education, 1983, p. 5). The report sparked new initiatives to improve student achievement. Ultimately, a collaborative approach would require convincing Congress and the public that educational inequities must be eradicated in the best interests of the nation. Persuading the public of this view would require educating most citizens about the economic, social, moral, and other interests the current system undermines (Belfield and Levin, 2008). Others may argue that this chapter’s approach would not achieve its goal because most states would choose to reject the funding offered under the proposed statute. However, states typically acquiesce to congressional conditions to financial assistance and have not opted out. If Congress adopts this proposal, the states may choose to work with the federal government rather than forego financial assistance. In this regard, it is noteworthy that although NCLB is the most intrusive federal education statute in American history, “[s]tates are responding to federal policy [in NCLB] in a way not seen since the mid-1970s, when they rose to the challenge of implementing the Individuals with Disabilities Education Act and Title IX of the Educational Amendments of 1972” (DeBray et al., 2005, p. 11). Thus, states may continue this pattern of cooperation even if Congress increases its involvement in education. Any suggestion that the states will reject the funding offered under the proposal underestimates the influence that federal funds have over education. Although federal funds remain only a small fraction of revenue for education, typically estimated at between 7 and 10 percent, the funds are the most flexible dollars available to school districts. Most state and local education funding must

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be used for expenses determined by law. For this reason, federal money wields disproportionate influence (Kaufman and Kaufman, 2005). Consequently, states will remain reluctant to relinquish the limited funds available for school districts to develop creative approaches and new plans for their schools. Conclusion Realistically, providing equal educational opportunity and educating children to their fullest potential are not beyond the nation’s grasp. NCLB’s embrace of extensive federal involvement in education suggests many believe the federal government should focus its energy and attention on education. The federal role in education continues to require reassessment and reform because the current system tolerates the provision of low quality educational opportunities to many disadvantaged children, and state and local governments have refused to take sufficient action to address this persistent problem. Equity has been and must continue to be the domain of the federal government because state and local governments lack sufficient incentives to promote equity, and because the federal government is uniquely positioned to address disparities in the distribution of wealth. The inclusion of provisions in NCLB aimed at reducing the achievement gap suggests national recognition that the United States needs a federal solution to continue its efforts in providing equal educational opportunity. When considering which solution to adopt, this chapter contends that the nation should reexamine the benefits of recognizing a federal right to education. The federal right to education does not have to include a judicially focused approach to improve the provision of educational opportunities in the United States. This chapter proposes that Congress recognize a federal right to education through Spending Clause legislation. States would periodically report on their enforcement of this right to a panel of education experts that would offer recommendations for improvement. States would receive technical and financial assistance under the statute. This chapter contends that such a right would be more palatable to the American public than a court-enforced right and would reap compelling benefits. For too long, the United States has sacrificed the education of low-income, urban, and minority students, as well as the overall quality of American education, on the altar of local control. The nation must recognize, as President Kennedy so eloquently stated, “[o]ur progress as a nation can be no swifter than our progress in education” (1961). A collaborative approach in which the United States recognizes a federal right to education that guarantees equal educational opportunity and that aims to ensure that children develop to their fullest potential will help address longstanding educational disparities and improve the quality of public education to the benefit of the entire nation.

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Chapter 12

Taking Children’s Interests Seriously Martha Albertson Fineman

The importance of religion in American culture has been increasingly recognized in recent years. From the rise of the evangelical vote in American politics to the emphasis placed on exporting religious ideology overseas, religion occupies a privileged seat in American culture. However, the rise of the religious paradigm in global politics has not detracted from the importance placed on religion within the family. Schools have become the battleground where culture wars over the appropriate role of religion are currently being waged (Carter, 2001). Indeed, religion figures prominently in ongoing debates over the education of children, from parental choice in private schools to parental rights to home school their children. Parents often cite religious beliefs as a justification for removing their children from secular public schools. However, the growth of the religious model of education necessarily trades off with other competing models, including an education policy that places the child’s interests at the forefront. Any policy pertaining to the education of children requires a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. Perhaps it is evidence of our inability to rise above binary thinking, but what tends to happen in balancing discussions is a kind of either/or thinking, with the child as a “prize” rhetorically shuttled back and forth between the competing rights holders—the parents and the rival state. The independent interests of the child, if recognized at all, are submerged as we slip into a consideration of the competing claims of authority over children made on behalf of parent and state. It is not surprising that the child tends to disappear as an independent focus in the discussions about rights and authority. The very existence of the child presents a dilemma for the liberal theorist concerned with the individual and preserving autonomy and choice. The child is clearly an individual, but one who is not fully actualized or capable of autonomous decision making. Children are dependent in many ways—economically, emotionally, and often physically. We are uncomfortable with the idea of children, even adolescents, exercising unsupervised “choice,” and we structure legal and social relationships so that someone is empowered to act for them and in their interest. In our system, the family (headed by the parent) is the social institution to which children with their dependency are referred. The family is designated as

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“private” and thus distinguished from the public and political realms, which are appropriately subjected to policy making in the liberal tradition. Secured within the private family, the dependent child becomes the primary responsibility of the parent. This conceptualization renders most considerations of the child independent of the family (parent) inappropriate because they are potentially adversarial. In most cases, the family is presumed to function appropriately, and the child, invisible within the private sphere, can conveniently be ignored in fashioning public policy. Of course, the child does not always remain subsumed within the family and is occasionally separated out as the state seeks to supplement or displace the parents as decision maker. This occurs when the child is the object of specific public policy, such as education. But the dependency and lack of autonomy inherent in the status of child seem to mandate that the real terms of debate are when the rights of the “natural” custodian (the parent) are trumped by the residual parens patriae power of the state. Despite the well-documented possibilities of harm to children, we are still suspicious of the state as protector of children against parents. The reduction of the balancing to a consideration only of the parents and the state is evident in the area of education. This is an area in which the state has well-established interests and has long been active. In fact, the state mandates that parents educate their children. Three objectives are typically articulated in justification of compulsory education. Each of these objectives ostensibly emphasizes different interests. The first objective has a public aspect, and the interests of the state are dominant. If we argue that compulsory education is necessary to produce an informed and disciplined citizenry able to create and maintain necessary social institutions, we emphasize the interests of the state. By contrast, the second emphasis is on social or parental interests and the objective of education is cast as teaching children responsibility with regard to the family, the community, and civic institutions. If we concentrate on a third objective, however—the “self-actualization” possibilities provided by education—the child’s interest should be moved to the foreground. Education from this perspective has the potential to position the child in opposition to both parent and state. The parents’ dilemma is that educational opportunities often produce paths for advancement and mobility out of the family circumstances (providing escape from the family’s class, neighborhood, and so on) and thus ways for the child to assert her or his individuality. From the state’s  In contrast to liberal theorists, who have paid scant attention to the issue of the child’s independent interests, focusing on the fully framed and independent adult as the object of theory, some feminist theorists have used the position of the child to argue that the concept of autonomy is flawed. Further, concentrating on the child suggests that the boundaries between state and family are blurred. Feminists have also pointed to the paradox that while the substitution of private (family) for public (state) power occurs in the name of protecting the autonomy and interests of some individuals (parents), this can produce the possibility of harm to other individuals within the family (children).

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viewpoint, education for self-actualization is often geared more toward developing personal critical capacity than toward securing social conformity and obedience. This potential tension may interfere with both parental and state advocacy of the child’s self-actualization interest in education. Indeed, the objectives of education are often at odds with each other. Choosing from among them can lead us to different conclusions about how we should allocate control or authority over decision making. Many parental rights theorists will concede the mandatory nature of education, including the necessity of government standards regulating the substance and content of that education, while maintaining that decision making should be resolved in favor of parental discretion (see Galston, 2003). In fact, current laws tend to favor parental discretion in several facets of educational policy making. In this regard, some parents attempt to opt their children out of certain public school classes. While some might find a parent’s choice to excuse a child from sex education to be appropriate, is it equally appropriate to allow a parent to excuse a child from science class because the curriculum teaches the theory of evolution and the big bang theory? For example, parental discretion can be exercised by choice of the location of the child’s education—whether it will be in a private or public institution, in a religious or secular setting, and so forth. Parents also have choices with regard to supplementing their child’s education with enrichment courses or specialized instruction beyond the state-mandated core curriculum. The lessons of Meyer v. Nebraska (1923) and Wisconsin v. Yoder (1972) are that the state is denied rigorous regulatory power over both arenas of parental discretion—private schools and supplemental education—even when it asserts an interest in protecting the child’s interest in self-realization. But this leads to the question of how much structure the state can impose on parental decisions about supplementation of core education in the interest of protecting the child as an individual. The next obvious question is, how does the child’s interest manifest itself in this scheme where the state is foreclosed from meaningful regulation? The prevailing belief is that the allocation of the child’s interest to parental authority is the best way to protect that interest. Parental rights advocates advance two main arguments why the parents are best situated to protect their child’s interests: parental decision making provides greater diversity of educational choices, and parents have superior knowledge about their child. Both of these arguments assume that parents typically act in the best interests of children. Both arguments are offered as “child-centered” justifications for parental control. Those who believe that parental decision making promotes diversity in educational choices argue that parents are best situated to place their child in an educational setting conducive to his or her needs. Parents’ ability to find a good fit between their child’s needs and an educational establishment promotes the possibility of the growth of individuality in a child, which is considered a positive good. Furthermore, advocates of parental discretion over education decisions argue that parents have superior knowledge about their child’s wants and needs. Presumably, parents are thus able to make superior, if not perfect, decisions for

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their child. The implication certainly is that parental decisions will typically be superior to those made by the state in this regard. But in examining these claims, an initial observation leaps to mind. Specifically in regard to the claim that parental choice leads to child individuality, an argument could be made, on the basis of psychological and other observations, that the family is one of the most difficult contexts in which to assert one’s individuality, at least as that term is used to connote independence. Further, parental rights theorists may overstate not only the possibility of diversity in a parental choice (private) system but also the uniformity or conformity of the state system itself. Claims of uniformity or lack of diversity in the state system ignore the reality that the state is not a monolithic entity. There are few nationally imposed requirements that deal with educational substance. In fact, the idea of national content control (even in the form of national testing) has been vigorously rejected throughout American history. In actuality, “the state” system is many systems that vary by state and locality. Within the state system there is always a great deal of choice. The curriculum of schools in Kansas is not the same as that in New York. If parents do not want their children taught the theory of evolution, they can simply relocate to a state with a different science curriculum. Even if the state were to articulate a unitary standard of core requirements, diversity would show up at the implementation stage as differences within districts, schools, and classrooms. Furthermore, an important potential for diversity in public education is presented by public school systems’ access to tax revenues. These resources, collected from everyone in the district, are specifically committed to the education of that district’s children. While there are “politics” to be played in this regard, the state school systems have the ability to garner public funds to supplement core education with a variety of pluralistic/secular school-affiliated clubs, groups, and associations. Thus the possibility for diversity of experience in some public settings goes well beyond that provided by smaller individual private institutions dependent on tuition. Conversely, those who critique the diversity of public school options often overstate the diversity inherent in giving parents choice among educational options. There may well be some diversity among private institutions, but there is more likely to be homogeneity within them. Education, after all, is a group activity, practiced in institutions. Private institutions may become the choice of parents precisely because they are likely to be far more homogenous, providing fewer opportunities for children to encounter alternatives to parental values or biases. Perhaps the entire argument about the possibilities for diversity is rather specious. If there is a core curriculum, then diversity is merely conceived of as supplemental to some extent. Of course, as noted above, differences may be introduced in the process of implementation, but that type of diversity is  Indeed, Carter (2001) explicitly argues that parents should be able to home school their children or send them to private religious schools in order to “shield[ ] them from the public schools.”

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not confined to the private setting. Further, even if there are opportunities for supplements beyond the imposed core curriculum, external pressures such as standardized tests, college entrance requirements, and the influence of culture will probably push private institutions to replicate public choices. Teaching materials are also relatively uniform in content and perspective, and there is not a great deal of variety and choice. Thus significant constraints limit the viability of theoretical options. Even in cases in which there are unconstrained economic resources, time, and energy, other factors will make uniformity and conformity attractive if not inevitable. I am not arguing that there are no diversity distinctions, only pointing out that the difference in diversity opportunities supplied by private as contrasted with state systems is less stark than one may believe. Another argument advanced for parental control is that parents have special or superior knowledge about their child (What’s wrong with the UN Convention, 2008). I concede that this may be true when the knowledge at issue is highly personalized, such as whether the child’s favorite color is red or blue or whether the child prefers carrots to beets. However, I question whether parents have superior knowledge when the issues involve what subjects and methods of preparation are most likely to prepare the child for a future in a complex, technical, and rapidly changing world. This type of expertise is almost certainly within the province of certified teachers and school boards, not parents. My comfort level with leaving decisions to parents is profoundly affected by the extent to which any decision is likely to have implications for the child in the future. Some parental choices will not have much long-term effect on the developmental well-being of an individual. Children are very resilient and can often recover from parental selfishness, shortsightedness, mistakes, bias, or ineptitude. Thus, a child can recover (or never experience real disadvantage) from being deprived of piano lessons for the sake of a trip to Disneyland. Other choices, however, may not inspire confidence about children’s assumed resilience. Certain parental decisions can create handicaps and inhibit a child’s entry into the secular and complex world in which she or he must live and function as an adult. Many parents argue that the interest of parents in educating their children according to their morals and values should trump any other expressive interest. But what if the parental values and morals to be expressed in making choices for the child are not so conveniently exemplary by secular standards as those that are presumed? What is the role for expressive interest of parents who believe in the value and morality of white supremacy or resistance to the “jack-booted” officials of a federal government poised to take over and enslave free people? What weight should be given to the choices for the children of parents who believe that women should be sequestered and confined, that they are actually a form of “property” to be passed from father to husband according to God’s will? The point is that parental expressive interest can reflect oppressive, hierarchical belief systems. Such systems are designed to destroy any possibility of the very individuality and independence that a private education can purportedly foster.

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When one considers these types of expressive communities, it is important to realize that parents may not be the “real” or sole interest holders in regard to their children. Parents in these contexts are often part of a larger religious or ideological community, a community with an independent interest in and intent to indoctrinate children. Such communities conspire with member parents to separate their children from diverse secular, and therefore competing and dangerous, alternatives. Indeed, recently the European Court of Human Rights (ECHR) held that parents that belonged to a Christian community were not permitted to home school their children in conformity with their religious beliefs (Konrad v. Germany, 2006). In doing so the ECHR recognized both the role of the state and the parents in educating children but noted that “respect is only due to convictions on the part of the parents which do not conflict with the right of the child to education” (Konrad, 2006, § 1). Religious and philosophical convictions can be taught by the parents after school or on weekends. Interestingly, the ECHR recognized the difficulty for the children, due to their tender ages, to make an autonomous decision for themselves regarding home school, as they could not foresee the consequences of such a decision. Similarly, the ECHR has ruled that the practice of corporal punishment in schools violates a child’s fundamental human rights, specifically the right to be free from degrading punishment (Campbell and Cosans v. UK, 1982; CostelloRoberts v. UK, 1993; Tyrer v. United Kingdom, 1978; Y v United Kingdom, 1992). In so finding, the ECHR rejected the argument that religious freedom or the rights of the parents trump the child’s interests. The ECHR has extended its protection of the child to cases where the child has sued his parents for corporal punishment occurring within the home. In A. v UK (1998), when the stepfather was acquitted of the charge under a United Kingdom law allowing parents to “reasonably chastise” their children, the ECHR found the United Kingdom liable for failing to protect the child from abuse under its laws (as cited in Council of Europe, 2008). The approach of the ECHR provides a competing framework for making decisions regarding the educational and social welfare of the child: that of the best interests of the child, as evaluated through the paradigm of human rights. The decisions of the ECHR demonstrate that the expressive interest of the parents does not always protect the child’s interests, particularly in the context of religious education. The big question is not whether the state must recognize parents’ expressive interest in their children’s education, but where we draw the line separating that expressive interest from the child’s interest in the diversity and independenceconferring potential of a secular and public education. When does the state’s interest in protecting children come into play? It has been suggested that the concept of educational abuse and neglect is the place to draw that line (Galston, 2003). The examples I mentioned would not fall into that category, however, since the children in question would be educated and could function at or above a minimal level. The standard of educational abuse or neglect ignores the more insidious ways in which a child can be subject to ideological indoctrination or be made to conform to oppressive belief systems.

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However, even cases of educational abuse or neglect have failed to galvanize support for state oversight of private or home-schooled children. For example, state policies favoring parental choice in home schooling children have resulted in several egregious instances of parental neglect and abuse. Just this year, two home-schooled children in Washington, DC were brutally murdered by their own mother, yet their decomposing bodies were not discovered until well after their deaths. The mother’s ability to home school her children without any state oversight arguably enabled her to repeatedly torture and ultimately murder her children without anyone noticing (Gross, 2008). Despite tales such as these, at least ten states currently lack regulations of any sort over parents who choose to home school their children (Gross, 2008). In fact, in those ten states, parents are not even required to inform the school or the state that they intend to home school their children (Gross, 2008). As a result, parents are given total discretion over their children’s education and neither children nor the state are given an opportunity to assert their interests. Worse still, laws favoring parental rights often impede efforts by the state to ensure that children are receiving a basic education and proper care. In these instances, parental or familial autonomy can become a cover for educational and social neglect or abuse. As a result, the vulnerability of the child to parental abuse can prevent the assertion and development of the child’s individuality. Situations such as these demonstrate that, in some instances, the child’s interests cannot be expressed without prior state regulation. Indeed, the long-term consequences for the child of being home schooled or sent to a private school cannot be overstated. The total absence of regulation over what and how children are taught leaves the child vulnerable to gaining a sub-par or non-existent education from which they may never recover. Moreover, the risk that parents or private schools unfairly impose hierarchical or oppressive beliefs on their children is magnified by the absence of state oversight or the application of any particular educational standards. Despite the clear potential for (and existence of) abuse when parents home school or send their children to private schools, many people continue to believe that parents are the appropriate decision makers when it comes to their children’s education (Kafer, 2004). The belief that a parent will always choose the type of education that is best suited for their child ignores the fact that choice is not freely available to all parents. The notion of parental choice ignores several common barriers to mobility, including the strictures of poverty, parental neglect, and the limitations that standardized tests may place on a child’s mobility. Certainly many parents have the time, money, and interest to identify a particular school that reflects their values and beliefs, secure entry for their children, and ensure that the entrance exams are passed, the requirements are met, and the tuition is paid. Parents such as these have options for manifesting their expressive interest. What about those parents with fewer options, however—those whose children are excluded by tuition or tests, or

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those who reject the necessity of affiliation with religious groups in order to secure that type of subsidy for a private education? Choice is not equally available to everyone in our American education system— some are kept out. It is particularly important to remember this crucial point given our history of race relations. Historically in the United States the expressive interest of one set of parents resulted in the segregation of and discrimination against the children of another set of parents. Allowing some to opt out of the public system today is reconstituting a new reality of segregation and neglect in many urban areas. Nonetheless, policy proposals abound regarding ways to increase parental choice over children’s education. Recent proposals include the use of state-funded school vouchers to enable parents to send their children to private schools for religious education (Dwyer, 1998). What is most troubling about these proposals is that state funding is not tied to any supervisory criteria or oversight to ensure that the children are receiving a quality education. Instead, the focus on the parents’ right to educate their children in a particular religion eclipses any consideration of whether the school measures up in important and basic subject matters (see Dwyer, 1998, p. x). Children’s interests are pushed to the background under the erroneous assumption that private schools inherently operate in the best interests of the child. Indeed, the lessons of the past regarding private schools and segregation are seemingly ignored when children are removed from the public school system and the state’s purview. Studies document the hierarchical and oppressive values that are often indoctrinated into children attending private religious schools. For example, Dwyer (1998, p. 3) has exposed the ways in which private Christian schools instill sexist beliefs into children and pressure young girls into traditional patriarchal roles rather than professional careers. The absence of a paradigm that takes children’s interests seriously results in the neglect of children’s education. State failure to oversee the education of private or home-schooled children leaves many such children without a mechanism with which to assert their interests in obtaining a decent education. Despite the problems stemming from the current paradigm of privately controlled religious education, the public remains reticent to take the interests of children seriously. American citizens, as well as the federal government, have vehemently rejected United States’ ratification of the United Nation Convention on the Rights of the Child (CRC). Opponents argue that ratification would dramatically  Dwyer (1998) states: “It is even more unconscionable for states to fund schools that they do not hold accountable, when there is sufficient evidence to suggest that some of the schools vouchers would fund are grossly inadequate academically and treat children in ways the state deems harmful.”  Dwyer (1998) relies on studies that demonstrate that “Fundamentalist Christian schools of all kinds explicitly inculcate sexist views and aggressively discourage girls from pursuing any ambition in life other than serving a husband.”

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usurp the fundamental right of parents to make decisions regarding the appropriate school curriculum for their children, the communities in which they associate, the religion that they follow, and whether they attend a public or private school at all (Smith, 2008). Advocates of parental rights continue to argue that parents are best situated to make decisions that benefit the child’s welfare, education, and personal development. The weaknesses of these arguments demonstrate the need for a paradigm shift in how we allocate decision-making authority over children’s education. Perhaps the more appropriate suggestion for our current educational dilemma is that public education should be mandatory and universal. Parental expressive interest could supplement but never supplant the public institutions where the basic and fundamental lesson would be taught and experienced by all American children: we must struggle together to define ourselves both as a collective and as individuals. Perhaps when parents could not buy their children’s way out of a public system, they would begin to buy into the idea that we should all be concerned with every child’s opportunities, not just with those of our own.

  One of my favorite statistics to make this point is that one out of every 270 (or so) people in the United States is a child in the New York public schools. In what way can we continue to think of education as a “local” concern? Such a viewpoint is even more ludicrous when we add to the more than a million New York City public school students those in Los Angeles, Chicago, Philadelphia, and so on.

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Part III

Comparisons: Children within the Context of Human Rights Introduction Cultural perspectives, including law, influence how a society defines family and shape the understanding and expectations associated with family roles, such as parent and child. The chapters in this section explore the ways in which Canada and Europe have dealt with questions of children’s rights, particularly with respect to religious freedom. These States have not only ratified the CRC, but in addition have ratified other binding treaties, including the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), creating a culture of expectations for the State in regard to protection of the child’s interests. However, the examples given by these authors demonstrate that States deal differently with questions at the intersection of children’s rights with parent’s rights in regard to religion. The ambiguities of these documents are particularly evident when States must determine the boundaries of religious freedom for children, when such freedom is also dependent on the increasing (and thus never constant) independence and “evolving capacity” of the child. The examples in this section also illustrate the tensions between international laws and the domestic laws of individual nation-states, as well as the discrepancies between the intent of international documents and the application within individual nations. Finally, this section raises questions concerning the religious sensibilities of children, asking whether or not it can be assumed that children necessarily share the religious ideas and values of their parents. How do, or should, the state educational systems promote tolerance and understanding between religious groups? At what age can a child decide to adopt her own religion? How does the CRC specifically protect parents’ rights and the right of children to religious freedom? Each of these chapters reminds us of the ongoing discussions and the work that must continue to be done to address concerns under the CRC. Ursula Kilkelly begins Part III by examining a child’s right to religious freedom and revealing the weaknesses of many human rights doctrines that apply to children. She describes how the need to reach international consensus on many documents, particularly the CRC, resulted in overly broad and inexact language. Kilkelly uses religious choice and expression as a backdrop to highlight difficulties within the doctrines that apply to children and to discuss what could be done to strengthen children’s rights. Kilkelly’s straightforward discussion of the ambiguity contained

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in the CRC and her illustrative case examples demonstrate how this resulted in interpretations that are actually contrary to the intent of the document. Readers are assured that efforts to secure rights for children are ongoing and advocates for children’s rights must not become complacent. Shazia Choudhry illuminates the difficulty in getting domestic courts to enforce provisions of international treaties, even when the provisions are specifically incorporated into domestic law. She explores the foundations for United Kingdom (UK) court decisions related to the upbringing of children and compares the reasoning in those decisions to the reasoning made in similar decisions by the international courts. She suggests an approach that is consistent with both UK and international law, but diverges from the traditional approaches to theses cases in the UK. Catherine Ross considers the manner in which western democracies respond to students who wear religious symbols in schools. Her chapter examines “the problem of the veil,” which refers to the issues that arise when students claim the right to wear religious symbols in publicly funded schools. Her contemplation of the problem of the veil also reveals concerns about students who do not wish to wear religious symbols at schools where that is the norm and explores whether it is the rights and wishes of the parents or the children that are the focus. Ross asks whose rights or wishes should be honored when parents’ and students’ wishes conflict. She compares statutes and court decisions from individual countries in search of the best model of accommodation. Laura Lundy explores children’s perspectives on their experiences of religion and education in Northern Ireland. Lundy’s analysis of information collected for a report for the Commissioner for Children and Young People focuses on four interrelated issues: the extent to which children’s right to freedom of conscience is respected at school; the impact of religion on children’s enjoyment of their right to an effective education; the effects of religious segregation within education; and the protection of schoolchildren from religiously motivated harassment. Lundy’s look at education and religion provides examples of successful implementation of the CRC in Northern Ireland, and highlights areas in which further work is needed. Any discussion of human rights and children’s rights must include an exploration of competing rights. What happens when the rights asserted by one person or group seem to directly conflict with or compete with the rights of others? More specifically, how can both children and cultural or ethnic groups simultaneously exercise their rights to develop and maintain communal or cultural identities? Alice Hearst addresses these questions within the deeply emotional context of international adoptions and the politics of belonging. She focuses on transnational adoption and provides perspective on the controversial issue of groups’ rights to maintain or create connections to children and the interplay between a group’s interest in a child and that child’s interest in belonging to a family. She explores the extent to which human rights doctrines provide guidance on a child’s right to belong, a child’s right to his or her cultural identity, and transnational adoption. She is not afraid to ask and begin to answer questions such as “To whom does a

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child ‘belong’ and how is that defined?” and “What voice, if any, should be given to a child in determining his or her identity, culture, community, and family?” S. Matthew Liao concludes the book by advocating the right of the child to be loved. The title of this chapter speaks for itself.

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Chapter 13

The Child’s Right to Religious Freedom in International Law: The Search for Meaning Ursula Kilkelly

International children’s rights standards play an important role in promoting and protecting the rights of children at both the international and national levels. These standards are drawn from a variety of sources ranging from the UN Convention on the Rights of the Child (CRC) (1989), which is a comprehensive treaty dedicated to children’s rights, to the International Covenant on Civil and Political Rights (ICCPR) (1966) and the European Convention on Human Rights and Fundamental Freedoms (ECHR) (1953), which reflect wellestablished human rights standards but give little express recognition to the rights of children. These documents are important for a number of reasons. First, they represent international consensus on the values and principles that should govern the treatment of children; second, they act as a useful benchmark against which domestic law, policy, and practice can be measured; and third, as fundamental principles, they can be adapted and incorporated into constitutional and legislative instruments at the national level. To be effective in this manner, however, the standards must be clear and unequivocal. They must also be childspecific to ensure the adoption of a child-focused, rights-approach at all levels. The aim of this chapter is to consider to what extent international standards on the child’s right to religious freedom meet these criteria. Looking particularly at the provisions of the CRC, the ICCPR, and the ECHR, it explores the meaning, scope, and value of the standards set by these international instruments and asks what level of protection international law provides for the child’s right to religious freedom. Notwithstanding that national courts, particularly in the US, have been active in this area, the focus of this chapter is on the courts’ positions at the international level (Dwyer, 1994; Harter Mitchell, 1987; Russo, 2004; Speagle, 2000–2001). Moreover, although religion is frequently invoked in family law disputes (Guggenheim, 1990), this chapter will focus on the right of the child to religious freedom in the educational setting as it more directly engages the independent right of the child.

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The Convention on the Rights of the Child International Consensus on Wide-ranging Standards The CRC was not the first international document to deal with children’s issues or rights (Declaration on the Rights of the Child, 1959), but it is the one instrument which recognizes the rights of the child in a comprehensive manner. The drafters of the CRC aimed to produce a binding treaty on children’s rights which would have wide appeal. Driven by the desire for consensus, the ten-year drafting process avoided major controversy and led to the adoption of the CRC by the General Assembly without abstention in November 1989. Widespread support for the values of the CRC allowed it to come into force in record time, eight months after it was opened for signature, and is reflected in its almost universal ratification. The drafters also achieved their second goal, that of a comprehensive treaty recognizing the rights of children in all areas of their lives. As a set of international standards, therefore, the CRC expands considerably the international law applicable to children through the “sheer ambition and breath [sic] of its provisions” (Fottrell, 2000, p. 4). One of its remarkable features is that it is the first human rights instrument to combine the previously divided areas of civil and political rights with social, economic, and cultural rights (Van Bueren, 1995). It thus represents the first binding document to articulate the rights of the child in all areas of his or her life. All CRC provisions are said to be informed by the four guiding principles of non-discrimination (Article 2), the best interests of the child (Article 3), the right to life, survival, and development (Article 6), and, most significantly in this context, the child’s right to be heard and have her views taken into account in all relevant matters in accordance with the child’s age and maturity (Article 12) (Committee on the Rights of the Child, 1996). The remaining provisions are often grouped according to the categories of Protection, Provision, and Participation rights. In the former category are the right to protection from all forms of harm and abuse (Article 19) and protection from economic, sexual, and other exploitation (Articles 32–6). Provision rights include rights which ensure the child’s basic needs, including the child’s right to health and health care (Article 24), the child’s right to social security (Article 26), the child’s right to an adequate standard of living (Article 27), and the child’s right to play (Article 31). Participation rights include the child’s right to be heard (Article 12), and the freedom of expression (Article 13), freedom of thought, conscience, and religion (Article 14), and freedom of association and peaceful assembly (Article 15).

 See, also, Article 25 of the Universal Declaration of Human Rights (1948), which recognizes that childhood is entitled to special protection, while the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966) make similar provision in Article 24 and Article 10 respectively.

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While the widespread consensus that the CRC enjoys means that it has “considerable political, legal, and even moral force” (Fottrell, 2000, p. 1), the motivation to draft standards with universal appeal meant that sacrifices on content were inevitable. Thus, although many of its provisions are positive, several are flawed insofar as they enshrine standards that are vague, equivocal, and phrased in such broad terms as to have limited meaning. Article 3, for example, requires that the best interests of the child be a primary consideration in all matters concerning the child, but the fact that what is in any child’s best interests is an open-ended question allows this standard to be all things to all people (Kilkelly and Lundy, 2006). Other provisions are also phrased in such broad terms that their meaning is unclear. For example, Article 24(3), the health care provision, contains a broad obligation to “eliminate traditional cultural practices prejudicial to the health of women,” but an express reference to female genital mutilation was removed during the drafting process, leaving the provision open to a variety of local or cultural interpretations (Detrick, 1992). Article 23(2) on the rights of children with disabilities provides: States parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child … of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

This is so riddled with exceptions and limitations as to raise questions about its compatibility with the CRC itself, including the Article 2 prohibition on discrimination between children on the grounds of disability (Kilkelly, 2002). Parental Rights and the Principle of Evolving Capacity In addition to the problems of overly broad language, Participation provisions are said to be weaker than the Protection or Provision categories of rights (LeBlanc, 1995, p.147). Described as “extreme and radical,” the notion that children, like adults, have civil and political rights was viewed as controversial, and their inclusion risked undermining the wide political support dominating the CRC’s drafting process (Fottrell, 2000, p. 5). Unlike socio-economic rights, recognizing children’s civil and political rights requires an acknowledgment that children have rights exercisable independently of, or even in opposition to, their parents. Central to such provisions is the recognition of the child’s autonomy, his or her capacity to exercise rights independently of others and an acknowledgment that the child is a person capable of self-determination and not just an object of concern (Freeman, 1995). The tension between parents’ and children’s rights is clear here and, according to some, is most pronounced in the exercise of such rights as the freedom of thought, conscience, and religion because, typically, these rights are claimed by parents as part of their responsibility for their child’s religious

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upbringing and education (Hammarberg, 1990). Recognizing that children have civil and political rights not only involves guaranteeing those rights to children, it may also be said to take them away from parents in some circumstances, or at least to remove them from an exclusive sphere of parental rights and responsibilities. In order to address the potential conflict between the rights of children and their parents, Article 5 of the CRC recognizes the principle of evolving capacity. This principle provides that States must respect the responsibilities, rights, and duties of parents to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of his or her rights. Acknowledging that parents have the right to guide their children in the exercise of their rights, the principle of evolving capacity also recognizes, like Article 12, that as the child matures, he or she takes on added capacity to exercise these rights for herself (Cullen, 1993). Accordingly, the exercise of these rights passes from parent to child as the child’s capacity develops. The concept of evolving capacity is dynamic, and its application varies from child to child and from parent to parent. Article 5 is silent as to when the child is deemed to have reached the critical stage in his or her development when independent exercise of his or her rights is possible. Clearly, much depends on the parents’ approach in this regard, but reading the provision together with Article 12 requires both the age and maturity of the child to be taken into account. Until age and maturity indicate otherwise, however, Article 5 assumes a certain consistency between parents and their children regarding the exercise of the child’s rights. However, this may not always be the case, and where parents and children conflict, it is clear from Article 5 that the parent occupies the dominant position. In this regard, the CRC fails to contemplate that parents—in good faith or in bad—already influence children heavily in the exercise of their rights. While some parents will facilitate and support their children’s independent exercise of their rights at the earliest possible stage, others will seek to retain control long beyond the time when the child’s capacity determines their ability to exercise them for themselves. Parents are the ultimate gatekeepers in this respect and there is no remedy to the totalitarian exercise of parental authority. Thus, while Article 5 may have been a pragmatic solution to the problem posed by the potential clash between parents’ rights and children’s rights, it also guarantees parental primacy in the exercise by children of their rights. In this way, it underscores parental authority as an implicit restriction on all children’s rights. However, the failure to recognize the capacity of children as autonomous rights holders is particularly pronounced with regard to the child’s Participation rights. Participation Rights under the CRC While concern about children’s rights frequently focuses on their social and economic deprivation, it was nonetheless important for the sake of completeness that the CRC included, as far as possible, the civil and political rights secured by more general human rights treaties such as the ICCPR and the ECHR. It is

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significant, therefore, that the CRC recognizes the child’s right to freedom of expression (Article 13), freedom of thought, conscience, and religion (Article 14) and freedom of association (Article 15). However, the fact that these provisions do not recognize these rights in a particularly child-appropriate form—the relevant provisions use largely similar language and approach to the equivalent provisions in the ICCPR—raises the question as to whether the inclusion of these rights was merely tokenistic. Note the terms of Article 15, for example, which recognize the child’s right to freedom of association in almost identical terms to Article 22 of the ICCPR, notwithstanding the fact that this right may have particular importance to children and young people for whom spending time with their peers is a priority (Kilkelly et al., 2005a, p. 18). Moreover, the limitations placed on the exercise of these Participation rights are not those familiar to children—such as the exercise of parental responsibility—or relevant to the child’s capacity to exercise such rights; instead they replicate verbatim the grounds which the ICCPR provides, including national security, public safety or the protection of the rights and freedoms of others. In this regard, for example, Article 22(2) of the ICCPR and Article 15(2) of the CRC place identical restrictions on the exercise of the freedom of association, notwithstanding that the latter is intended to have a clear child focus. In comparing the levels of protection guaranteed by the ICCPR and the CRC, the provisions of the latter treaty suggest that children are not entitled to enjoy these rights on the same terms as adults. The CRC includes a diluted version of the rights in question—for example, under the CRC, children have the right to freedom of assembly but not to join trade unions (as per Article 22 (1) of the ICCPR); they have the right to freedom of expression, but not to hold opinions without interference (as per Article 19(1) of the ICCPR). Thus, while it is important that the CRC recognizes in broad terms that these rights belong to children as well as to adults, the failure to include in the CRC all the rights set out elsewhere in international law highlights that the child appears to enjoy less rights than adults in this sphere. The Child’s Right to Religious Freedom This problem is particularly acute in the CRC provision on the child’s right to religious freedom. Article 14 provides that “States Parties shall respect the right of the child to freedom of thought, conscience and religion.” Notably, the provision omits two elements of the right to religious freedom given express protection in the equivalent provision (Article 18) of the ICCPR: “the freedom to have or to adopt a religion or belief of his choice” and the “freedom either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.” The overt absence of both rights from Article 14 raises questions about the level of protection afforded by the CRC to the child’s right to religious freedom. If the right does not comprise these two elements of choosing and exercising one’s religion, what elements of the right are protected? One conclusion is that Article 14 protects only the “inner” elements

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(the private matters of holding religious beliefs) and not the “outer” elements (the more public aspect of choosing and practicing religious beliefs) of religious freedom. If this is the case, it is clear that according to international law, the child’s right to religion is not worthy of the same protection as the equivalent adult right. However, the alternative view is that these elements are implicit in Article 14 even if not given express recognition. That is certainly the view of States like Belgium and the Netherlands, which entered declarations to the CRC on ratification to the effect that Article 14(1) is to be interpreted, consistent with the ICCPR and the ECHR, as including the right of the child to choose his or her religion or belief. The drafting records do not bear out this interpretation, however, and show instead a deliberate decision to remove the child’s right to choose her religion from the provision on religious freedom. While earlier drafts submitted by the Scandinavian countries and Canada, for example, proposed a provision broadly reflective of the ICCPR standard, the vociferous objection of a group of Islamic States, who argued that the notion that a child could freely choose his or her religion ran counter to the principles of Muslim law, prevailed, causing this element of the provision to be dropped (LeBlanc, 1995). While most States agreed with the need for compromise here in pursuit of the more laudable goal of universality, others complained about the lowering of standards, which this clearly represented. In relation to the child’s right to practice his or her religious beliefs, it is not clear why this element was not given express protection in Article 14, particularly given that Article 14(3) places an express limitation on that right. While this may support the view that this part of the right is in fact implicit in Article 14(1) (UNICEF, 2002a), the failure to give it explicit protection is a source of confusion and ambiguity, not least given that it appears in the equivalent ICCPR and ECHR provisions. Article 30 of the CRC confuses matters further. Concerned with the rights of children of ethnic minorities, Article 30 provides: In those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group … to profess and practise his or her own religion.

There are a number of caveats here: first, this right does not have general application and relates expressly only to those States in which minorities exist; second, the right to profess and practice religion is limited to children who are members of such a minority; and third, the provision refers only to collective worship—practicing religion “in community with other members of his other group.” The fact that this provision is negatively formulated—it prohibits the denial of this right to children rather than recognizing that the right must be actively secured—may further limit its potential to provide protection for children of religious minorities who wish to practice their religion with others. If Article 14(1) includes the freedom to manifest one’s religion, why was it necessary to include such a limited right in Article 30?

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If it does not, then why are only those children belonging to ethnic minorities entitled to enjoy this right? Limiting the Child’s Right to Manifest his or her Religious Beliefs Article 14(3) of the CRC is identical to Article 18(3) of the ICCPR insofar as it limits the freedom to manifest one’s religion or beliefs where prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Despite the fact that the widely accepted nature of this principle meant that it was included “with no controversy” (LeBlanc, 1995, p.168), the phrasing of the paragraph is curious insofar as the CRC does not expressly recognize the right of the child to manifest her religion. On this strict basis, it is not clear why paragraph 3 limits a right not expressly recognized elsewhere in the Convention. One interpretation, highlighted above, is that the freedom of religion recognized in Article 14(1) implicitly includes the child’s freedom to manifest his or her beliefs. Article 14(3) thus can be interpreted as setting out “the very limited restrictions allowed on the child’s freedom to manifest his or her religion or belief” (UNICEF, 2002a, p. 193). For those unconvinced that rights can be read into the provision in this way, an alternative interpretation is that Article 14(3) aims to limit the manifestation of religion or belief by others, notably adults, where this impacts on the rights of the child (“fundamental rights and freedoms of others”). It is possible, therefore, that the provision prevents parents from practicing their religion where this interferes with the rights of the child. On this basis, a parent whose religious beliefs prevent his or her child from receiving a blood transfusion would be caught by the Article 14(3) limitation (Lederman, 1995), as would a parent seeking to rely on religious beliefs to impose corporal punishment on that parent’s child (R. v. Secretary of State for Education and Employment, 2005). However, given that Article 14(2) appears to grant primacy to the rights of parents over those of their children, this scenario will probably be uncommon. Parental Guidance in the Exercise of the Child’s Right to Religious Freedom Article 14(2) provides that State Parties shall respect the rights and duties of parents to provide direction to the child in the exercise of his or her right in a manner consistent with the child’s evolving capacities. This provision clearly recognizes the role of parents in the religious upbringing of their children and, in this way, appears to give priority to the rights of parents in the exercise of the child’s right to religious freedom. In strict terms, it may be interpreted as a limitation on the child’s right to freedom of thought, conscience, and religion. While this is the only provision of the CRC in which the right of parents to guide the exercise of  In this case, the House of Lords held that Article 9 of the ECHR could not be interpreted to allow the manifestation of a parent’s religious belief (in favor of corporal punishment) where this was not in the best interests of the child.

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their children’s rights is given express recognition, it does not appear to have been a very contentious issue during the drafting process. This is probably due to the fact that respect for the integrity of family in this area in the form of recognizing the parental role in guiding the religious development of their children is well established in international and national law. For example, US law has made it clear that parental rights extend to control over children’s religious upbringing (Pierce v. Society of Sisters, 1925; Prince v. Massachusetts, 1944; Wisconsin v. Yoder, 1972). Moreover, Article 18(4) of the ICCPR respects the “liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions,” and Article 2 of the First Protocol to the ECHR provides, in more narrow terms, that “in the exercise of its functions in relation to education and teaching States shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Thus, while Article 14(2) of the CRC was a compromise provision designed to address potential conflict between children’s rights and parents’ rights in this sensitive area, it drew on precedents established elsewhere in doing so. In this regard, it could be interpreted as a means of using parental rights to protect the child from the undue influence of the State through religious indoctrination. However, the CRC provision may be said to have gone further than the equivalent provisions in the ICCPR and the ECHR insofar as it recognizes the right of parents to provide direction to the child not only in matters of religion, but also in relation to matters of thought and conscience (UNICEF, 2002a, p. 195). Notwithstanding its uncontentious nature, Article 14(2) does not provide clear direction as to when the parent’s right ends and the child’s right begins with respect to issues of religious freedom. Some emphasize the fact that Article 14(1) “refers unambiguously to the right of the child to freedom of religion,” and note that while it is the child who exercises the right, the parent’s role is limited to providing “direction,” which itself must be consistent with the child’s evolving capacity and with the CRC as a whole (UNICEF, 2002a, p. 198). By this rationale, “direction” cannot involve any form of physical or mental violence (consistent with Article 19 of the CRC), and must involve taking into account the child’s views “in all matters affecting the child” in line with the child’s age and understanding (as required by Article 12 of the CRC). Further support for the view that the parent’s role here is limited is drawn from the Committee’s Reporting Guidelines, which asks States about the age at which a child can choose their own religion or attend religious education (Committee on the Rights of the Child, 1996). While the provision does not offer a solution to courts asked to resolve a conflict between a child and the child’s parent in relation to religious matters (Hamilton, 1995a), a more positive interpretation of Article 14(2) may reflect the reality that in most cases such conflict would not exist, given that most children will share their parents’ religious beliefs. In this way, the provision merely includes in the CRC the State’s duty to respect the integrity of the family and its collective beliefs and convictions.

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The fact that there are at least two possible interpretations of Article 14(2) creates ambiguity about its meaning. Moreover, it is not surprising that a wide variety of reservations and interpretive declarations have been entered by States seeking to clarify the meaning of the provision. Some States, like the Holy See and Poland, have entered reservations to the effect that Article 14 is to be interpreted in a way that guarantees respect for parental authority and rights (LeBlanc, 1995). Islamic States, like Algeria and Iran, on the other hand, have reserved the right to apply Article 14(1) and Article 14(2) only insofar as it is consistent with the Islamic shari’a (UNICEF, 2002a). In further contrast, European States have adopted a broadly common approach: Austria and Iceland have specified an age (14 and 16 years respectively) at which the child is entitled to choose his or her own religion (UNICEF, 2002a); the Netherlands has declared its understanding that Article 14 includes the freedom of a child to have or adopt a religion of his or her choice as soon as the child is capable of making such choice in view of his or her age or maturity, and in Germany, at the age of ten a child must be heard prior to a change in religious denomination, and at the age of twelve can no longer be forced to take religious instruction in another denomination against the child’s will (UNICEF, 2002a). While such statements are a welcome affirmation of the child’s independent right to religious freedom and the extent to which some states are willing to incorporate the principle of evolving capacity into the child’s exercise of her religious freedom, the fact that Article 14 can accommodate such diverse interpretations is problematic in itself. Contribution of the Committee on the Rights of the Child While the ambiguity of Article 14 means that it accommodates different views, it is also apparent that the compromise reached during the drafting process has dramatically reduced the level of protection it affords to the child’s independent right to religious freedom. Not surprisingly, more State Parties have entered reservations and declarations concerning Article 14 than any other CRC provision. In light of the concern about the scope and content of the CRC, the task fell to the Committee on the Rights of the Child to clarify the child’s right to religious freedom. However, the Committee has done little to address the situation. Although it has routinely expressed concern about reservations that suggest lack of full recognition of the child as a subject of rights and urged states to withdraw all reservations (UNICEF, 2002a), it has not yet considered the child’s rights under Article 14 in any detail. None of its discussions—including those on the family and on indigenous children— have paid any attention to participation rights or religious freedom. No mention is made of the issue in the General Comment on the Aims of Education (Committee on the Rights of the Child, 2001), or the General Comment on Adolescent Health (Committee on the Rights of the Child, 2003b), to which religious freedom is clearly pertinent. On a positive note, while the General Comment on Implementing Child’s Rights in Early Childhood does not refer expressly to religious freedom (Article 14 is not mentioned at all), with respect to the child’s rights under Article

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12 (the child’s right to be heard) it is important that it recommends that State Parties should take “all appropriate measures to promote the active involvement of parents, professionals and responsible authorities in the creation of opportunities for young children to progressively exercise their rights within their everyday activities in all relevant settings” (Committee on the Rights of the Child, 2005a). It is regrettable, however, that to date no other General Comment makes any general or specific reference to the issue. Moreover, its guidelines to States on the submission of reports on implementation, including the version adopted most recently, fail to give the problems associated with Article 14 any consideration whatsoever (Committee on the Rights of the Child, 2005b). This lack of guidance from the Committee allows the ambiguity of Article 14 to continue. European Convention on Human Rights In light of the clear difficulties with the standards set out in the CRC, it is pertinent to look elsewhere for guidance. The ECHR is a highly successful regional human system whose enforcement bodies—the (former) Commission and Court of Human Rights—have a well-earned reputation for vindicating the rights of individuals, including children, and it is thus a logical place to turn (Kilkelly, 1999). The ECHR contains two provisions relevant to the child’s right to religious freedom: Article 9 guarantees the principal right, while Article 2 of the First Protocol recognizes the right of parents to ensure the education and teaching of their children in line with their religious convictions. The Right to Religious Freedom under Article 9 According to Article 9, everyone has the right to freedom of thought, conscience and religion; the provision goes on to provide that “this right includes freedom to change religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.” Article 9(2) makes provision for limitations on the freedom to manifest one’s religion or beliefs, which are subject only to such restrictions as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Article 9 is thus analogous to Article 18 of the ICCPR and is significantly broader in scope than Article 14 of the CRC. Even though the ECHR was drafted long before children’s rights were given full recognition at an international level, it is nonetheless legitimate to assume that its provisions apply to children as well as adults. Nothing in the ECHR limits its scope to adults or excludes its application to children or others incapable of exercising their rights directly. To the contrary, the wording of both Article 9, which in a positive way recognizes that “everyone has the right to freedom of religion,” and Article 1, which places a duty on States to secure ECHR rights to “everyone within their

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jurisdiction,” are evidence of an inclusive approach. The fact that Article 14 requires that ECHR rights be secured without discrimination “on any ground” including “birth or other status” supports the conclusion that all ECHR provisions apply to everyone regardless of their age or capacity (Kilkelly, 1999). On this basis, it must be assumed that children enjoy the same entitlement to exercise their independent right to freedom of religion under Article 9 as adults, although much depends on the scope and terms of national law being applied in any given case. The availability of the ECHR’s system of individual petition means that the ECHR should offer great potential to children seeking to have their right to choose, hold, and manifest their religious beliefs vindicated. So far, however, this optimism has not been realized before the European Court of Human Rights. Although this may have more to do with the Court’s generally weak jurisprudence on matters of religious freedom, the reality is that to date the case law offers little to those seeking to augment the CRC’s inadequate standards in this area. Relevant case law on Article 9 is discussed below, but attention turns first to the rights of parents. Parents’ Rights under Article 2 of the First Protocol While Article 9 makes no reference to the rights of parents in respect to the religious education of their children, they are given express recognition in the ECHR’s educational provision. Article 2 of the First Protocol (second sentence) provides, “in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” This provision clearly envisages a parental role in the child’s exercise of the child’s religious freedom, along the lines of Article 14(2) of the CRC. Although its historical aim is to protect the child from religious indoctrination by the State via the educational system, it has been interpreted to require any instruction or teaching the child receives from the State to leave scope for parental guidance (Kjeldsen et al. v. Denmark, 1976). Moreover, the Court has adopted a broad approach to the interpretation of “education” and “teaching.” “Teaching” refers to the transmission of knowledge and to intellectual development, whereas “education” includes “the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young” (Campbell and Cosans v. UK, 1982, para. 33). The meaning of education thus extends beyond classroom theoretical instruction to include the development and molding of a child’s character, which may take place in other situations, including in society generally (Campbell, 1982). The reference in Article 2 to education and teaching means that the State’s obligation to respect parental convictions has a potentially wide application. It is relevant not only to teaching in schools, but to all of the State-assumed functions in the formal educational system. Moreover, the Court’s case law makes it clear that the duty to respect the parents’ religious convictions is relevant beyond the school system, in the broader context of the way children are reared. In family law cases, the Court has established that

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the obligation to respect the parents’ beliefs regarding their children’s education is an important reflection of parental responsibility and may, for example, require that the domestic authorities take such beliefs into account when placing a child in alternative care (Olsson v. Sweden, 1988; see also Guggenheim, 1990). In this way, the right to determine a child’s religious education is an inherent part of the right of custody, which may be relinquished along with other parental duties in certain circumstances. Although exercise of the child’s freedom of religion protected under Article 9 is not subject expressly to parental consent or guidance, it is implicit from the case law of the European Court that in most circumstances parents are entitled to bring up children in their own religion (Hoffman v. Austria, 1993; see also Beschle, 1989). Accordingly, this interpretation of the provision would appear inconsistent with the decision of the drafters to place it in the educational provision rather than in Article 9 on religious freedom. Article 2 of the First Protocol reflects the view that in the education and upbringing of their children, parents are superior in authority to the State (Duncan, 1987). In this way, the provision addresses the relationship between parents and the State vis-à-vis religious freedom, rather than that between children and their parents. In the relationship between the State and the parent, the ECHR gives little consideration to the religious autonomy of children. Nor has the Court considered the weight to be attached to the child’s rights where there is conflict between parent and child in this area. For example, assuming that the right in Article 9 to choose and change religion applies to children, how does that fit with the exercise of the parents’ rights to ensure their children’s education and teaching in accordance with their religious convictions under Article 2 of the First Protocol? The nature of the relationship between these two ECHR provisions is thus unclear and the Court has had little opportunity to clarify it to date. Also unclear is how the Court would approach a potential conflict in this area. It may be relevant, in this regard, that the only express limit on religious freedom set out in Article 9(2) relates to the manifestation of religious beliefs, rather than the freedom to choose religion. At the same time, the Court has indicated that insofar as Article 2 of the First Protocol recognizes the importance of the parental role in the education and guidance of the child in religious matters, it is to be read in the context of the ECHR as a whole, but in particular with Articles 8 (respect for private and family life), 9 (freedom of religion) and 10 (freedom of expression) (Kjeldsen, 1976). The requirement to respect a parent’s religious convictions in education thus reflects the right to respect for family life, the right to religious freedom, and the right to freedom of expression. The emphasis is placed firmly on the religious freedom and expression of parents and the duty to respect the integrity of the family, rather than the independent rights of the children. Respecting the Religious Convictions of Parents While it is clear that domestic authorities must show respect for parents’ religious convictions in the education and teaching of their children, it is not exactly clear

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what the scope of this duty is under Article 2 of the First Protocol. Clearly, the State must respect religious beliefs in all of its functions in the sphere of education; this requires that information or knowledge with a religious connotation may not be transmitted to pupils except in an objective and pluralistic manner (Kjeldsen, 1976; see also O’Neill, 1994). However, the case law illustrates how applying this principle in practice may be problematic (Valsamis v. Greece, 1996). For instance, it may be difficult to distinguish between teaching children about different religions, on the one hand, and instruction in a particular religion which involves an element of prayer, on the other. While the former may be consistent with Article 2 as long as the content and mode of conveying the information is both objective and leaves adequate room for parental guidance (Kjeldsen, 1976), compulsory child attendance at the latter class would appear to violate Article 2. This dilemma is highlighted by Karnell and Hardt v. Sweden (1973) where parents complained that the compulsory nature of religious instruction in State schools prevented them from educating their children in accordance with their religious convictions (Angeleni v. Sweden, 1986). The case was settled following the issuing of an order providing that religion would be taught as a separate subject from which the children were free to withdraw. Permitting parents to withdraw their children from religious instruction appears to be sufficient to fulfill the obligation to respect religious convictions under Article 2; therefore, the Court is unlikely to find that the State need do more, notwithstanding that the process of withdrawing a child from such instruction may mark the child out to be different when pressure to conform is great (Hamilton and Watt, 1995). Nevertheless, there are circumstances in which exemption from religious instruction will be insufficient to respect parental convictions under the Convention, such as where a religion represents a way of life or where it is integrated into the ethos of the educational system. The former dilemma is illustrated by two cases against Greece in 1996 concerning the compulsory participation of Jehovah’s Witness children in school processions commemorating the beginning of the Greece–Italian war (Efstratiou v. Greece, 1996; Valsamis v. Greece, 1996). The girls’ parents had expressly requested their exemption from religious education and any manifestation contrary to their pacifist religious convictions, including specific commemoration of the national holiday. Nevertheless, both children were penalized for failing to attend school on the day in question and received a oneday suspension. The Court of Human Rights rejected the idea that this situation constituted a failure to respect the parents’ convictions under Article 2 of the First Protocol. Fundamentally, the Court disagreed with the applicants about the military nature of the procession and the challenge it posed to their pacifist beliefs. The Court was persuaded by the fact that the procession was fully integrated in the traditional nature of Greek schooling and culture and that no exceptions to children’s obligatory participation were allowed. Accordingly, while the Court raised a judicial eyebrow to the compulsory nature of the parade and the penalty imposed for non-attendance, the mandatory participation in the procession did

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not amount to indoctrination; nor did imposition of a penalty for non-attendance violate Article 2 of the First Protocol. While the Court’s conclusion appears to be inconsistent with the general objectives of pluralism and tolerance in a democratic society (Council of Europe, 1993), the Court’s reliance on its own assessment of the nature of the procession is a particularly questionable element of its reasoning. Even considering that not all religious beliefs are worthy of respect under the ECHR, it is still arguable that the parents’ views on pacifism were significantly serious and important to warrant protection. The onus of bringing their views to the attention of the relevant authorities resides with the parent, and they had, in this case, specifically requested exemption from the parade in advance. Nevertheless, the Court made its own judgment, believing that whether the nature of the procession infringed the parents’ pacifist beliefs was something it could and did objectively determine, with obvious consequences. A further concern arising from this judgment is the extent to which it absolves the State from taking measures designed to accommodate religious convictions different from the majority. From this case, it is not apparent how the religious beliefs of minority groups are to be respected in an educational system dominated by one particular religion (Cullen, 1993). The current primary education system in Ireland is a case in point (Clarke, 1986). Run almost exclusively by members of the Roman Catholic faith, and with a strong Catholic ethos and an integrated religious curriculum, it is difficult to see how children of religiously diverse ethnic minorities can have their religious convictions respected in line with ECHR obligations (O’Mahony, 2006). What is apparent is that States cannot prohibit members of religious minorities from establishing their own schools, which must be tolerated where they are necessary to respect parents’ religious convictions. Although there is no independent obligation on the State to fund separate schools, the prohibition on discrimination in Article 14 of the ECHR, when read with Article 2 of the First Protocol, appears to entitle such schools to the same support as State schools. The circumstances in which this might arise are unclear, however, given that the State is under no obligation to provide any particular form of education (Harris, O’Boyle, and Warbrick, 1995). Two related issues deserve attention here. First, it may be possible to challenge State support that enables one religious minority, but not another, to establish and maintain their school by invoking Article 14 together with Article 2 of the First Protocol. Whether this situation would amount to a breach of the relevant provisions would depend on whether there existed an objective and reasonable justification for the distinction (X. v. United Kingdom, 1978). A separate issue might arise where failure to provide State support for a religious minority school results in the denial of the child’s right to education due to the fact that the parents’ religious beliefs cannot be respected in any other way (Hamilton, 1995b). This  In this case, the Commission found that the different levels of funding available to State schools and “maintained” schools was justified because the subsidy offered to the latter was large and the advantages were considerable.

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type of denial may cause difficulty where the system of State schools is expressly committed to religious education of one kind, and where the establishment of secular schools, for those who wish to avoid the strong religious ethos, is not facilitated (Clarke, 1986; Harter Mitchell, 1987). The Child’s Right to Religious Freedom Exemption from School Activities Returning to Article 9 of the ECHR, there is little guidance available from the Court regarding the exercise by a child of his or her religious freedom (Harris et al., 1995). Existing case law suggests that it is extremely difficult to make out a successful claim under this provision. In the two Greek cases mentioned above, the suspension from school of the two children who refused to participate in a school procession, which they believed to be contrary to their religion, was found to be compatible with Article 9. The Court reached this conclusion on the basis of its assessment that the procession was not inconsistent with the girls’ religious beliefs as Jehovah’s Witnesses. However, as already highlighted, it is not clear what authority the Court had to substitute its view regarding the parade’s military character and whether it infringed the girls’ religious beliefs. Surely, this is a subjective matter, and what was important was that the girls themselves believed the procession to be an infringement of their religious beliefs. The Court’s decision seems particularly questionable given that the genuine nature of their religious convictions was not in dispute, that they had brought these beliefs to the attention of the State authorities who had consequently made other concessions in their favor, and there was an absence of domestic authority on the matter (Harris et al., 1995). Moreover, by rejecting that there were religious convictions at stake here, the Court lost the opportunity to consider whether the interference with their freedom of religion under Article 9 was proportionate to the aims of public order, and so on, under Article 9(2). Undertaking this balancing exercise would not only have shown greater respect for the children’s religious convictions, it would have allowed the Court to give greater consideration to the impact of interfering with religious beliefs by using school exclusion as a punishment for failure to participate in school-sponsored, religious activities. Valsamis and Efstratiou also provide an insight into the relationship between the parents’ rights under Article 2 of the First Protocol, and the child’s right to religious freedom under Article 9. Considering the merits of the issue in the context of the former provision, the Court found that, as the obligation to take part in the school parade did not infringe the parents’ religious convictions, it did not mutatis mutandis   Indeed, one third of the Commission took this view and went on to find that the one-day suspension imposed on the children was disproportionate to the aim of protecting public order under Article 9(2).

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interfere with the pupils’ freedom of religion under Article 9. Moreover, it concluded that as the girls enjoyed exemption from religious instruction and Orthodox mass, this meant that a balance had already been achieved between their freedom of religion and the demands of school discipline. However, given that the scope of Article 9 is wider than that of the First Protocol’s Article 2, this provision arguably should have entitled the girls to greater protection of their ECHR rights than their parents. Arrangements had been made for them to be excluded from religious instruction and other religious activities without disrupting order within the school. It is difficult to understand, therefore, why refusing to exempt them from the parade, when they had made a prior request and which they believed to be incompatible with their religion, could be considered to be consistent with that provision. On a positive note, the Court appeared critical of the practice of requiring pupils to parade outside the school on a national holiday on pain of a day’s suspension from school (Valsamis, 1996). It also questioned implicitly whether there might be more expedient educational methods better suited to the aim of perpetuating historical memory among the younger generation (Valsamis, 1996). These remarks are important insofar as they leave open the possibility that a future challenge to the consistency of such a measure with the child’s right to education under the First Protocol or, more importantly, under Article 9 would enjoy success. In any event, the refusal to subject the child’s disciplinary sanction to legislative review constituted a denial of an effective domestic remedy in respect to the alleged violation of a Convention right in breach of Article 13 (Valsamis, 1996). Wearing of Religious Dress ECHR case law on Article 9 suggests a strong preference for secularism rather than religious freedom regarding the wearing of religious symbols. For instance, in 1993, the Commission of Human Rights dismissed a claim made by a Muslim university student against Turkey that a requirement to remove her head scarf for a photograph, taken for identification purposes, was incompatible with her religious beliefs (Karaduman v. Turkey, 1993; see also Bulut v. Turkey, 1991). In doing so, the Commission noted that by choosing to pursue her higher education in a secular university, the applicant had submitted to the rules restricting the freedom of students to manifest their religion, which aimed to ensure harmonious co-existence between students of different beliefs. It stressed that, particularly in countries where the great majority of the population belongs to one particular religion, manifestation of the observances of that religion, without restriction as to place and manner, may constitute pressure on those who do not practice it. Thus, where secular universities have laid down dress regulations for students, they may ensure that certain fundamentalist religious movements do not disturb public order  It is noted that the Court sometimes resists applicants’ attempts to raise, under Article 9, issues which can be dealt with under other provisions such as Article 8, where the case concerns the custody of children (Harris et al., 1995).

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in higher education or impinge on the beliefs of others. Applying this rationale, the interference with the student’s freedom of religion under Article 9 was justified on the grounds of public order. A Grand Chamber of the European Court considered this issue afresh in 2005 in the case of Sahin v. Turkey (2005). Here, the applicant, who was a medical student, complained to the Court that the university-wide ban forbidding the wearing of the Islamic headscarf violated her rights under Article 9. The Court agreed that the restriction constituted an interference with her right to manifest her religion, but went on to find that the measure was aimed at protecting the rights and freedoms of others and protecting public order consistent with Article 9(2). In fact, the applicant had accepted this ruling but vigorously contested the proportionality of the measure in question. The Court then went on to consider whether banning the wearing of the scarf at third level was a proportionate response to the need to meet these aims. In doing so, it placed considerable emphasis on the context in which the issue had to be considered, noting that where several religions coexist in a democratic society, it may be necessary to place restrictions on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected and tolerated. In this regard, the Court noted that, when examining the question of the Islamic headscarf in the Turkish context, it was important to bear in mind the impact which wearing such a symbol, presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. In particular, the Court noted that “there were extremist political elements in Turkey which might seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts” (Sahin, 2005, para. 115). It went on to reiterate that States may, consistent with the ECHR, take a stance against such extremism based on its own historical experience. Against this background, the Court dismissed the applicant’s complaint. Instead, it found that it was understandable (in such a context where the values of pluralism, respect for the rights of others, and in particular equality of men and women before the law were being taught and applied in practice) that the relevant authorities would consider the wearing of the headscarf as running counter to the furtherance of such values. In light of the variety of approaches taken by members of the Council of Europe to the wearing of religious symbols, the Court stressed the importance of the role of the national authorities. Throughout its judgment, the Court noted Turkey’s particular circumstances and referred to the fact that in a country like Turkey, where the majority of the population belong to the same religion, measures taken by universities to prevent certain religious movements from exerting pressure on students who do not practice that religion may be justified under Article 9(2). It thus noted that the approach of the Turkish authorities was informed by the democratic value of secularism. In doing so, it recalled its earlier case law, which had found that in a democratic society the State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the aim of protecting the rights and freedoms of others, public order, and public safety. The

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Court noted that despite the ban on wearing the headscarf, practicing Muslim students in Turkish universities are free, within the limits imposed by educational organizational constraints, to manifest their religion in accordance with habitual forms of Muslim observance. Noting that Article 9 does not always guarantee the right to behave in a manner governed by a religious belief and does not confer on people the right to disregard rules that have been proved justified, the Court concluded that the interference with the applicant’s rights under that provision was proportionate to the legitimate aim of secularism, which the authorities (university and State) sought to pursue. The Court’s judgment was not unanimous, however. Judge Tulkens of Belgium dissented for a number of well-argued reasons which are worthy of comment here. First, she highlighted the Court’s reliance on the diversity of state practice as the basis for affording Turkey a broad margin of appreciation in this area. According to the evidence, however, no such diversity exists; only two other countries in the Council of Europe (Albania and Azerbaijan) have banned the wearing of the Islamic headscarf in third level institutions (and indeed Turkey has since joined the majority). Of note here is the submission by the applicant, not considered by the majority of the Court, that in considering the necessity of the ban under Article 9, a distinction must be made between banning the wearing of the scarf in primary and secondary schools, which are attended by impressionable young girls, and banning it in the university setting, which is attended by “discerning adults who enjoy(ed) full legal capacity” (Sahin, 2005, para. 101.). While it is arguable that the younger age group needs to be protected from the allegedly powerful symbolism of the headscarf, the argument can certainly be made that all girls and women do not need such protection. The second criticism raised by Judge Tulkens related to the deference shown by the Court to Turkey and the value of secularism. In this regard, the judge noted that the reliance on the principle of secularism did not relieve the Court of the duty to consider whether the interference with the applicant’s freedom of religion met a “pressing social need” in line with ECHR case law (Sahin, 2005, para. 5). In this regard, Judge Tulkens noted that “only indisputable facts and reasons whose legitimacy is beyond doubt” can be used to support an interference with an ECHR right, “not mere worries or fears as to the likely impact of a political extremist force” (Sahin, 2005, para. 5). Here, she was critical of what she saw as a weaker form of protection being afforded by the Court to an outer manifestation of religious beliefs than those provided for the inner form of religious belief (Sahin, 2005, para. 6). Accordingly, she submitted, there was little in the judgment to explain what was so offensive or injurious to the rights of others about the applicant’s wearing of the headscarf; and, in her view, the case that this was a threat to public order was not made out. Instead, she argued, the Court’s reasoning set a dangerous precedent by suggesting a clear connection between the wearing of a headscarf and an extremism from which the population must be protected (Sahin, 2005, para. 10). As she noted, however:

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while everyone agrees on the need to prevent radical Islamism, a serious objection may nevertheless be made to such reasoning. Merely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and “extremists” who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views. She is a young adult woman and a university student and might reasonably be expected to have a heightened capacity to resist pressure, it being noted in this connection that the judgment fails to provide any concrete example of the type of pressure concerned. (Sahin, 2005, para. 10)

Judge Tulkens outlined succinctly the flaws in the Sahin judgment which, due to its poor reasoning and one-sided nature, can be criticized for appearing to have an unspeakable anti-Muslim bias at its heart. That a human rights court should attach so little importance to the individual’s right of religious freedom—which it describes as a cornerstone of a democratic society—is objectionable notwithstanding the broader political and social context of the judgment (Lindholm, 2005). This judgment is consistent with other judgments of the Court which appear to mistake secularism for religious freedom and grant States pursuing this approach unfettered discretion (Plesner, 2005). There is little doubt that the Court was mindful of the fact that it may face a similar challenge to legislation introduced in France in March, 2004, banning “the wearing of signs or dress by which pupils overtly manifest a religious affiliation” in state primary and secondary schools (Law No. 2004-228). Now that the precedent is set—extending a broad ban on the wearing of headscarves to third level universities of a public and private nature—the French case will probably pose little challenge or controversy for the Court should it arrive there. Taking the Greek (Valsamis and Efstratiou) and Turkish (Sahin) judgments together, it is difficult to see in what circumstances the right of religious freedom will be allowed to prevail against the more appealing value of secularism. Broader issues aside, the Court’s unwillingness to recognize the autonomous right of the child to religious freedom is as clear as is the apparent disregard for the right to education in these cases. For example, even though the girls in the Greek cases were suspended as a penalty for failure to attend the parade, and in the Turkish case, the young woman was forced to complete her medical studies in Austria, neither judgment considered in any detail what was at stake for the individuals from the perspective of their educational or religious rights. It is also noteworthy that the applicants in these cases were female; could the Court’s approach in this area have wider, gender-based consequences? While fully in line with these judgments, the responsibility borne by a teacher of small children may nonetheless explain the Court’s decision in a 2001 case. The Court found inadmissible the complaint of the applicant in Dahlab v. Switzerland (2001). Here, the applicant was a teacher who converted to Islam and began wearing the headscarf in the primary school where she taught. Despite the lack

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of protestation from parents, she was reported to the education authorities and formally prohibited from wearing the scarf because it constituted “an obvious means of identification imposed by a teacher on her pupils, especially in a public, secular education system” (Dahlab, 2001, p. 1). Her claim that the wearing of the headscarf represented “an inviolable core of her freedom of religion” was rejected by the Swiss courts which found inter alia that the wearing of the garment was a “powerful religious symbol” which was inconsistent with the region’s observance of the principles of denominational neutrality (Dahlab, 2001, p. 2). The applicant complained to the European Court of Human Rights that this constituted a violation of her Article 9 rights. In its judgment, the Court reiterated the importance of religious freedom as a cornerstone of a democratic society and noted that it was “one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned” (Dahlab, 2001, p. 13). Pluralism, indissociable from a democratic society, depends on it. While the Court noted that “bearing witness in words and deeds is bound up with the existence of religious convictions” and protected by the “manifestation of religious belief,” it went on to find: In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. (Dahlab, 2001, p. 14)

In light of these considerations, the Court noted that its task was to “weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused” (Dahlab, 2001, p. 14). Applying these principles, the Court agreed with the domestic court that restricting the applicant from wearing the headscarf was justified by the potential interference with the religious beliefs of her pupils, the beliefs of other pupils at the school, and the beliefs of the pupils’ parents. In addition, the Court agreed that the restriction was justified by the principle of denominational neutrality in schools. In that connection, the domestic court took into account the very nature of the profession of State school teachers, who are both participants in the exercise of educational authority and representatives of the State. In doing so, the Court weighed protecting the legitimate aim of ensuring neutrality in the State education system against the freedom to manifest one’s religion. The Court further noted that the restriction had left the applicant with a difficult choice, but it considered that State school teachers had to tolerate proportionate restrictions on their freedom of religion. In the Swiss Federal Court’s view, the interference with the applicant’s freedom to manifest her religion was justified by the need, in a democratic society, to protect the right of State school pupils to be taught in a context of denominational neutrality. It was also clear to the Court that the decision to allow the headscarf restriction was

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based on protecting the rights and freedoms of others and not on any objections to the applicant’s religious beliefs. The Court noted that the applicant had worn the scarf for three years before objection to it was raised, and it went on to note the difficulty in assessing “the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children” (Dahlab, 2001, p. 15). The applicant’s pupils were aged between four and eight years, an age, according to the Court, at which children “wonder about many things and are also more easily influenced than older pupils” (Dahlab, 2001, p. 15). In such circumstances, the Court argued that: the wearing of a headscarf might have some kind of proselytizing effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. (Dahlab, 2001, p. 15)

According to the Court, it is difficult to reconcile “the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils” (Dahlab, 2001, p. 15). In conclusion, the Court noted: weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony ... in the circumstances of the case and having regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and that the measure they took was therefore not unreasonable. (Dahlab, 2001, p. 15)

The teacher’s claim was declared to be manifestly ill-founded as a result. While the Swiss case may be distinguished from the Turkish and Greek cases because the former concerned the responsibility and influence of a teacher of small children, the Court’s view that tolerance was to be conveyed to pupils by banning the wearing of the Islamic headscarf rather than by permitting religious diversity seems slightly perverse. The view of the Committee on the Rights of the Child is pertinent here. In its General Comment on the Aims of Education, the Committee notes: Racism and related phenomena thrive where there is ignorance, unfounded fears of racial, ethnic, religious, cultural and linguistic or other forms of difference, the exploitation of prejudices, or the teaching or dissemination of distorted values. A reliable and enduring antidote to all of these failings is the provision of education which promotes an understanding and appreciation of the values reflected in article 29(1), including respect for differences, and challenges all aspects of discrimination and prejudice. (Committee on the Rights of the Child, 2001, para. 11)

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A UN Perspective In contrast to the judgment of the European Court in Sahin, the United Nations Human Rights Committee decided a similar case quite differently in 2004. In Hudoyberganova v. Uzbekistan (2004), the applicant complained under the Optional Protocol to the ICCPR that her exclusion from university on the grounds of wearing the Islamic headscarf breached her right to religious freedom under Article 18. The Committee noted that the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion, and went on to state that preventing a person from wearing religious clothing in public or private may constitute a violation of Article 18(2), which prohibits any coercion that would impair the individual’s freedom to have or adopt a religion. As reflected in the Committee’s General Comment No. 22, “policies or practices that have the same intention or effect as direct coercion, such as those restricting access to education, are inconsistent with article 18(2)” (para. 5). While the freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others under Article 18(3), no specific ground was invoked by the State Party for imposing the restriction on the student. Accordingly, a violation of Article 18(2) had occurred. The UK Experience Since the Human Rights Act (1998) incorporated the ECHR into the law of the United Kingdom (UK), the domestic courts have grappled with many important issues involving children. In 2005, in R. v. Leeds City Council, the High Court turned down an application for judicial review involving a case where the defendant decided not to provide free transport to nine child applicants living in Leeds to a Jewish school in Manchester. The applicants claimed that the children’s rights under Article 9 of the ECHR were infringed upon by failing to provide them with free transport to the Jewish school which, it was submitted, full adherence to their religion required them to attend. Their claim was unsuccessful inter alia because, as Mr Justice Wilkie noted, the decision to deny the children free transport to the school merely rendered the manifestation of religious belief “less easy or convenient” and did not prohibit or restrict it altogether (Leeds City Council, 2005, para. 40). Justice Wilkie was also persuaded by the fact that whilst attendance at a religious school is desirable, it is not an article of faith or required by Jewish law. Furthermore, the fact that the children were attending the schools in question, notwithstanding the defendant’s actions, also supported the conclusion that there was no “material infringement” of the right in question (para. 40). However, the issue of religious dress arose in the House of Lords in 2006, in the case of R. v. Headteacher and Governors of Denbigh High School. This case involved a dispute between a school, which required pupils to wear a uniform, and a Muslim

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pupil, Shabina Begum, who wished to wear the jilbab (a full-length gown). The school did allow a pupil to wear a headscarf and a shalwar kameeze (long traditional garments from the Indian subcontinent), yet because the jilbab was not one of the forms of uniform identified, the Muslim student was not permitted to wear it and was eventually “excluded” from the school. In June 2004, the High Court dismissed her application for a claim under Article 9 of the ECHR, holding that there had been no violation of her freedom of religion, or rather that the interference with her freedom of religion was justified in the context of the policy adopted by the multifaith, multi-cultural secular school involved. However, that judgment was reversed in March 2005 by the Court of Appeal, which found that the interference with the pupil’s freedom of religion under Article 9 of the ECHR had been unjustified. While it accepted that the school, as an emanation of the State, was entitled to limit the applicant’s freedom of religion by its uniform policy and the way in which it was enforced, the Court of Appeal distinguished this case from the Sahin judgment on the grounds that, unlike Turkey, the United Kingdom is not a secular State. In this regard, it noted that in England and Wales, statutory provisions address religious education and collective worship in schools. In addition, the Court noted that a minority of Muslims in the United Kingdom considered it a religious duty to wear the jilbab from the age of puberty and that the pupil was genuinely of that opinion. In the opinion of the Court, the school had failed to take this into account, with the effect that its decision-making process was flawed and incompatible with the pupil’s freedom of religion. According to the Court: Nobody who considered the issue on its (the school’s) behalf started from the premise that the claimant had a right which is recognised by English law, and that the onus lay on the school to justify its interference with that right. Instead, it started from the premise that its uniform policy was there to be obeyed: if the claimant did not like it, she could go to a different school. (Governors of Denbigh High School, 2005, para. 76)

Accordingly, the Court found that the school had approached the matter from the wrong direction: instead of considering why it was important to the applicant that she wear the jilbab, it concentrated on finding out what the teachings of Islam required, and it failed to attribute to the claimant’s beliefs the weight they deserved. A further element of interest in this case is the role of the child’s evolving capacity in the maturity of her religious beliefs. In particular, while the applicant had attended school wearing the uniform (the shalwar kameez) without complaint, it was Shabina Begum’s own increased interest in her religion which led her to form the view that this uniform was not an acceptable form of dress for mature Muslim

  Whether or not the pupil was excluded was a matter of some discussion before the courts. In any event, she was given the choice of conforming with the uniform policy or not returning to the school.

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women in public places. She believed that the Islamic shari’a required her to wear a jilbab and cover her body (except for her face and hands) completely. Ms Begum’s case took another twist before the House of Lords in 2006. Here Lord Bingham expressed the view of the Court that the Court of Appeal’s approach was flawed for reasons related principally to the way in which the UK courts are expected to apply the ECHR since its incorporation into UK law under the Human Rights Act 1998 (Headteacher and Governors of Denbigh High School, 2006, paras 29–31). Looking afresh at the proportionality of the school’s interference with the pupil’s rights under Article 9 of the ECHR, Lord Bingham reiterated much of the European Court’s reasoning in the Sahin case, noting the importance of religious harmony and tolerance, the need for compromise, balance, and the permissibility in some contexts of restricting the wearing of religious dress. Regarding the complaint at issue, he found the criticism of the school unsustainable. According to Lord Bingham, the school has considerable discretion in this area. He noted that “[d]ifferent schools have different uniform policies, no doubt influenced by the composition of their pupil bodies and a range of other matters. Each school has to decide what uniform, if any, will best serve its wider educational purposes” (Headteacher and Governors of Denbigh High School, 2006, para. 33). He went on to note, moreover, that “[t]he school did not reject the respondent’s request out of hand: it took advice, and was told that its existing policy conformed with the requirements of mainstream Muslim opinion” (Headteacher and Governors of Denbigh High School, 2006, para. 33). Accordingly, it was noted that the school had taken “immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening way” (Headteacher and Governors of Denbigh High School, 2006, para. 34). Moreover, it was considered to have been “fully justified” in acting as it did in response to the pupil’s request to deviate from the policy on the basis of her religious beliefs. The inclusive nature of the policy was a particular issue, as was the extent to which this was brought to all prospective and current pupils’ attention and the fact that Shabina Begum herself had complied with the policy for two years until the conflict arose. It was in this context, and in an echo of the European Court’s doctrine of margin of appreciation, that Lord Bingham ruled it would “be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors to overrule their judgment on a matter as sensitive as this” (Headteacher and Governors of Denbigh High School, 2006, para. 34). Accordingly, the school was found to have been “fully justified”

 Although Lord Bingham, together with Lord Nicholls and Lord Scott, concluded that there had been no interference with the pupil’s Article 9 right to manifest her religion (principally because she could have attended another school in the area), Lord Nicholls and Lady Hale disagreed. As a compromise, therefore, the judgment proceeded on the basis that even if there had been an interference, it was justified (Headteacher and Governors of Denbigh High School, 2006, para. 25).

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in taking the action it did (Headteacher and Governors of Denbigh High School, 2006, para. 34). While the outcome of this case was not favorable for Shabina Begum and her right to exercise her religion, the House of Lords’ judgment is a far more coherent application of ECHR principles than the European Court itself mustered in the Sahin case. The context here was very different and much of the European Court’s reasoning, while inappropriate in Sahin, could be considered more relevant here: Sahin concerned a university student (an adult), not a young pupil at second level who attended a school which had made considerable efforts to promote religious diversity and tolerance among its pupils. Moreover, it was a school at which the uniform had played an important role in meeting local conditions in a socially coherent way. As Lady Hale noted, the school’s uniform policy was “a thoughtful and proportionate response to reconciling the complexities of the situation” (Headteacher and Governors of Denbigh High School, 2006, para. 98). This was demonstrated, she continued, by the fact that girls have subsequently expressed their concern that, if the jilbab were to be allowed, they would face pressure to wear it even though they do not wish to do so. “Here,” Lady Hale notes, “is the evidence to support the justification which Judge Tulkens found lacking in the Sahin case” (Headteacher and Governors of Denbigh High School, 2006, para. 98). Regardless of the merits of the judgment, the House of Lords’ stress on the fact that this case concerned “a particular pupil and a particular school in a particular place at a particular time” (Headteacher and Governors of Denbigh High School, 2006, para. 2) suggests, however, that this is not the end of the relationship between the courts, children’s right to religious dress, and the obligations of schools, in the UK or indeed under the European Convention. Mixed Messages and the Need for Leadership Without considering the relationship between religious freedom and medical treatment, which is beyond the scope of this chapter, it is clear from the above analysis that international law in all its forms delivers mixed messages and lacks general clarity on the child’s right to religious freedom. Political and social considerations may have clouded the European Court’s judgments in the Greek, Turkish, and Swiss cases, and the issue of parents’ rights may confuse the issue under the CRC. However, the end result is a remarkable lack of effective protection for the child’s right to religious freedom, so much so that it is questionable whether the right exists in any meaningful form. While recent case law from the United Kingdom and elsewhere suggests that an alternative interpretation of Article 9 is possible, the standards set out in the CRC, the ICCPR, and the ECHR as currently interpreted by the European Court of Human Rights and others are ambiguous and vague at best. They are weak and inadequate in terms of providing effective protection to children’s rights. Rather than providing even basic protection for the independent right of the child to religious freedom, the standards favor the rights

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of parents, promote secularism over religious freedom, and excuse the State from guaranteeing respect for even the minimum rights of the child in this area. Given that the CRC, as the most widely ratified international instrument on children’s rights, has the capacity to influence the setting and application of standards at international, regional, and domestic level (Kilkelly, 2001; Kilkelly and Lundy, 2006), it is important to bring clarity to this standard with the expectation that it will have a knock-on effect on others. As to what action should be taken, one option is that priority be given to discussing Article 14 of the CRC with a view to the Committee on the Rights of the Child developing and adopting a General Comment in the area. A General Comment could usefully highlight the fundamental nature of the CRC’s guiding principles in a way that provides support for a more positive interpretation of the right to religious freedom. For example, emphasizing the child’s right to non-discrimination (on the basis of gender and religion) in the enjoyment of the child’s rights (under Article 2 CRC) and the right to express his or her views and have them respected (under Article 12 CRC) would help to restate the autonomous nature of the rights of children in all areas of their lives, with particular reference to the child’s religious freedom. Stressing the interrelated nature of CRC rights, including the right to education, the right to privacy, and the right to freedom of expression, would support this approach further. The General Comment could also offer guidance to States on how to resolve the conflict between parents’ rights and children’s rights in this area. In particular, it should make clear that the right to religious freedom belongs to and is exercised by the child, with parental involvement only justified where it is required by factors related to the child’s age and maturity. In this regard, the practice of States specifying the age at which children are entitled to exercise the different elements of their right to religious freedom should be highlighted. However, in time, reform of Article 14 may ultimately be required to address the inadequate protection of the child’s right to religious freedom in international law. The fact that the drafters did not achieve consensus at the time the CRC was drafted does not augur well for any reform process in this area. One option may be to consider religion, not in isolation, but grouped together with the other civil rights in a new optional protocol aimed at strengthening the child’s participation rights. This would require reconceptualizing existing children’s participation rights in genuine children’s rights terms—addressing the flaws identified here—as well as reconfiguring the role of parents and parents’ rights in this process (Dwyer, 1994). While reservations to the CRC suggest that this will not be an easy task, there is arguably support for a greater recognition of children’s independent rights in these areas. Nearing its twentieth anniversary, the time may indeed be right to consider strengthening weak provisions in the Convention, perhaps by way of an Optional Protocol. Re-asserting the child’s right to religious freedom would have added value in terms of standard-setting and advocacy at both international and national levels. For these reasons at least, and in the interests of producing coherence of international law on this issue, such an approach is to be strongly encouraged.

Chapter 14

Clashing Rights and Welfare: A Return to a Rights Discourse in Family Law in the UK? Shazia Choudhry

Despite the incorporation of the European Convention on Human Rights (1950) (ECHR) into United Kingdom (UK) law and the embracement of the UN Convention on the Rights of the Child (1989) (CRC), UK judges still cling to an outdated and incorrect premise for deciding disputes involving the upbringing of children: the paramountcy principle (Choudhry and Fenwick, 2005). This chapter explores the tensions created by the different requirements of the ECHR and the pre-existing paramountcy principle, and how the UK courts are dealing with these competing perspectives on deciding family law cases. That tension essentially derives from the values underpinning the ECHR on the one hand and the Children Act (1989) (CA) on the other; values of rights and equality versus the value of paternal protection of children. This chapter explores these different approaches and the possible reasons behind the current reluctance or inability of the UK courts to fully embrace the approach of the ECHR. It argues that it is time for the UK courts to abandon the paramountcy principle as it is currently conceived, and instead, adopt a new model of rights-based judicial reasoning in the context of disputes over children. The European Convention on Human Rights The ECHR was adopted and drafted after World War II under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms. Each Council of Europe Member State is a Party to the Convention, and has a nominated representative who serves as a judge at the European Court of Human Rights (European Court) based at Strasbourg. There are two unique points to note about the European Court. First, any person who feels his or her rights have been violated under the ECHR by a State Party may, after exhausting all domestic avenues of appeal, take his or her case to the European Court. Although the decisions of the European Court are not automatically legally binding, the symbolic finding of a breach of rights, coupled with the Court’s power to award damages, is significant. Second, the European Court believes that the ECHR is a living instrument, and therefore, as society and attitudes change, the European Court will change and develop the way in which it interprets the ECHR. Even so,

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the European Court will still tend to follow the precedents set by earlier cases, and where it does not, the European Court will clearly explain why it is not doing so. The Human Rights Act 1998 (HRA) provided for the direct incorporation of most of the rights contained in the ECHR into UK domestic law. Thus, UK courts are now under a duty to give effect to the rights and freedoms contained in the ECHR. Of all the articles contained in the ECHR, Article 8 is most relevant to family law, as it provides for the right to respect for “private and family life,” subject to the exceptions set out in paragraph 2: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

To be justified, any interference with Article 8 rights must therefore be prescribed by law, must pursue a legitimate aim of a kind set out in the Article, and must be necessary and proportionate. Not surprisingly, it is clearly established in the European Court case law that the preservation of the rights and welfare of children is a “legitimate aim” in this respect (Olsson v. Sweden, 1988, paras 64–9). The Children Act of 1989 and the “Paramountcy Principle” The Children Act (CA) (1989, § 1) commences with a statement of principle which is central to its ethos: When a court determines any question with respect to (a) upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.

This provision is routinely referred to as “the paramountcy” or “welfare” principle and its meaning is well understood amongst family lawyers in the UK: in decisions concerning children, the welfare of the child is to be the single deciding factor (J. v. C., 1970), that is, paramount over, and in fact displacing, all other considerations. This principle is not only applied by the courts in disputes relating to children; it strongly influences all parties concerned with decisions related to a child’s upbringing, including legal representatives, social services, court reporters, the children’s guardians, and other experts. In effect, it creates an exclusive cultural framework within which professional decisions concerning children are made. The welfare principle has thus successfully embedded itself in the very core of the legal and multidisciplinary aspects of the upbringing of children. But the understanding of the principle, the extent of its entrenchment, and the judiciary’s

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apparent unwillingness to question it has recently come under challenge due to the tensions created by the enactment of the HRA, which incorporates the ECHR. In order to fully appreciate these tensions, it is first necessary to set out the approach that is taken by the European Court. The Approach of the European Court of Human Rights In approaching any question concerning Article 8 of the ECHR, the European Court starts from the stance that wherever family life is found to be in existence, all family members will independently be entitled to respect for their family life. It does not regard the child’s interests in this respect as paramount; that is, displacing considerations of other members’ rights. Each family member’s right to respect for family life is accorded equal weight before a decision is made as to what extent, if any, the rights of all the family members are in conflict. The Court will then consider whether any interference with the rights of family members is justified as “necessary” under Article 8(2); it is only at this point that the welfare of the child becomes relevant. In determining whether the measures are indeed “necessary in a democratic society” (ECHR, Article 8(2)) the European Court will consider whether, in light of the case as a whole, the reasons adduced to justify the measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 (Olsson v. Sweden, 1988). In making this assessment, the European Court will afford the national authorities a margin of appreciation, in recognition of the fact that they are better placed to make the primary judgment as to the needs of the parties involved and the appropriate balance to be struck between other public authorities. It should be noted that although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and must afford due respect to the interests safeguarded by Article 8. As a result, the European Court also has to determine whether the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life, and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 (P., C. and S. v. United Kingdom, 2002). Although the ECHR itself contains few explicit references to children and their rights (there are only two real references: in Article 5 and Article 6), it is now evident that the European Court is edging towards adopting the best interests/ welfare of the child as the primary consideration in children’s cases. This, it is suggested, is in some part due to Article 3 of the CRC, which establishes as a fundamental principle of interpretation that “in all actions concerning children, whether undertaken by public or private courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Both the European Commission and the European Court have referred to the

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provisions of the CRC in children’s cases since it came into force in 1990. In Johansen v. Norway (1996, para. 78), the European Court said: A fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent.

In L v. Finland (2000, para. 118), another public law case, the European Court stated that “the consideration of what is in the best interests of the child is of crucial importance,” and in the private law case of Elsholz v. Germany (2000, para. 50), the European Court found that a fair balance had to be struck between the interests of the child and the parent, and “in doing so particular importance must be attached to the best interests of the child which, depending upon their nature and seriousness, may override those of the parent.” The European Court has also very recently referred to the principle of paramountcy itself. In Yousef v. The Netherlands (2003, para. 73), a private law dispute, the Court reiterate[d] [italics added] that in judicial decisions where the rights under Art 8 of parents and those of a child are at stake, the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail (see Elsholz v. Germany … and TP and KM v. United Kingdom … This applies also in cases such as the present.

At first sight this statement appears to contradict the previous authority of the European Court in relation to the issue of paramountcy. However, the use of the word “reiterates” is highly questionable when an examination of the authority cited by the European Court is undertaken (Choudhry, 2003). In neither of the two cases to which the Yousef case referred did the European Court explicitly refer to the principle of paramountcy in the judgments. It is suggested, therefore, that it is difficult to assess whether this judgment represents a clear change in direction in the European Court’s jurisprudence on the interests of the child. Any such change could only be established clearly after the European Court has adhered to this line of reasoning in future judgments. To date it has not done so and indeed has reaffirmed the established position whereby the varying ECHR rights of the parties concerned are considered by starting from a basis of presumptive equality (Da Silva and another v. Netherlands, 2006; Hansen v. Turkey, 2004; Sezen v. Netherlands, 2006; Suss v. Germany, 2005; Zawadka v. Poland, 2005; Mihailova v Bulgaria, 2006). In Eski v Austria (2007, para. 35) the European Court found that: Article 8 requires that the domestic authorities strike a fair balance between the interests involved and that, in the balancing process, particular importance

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should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents.

In other words, within the margin of appreciation of the Member State, a fair balance must be struck between the Article 8 rights of the child and those of the parent, thereby ruling out the use of a presumption that precludes that balancing exercise, although the welfare of the child will be of special significance. In summary, therefore, the European Court will seek to strike a fair balance between each family member’s Article 8 rights, in light of the individual facts of the case and the view of the national authorities on the case. Unlike the CA, this ensures that no one “rule” (best interests of the child) prevails automatically, and that if the best interests of the child do prevail, it is only after a detailed consideration of all the parties’ rights and interests on an equal footing. The Differences in Approach and Outcome The above-described approach of the European Court must, therefore, be distinguished from the UK courts’ application of the paramountcy principle simpliciter for this reason: in a choice between two outcomes for a child, the application of the paramountcy principle would require that if one option would be even slightly preferable from the child’s perspective compared to that of the parent, that outcome should be chosen, even though it would cause a substantial infringement of parental rights, where the other one would not. Although courts may consider the impact of their decisions on parents when reaching such decisions, there is, however, no requirement to do so within section 1 of the CA or indeed the statutory checklist contained in section 1(3). Hence, if it is accepted that the European Court’s approach is influenced by the CRC, as discussed above, then it also has to be accepted that the European Court is responding to a convention that clearly refers to the child’s interests as “primary,” not “paramount.” Thus, by approaching the issue of “fair balance” as an opportunity to weigh all interests, the ECHR is still intrinsically opposed to the UK paramountcy approach, which rejects any notion of balance, since interests other than those of the child appear not to be weighed at all. Jonathan Herring (1999) illustrates the practical differences between these two approaches with the example of contact between parent and child. The ECHR would take as its starting point the parents’ right to contact under Article 8 as an aspect of their right to respect for family life. In order to justify an interference with this right, there must be clear and convincing evidence that the contact would infringe the rights and interests of the child to such an extent as to make the infringement necessary and proportionate under paragraph 2. In contrast, the CA approach—based on the paramountcy principle—would start with a factual presumption that the welfare of the child is promoted by contact with parents. However, this could be rebutted by evidence that the child’s welfare would not be

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so enhanced in the particular case, and if that conclusion was reached, that would be the end of the matter: contact would be ruled out on that basis alone. In most instances that outcome is readily defensible and may in fact result in the same outcome as that reached by employing the European Court’s approach as detailed above. However, a significant danger remains because a resident parent, under the guise of acting in the child’s best interests, might elevate or promote his or her own interests by presenting the child’s welfare as inextricably bound up with his or her own. By so doing, the parent might achieve an outcome which would not in the long run promote the child’s welfare. For example, a resident parent may be implacably opposed to contact taking place with the other parent. In some cases the reasons for the hostility would be well founded, as in instances where there had previously been domestic violence (Re D., 1997; Re M., 1999). But in others the hostility might be founded only on unrelenting extreme personal dislike of the other parent. In Re J. (1994), a ten-year-old’s experience of contact had been characterized by conflict and distress to such an extent that he had refused to see his father. At first instance, the trial judge concluded that the mother’s clear, implacable hostility to ordering contact was causing so much distress to the son as to render contact with his father against his best interests. The Court of Appeal implicitly approved the judge’s balancing of the harm caused to the child by refusal of contact against the harm caused by allowing contact. It is important to note, however, that the courts have also made it plain that the implacable hostility of one parent does not inevitably prevent them from making contact orders, and there are a number of cases where contact has indeed been ordered (Re M., 1998; Re W., 1994). In contrast, as discussed above, the approach of the European Court in the family law sphere differs from that of the UK courts. The European Court does not start from the assumption that the paramountcy principle will determine the issue but instead, when approaching any question concerning Article 8, starts from the stance that wherever family life is found to be in existence, all the family members will independently be entitled to respect for their family life. This approach was illustrated by the European Court in Elsholz (2000) and demonstrates how the difference in reasoning can produce an outcome opposite of the cases discussed above. In Elsholz, the applicant father claimed that his Article 8 rights had been breached by the refusal of the national court to allow him access to his child when it relied on statements made by the child when he was aged five, took into account the strained relations between the parents, considered that it did not matter who was responsible for the tensions, and found that any further contact would negatively affect the child. This breach was further exacerbated, he claimed, since the court had decided that it was unnecessary to obtain an expert opinion, on the ground that the facts had been clearly and completely established for the purposes of domestic law. The European Court, in finding that a violation of the father’s Article 8 rights had occurred, reiterated the principle in Johansen v Norway (1997) that a fair balance must be struck between the interests of the child and those of the parent, and that in so doing, particular importance must be attached to the

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best interests of the child which, depending on their nature and seriousness, can override those of the parent. The father’s Article 8 rights were afforded weight in the sense that a justification for infringing them had to be convincingly established. On the facts, this had not occurred. The European Court, to an extent, considered the curtailment of the father’s family life, not merely from the point of view of his Article 8(1) rights, but also from the point of view of the child. It is noteworthy that the applicant father argued that the denial of contact was not only a violation of his interests but also of those of the child, since contact with the non-resident parent was in the child’s best medium- and long-term interests. In other words, although the case could be viewed as concerning a clash of rights—even though it was not argued in those terms—the European Court discerned an underlying harmony between the two claims of rights: The Court further recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (Elsholz, 2000, para. 43).

The Resistance of the UK Courts to a Change in Reasoning Bearing in mind these differences in approach, how have the UK family courts dealt with the inception of the HRA? Unfortunately, the post-HRA judicial reasoning in the family law field reveals a resistance to the ECHR values that is especially marked (Choudhry and Fenwick, 2005). In a selection of recent cases, Article 8 was either not mentioned or was barely touched upon—and then in an imprecise and superficial manner—although it would clearly have been relevant. A number of these cases could have provided the opportunity of putting forward ECHRbased arguments in much more pressing circumstances than those which arose in Re B. (2002). In all of them, one parent could have been viewed as asserting and seeking the vindication of his or her Article 8 rights. For example, in Re B. the father’s Article 8 right to respect for family life was not mentioned in relation to the mother’s intention to leave the country with her new partner so that he could return to his country of origin where they could both settle, with the child. In In the matter of W. (2003), the Court of Appeal made no reference to the Article 8 right to respect for family life of the mother who was seeking an order for contact with her child. No contact had been allowed on the basis of the father’s unremitting hostility towards her. No contact order was made but the proceedings were adjourned with a view to seeking the aid of social services in addressing the father’s attitude to the mother. In G. v. G. (2005), a mother successfully appealed a decision refusing her leave to return to Argentina with the children without any express consideration of the father’s Article 8 rights. In Re G. (2006), a father successfully appealed a decision in which the court refused to consider him having direct contact with the child, and

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made the decision without any reference to his Article 8 rights or the procedural requirements demanded by it. In J. (A Child) (2007) the Court of Appeal rejected a mother’s appeal against an order prohibiting any further applications in relation to her child until the child had reached 18 years of age, on the basis of the welfare principle but without addressing Article 8. This occurred despite the fact that it was noted that she intended to appeal her case to the European Court to assert her rights if necessary. In A-H (Children) (2008), a father’s application for permission to appeal contact orders in an intractable contact dispute which had lasted five years was refused on the basis that it would be better to involve an outside agency to try and assist with the re-establishment of contact. Although it was recognized that one of the children, aged 14, was at an age at which she could not be forced into contact, this was clearly not the case concerning the other child, who was six years old. Despite the fact that the mother had failed to keep previous promises to the court with regard to facilitating contact, no express consideration was given to the Article 8 rights of either the father or the children. There is also evidence of a certain level of misunderstanding on the part of the UK courts with respect to the requirements of the ECHR. Shortly after the ECHR was incorporated into English law, the House of Lords directly faced the question of whether the paramountcy principle and the rights protected by the CRC were consistent. In Re K.D. (A Minor) (Ward: Termination of Access) (1988, para. 12). Lord Templeman said: “In my opinion there is no inconsistency of principle or application between the English rule and the Convention rule.” Similarly, Lord Oliver observed: Such conflict as exists is, I think, semantic only and lies only in differing ways of giving expression to the single common concept that the natural bond and relationship between parent and child gives rise to universally recognized norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it. (Re K.D., 1988, para. 825)

The decision in Payne v. Payne (2001) provides a further example of this mistaken approach. In brief, this case concerned a non-resident father’s appeal to the Court of Appeal against a decision to grant leave to the mother of his child to relocate to New Zealand (her country of origin) under section 13(1)(b) of the CA. The mother’s argument centered on her acute unhappiness in England; she made the assertion that to prevent her from returning to New Zealand would increase her unhappiness and anxiety and thus adversely affect the welfare of her child. The father’s argument was that to grant leave to the mother to relocate, which would inevitably reduce the level of contact between him and his child, was not only against the best interests of the child, but also a breach of the father’s Article 8 rights. Basing the decision on the paramountcy principle and its perceived apparent compatibility with both the CRC and the ECHR, the Court refused the father’s appeal.

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At the same time, it is also clear that other members of the judiciary in the UK have a greater understanding and appreciation of what the ECHR demands. Consequently, there has been recognition from some courts that the current system may not be complying with State duties under the HRA and the ECHR, particularly where this has resulted in proceedings being delayed due to concerns regarding the child and/or resident parent’s welfare. These concerns also happened to coincide with the beginning of an active and high profile fathers’ rights movement in the UK. It was thus noted in Re T. (contact: Alienation: Permission to Appeal) (2002) that the methods of investigation that the courts have conventionally adopted when trying issues of alienation may not meet the standards that Articles 6 and 8 of the ECHR require. In Re T. the Court ordered that the parties should instruct a child psychiatrist to inquire why the child had become alienated from his father with whom he had enjoyed regular contact for years. In Re D. (a child) (intractable contact dispute) (2004), Munby J took the unusual step of publishing his judgment, such was his concern regarding the father’s inability to re-establish contact with his daughter through litigation that had spanned over five years. The litigation had repeatedly been delayed due to concerns expressed by the mother concerning contact. Noting that the case raised issues concerning Article 8, the judge made reference to the fact that the Article protected both the parent’s and the child’s right to contact with each other. It was therefore essential, the judge stated, that matters should be dealt with speedily, as relations between parent and child should not be determined by the passing of time. Of most significance was his reference to the fact that a noncustodial parent had a right to have measures taken to facilitate contact with the child and the national authorities were obliged to take action to facilitate contact. However, none of the above cases contained any reference to the fact that it was the paramountcy principle itself that may be incompatible with the requirements of the ECHR. These concerns were thus lost amongst the high profile complaints of various fathers’ rights groups in the UK concerning a perceived bias against fathers and their ability to obtain and enforce contact orders. Rather than respond to concerns regarding the operation of the paramountcy principle, the government’s answer was to pass the Children and Adoption Act 2006, providing the courts with a number of powers to both promote and enforce contact. The situation remains, therefore, that the paramountcy principle continues to be applied regardless of its apparent incompatibility with the ECHR. Reasons for the Resistance The failure of the UK courts to correctly deal with Article 8 does not seem unduly surprising when one considers the difference in the processes of reasoning between the European Court and the domestic UK courts (Choudhry and Fenwick, 2005). This difference in reasoning can also be traced back throughout the history of the law relating to children which reveals a gradual shift not only from “rights”

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to “welfare” within the last century, but also a steadily increasing resistance to “rights-talk” in the family law context. In S. v. S. (1962, p. 448) Willmer LJ described contact as “no more than the basic right of any parent.” However, the designation of contact as a right vested in any member of the family was subsequently disapproved of by Ormrod LJ. In A. v. C. (1985, p. 455) he found: The word “rights” is a highly confusing word which leads to a great deal of trouble if it is used loosely, particularly when it is used loosely in a court of law. So far as access to a child is concerned, there are no rights in the sense in which lawyers understand the word. It is a matter to be decided always entirely on the footing of the best interests of the child …

This shift from “rights” to “principle” was further affirmed by Lord Oliver in Re K. D., a pre-HRA case, in which he considered the approach of the CA as formulated in J. v. C. in determining whether in wardship proceedings a natural parent’s access to the child should be terminated and the child placed for adoption. In addition, he specifically considered the mother’s appeal that the right to access was a parental right protected by Article 8 ECHR and that to terminate access with her child would result in a breach of her Article 8 rights. The word “right” is used in a variety of different senses, both popular and jurisprudential. Parenthood, in most civilised societies, is generally conceived of as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or by [other] authorities … When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child. (Re K.D., 1988, p. 825)

Thus, it is apparent from these judicial pronouncements on the matter that long before the CA or the HRA came into force, an approach based on a recognition of parental rights had been rejected because these rights were viewed as unable to prevail over the welfare of the child. Under the CA, the paramountcy principle took this process even further: the outcome which was evidentially proven to promote that welfare would prevail, notwithstanding the strength of the interests of any other party. Indeed, those interests became—as independent entities—irrelevancies in post-CA reasoning. This point was graphically illustrated by Sir Thomas Bingham MR in Re O. (1995, p. 128) where he said, “It cannot be emphasised too strongly  For a comprehensive historical overview of this shift and a chronology of relevant legislation, see Cretney (1996).

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that the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.” Some of the ideas underlying the reluctance of the judiciary to engage in talk of “rights” in family law were further revealed by Lady Justice Butler Sloss in Re L. (2001, p. 294): There seem to me to be considerable difficulties with any return to the language of rights … the creation of a right of the child does not lead to corresponding duties on parents. The errant or selfish parent cannot be ordered to spend time with his child against his will however much the child may yearn for his company and the mother desire respite.

Hence, it would appear that judicial resistance to a serious consideration of the rights of all parties engaged by family proceedings is based on the inability of the courts to guarantee reciprocity of rights for children against their parents and the perceived inappropriateness of the use of the term “rights” in the legal regulation of family relationships. The point about reciprocity, it is suggested, is flawed. In so far as the court, through the application of the law, is able to affect family relationships, it is enjoined under §§ 6(1) and 3(1) of the HRA to do so in a manner that is in accordance with the demands of the ECHR. For example, in a contact dispute, denial of contact with the father, at the instigation of the mother, is prima facie an interference with the father’s Article 8 rights. The fact that the child could not enforce contact, by invoking her Article 8 rights, is beside the point. There are obvious arguments based on personal autonomy against the use of the law to enforce contact in such circumstances, in particular that the parent’s (and arguably the child’s) Article 8 rights would be violated if the law sought to force an unwilling adult to have contact. A child is not in the same position because in many instances contact, even if initially undesired by the child, may be assumed to be ultimately beneficial in terms of the child’s development; and the court is entitled to override the child’s wishes in such circumstances on the basis that the child is not competent to decide what is in her own best interests. At the same time, clearly, the older the child, the more her wishes regarding contact should be taken into account. But the acceptance of the proper limits of the enforcement of rights does not mean that the child’s Article 8 rights are empty or meaningless. On the contrary, in determinations by the European Court as to contact, residence, or adoption, a child’s Article 8 rights, viewed as aspects of her welfare, are highly significant in determining the outcome. Another explanation for this apparent reluctance to engage in a rights discourse within the family law process is that once a court starts from the premise that the parent’s interests need to be considered only so far as they coincide with those of the child, examination of the parent’s rights is rendered a largely redundant exercise within a family law process which will always elevate one party’s interests—the child’s—in all circumstances over others’ interests.

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Reasons for Change The fundamental basis for a rejection of a real engagement with a rights discourse appears to be the concern, rooted in the history of family proceedings, that a return to a rights-based approach would represent a movement away from the levels of protection currently attained for the child’s welfare. This chapter suggests that this is a mistaken view and that adoption of such an approach may be capable of providing higher levels of such protection—broadly conceived. But it is also suggested that recognition of the Article 8 rights of parents, considered independently from those of the child, need not lead to a diminution of such protection. Moreover, the quality of reasoning in family cases would tend to rise once the issues at stake were more precisely and transparently delineated under the approach advocated (Choudhry and Fenwick, 2005). This shift from welfare to rights will also have implications on equality between men and women in relation to children. The recognition of the parents’ Article 8 rights, which is being advocated as a first step towards a reconciliation of conflicts between such rights and those of the child, necessitates abandonment of the current rule utilitarian approach under the CA. Rule utilitarianism means that an individual’s actions are regulated by reference to a general rule—the child’s welfare should be paramount—rather than by direct reference to the principle of utility, whereby actions that maximize the greatest welfare for the greatest number are preferentially singled out. The welfare principle, as it is currently applied, arguably amounts to a form of rule utilitarianism. Not only is that approach no longer defensible under the HRA, but its consequentialist focus has obscured the protection for rights that it has in fact engendered. The child-centered approach in the UK has assumed in effect an almost complete coincidence of interests between the mother and the child. The rise of the welfare principle, which has displaced the notion of individual rights, has paradoxically gradually elevated the mother’s rights above those of the father, albeit without acknowledgement that this is occurring. Under the guise of moving towards an acceptance of the welfare principle, motherhood is being accorded—in effect—a status higher than that of fatherhood. The mother’s rights to family and private life have indirectly found a strong and effective protector in the CA. That protection can, however, be viewed as a double-edged sword. Despite the fact that the welfare of children was a growing societal, and thus political, concern in the early nineteenth century, it is generally accepted that this shift from “rights” to “welfare” occurred largely as a result of the campaign mounted by women for equal status in relation to their children (Cretney, 1996; Maidment, 1984). Until that time, the common law gave fathers sole rights of custody and control over their legitimate children and invested mothers with none (Cartlidge v. Cartlidge, 1862). It was not until the enactment of the Guardianship of Infants Act (1925) (Act) that the principle of equality between men and women in relation to their children was established. At the same time, however, the Act also established that the Court should regard the welfare of the child as the first and paramount

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consideration. The coincidence of the equalization of the rights of men and women over their children and the elevation of the concept of the child’s welfare over the rights of both father and mother was, as Maidment (1984, pp. 107–8) argues, a tool used to “dilute women’s demands for equal parental rights to their children. Indeed the 1925 Act was a political device to actually deny women equality of parental rights.” This is not to say, however, that the entrenchment of the welfare principle failed to enhance the role of women as mothers. As a result of the growing influence of psychiatry and psychology on the determination of what was best in terms of “child welfare,” the role of the mother came to be regarded as crucial, which in itself gave a new power to women (Smart, 1989). Smart has argued, however, that these new power claims present, in fact, new dangers in terms of the issue of equality, because they are not rights-based but are formulated around the uniqueness of motherhood and the “natural” bond between mother and child. As a result mothers are not heard unless they speak in the “language of welfare.” Thus: The central and determining metaphors in family law have become the welfare of the child and the importance of the father as an instrument of welfare and as an individual who earns legal standing. The mother seems to lose her standing … it is not clear to me that there is any longer a language available for mothers to voice their subject position in law. There is an erasure taking place which is based on a form of silencing which arises out of giving the legitimate modes of expression to those who speak of welfare … and those who speak of the significance of fatherhood. (Smart, 1991, p. 486)

And: Where there is a conflict there is a tendency for the welfare principle to make the moral claims by these mothers, based on the “caring for,” appear to be statements of self interest. Equally, the fathers’ rights principle makes such claims appear to resemble the unacceptable and “old fashioned” appeal to biological motherhood which is now renounced in favour of a policy of equality. (Smart, 1991, p. 494)

Collier suggests that the law has constructed fatherhood in terms of an economic provider rather than as care-giver (Collier, 1995). Fathers are expected only to demonstrate a “paternal heterosexual presence,” and the law at present lends legitimacy to the notion of the participation of fathers in decision making (facilitated by the concept of parental responsibility) without participation in the day-to-day responsibility of child-care—which is often left to mothers (Collier,  See also Sclater and Kaganas (2003) for a feminist critique of the “welfare discourse,” which they argue perpetuates the fact that mothers see their position in terms of needs rather than rights, whereas fathers not only see their position in terms of rights but are conceptualized by the legal system as the possessors of rights.

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1995, p. 20). Thus, the apparently gender-neutral welfare principle supports a particular concept of fatherhood and motherhood that is ideologically antifeminist. The greater, indirect protection of motherhood in terms of custody and contact, therefore, comes at a price. It is argued that a return to a rights-based model—under the HRA—with a concomitant re-working of the welfare principle, far from heralding a return to a traditional family hierarchy, would allow a new concept of fatherhood to be developed. In arguing for Article 8 rights to respect for family and private life in contact and custody disputes, fathers would have to emphasize the bond between father and child in terms of caring (Bainham, 2003, p. 86), since rights entail the acceptance of responsibility. Thus, in arguing for Article 8 rights to respect for family and private life in contact and residence disputes, fathers would have to demonstrate that they had also discharged their caring (dayto-day care-giving) responsibilities towards the child: their capabilities in terms of economic provision would not alone appear to provide them with a sufficiently powerful argument. Motherhood would no longer have to be argued under the guise of welfare but in its own right. The dangers presented by the implacable hostility cases mentioned earlier would be lessened as mothers, fathers, and children would argue and have their cases heard by courts employing an individual rights-based approach, which would still give special consideration to a child’s welfare but only once a consideration of all the parties’ interests has taken place on an equal footing. Abandoning the paramountcy principle would promote a more transparent reasoning process within which, while the child’s best interests remain prominent, discourse from perspectives other than those of the child would be acknowledged. Such a process would provide a more effective means of furthering the child’s individual interests, broadly conceived. The notions of caring, intimacy, and unity associated with the apparently benign welfare principle could, thus, in fact be more effectively realized within a rights-based framework. The good news is that all this is possible without the need for a wholesale legislative review. The paramountcy principle could simply be reconfigured by the courts under section 3(1) of the HRA, which requires primary and secondary legislation to be interpreted in a way which is compatible with the ECHR so far as is possible. UK courts could thus choose to reinterpret “paramount” as meaning either “primary” or “pre-eminent” which is arguably, as the discussion in this chapter demonstrates, more in line with the European Court’s view on where the welfare of the child should be placed in the reasoning process (Choudhry, 2003). The question of whether the UK courts have the strength and stamina to singlehandedly overturn almost two decades’ worth of cultural and legal embedment of the “paramountcy” principle remains. At the time of writing, there seems to be little prospect of that happening.

Chapter 15

Accommodating Children’s Religious Expression in Public Schools: A Comparative Analysis of the Veil and Other Symbols in Western Democracies Catherine J. Ross

Struggles over whether and how to accommodate personal religious symbols worn by students in public schools are part of a mounting global debate. In recent years a number of the western democracies—including England, France and Canada— confronted major controversies over the right of students to wear religious symbols in public schools. In the United States, reported incidents concerning school regulations affecting Muslim head coverings or ceremonial knives carried by Sikhs received less public attention; instead, in the US these battles are embedded in a broader debate about the role of religion in the public square generally and in the public schools in particular. The debate in the US often focuses on redbutton issues such as sex education, curricular decisions involving literature and the biological sciences, and prayer in schools. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the “affair of the veil.” The problem of the veil generally refers to students who claim the right to wear religious symbols to state-funded schools including, among others, the Muslim hijab (headscarf) and jilbab (head to toe covering), the Sikh turban and kirpan (ceremonial knife), and the orthodox Jewish kippah (skullcap or yarmulke). This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision making, and the society’s basic premises about the relation between religion and the State. The inquiry is further complicated by broader claims of the sub-groups with which parents and children identify. Issues surrounding identity pluralism have received a great deal of attention in recent years; far less analysis has been devoted to the specialized dilemmas that arise whenever children’s rights are invoked. Any society’s response to the question of whether children can wear religious symbols to school reflects its underlying assumptions about whether minors have rights independent of their parents, and

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how to resolve tensions between the goals of the body politic and the right of parents to inculcate their children with their own values. The classic dilemmas that arise from assertions of children’s rights include the tension between the rights of families and the interests of the State, and whether to honor the independent claims of minors. By placing these debates in a comparative legal and cultural context, I hope to illuminate the strengths and weaknesses of the approach we have taken in the United States. Increased international mobility in recent decades has made most countries today—including the western industrialized democracies—culturally diverse, often exacerbating the civil tensions that accompany pluralism. These profound changes gave rise to a series of complex political and philosophical challenges to traditional liberalism, including abandonment of the post-World War II liberal optimism that an individual rights model could resolve the claims of racial and ethnic minorities (see Kymlicka, 1995). These challenges, according to some theorists, include “collective” minority rights to complement traditional individual rights. The foundational premise of the human rights doctrine is that the State must protect minorities (whether individuals or groups) from the tyranny of the majority; so human rights arguably already embraces minority rights. The discussion becomes even more complicated in light of recent acknowledgements that the right to recognition may be multifaceted. In other words, many individuals assert membership in more than one identity group as they construct their identities (Keller, 1998) and shift among identities as they move from one setting to another (Hollinger, 1995). A British Commission underscored in 2000 that just as there is no single British culture in the modern world, so too each sub-culture has diverse sub-parts that are constantly undergoing a process of hybridization (Runnymede Trust, 2000). The individual’s quest to fulfill varied claims to identity and belonging—whether religious, cultural or sexual—pushes the boundaries of classic autonomy rights. But claims of identity must be balanced against the valid claims of the modern nation-state. These claims include the right to inculcate shared values and identity through the public education of children, which creates a unique role for public schools. In addition, some identity claims are so extreme that modern states view them as incompatible with the autonomy rights of others (examples include beatings, sexual mutilation, and non-consensual arranged marriages). These broader concerns and the debates that surround them provide the context in which modern states struggle to resolve the identity claims of public school students. The first part of this chapter discusses the cultural significance of dress, and briefly summarizes the apparel associated with certain religions and its significance. The second part considers the legal regimes and models that govern student religious garb in the United States, France, Great Britain, and Canada. The third part examines the extent to which those four models succeed in balancing both the potential individual rights claims that arise when students wear symbols to school and the claims of minority groups and the broader collectivity.

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The Cultural Significance of Dress Clothing and wearable symbols serve significant cultural and ideological functions (Hoodfar, 2003). If clothing sends a non-verbal message, it is protected in the United States as symbolic speech (Tinker v. Des Moines Independent Community School District, 1969). Clothing may communicate both an affiliation with a collective identity and an individual’s distinctive traits. Where clothing proclaims conformity, it is rarely noticed or commented upon (Galeotti, 2002). Thus, the visibility of attire is strongly associated with the wearer’s assertion of difference (Galeotti, 2002). Controversies over school dress codes frequently involve claims of minority religious expression in addition to cultural identity. The response of the collectivity and the body politic to apparel that asserts such differences tests the limits of liberalism and tolerance in many democracies. Since the 1980s, the decision of some girls to wear the Islamic veil to public school has generated controversy in a number of western countries, and the discussion here concentrates on the veil. But the veil is not the only wearable symbol of difference. Others include the Sikh kirpan, the Jewish kippah, and even ostentatious versions of the Christian cross. Although the kirpan and kippah are reserved for boys and men, the veil alone carries enormous gender significance to informed and uninformed observers. As one Canadian student remarked: People ask … whether I feel discrimination as a woman, since men don’t have to wear the veil … I have yet to hear … public outcry about Jewish men suffering discrimination … because they have to wear a kippah and Jewish women do not. (Hoodfar, 2003, p. 31)

This section briefly introduces the veil and other symbols and their respective religious and cultural functions. One thing stands out: in each instance, there are divisions among practitioners of the religion about whether it is a precept of the religion that adherents wear the symbol and about the details of the duty. This division may prove significant to the extent that rights of religious exercise are protected in some legal regimes only to the extent that the religious expression is required. In other regimes, a sincere belief that the practice is mandated for the rigorous adherent is sufficient. For example, the Muslim community itself is sharply divided over whether or not veiling is required as a matter of religious doctrine, and, even if it is, how extensive a covering the veil must provide (Gunn, 2004). The broad term “veil” means different things in different contexts and to different people. It may refer to a simple scarf, the hijab, that covers the hair and ears, or it may include a head to toe covering known as a jilbab. Every European court that considered the question concluded that although the “mainstream” Muslim religion does not require women to wear the veil, many women don the veil because they sincerely believe that their religion requires veiling (R. (on the application of Begum) v. Headteacher and Governors of Denbigh High School [Begum], 2006; R. (on the application of S.B.) v. Governors of

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Denbigh High School [S.B.], 2005; Sahin v. Turkey, 2005). Veiling, “in the sense of covering one’s hair,” is not specifically mentioned in the Qur’an, and is a relatively recent phenomenon (Hoodfar, 2003, p. 6). Although veiling was widely regarded as a cultural rather than a religious practice until the nineteenth century (Hoodfar, 2003), the veil is no stranger to political controversy. By the beginning of the twentieth century, the veil drew fire in the Islamic world as a symbol over which “modernists and conservatives fought out their differences” (Hoodfar, 2003, p. 8). Some predominantly Muslim countries, like Turkey, enacted de-veiling laws to promote a secular state along the European model (Sahin, 2005). Turkey’s recent reconsideration of the veil in public facilities such as schools prompted energetic debate (Tavernise, 2008). Like Muslim women, Orthodox Jewish males keep certain dress obligations: “to cover their heads at all times except when they are (a) unconscious, (b) immersed in water, or (c) in imminent danger of loss of life” (Menora v. Illinois High School Association, 1982, p. 1031). The kippah, also known as a yarmulke, is usually small (with a radius of three to five inches), and the wearer may cover the kippah itself with another hat, whether the distinguishable large black hat favored by some ultra-observant Jews or a baseball cap. Non-Orthodox Jews do not normally wear a kippah except when engaged in religious observance. Similarly, the Khalsa sub-group of male Sikhs must wear a metal kirpan (or ceremonial knife) at all times (Multani v. Commission Scolaire MargueriteBourgeoys and Attorney General of Quebec, 2006). Although the Khalsa are distinguished as fighters, they never use the kirpan as a weapon. Many Sikhs believe that a small symbolic knife satisfies the requirement, but others insist the kirpan must be a dagger at least a foot long. The Khalsa males also leave their hair uncut, wear a wooden comb in their hair covered by a turban, and wear a steel bracelet and special shorts under their pants, styles which some Khalsa girls and women emulate today (Gosal, 1993). As with the Islamic veil, opinion is divided over whether the kirpan is required as a matter of religious observance or is a cultural affirmation (Multani, 2006). While the Sikhs were “originally a religious community … the community is no longer purely religious in character” (Mandla v. Dowell Lee, 1983). It is widely acknowledged, however, that orthodox Sikhs cannot abandon their unique appearance without sacrificing their “distinctive customs and cultural rules” (Mandla, 1983, p. 1069). A variety of other symbols of religious belief, ethnicity, or cultural heritage may come into conflict with school rules and norms. In Western Europe and North America, the discrete Christian cross is commonly viewed as so ubiquitous that it is not often noteworthy as an expression of identity. As Galeotti (2002) puts it, in France (and presumably other countries where people are accustomed to seeing a cross on a chain), the cross becomes invisible “in much the same way as a man with gray pants does not particularly stand out” (Galeotti, 2002, p. 125). Yet even the cross, if ostentatious enough so that it insists on being noticed, may, like a risqué outfit, become a controversial item of apparel. In the United States, the confederate flag, Rastafarian dreadlocks, African head-dress, and the Wiccan

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pentacle may also conflict with school rules (Davis, 2004; Hamilton, 2005; Howard, 2005). Many schools in the United States adopted dress codes expressly designed to bar clothing that indicates gang membership or affinity, some of which interfere with expressions of membership in other groups that have no antisocial overtones. Models and Legal Standards The level of legal protection accorded to religious symbols worn in schools is determined by each nation’s unique laws and political philosophy. In addition, except for the United States, each of the countries discussed here is bound by the terms of at least one international covenant. All of the European states and Canada ratified the United Nations Convention on the Rights of the Child (CRC) (1989), which guarantees a number of rights bearing on this discussion, including the “freedom to manifest one’s religion or beliefs” (CRC, Article 14), the right of the child to “preserve his or her own identity” (CRC, Article 8), and the child’s right to an education that gives “due weight” to the child’s views, based on the child’s age and maturity (CRC, Article 12) while embracing the cultural identity of children and parents as well as the “national values of the country in which the child is living” (CRC, Article 29). Given how pertinent these rights seem to be to the question of respect for identity symbols worn by children, it is noteworthy that none of the legal arguments made to date about religious garb in schools in the countries discussed here have expressly referred to the CRC. All of the European states also subscribe to treaties which provide guidance on the question of religious symbols in schools, including the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (now known as the European Convention on Human Rights (ECHR)), discussed below. The United States: An Individualized Accommodation Model The population of the United States is perhaps the most religiously observant of any of the western industrialized nations, and the majority of the population selfidentify as some variety of Christian. At the same time, the country has long been home to one of the world’s most diverse populations; today about 55 religions are represented in the US, and many of them contain “subsidiary sects with different religious beliefs” (Zelman v. Simmons-Harris, 2002, p. 723; see also Eck, 2001). The US Constitution does not permit the State to favor one religion over another; to the contrary, all religions and the lack of religion are equal under the law. Despite the apparently widespread belief that the US Constitution protects the right to wear religious symbols in school (Marshall, 2003), the reality is far more complicated. A school may not prohibit a student from wearing religious garb to school solely on the grounds that the garb makes a religious statement, because personal religious statements are generally protected. On the other hand, a student

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does not currently have a right to wear religious garb that is prohibited for other rational reasons. Further, Supreme Court doctrine about the religion clauses of the Constitution is in flux, and the Court has never considered a case that bears directly on the issue of student religious garb. To add to the confusion, legal experts differ about the likely outcome should such a case reach the Supreme Court, and only a handful of cases have reached lower courts. Making matters even murkier, the executive branch of the federal government has interpreted the law differently with changes in presidential regimes, and, at the state level, additional protections may apply. Public schools in the US have discretion to impose a uniform standard of dress. In practice, however, only about 3 percent of all public schools in the US require students to wear uniforms; students in those schools are disproportionately members of racial and ethnic minority groups and come from low-income families (National Center for Education Statistics, n.d.). Yet many schools that permit students to choose their own clothing impose regulations that limit the students’ discretion. For instance, many school districts prohibit students from wearing hats or head coverings in school, ostensibly to eliminate gang paraphernalia, to eradicate one means of hiding contraband items, and to teach proper behavior. Since, as seen above, several religions require the observant to cover their heads, these rules provide fertile ground for controversy. In one of the earliest reported opinions on the issue, Judge Posner, writing for the Seventh Circuit Court of Appeals, concluded that Orthodox Jews had no right to an accommodation that would allow them to wear insecurely-fastened kippahs in violation of rules applicable to interscholastic basketball competition; the court urged the plaintiffs to devise a method of securing the kippahs that satisfied the league’s safety concerns, since the wearing of a yarmulke is “conventional rather than prescribed” and the “inherently insecure” reliance on bobby pins to secure the yarmulke is “even more obviously a convention rather than a religious obligation” amenable to compromise (Menora, 1982, pp. 1033–4). Such controversies have become more frequent with increasing diversity of religious and ethnic groups and a growing demand for recognition by a range of minority groups. In the wake of the 9/11 attacks the federal government reported an increase in incidents of “harassment commingled with aspects of religious discrimination against Arab Muslim, Sikh, and Jewish students” (US Department of Education, 2004). Perhaps counterintuitively, the same US Department of Education report discusses allegations of discrimination against members of the majority Christian community who express conservative religious views in class. Some school districts resist accommodation. Although there are no reported cases in US courts involving the right to wear the veil to public school, schools in several states excluded Muslim girls for dress code violations until litigation prompted settlements. A teacher in Louisiana ripped a hijab off a student’s head during class (Nelson, 2004). In another instance, a middle-school student missed weeks of school before the Department of Justice intervened in her case, leading to a settlement and her return to school (Money, 2004; Amicus brief of the US

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Department of Justice, 2004). Another student barred from school for wearing a hijab was able to return only after the Council on American–Islamic Relations intervened on her behalf (“School alters rules …,” 2005). Similarly, school districts have regarded the kirpan as a violation of zero tolerance policies that prohibit any form of weapon in school. In Livingston, California, three Sikh boys missed a full semester of school before a court issued an injunction imposing a compromise (“Settlement reached,” 1997; see also Cheema v. Thompson, 1995), while in Greenburgh, New York, litigation resulted in a speedy settlement allowing a boy to wear his kirpan to school (Bert, 2005). The United States operates under unique constitutional constraints— foremost is the tension between the Free Exercise Clause, which protects the individual’s beliefs and religious expression from government interference, and the Establishment Clause, which prevents the government from favoring any particular religion and has long been held to require neutrality between religion and non-religious belief systems. For the last 50 years, the Supreme Court has explored the tensions between these two constitutional principles, frequently in cases arising out of the public schools. The Religion Clauses reflected the Framers’ concerns about “protecting the nation’s fabric from religious conflict” (Zelman, 2002, p. 717). According to one influential view, the Establishment Clause prevents the government or its representatives from expressing views about religious beliefs, appearing to “endorse” some religious views or “disapprove” of others (Lynch v. Donnelly, 1984, p. 688). School officials sometimes erroneously conclude that student expression of religious ideas in school violates the Establishment Clause because it might be attributed to the teacher or institution (Peck v. Baldwinsville Central School District, 2005). For that reason they mistakenly refuse to allow religious garb on the unconstitutional ground that it is religious speech (Beyond the pledge of allegiance, 2004, pp. 55, 80, 91), even though such speech is only barred if it is attributable to government speakers, such as teachers or school officials or spokespersons. When religious beliefs are expressed as pure or symbolic speech, the student’s claim may also implicate the Speech Clause of the First Amendment. Students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker, 1969, p. 306). A standard known as the “Tinker test” requires that where a student is normally permitted to speak, in the sense of expressing a point of view, any conflict between student expression and school rules must be resolved in favor of the student, unless the student’s speech would “materially and substantially interfere” with the educational process or collide “with the rights of other students to be secure and let alone” (Tinker, 1969, p. 308). The mere discomfort of other students or the unpopularity of the speaker’s views does not suffice to overcome a student’s right to express ideas, even ideas associated with the exercise of religious belief. Finally, the issue of school children and religious symbols is framed in the United States by a line of cases that emphasize the rights of parents to control

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their children’s upbringing and to indoctrinate their children in their belief systems (Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Wisconsin v. Yoder, 1972). Summarizing these cases in 2000, the Supreme Court concluded that they protect the “fundamental right of parents to make decisions concerning the care, custody, and control of their children” (Troxel v. Granville, 2000, p. 66). These cases are particularly significant for contemporary discussions of religious and cultural minorities because the early “parents’ rights” cases had their origins in disputes over the use of public schools to Americanize immigrant children (Carter, 1993; Tyack, 1968; Woodhouse, 1992). On the other hand, when parents entrust their children to a public school system, they are not entitled to have the school system bend its regulations to suit their preferences in matters of curriculum (Fields v. Palmdale School District, 2006, Mozert v. Hawkins County Board of Education, 1987). Because of the important role that schools play in crafting citizens who can participate in a pluralist democracy (Gutmann, 1987), and because parents have the right to remove their children from the public school system (Pierce, 1925), the classic response to parental complaints has been that the unhappy parent may remove the child from the public school system and send him or her to a private school, or home school the child. Greenwalt (2005) and others argue that it may better serve the broader civic purposes of liberal education to accommodate parents rather than risk that they will remove their children from the public schools and place them in an environment that offers less exposure to diverse views. Generally, parents must bear the full cost of abandoning the public school system. Private schools in the United States traditionally have not received any public funds. Recently, however, the Supreme Court upheld the provision of both direct subsidies in the form of funds for supplies and computers (Mitchell v. Helms, 2000), and funds that travel with students under certain conditions in the form of vouchers (Zelman, 2002). But, in contrast to many other countries, the Establishment Clause bars significant direct government subsidies to sectarian schools. To complicate matters further, the applicable law varies depending on the state in which the question arises, even though the underlying claim rests on the federal Constitution. In general, the federal courts defer to policies adopted by local school boards, unless the school boards stray beyond the limits of the Bill of Rights (West Virginia State Board of Education v. Barnette, 1943). However, the current state of the law governing individuals’ freedom of religious exercise is in flux, creating significant confusion for local school authorities. In 1990, the Supreme Court narrowed the ability of individuals to claim an exemption from generally applicable laws that burdened their exercise of religion, holding instead that the state may enforce “a neutral, generally applicable law,” even where it imposes or blocks an individual action that conflicts with the individual’s sincerely held belief that the act is “central” to his or her “personal faith” (Employment Division v. Smith [Smith], 1990, p. 887). The Court explained, first, that courts could not presume to assess the “centrality” of any particular religious practice to a faith, much less to assess varying interpretations of the same

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creed (Smith, 1990, p. 887). Second, it reasoned that the danger of anarchy flowing from exemptions based on religious practices “increases in direct proportion to the society’s diversity of religious beliefs” and, as a “cosmopolitan nation made up of people of almost every conceivable religious preference,” the United States could not afford to indulge myriad claims for exemption as a matter of course (Smith, 1990, p. 888). The Court left it to the legislative branch to determine which, if any, religious exemptions were warranted. In Smith the Court opened the door to a piggybacking of constitutional rights in which two separate claims—such as the right to free exercise and the parents’ right to control their children’s upbringing—would combine in a so-called “hybrid claim” that might have a greater stature than either claim standing alone (Smith, 1990, p. 881–2). The Court expressly conceptualized such a claim as involving a parent’s rights against state educational requirements (Smith, 1990). In response to the holding in Smith that narrowed the protections offered to individuals under the Free Exercise Clause, Congress enacted the Religious Freedom Restoration Act (RFRA) (1993). The law was designed to restore the pre-Smith status quo which required strict scrutiny of government actions that impinged on religious exercise. RFRA required courts to grant exemptions from federal, state, and local laws of general applicability that burdened a petitioner’s exercise of his or her religion, unless the government could demonstrate a compelling interest in uniform enforcement of the law. The Supreme Court subsequently overturned RFRA as applied to state and local laws (City of Boerne v. Flores, 1997) which clearly govern school systems. Some states then enacted their own versions of RFRA or found that their state constitutions required strict scrutiny when generally applicable laws inhibited religious practice. As a result, with some exceptions not relevant here, the Free Exercise Clause does not compel exemptions, but RFRA requires exemptions to federal laws and actions unless the government action survives strict scrutiny. Interpretation of free exercise claims against state and local laws and regulations will depend on the regime of the specific state (Volokh, 2005). During the Clinton Administration, the US Department of Education (1995, 1998) advised educational authorities that the law—what I call the “individualized accommodation model”—afforded “substantial discretion” to local school districts and individual public schools regarding the regulation of school dress, as long as a school does not “single out religious attire” for prohibition. After the Court overturned RFRA as applied to states and localities, the Department revised its guidelines and summarized the impact of the decision on issues concerning student garb: Students generally have no Federal right to be exempted from religiously-neutral and generally applicable school dress rules based on their religious beliefs or practices. However, schools may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation … Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages. (US Department of Education, 1998, § 10)

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Some school districts understood this instruction to mean that they should remain strictly neutral concerning the religious views of students, and read into the directive that accommodation should be the exception rather than the rule. In response, the Department of Justice under the Bush Administration put a stronger pro-exercise spin on the 1998 regulations, which it described as “simply a recitation of the current state of constitutional law” (US Memorandum of Law, 2004, p. 18). The Department of Justice urged that dress codes that permit any exemptions “are subject to strict scrutiny when applied to religious objectors” (US Memorandum of Law, 2004, p. 18). The federal government adopted this position when it intervened to support sixth-grader Nashala Hearn, whose Oklahoma public school suspended her twice for wearing a hijab to school. Nashala wore the hijab from the time school opened in August 2003 until the second anniversary of 9/11 when a teacher told her to remove it. Even though Oklahoma has a RFRA statute, the principal concluded that the hijab violated the school’s rule barring hats in school and asked Nashala to remove her hijab or leave the building. The school adopted the no-hats rule to improve safety and discipline, eliminate “unnecessary” disruption, and maintain a “religion-free zone” in an effort to comply with the 1998 federal regulations (US Memorandum of Law, 2004, p. 17). The Bush Administration’s Justice Department agreed with Nashala that the school’s actions should be subjected to strict scrutiny because the policy allowed individual exemptions for secular reasons and because Nashala’s claim constituted a hybrid claim under Smith. The Justice Department identified a hybrid claim in Nashala’s right to symbolic speech combined with her right to religious expression. Oddly, in spite of the opening provided by the Supreme Court in Smith, the government did not argue that Nashala’s father had liberty interest in his parental right to impart his values to his daughter, which would have led to the classic hybrid claim the Court identified in Wisconsin and Smith. The federal government expressly supported Nashala’s claim that she had been singled out for discipline because of her particular faith, arguing that the school allowed a girl who lost hair after chemotherapy to cover her head. Moreover, the federal government took the position that Nashala’s symbolic speech could not be restricted under Tinker because she had not disrupted the school or interfered with the rights of others. The school district ultimately settled the suit in the face of the federal government’s advocacy on Nashala’s behalf, but the case does not provide a binding precedent for other school districts. The terms of the temporary consent order, which expires after six years, provide that the school will grant an exception to the dress code only when “previously approved by the School Board upon written application for a bona fide religious reason” (Hearn v. Muskogee Public School District, 2004, p. 3). The student and her family bear the burden to file a written application for an exemption, which the School Board may deny if it “finds the religious reasons are not sincerely held beliefs, or that the exception would be likely to cause a material danger to safety and security” (Hearn, 2004). Moreover, political shifts at the highest levels of the US Department of Justice, which change

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with presidential administrations, may lead to a different interpretation of the law and, subsequently, different patterns of intervention in local cases. Very few reported decisions address religious or cultural attire in US schools. Because the legal analysis is intensely fact-specific, there is no bright-line rule on which either schools or students can rely. To further complicate matters, the lower court opinions are in disarray. Lower courts disagree, for example, whether the Constitution requires a school to accommodate the wearing of an optional symbol that is not mandated by religious law. One district court protected religious expression entirely based on personal belief rather than on the doctrine of an organized religion by holding that a school must accommodate male students who wore rosaries as necklaces to proclaim their orthodox Roman Catholic beliefs (Chalifoux v. New Caney Independent School District, 1997). A different federal district court opined that a student’s personal belief that she was required her to cover her hair meant that the head covering “may not constitute symbolic speech at all,” since an unrecognized symbol is not worn in order to convey a message to others (Isaacs v. Board of Education of Howard County, Maryland, 1999). In that case, the court rejected an African American girl’s claim rooted in cultural tradition. The girl argued that she should be exempted from her school’s no hats rule in order to wear a headwrap that expressed her African and Jamaican heritage. The court reasoned that cultural, as opposed to religious, expression had no special claim to exemption from generally applicable rules (Isaacs, 1999). In this instance, the Free Exercise Clause limited the range of personal beliefs entitled even to request accommodation; because the Constitution does not mention cultural identity, the court found no entitlement to special consideration for cultural, non-religious claims. However, in a case involving the claim by male members of the American Indian Movement that their culture and tradition barred them from cutting their hair as required by school rules, another court held that “religion” is not limited to the traditional faiths but can be discerned “[w]henever a belief system encompasses fundamental questions of the nature of reality and the relationship of human beings to reality,” entitling the practice to First Amendment protection, whether as a matter of religion or tradition (Alabama & Coushatta Tribes v. Big Sandy School Disrict, 1993, p. 1329). This general approach places a heavy burden on the individual student and his or her family. Because discretion about accommodating parental values, whether religious or ethnic, is left to the local school board and even to the individual school principal, each family that is the first to seek accommodation in a given district may bear the burden of stating their affirmative claim to an exemption from any dress code of general application, and may also bear the burden of proposing a specific compromise. The US doctrine has been the subject of criticism from two very different directions: first, attacks on what is perceived as pervasive secularism in the public schools, and second, arguments that the rights of students should be taken more seriously. Commentators including Carter (1993) and McConnell (1998) criticize what they regard as the “pervasive secularism” in public schools, which they consider

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an affront to parents who hold fundamentalist religious beliefs. These critiques are echoed in the political arena in charges that there is “hostility to religious expression in the public square,” including the nation’s schools (Beyond the pledge of allegiance, 2004). These concerns give short shrift to the need to prevent members of religious minorities from feeling like, and being treated as, outsiders. One-size-fits-all regulations normally favor the majority. The Supreme Court has only once considered the issue of religious garb, in a case involving an adult in the armed forces. The Court held that an Orthodox Jew serving as a psychologist in the armed forces was not entitled to an exception from the military dress code in order to wear his kippah (Goldman v. Weinberger, 1986). Justice Brennan, however, dissented, in a prescient opinion: The Government characterizes the yarmulke as an assertion of individuality and a badge of religious and ethnic identity, strongly suggesting that, as such, it could drive a wedge of divisiveness between members of the services … The Government notes that while a yarmulke may not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Yogi, nor dreadlocks to a Rastafarian … (Goldman, 1986, p. 519)

“To the contrary,” Justice Brennan proclaimed, “a yarmulke worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States servicemen embraces and unites religious and ethnic pluralism” (Goldman, 1986, p. 519). He urged that the armed forces be compelled to present at least a reasoned basis for their restrictions of religious symbols. Otherwise, religions would be divided into those “with visible dress and grooming requirements and those without … The practical effect of this categorization is that, under the guise of neutrality and evenhandedness, majority religions are favored over distinctive minority faiths … Under the Constitution there is only one relevant category—all faiths” (Goldman, 1986, pp. 521–2). The only interest set forth by the government was “uniformity of dress” which, according to Justice Brennan, did not explain how uniformity applied to yarmulkes served any independent functional interests essential to the armed forces (Goldman, 1986, p. 522). A second line of criticism appears in the theoretical discussions of children’s rights which posit that the United States gives too little weight to children’s rights to explore options and choose among them, independent of their parents (Ross, 1999; Woodhouse, 1992). Only one reported opinion concerning school appearance codes in the United States even considers the possibility that the religious or expressive beliefs of parents and children diverge (Alabama & Coushatta Tribes, 1993). It supported children’s rights to religious expression that went beyond their parents’ practices. In considering the claims of male Native American students that their traditions and spiritual beliefs barred them from cutting their hair, the court confronted an unusual fact pattern. The parents’ generation, like several generations before them, had converted to Christianity but retained Native American beliefs as part of an “overall belief system” (Alabama & Coushatta Tribes, 1993, p. 1325).

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As part of their assimilation to Christian and Caucasian culture, the men of the tribe began to cut their hair short and also cut their children’s hair in a ritual ceremony (Alabama & Coushatta Tribes, 1993, p. 1325). After many of the adolescents in the tribe attended a summer program about Native American traditions, where they learned that their heritage accords cultural and religious significance to long hair, several of the boys refused to cut their hair. In most instances, the parents and tribal officials supported the boys’ position even though they had not trained their children to leave their hair long. The court concluded that the sincerity of the students’ personal beliefs stood on its own and was not dependent on the practices of their parents or the tribe more generally: “plaintiffs are not stripped of their right to free exercise of their own religious beliefs simply because wearing one’s hair long is not absolutely mandated by the Tribe or its religious or cultural leaders” (Alabama & Coushattta Tribes, 1993, p. 1330). The teenagers wanted to adopt a more traditional lifestyle than their parents, but one consistent with their parents’ world view. It is less clear that a US court would support accommodation of a practice that directly conflicted with the views of a student’s parents. In summary, despite a rhetoric that supports diversity of beliefs and cultures, the law in the United States fails to provide bright-line protection to children and parents whose minority beliefs or cultures require a unique and symbolic form of dress or appearance. Instead, tolerance and accommodation depend on the goodwill of local officials in each of the more than 94,000 public schools spread among roughly 16,850 school districts in the United States (Young, 2000). This approach imposes a heavy burden on individuals who seek to exercise choices that school officials may regard as privileges rather than rights. It also requires constant vigilance and raises the specter that each request for accommodation will require negotiation from scratch and even litigation. The resulting uncertainty is likely to limit requests for accommodation to only the most determined children and families, at least until someone else in the district has paved the way. If we pause at this point in the analysis, a preliminary conclusion based solely on the way the issue is framed in the United States might read as follows. We presume that parents and their children share belief systems and agree about what their beliefs require the children to wear at school. Therefore, it would appear that to promote diversity and respect for minority beliefs, the law should impose an affirmative obligation on school systems to accommodate display of religious beliefs through personal appearance to facilitate the expression of individual religious views, even though current Supreme Court jurisprudence does not require such accommodation. The analytical framework for this problem in the United States is further muddied by the peculiar political and philosophical alignments of those who advocate mandatory accommodation. Proponents of accommodation generally admit that they also “seek a larger role for religion in public life” (Davis, 2003, p. 429). In the context of American politics, conservative Christians are the primary proponents of a greater role for religion in public life, and they commonly do

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not limit their crusade to individual expression. Ironically, progressives who normally champion individual liberties under the First Amendment may be wary that accommodation of religious exercise by minorities could ultimately play into the hands of those who wish to restore Christian prayer to the public schools. The lack of clarity under the individualized accommodation model used in US law becomes even more apparent in contrast to countries in which the law is stated coherently and applied directly to the issue of student garb, in France by statute, and in England and Canada through decisions of the highest courts. A brief examination of how other western democracies have responded to the competing claims of religious expression, group identity, and the State’s interest in promoting cohesion helps us unravel the conflicting claims that surround the issue of student religious garb. France: The Secularist/Assimilationist Model French citizens predominantly identify as Roman Catholic. Although there has not been an official state religion since the Revolution, the French State appropriated and continues to own and maintain all church buildings constructed before 1905 (Gunn, 2004). Yet laicite, a term resistant to precise translation, has long been a founding principle of the French Republic (Gunn, 2004). Under the doctrine of laicite, the State and its institutions remain stridently secular. France has entrenched in law and practice the “religion-free” public space that Carter (1993), McConnell (1998), and others argue is encroaching on religious freedom in the United States. Recent changes to French law pursuant to the principal of laicite caused an international controversy, referred to as the affair of the veil. A series of incidents, beginning in the late 1980s, led to the adoption of a statute (Article 141-5-1, Law No. 2004-228) which became effective at the start of the fall 2004 school year. The statute provides that “[i]n public elementary schools, middle schools, and high schools it is forbidden to wear symbols or clothes through which students conspicuously [‘ostensiblement’] display their religious affiliation” (Article 1415-1). Facially applicable to all religious symbols, including large Christian crosses, it was widely understood that “Christians, even the most devout, do not usually enter schools … carrying large crosses” (Riley, 2004, p. 4). The technically neutral act was aimed at minorities such as Muslims, Sikhs, and Jews. Internal rules require that a dialogue with the student precede the enforcement of any disciplinary procedures. Notwithstanding the required dialogue, by the end of the school year, 44 Muslim girls and 3 Sikh boys were expelled from school for refusing to give up their respective veils and turbans (“France: Only 47 students,” 2005). The rest of the population apparently complied, although some Muslim groups complained that the girls suffered the loss of part of their identity (“French court confirms,” 2005). French courts have upheld the law (“French court confirms,” 2005). Although some commentators argued that the

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law seems to contradict the provisions of the Convention on Human Rights to which France is a party (Riley, 2004), the European Court of Human Rights upheld similar regulations applicable to university students (Sahin, 2005). The French theory rests on the notion that keeping religion private reinforces freedom and tolerance, but many commentators argue that laicite was born of intolerance and continues to prove divisive (Gunn, 2004; Scott, 2007). Some popular observers agree, charging that “efforts at imposed integration, like the celebrated ban on Muslim girls wearing veils in state schools, often serve only to antagonize” and contributed directly to widespread riots by immigrant youth that shook France in the fall of 2005 (“Opinion: Riots in Paris,” 2005). The specifics of the controversy surrounding the passage and implementation of the law are particularly interesting from a comparative perspective. Whatever the behind-the-scenes bias against North African immigrants from the former French colonies (which appears to be substantial), much of the discussion was couched in terms of the rights of Muslim girls to participate in the French community. The Stasi Commission—whose proposals led to the law—reported that French citizens widely believed that Muslim girls who wear veils to school are forced to do so by their fathers, brothers, or even the Muslim community at large (Gunn, 2004). One French feminist went so far as to label the veiling of girls a form of criminal child abuse (Kramer, 2004). Secularists point to the requests that accompany wearing the veil, such as claims to exemption from co-ed physical education and biology classes and opposition to teaching about the Holocaust (Mortkowitz, 2004). Teachers and school principals voiced concerns that, in addition to isolating veiled girls from the secular community, the presence of veils would lead to distinctions within the Muslim community between the more traditional and those who are less observant, leading to peer pressure and ostracism (Eisenberg, 2004). Some observers feared that girls who refused to wear the veil might be subjected to sexual assaults and pointed to the death of an unveiled Muslim girl who was set on fire in 2002 (Eisenberg, 2004). French feminists expressed fears that banning the veil would be counterproductive, predicting that some Muslim families would pull their daughters out of school altogether or even send them out of the country into non-consensual forced marriages (Kramer, 2004). At least one reported incident substantiated these concerns, when a Moroccan man was arrested and stripped of his parental rights after he kept his four daughters confined at home because they would be forced to remove their veils if they attended school (“Suspended jail term,” 2006). Scott (2007) points out, however, that three veiled girls who were the focus of press attention while the Stasi Commission held its hearings each made individual decisions to wear headscarves over the objections of their families. Indeed, two of  Similar concerns have been voiced in Spain, where at least one school principal grilled a girl who he suspected was forced to wear a headscarf by her father. As in France and the Netherlands, the Spanish government subsidizes religious schools (McLean, 2004, p. A6).

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the girls were sisters from a non-Muslim leftist family; their father was a secular Jew, their mother a lapsed Catholic (Scott, 2007, pp. 30–31). A third student’s Muslim parents opposed her decision to adopt the veil (Scott, 2007). Generalized concerns about the rights of hypothetical Muslim girls thus trumped attention to the religious rights claims of at least three real girls. For Muslim parents who conform to the popular stereotype and insist that their daughters wear hijabs, less drastic alternatives than pulling girls out of school exist. In order to “keep the church out of the classroom,” France has long subsidized the budgets of qualifying parochial schools (those that meet the curricular requirements). Most of these are Roman Catholic schools. Although some observers voiced the hope that Roman Catholic schools would educate the veiled girls, Catholic school officials reported that they would not be “a place of refuge” if the girls demanded special curriculum or religious holidays (“French Muslims,” 2004). Another option would be to provide public funds for approved Muslim schools. One subsidized Muslim school opened in Lille in 2003; it accepts students of all faiths, veiled and not (“France gets first private Muslim lycee,” 2003). Resolving the problem of the veil by subsidizing numerous Muslim schools, however, would undermine France’s primary goal of assimilating immigrants into mainstream French culture. Instead, it resembles the multicultural model developed in the Netherlands, described by Buruma (2005), under which the State funds Muslim as well as Protestant religious schools, an approach which has been criticized with the advent of Muslim militancy (Scheffer, 2003), and severely undermined following the murder of filmmaker Theo Van Gogh (Buruma, 2006). The French ideal of assimilation to a secular state appears flawed because it only tolerates the “other” who assumes the features of the majority. It leaves little room for individuals who assert their distinctiveness—especially with respect to religious identity—in a way that makes the majority uncomfortable. Great Britain: Mutual Reasonable Accommodation Model In contrast to the US and France, Great Britain has an established church. The monarch is the titular head of the Churches of England and Scotland; the prime minister appoints the Church’s highest official, the Archbishop of Canterbury; places are reserved for bishops in the House of Lords; and a blasphemy law protects the Church of England from written and spoken attack (Sahgal and Yuval-Davis, 1992). Moreover, under the Education Reform Act (1988), all state-supported schools must hold daily religious services (Sahgal and Yuval-Davis, 1992) and classes in religious education, though students may be excused at their parents’ request (Poulter, 1997). As in France, the government subsidizes religious and other privately run schools (known as “voluntary-aided” or Local Educational Authority [LEA] schools) that satisfy standard curricular requirements. In both state-run and subsidized schools, religious services must “reflect the fact that the religious traditions in Great Britain

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are in the main Christian, whilst taking into account” other principal religions represented in the country (Poulter, 1997, p. 56). Individual schools, however, may be exempted from the requirement that services have a Christian character in recognition of the distinctive religious affiliations of their populations (Poulter, 1997). LEA schools make up about one-third of all British schools, and are largely Church of England or Roman Catholic (Sahgal and Yuval-Davis, 1992). Of the more than 7,000 religious schools receiving public funds in Great Britain in 2006, 36 were Jewish and only seven were Islamic, while a handful served other minority faiths (Cowell, 2006). Unregulated, privately funded schools are also increasingly available to minority religions, including dozens of Muslim schools generally segregated by gender (Khanum, 1992; Poulter, 1997). Although it has an established church, British law combines elements of the pluralist and assimilationist approaches to diversity, resulting in a system which has been called “pluralism with limits” (Poulter, 1997, p. 49). In particular, British law protects individual freedom of religion. Like France, Great Britain is a signatory to the European Convention on Human Rights, which provides the framework for judicial analysis of claims that a school has infringed a student’s free exercise rights. In addition, Great Britain’s Race Relations Act of 1976 bars direct or indirect discrimination in a regulation of general applicability that has a disproportionate impact on a particular minority group which is “not justifiable irrespective of the colour, race, nationality, or ethnic or national origins of the person to whom it is applied; and which is to the detriment of that other because he cannot comply with it” (Race Relations Act of 1976, p. 1724). As a result, the question of whether believers are required to wear a particular religious symbol or form of dress may be less important than in the United States, because the Race Relations Act provides that if the regulation interferes with the individual’s expression of identity, the government must justify the regulation to the satisfaction of a reviewing court. In 1983 the House of Lords held that the Race Relations Act protected the right of a Sikh boy to wear his turban to school because the Act intended the word ethnic to be “construed relatively widely” in a “broad, cultural/historic sense” (Mandla, 1983, p. 1067). The court concluded that although the Sikh community is no longer strictly religious in nature, a Sikh boy could not comply with the school dress code requiring him to cut his hair and attend school bare-headed without giving up his community’s “distinctive customs and cultural rules” (Mandla, 1983, p. 1069). This requires a much broader form of accommodation than is even contemplated in the United States Constitution because it protects ethnicity. The Race Relations Act is understood to protect Jews (treated as an ethnic group in the wake of World War II) and gypsies, as well as Sikhs (Poulter, 1997). On the other hand, because Muslims are regarded as a religious group but not an ethnicity, they have thus far been denied special protection under the Race Relations Act (Poulter, 1997), and must rely instead on claims to religious freedom. In 2006 the Law Lords, the country’s highest court, ruled unanimously in favor of an LEA secondary school in a widely publicized and controversial case

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brought by a 14-year-old, Shabina Begum, who had been denied access to school when she insisted on wearing a full length jilbab (Begum, 2006). The details of the case are intriguing. First, the headmistress of the school is a Muslim, raised in the sub-continent, and the school population was, at the time of the controversy, almost 90 percent Muslim. As a result, the school had been exempted from the legal requirement that schools hold broadly Christian religious services (Begum, 2006, p. 2). Second, the co-educational school had voluntarily adopted a generous dress policy designed to accommodate Muslim girls by providing a “shalweer kameeze”—an outfit consisting of loose trousers, a tunic and a headscarf—as an alternative to the standard school uniform, after considerable consultation with various community groups, including several local mosques. Some observant Muslim students, as well as Hindu and Sikh girls, wore the shalweer kameeze without complaint. Others simply wore the hijab with the school uniform, while still others left their heads uncovered (Begum, 2006). Third, the girl’s parents were both dead, and her lawyer portrayed the girl’s request to be allowed to wear head to ankle covering as the outgrowth of her own beliefs about what was required of her after she began to menstruate (Begum, 2006). Subsequently, many observers raised questions about the influence of Shabina’s older brother who initially informed the school of her decision to abandon the shalweer kameeze and adopt more conservative dress than she had worn previously (Begum, 2006). The Court applied the legal analysis developed by the international courts for analyzing claims under Article 9 of the European Convention on Human Rights, which provides, in pertinent part, that the “freedom to manifest one’s religion or beliefs” is “subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, health or morals, or for the protection of the rights and freedoms of others” (ECHR, Article 9). The panel began by asking whether the school infringed on Shabina’s religion when it refused to allow her to wear the jilbab. The lead opinion analyzed the “coherent and remarkably consistent body of authority … which shows that interference is not easily established” under Article 9 (Begum, 2006, p. 10). The majority of the panel concluded that, on the facts presented, there was no interference with Shabina’s right to manifest her belief in practice or observance (Begum, 2006). Lord Bingham reasoned that Shabina’s family had freely chosen the school instead of a neighborhood school, and the school had clearly explained its dress code. Three schools in commuting distance would have permitted her to wear the jilbab, and a number of single sex schools were also available where even Shabina would not have deemed the jilbab necessary. Lord Hoffman agreed, adding: Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing. Common civility also has a place in the religious life … people sometimes have to suffer some inconvenience for their beliefs. (Begum, 2006, p. 20)

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Because the judges regarded the question of interference as “debatable” by reasonable people, they continued their analysis by asking whether the limitation on Shabina’s religious practice was justified. To be justified, an interference must be “(a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect” (Begum, 2006, p. 11). The school’s stated reasons for refusing to bend the dress code to accommodate the jilbab included: (i) the discomfort of the other students who were afraid of people wearing forms of dress they associated with extremist views; (ii) the concerns of other Muslim students about one kind of Muslim being regarded as inferior to another, and about resulting pressure from peers and outsiders to conform to more traditional dress; and (iii) the fear that a wider diversity of dress codes would undermine cohesion, inclusion, and tolerance (Begum, 2006). The panel concluded that even if the dress code infringed on Shabina’s rights, such infringement would be justified under Article 9 by the school’s need to protect the rights and freedoms of others (Begum, 2006). This provision of the ECHR, it is worth noting, resembles the second (but seldom cited) justification for limiting student speech in the United States under the Tinker test: interference with the rights of other students. The next question under Article 9 is the proportionality of the regulation. Proportionality review requires an elevated “intensity of review … greater even than the heightened scrutiny test” (Begum, 2006, p. 13). While this inquiry bears some resemblance to the “strict scrutiny” of limitations on fundamental freedoms in the United States, it differs in significant respects. Proportionality review under European law requires the British court to make what it characterizes as an “objective … evaluation, by reference to the circumstances prevailing at the relevant time” (Begum, 2006, p. 13). The court in Begum noted that consideration of proportionality included weighing: [t]he need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance … and of pluralism and broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others … and the permissibility in some contexts of restricting the wearing of religious dress. (Begum, 2006, p. 14)

The Court concluded that the school had not only gone out of its way to respect “Muslim beliefs but did so in an inclusive, unthreatening … way” and that the   Poulter argues that the court must also ask whether the impact of the regulation disproportionately affects a particular minority group; this is measured by “whether the proportion of pupils of the plaintiff’s [minority] group who can conscientiously comply with the regulation is ‘considerably smaller’ than the proportion of pupils not of that group who can comply with it” (Poulter, 1997, p. 65), but this inquiry did not enter into the court’s analysis.

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rules were acceptable to mainstream Muslims (Begum, 2006, pp. 14–15). Finally, the Court concluded that, contrary to her allegations, Shabina had never been “excluded” from school; instead, she chose not to obey the rules and decided to stay home (Begum, 2006, pp. 27, 28, 33). In a separate opinion Baroness Hale (Begum, 2006) raised two additional concerns, both echoing Shabina’s claim and echoed in commentary about her claims, which place in stark relief the differences in approach between the United States and Europe. First, she concluded that the regulation interfered with Shabina’s manifestation of her religious beliefs but, like many French observers, insisted that the Court must recognize the reality that the choice of both school and dress was likely made by the family, not by the girl student (Begum, 2006, p. 36). The rights of adult women who chose to veil themselves raise different issues; if the veil offends some feminists, that is no justification for prohibiting women from wearing it. Adults may well adopt the hijab or even the jilbab as a political statement or a protection as she leaves the confines of home to navigate the external world (Parekh, 1996). Girls may make the same arguments (Hoodfar, 2003; Sarroub, 2005), but it may be less clear that they would veil themselves absent pressure from family or community. Unlike adult women, they do not have the legal option (which may not be a culturally plausible option) of claiming independence from their family unit. In Baroness Hale’s view, pluralism proves less significant to assessing the legal claim than the peculiar legal and cultural conceptions that attach to adolescents. Baroness Hale argued that the risk that an adolescent is not speaking for herself makes all the difference to the resolution of the question whether the interference with religious practice was justified and proportionate, especially in the context of schools, which are “different” (Begum, 2006, p. 39). She opined that the regulation was both justified and proportionate, because it protected not only the rights of other students not to be pressured to adopt more conservative dress (Begum, 2006, p. 40), but also the right of all students, including girls of all religions, to “achieve their full potential” despite the patriarchal dominance of some families (Begum, 2006, p. 39). Baroness Hale concluded that the Denbigh School achieved an excellent compromise between social cohesion and individual autonomy. Further consideration of the facts set forth in the lower court opinion (S.B., 2005) underscores the salience of Baroness Hale’s concerns. First, consider the role Shabina’s 20-year-old brother, Shuweb Rahman, played in the controversy. The press reported that Rahman was “a member of a militant Muslim group supporting the creation of an international Islamic state ruled by sharia law” (Carroll, 2006, p. 1), a charge he denied (Gerard, 2006). Accompanied by another Muslim man, Rahman escorted Shabina, wearing the jilbab, to school on the first day of term in 2003. They insisted that she be allowed to wear the jilbab and “talked of human rights and legal proceedings.” After the school sent Shabina home, it made several attempts to talk with her guardian. Rahman informed the school that “he was not prepared to let [her] attend school unless she was allowed to wear a long skirt” (S.B., 2005, p. 4). After the Law Lords ruled against her,

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Shabina lunched with a reporter, whose “impression that she was not acting of her own free will was reinforced” by the “formidable” entourage that surrounded her (including children’s rights lawyers and a publicist) (Gerard, 2006). Rahman insisted he had been ready to compromise, even proposing that Shabina be taught “in solitary confinement,” in the reporter’s view to shut her off from life in the interests of purity (Gerard, 2006). Shabina herself is full of contradictions. She once dreamed of becoming a doctor, a goal that now seems out of reach given the impact the prolonged litigation has had on her grades. At last report, in 2006 she fantasized about becoming a “TV presenter” (Gerard, 2006), a dream that hardly seems like a considered comparison and choice between two paradigms for living. Concerns about community and peer pressure to wear less revealing outfits also appear to be justified. Not only did other girls at Denbigh voice “concern that if the jilbab were to be allowed they would face pressure to wear it even though they do not wish to do so” (S.B., 2005, p. 40), but Shabina herself conceded that girls are already “pressured to wear headscarves who don’t want to” (Gerard, 2006). Fears that family and friends would pressure students to adopt the niqab (a veil which covers the entire face and head except for the eyes) played a similar role in another school’s dress code regulations which resulted in litigation decided in 2007 (R (on the application of X) v. Head Teacher and Governors of Y School, pp. 64, 93). Expressly applying the Article 9 analysis set forth in Begum, the Queen’s Bench (Silber, J.) held that “different schools are entitled to adopt their own rational policies” (R (on the application of X), p. 66) with respect to dress, so long as they satisfy the requirements of proportionality. What would be the likely result in the contra-factual situation that a US court applied the analysis used by the Law Lords to the treatment of Nashala Hearn by her school in Oklahoma? The British approach surely would have encouraged greater responsiveness by the public school and likely would have led to a compromise that would have made litigation unnecessary, at least if the request involved the hijab rather than the jilbab. At the same time, British doctrine would not impose as high a burden on the school as the one urged by the US Attorney General in its pleadings to the Hearn court: that a school’s refusal to accommodate religious displays by students should be subjected to strict scrutiny and thus must be narrowly tailored. Judicial scrutiny under the analysis used in Begum would allow a court to weigh the social considerations that entered into the school’s decision. In contrast, the current doctrine in the US fails to examine the extent to which the student wearing the symbol has freely chosen it, which may be difficult or impossible to ascertain in the face of parental or community pressure (Buss, 1999). The principles of individual expression and free exercise presume that the individual invoking rights has freely chosen his or her position. As Baroness Hale’s opinion in Begum pointed out, the risk that an adolescent is not speaking for herself, but rather for her family or community, may make all the difference in how to weigh her claim in the context of a public school. It is remarkable that discussion in the US has paid so little attention to this concern, which proves central to the debate in both France and Great Britain.

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Canada: A Per Se Accommodation Model The Canadian approach provides the greatest protection to the individual student who seeks to wear religious symbols in school and is closest to the position urged by the Bush Justice Department. The Canadian Charter of Rights and Freedoms (1982) and the Quebec Charter of Human Rights and Freedoms (2006) both protect the individual’s freedom of religion (Multani, 2006). Furthermore, Canada has neither one established church nor a principle of anti-establishment. Instead, the Constitution Act of 1867 assured religious minorities the right to continued public funding for the minority’s sectarian schools (Van Praagh, 1999). As a result, Roman Catholic schools receive public funds in Ontario, but no other religions receive similar educational subsidies (Van Praagh, 1999). In Quebec, public schools may be sectarian yet open to students of all faiths. It does not appear that public funds subsidize any religious schools that are neither Protestant nor Catholic. As in other countries examined here, Canada experienced a controversy involving 12-year-old Emilie Oimet who wanted to wear a hijab to school in Montreal in 1994. The school sent her home because its dress code expressly barred any “clothing or accessories that would marginalize a student” (Van Praagh, 1999, p. 1378). At the time about 4 percent of the students in Quebec were Muslims (about 3,600 girls and boys) and about 70 girls wore the hijab (Van Praagh, 1999, p. 1381, n. 133). Emilie and her family never filed any legal action, but the incident led to widespread popular discussion and a report by the Quebec Human Rights Commission. The Commission—whose report is not binding outside Quebec—concluded that any school that banned the hijab would have to justify its actions by providing “concrete evidence of a real threat to sexual equality or to safety” (Van Praagh, 1999, p. 1380). The issue subsequently faded from public view without any formal legal resolution, with some girls continuing to wear the hijab to school. According to Van Praagh, the incident established that children from fundamentalist families may participate in public education and still “claim the promises of multiculturalism” but did not resolve the boundaries of tolerance, even for the province of Quebec (Van Praagh, 1999, p. 1378). In 2006, the Supreme Court of Canada ruled on the issue of student religious garb in Multani, a case involving the claim of a Sikh boy from Quebec whose school denied him permission to wear a small kirpan secured under his clothing. The Court held that “an absolute prohibition against wearing a kirpan infringes the freedom of religion of the student” (Multani, 2006, p. 15). The Court further concluded that, on the facts before it, the infringement on liberty was not justified. First, it concluded that the infringement on this student’s personal beliefs, including the right to “undertake practices … having a nexus with religion” was not minimal (Multani, 2006, p. 30). The majority stated that “a total prohibition … undermines the value of this religious symbol and sends students the message that some   Catholics in the Protestant areas of the country and Protestants in the French-speaking Roman Catholic provinces.

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religious practices do not merit the same protection as others” (Multani, 2006, p. 50). In contrast, accommodating the symbol “demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for minorities” (Multani, 2006, p. 50). This statement resembles the glowing language in which the US Supreme Court explained that because schools: are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. (West Virginia State Board of Education v. Barnette, 1943, p. 624)

The Multani Court further held that while the school’s objective of a safe environment was “sufficiently important to warrant limiting a constitutional right,” the regulation was not proportional to the objective, as required under the Canadian Charter (Multani, 2006, p. 34). In order to determine whether the school’s policy was proportionate to its goal, the Court asked “whether the decision to establish an absolute prohibition against wearing a kirpan ‘falls within a range of reasonable alternatives’” (Multani, 2006, p. 37). In an approach resembling that used by the British Law Lords, the Canadian Court examined the context for the decision and the range of available compromises. The Canadian Court differs most markedly from the doctrine in the United States in taking the position that there is a duty to “make reasonable accommodation for individuals who are adversely affected by a policy or rule that is neutral on its face,” and that such rules may not cause “undue hardship” to the individual. Thus, a “no knives” rule cannot be applied to a Sikh who agrees, as Multani did, to reasonable safety precautions, especially in the absence of a single known incident involving a Sikh using a kirpan as a weapon in a school. As the Court reasoned, under the conditions Multani agreed to, it would be almost impossible for another student to grab the knife; equally important, a student determined to commit an act of violence could use other non-contraband objects commonly found in schools such as “scissors, pencils and baseball bats” (Multani, 2006, p. 39). Of the liberal democracies examined here, Canada gives the highest deference to religious symbols worn by students. It appears to require educational institutions to engage in serious discussions and negotiations in an effort to accommodate the student’s religious views. At the same time, it requires some flexibility on the part of the student and his or her family. It seems clear that Multani would not have prevailed in his claim if he insisted on carrying a visible foot-long dagger, because that insistence would make the school’s concerns about safety more than reasonable. Similarly, if Shabala Begum refused to compromise about her jilbab, it is possible that a Canadian school would be able to state convincing reasons for asking her to do her part in compromising in order to reach an accommodation with the school, but arguably the school could not rely on the reasoning that it acted to prevent her “marginalization.” The result might well resemble what

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actually happened in Great Britain, although the same result would be reached by a different route of legal analysis. One more aspect of the Multani decision is worth noting. In a concurring opinion, Justice LeBel identified a tension between the “competing rights” of “freedom of religion and the right of children and other persons in educational institutions to security,” also protected by the Canadian Charter (Multani, 2006, p. 75). He expressly adopted a communitarian approach to the resulting dilemma, concluding, “We not only have rights, we also have obligations … It is therefore necessary to find approaches to applying the Canadian Charter that reflect the need to harmonize values and reconcile rights and obligations” (Multani, 2006, p. 76). Because he concluded that “[w]rapped as it would be, the kirpan does not seem to be a threat to anyone” (Multani, 2006, p. 78), dispatching any infringement of other students’ right to security, Justice LeBel agreed with the lead opinion’s proportionality analysis. But Justice LeBel warned that, in general, the “complexity of the situations” involving conflicts of rights under the Charter “is unsuited to simplistic formulas” (Multani, 2006, p. 77). Turning the Tables With the exception of France, all of the legal regimes discussed in the last section would at the very least entertain arguments for accommodating minority religious garb in state-funded schools. The protection for such identity claims is strongest in Canada, followed by Great Britain, and is weakest in the United States, where the legal status of accommodation is less clear and largely reliant on local officials. From the vantage point of individual rights, standing alone, the Canadian and British approaches have much to recommend them. What happens, however, if we omit the modifier “minority” from the phrase “minority religious garb”? In other words, what if the traditionalist minority becomes a majority in a given district or school? Do the same legal theories continue to protect the rights of all students as well as the interests of the body politic? The following hypothetical discussion uses the example of the veil, but could easily be about a symbol of a different religion. Indeed, it illustrates by analogy the ways in which public schools that allow a pervasively Christian environment to flourish violate the intent of the Religion Clauses. Take the example of Dearborn, Michigan, a community with the largest population of Arabic-speakers outside the Middle East. As of 1999, 49 percent of the students in the Dearborn schools spoke Arabic, although they came from many different countries and cultures. Assume that the Arabic-speaking population  For purposes of this discussion, I shall accept the notion expressed in the Begum case in Britain, consistent with the Meyer/Pierce line of cases in the United States, that the State should not affirmatively intervene in a family’s choices regarding gender role socialization, even though the State exposes children to other ideas at school.

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continues to grow until a significant majority of students are Arab-speakers and Muslims, say 90 percent. Assume further that, for various reasons including personal belief, family belief or community pressure, the majority of the Muslim girls are hijabat (veil-wearers), so that only a minority of all girls, Muslim and non-Muslim, come to school bare-headed. Would the legal principles that have dominated the discussion so far protect the rights of the new minority: the nonhijabat? Would those principles sufficiently protect the goals of education for citizenship in a democracy that proclaims gender equality? Sarroub’s (2005) sympathetic ethnography of a small group of hijabat in Dearborn helps flesh out this hypothetical. Sarroub paints a complex picture of teenage girls with one foot in each culture—the American high school and the Yemeni family that maintains strong ties to its country of origin. The families and girls found the hijab advantageous in many ways. The hijab proclaimed the girl’s morality, thus gaining her modest additional freedoms outside the house. But it also guaranteed a watchful eye by members of the Yemeni community, sensitive to any misstep, including monitoring by boys at school. Layla, for example, began to wear a veil at her father’s insistence in third grade. Although he also wanted her to wear a long, shapeless dress, she refused and they compromised on loose jeans and baggy shirts with sleeves. The families valued education, though many of the parents lacked formal schooling, but they worried about the social life in schools. They objected to the co-educational gym classes their daughters were required to attend. The price of loss of honor was high, giving credence to some of the concerns voiced in the French debate over the veil: parents pulling their daughters out of school, forcing an early marriage, and sending them to Yemen (Sarroub, 2005, p. 28; see also Keaton, 2006; Killian, 2006). Many of the hijabat still in school were secretly engaged or married to boys from Yemen chosen by their families. Moreover, the hijabat themselves understood that despite the value their parents assigned to high school education, they were unlikely to be allowed to attend college. One of the greatest tensions for the hijabat was the pull between the value accorded individualism and individual opportunity in the public schools and the norm of collective obligation at home (Sarroub, 2005, p. 63). It is particularly striking that even though western legal systems regard religious expression such as veiling as a statement of individuality, the girls themselves only seemed comfortable making the statement in a group. When a girl found herself the only hijabat in a classroom, she requested a transfer. In classes with a number of hijabat, and in the cafeteria, the hijabat sat together. According to Sarroub, the hijabat felt particularly isolated because their teachers subscribed to a “classic liberal view of equity—treat all students the same,” rather than attempting to understand the particularism and gender norms their students brought to school (Sarroub, 2005, p. 93). This attitude suggests that the hijabat want something more than the right to fully participate in public schools while wearing an identifying marker. This is consistent with efforts by other fundamentalist groups to be exempted from the

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study of evolution, sex education, or literature containing curse words, and even with efforts to modify the general curriculum to conform to their own beliefs. The process of negotiation and mutual compromise endorsed by both the highest courts in Canada and Great Britain, and informally relied on by schools in the United States, raises one serious concern under the Establishment Clause. It may involve the State—through its schools—in the “excessive entanglement” with religion long held to violate the Establishment Clause. The negotiations would involve the State in resolving debates about the details of the required/permitted symbol, thus running the risk of watering down religious observance. Why should a school be the arbiter of whether the four-inch hidden kirpan satisfies the religious and cultural imperative of the Sikh or decide that the hijab is sufficient but the jilbab goes too far? The classic theories of individual rights that support a student’s right to wear religious garb in public school assume that the student invoking such a right will be one of only a few. What protections, if any, would be needed for a Muslim non-hijabat or a non-Muslim in a school dominated by hijabat? The likelihood of community pressures on Muslim girls and their families might well undermine the argument that the veil reflects personal beliefs and choice. The non-Muslim girl might well feel just as uncomfortable alone in a class as the veiled girl does in Dearborn (or other communities) today. Seating patterns reported by Sarroub suggest the non-hijabat might be ostracized by the majority hijabat. To be sure, pressure from the community and peers cannot be attributed to the State. In the United States, the actions of individuals, undertaken without the active involvement of the State, almost never amount to a violation of the Establishment Clause. Thus, the current doctrine would fail to protect the unveiled. At some point, toleration of majoritarian public displays of religion might arguably reach a level at which a reasonable observer, in Justice O’Connor’s terms, could infer endorsement by the school, but the threshold seems very high. For example, lower courts have upheld release time from public school classes for religious instruction that left non-Christian students with nothing to do and exposed them to taunts from fellow students (Pierce v. Sullivan West Central School District, 2004), and even curricular modifications that reflected the dominant religious beliefs in a community (Stark v. Independent School District, 1997). These cases suggest that, in my hypothetical, there would be no recourse for the non-hijabat but to leave the public school at their own expense. This outcome presses the limits of the theory that exit is a sufficient remedy for discomfort with prevailing values in schools. A robust doctrine concerning religious garb must be able to protect three sets of rights: the right of the religious believer, the rights of the non-believers, and the State’s interest in education for life in a pluralist society. It must also be sensitive to the possibility that the student and his or her parents have different beliefs or that their beliefs may diverge over time. The classic law school exam question would involve the girl who wants to wear a veil to school against her parents’ wishes; none of the legal systems examined here appears to contemplate that possibility.

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The hypothetical of the turned tables suggests that the prevailing theories— Canada’s per se accommodation approach, mutual reasonable accommodation in Great Britain and individualized accommodation in the United States, all developed in the narrower context of diversity within the Judeo-Christian tradition—lack the resiliency to respond to transformed facts. The French emphasis on secularism and assimilation is lacking in a different way—it gives short shrift to rights of identity and religious expression. The hypothetical of the majority hijabat, however, reveals some of the advantages of the inflexible French approach. France creates a symbol-free public zone, along with a right of exit for those whose particularized beliefs lead them to insist on denominational schooling. Why should one group bear the burden of exit and not the other? The answer is simple. Outside theocracies, overt displays of religion, even by private persons, should not be permitted to make other individuals so uncomfortable that they feel compelled to flee the public schools. This approach would apply the part of the Tinker test that resembles the decision in Begum: when student religious expression rises to a level that infringes on the rights of others, it should be subject to reasonable restrictions. As Walzer (1997) argues, schools are entitled to transmit the value of mutual tolerance even at the cost of challenging parental values. That approach would also allow courts to consider context and proportionality, as they do in both Great Britain and Canada, and to attempt to harmonize individual rights with the obligations citizens have to the polity. Would denial of requests to wear religious garb make schools religion-free zones? Not at all. Other forms of expressive rights would remain untouched— including the right to engage in private prayer, to speak about one’s beliefs, to write papers on religious topics as long as they satisfy academic requirements, and to participate in religious clubs at school. Of course, students should be allowed to carry their symbols so that they can wear them to and from school— thus clearly manifesting their beliefs to all who see them. This would bear an ironic resemblance to the situation when mini-skirts first became fashionable in the 1960s and violated the rules or uniforms of many schools. Each day after school passers-by witnessed girls frantically rolling up the waistbands of their skirts before leaving the perimeters of the school. So too could the hijabat prepare to re-enter the world outside school. One important issue remains. Can political symbols—such as the black armbands worn to protest a war in the Tinker case—be permitted if religious symbols are barred? Would not such a distinction violate the foundational principle that religious speech should not be singled out for regulation on the ground that it is religious? In the case of minority groups, how do we distinguish religious expression from political symbolism? These questions require exploration in a separate work. Students are members of families which may in turn be part of a community based on religion or identity, but they are also members of a broader national community represented by the public schools. The limits of toleration in the face of religious symbols echo a recent philosophical trend that focuses our attention

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on the obligations of the individual to society and a renewed understanding of what it means to be a member of a national state (Scheffer, 2003). So far, none of the existing models seems to resolve the problem satisfactorily.

Chapter 16

Children, Education, and Rights in a Society Divided by Religion: The Perspectives of Children and Young People Laura Lundy

“I know we’re just kids but it’s our world too. And if we don’t say anything about it, who will?” A ten-year-old participant in my research project, that is part of a multidisciplinary team on behalf of the Northern Ireland Commissioner for Children and Young People (NICCY) (Kilkelly et al., 2005a, p. 1) posed the question above. Her statement neatly encapsulates the rationale underpinning Article 12 of the United Nations Convention on the Rights of the Child (CRC), requiring children’s views to be considered in all matters affecting children as a class. Children have a direct and authentic insight into their own experience. They are the citizens likely to be most motivated to improve conditions for children and childhood in general (Lundy, 2006). Drawing on the views of the children and young people who took part in the NICCY research, this chapter provides a children’s rights-based critique of schoolchildren coming of age in a society as well as receiving an education in a school system fundamentally divided religiously. This chapter provides a critique of these schoolchildren’s experiences. Northern Ireland’s recent history is characterized by over 30 years of violent conflict and by the deep religious divisions between its Protestant and Catholic populations. The fact that such bitter divisions exist between two Christian denominations (in an ethnically homogenous and affluent western democracy) is something of a paradox. The root of the conflict is not a dispute about a particular aspect of faith, but rather the fact that religion in Northern Ireland is inextricably linked to cultural identity and political aspirations. Many Catholics perceive themselves to be Irish and aspire to create a united Ireland. Most Protestants define themselves as British and wish for Northern Ireland to remain part of the United Kingdom (UK). This political schism is traced to the plantation of Ulster in the seventeenth century (Beckett, 1981). After Ireland was conquered by Britain, new settlers (who were usually English or Scottish Presbyterians) were given lands confiscated from local people. Many of these newcomers settled in the geographical north of the country. The rest of Ireland remained inhabited mainly by the indigenous Catholic population. In the late nineteenth century, the majority Catholic community on the island sought independence from Britain. The Protestant minority, concentrated in the northeast of the island, wanted to

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maintain the link with Britain. The island of Ireland became partitioned in 1921. Separate parliaments were established in Dublin and Belfast, each with the right to remain or leave the UK. The Dublin Parliament opted for independence while the Northern Ireland Parliament in Belfast opted to remain as a self-governing province within the UK. Although the partition boundary had been drawn to reflect religious demography on the island as a whole, about a third of the population of Northern Ireland was Catholic and retained a desire to join the rest of Ireland in a separate State. Politics in Northern Ireland became fixed around religion, with the Protestant majority supporting Unionist (pro-British) political parties, while most Catholics supported Nationalist or Republican (pro-Irish unity) parties. In the 1960s Catholics protested against discrimination in employment, housing, and policing. However, the protests and counter-reactions descended rapidly into violence and a resurgence of support for violent paramilitary groups on both sides of the community (Stewart, 1989). Between 1968 and 1994 almost 3,500 people were killed in the ensuing conflict, and many thousands more were injured. The main paramilitary organizations declared ceasefires in 1994, and an agreement on shared governance, the Belfast Agreement, was signed in 1998. While the number of deaths has declined markedly since the 1994 ceasefires, the power-sharing political arrangements remain fragile. The worst manifestations of the violence may have come to an end, but the underlying conflict and religious and political differences remain (Rowan, 2003). Northern Ireland’s school system reflects the wider divisions in Northern Irish society in a number of respects. First, its schools’ pupil population is almost completely religiously segregated. Protestant children generally attend controlled schools (managed by local education authorities) and Catholic pupils generally attend voluntary schools owned by the Catholic Church (Lundy, 2000). Approximately 5 percent of children attend “integrated” schools, which are required by law to have reasonable numbers of Catholic and Protestant pupils (Education Reform Order, 1989, Articles 66, 88). Second, the teaching staff also reflect this religious divide. The majority of teachers in Northern Ireland are educated in separate teacher training colleges, each with a distinctive ethos, and they tend to seek and remain in employment in one sector or the other upon qualification. Finally, with few exceptions, the Boards of Governors in Northern Ireland schools have a significant proportion of members drawn from the local clergy or people appointed to represent the local clergy on the Board. These positions are set down in legislation, affording the churches a significant statutory role in school governance. It is through this representation, on management committees for individual schools, that the churches in Northern Ireland have been able to exercise a significant influence on the development of the education system and indeed the legal provisions (Lundy, 1998).

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The NICCY Research The Belfast Agreement contains a number of innovative human rights guarantees intended to ensure that policy and legislation in all areas, including education, are compatible with international human rights law (Lundy, 2000). The establishment of the post of Commissioner for Children and Young People with the statutory remit to “safeguard and promote the rights and best interests of children and young persons” was one of the first concrete changes to emerge after the Agreement was reached (Commissioner for Children and Young People Order, 2003, Article 6). On his first day in office in October 2003, to inform his priorities while in office, the Commissioner announced plans to study the state of children’s rights and welfare in Northern Ireland. The research, a large-scale audit of children’s rights in Northern Ireland, was to evaluate the law, policy, and practices which impact children’s lives against the standards in the CRC and other international human rights covenants (Kilkelly et al., 2005a). Identifying areas where children’s rights were ignored or underplayed was the main aim of the research. A range of data collection methods was employed, including an extensive review of existing research relating to children in Northern Ireland; documentary analysis of law and government policies; and focus groups and interviews with over 350 policy makers, professionals, practitioners, and volunteers representing a range of child, youth, and related organizations and agencies throughout Northern Ireland. Moreover, children and young people from across Northern Ireland were also invited to participate in the research. In total, 1,064 schoolchildren from 27 schools contributed to the research by drawing pictures, writing stories, designing posters or undertaking tasks appropriate for their level of development and understanding. The schools included a representative sample of state (de facto Protestant) and Catholic schools, as well as integrated, Irish Medium, and special schools. The children and young people who participated in the research were asked to identify the issues they felt were unfair in various aspects of their lives, including their experiences at school, in family life, at play and leisure, and in the area in which they lived. The fact that these interviews took place in school settings meant that it was possible to code the child’s religious background as well as code for standard variables such as age and gender. This also meant that the study was able to compare and contrast the experiences of Catholic and Protestant children in the data analysis gathered in schools. However, given that not all children receive a mainstream education and that those within the mainstream education system may have been unwilling to disclose sensitive information about their lives, children and young people were accessed through a variety of other means. The study conducted focus group interviews with 107 children and young people from various youth and community groups across Northern Ireland. This information was not coded according to the participants’ religious background. However, it does provide interesting insights into the experiences of “hard to reach” children and young people whose views are often marginalized in research and consultation processes.

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This chapter draws on both the final report submitted to the Commissioner for Children and Young People (Kilkelly et al., 2005a) as well as unpublished data from the focus groups’ transcripts conducted with children and young people (Kilkelly et al., 2005b). The NICCY research explored children’s experience of their rights across six interrelated themes: family life; health, welfare, and material deprivation; education; play and leisure; criminal justice and policing; and implementation of the CRC. These categories are based, to a large extent, on the periodic reporting guidelines of the UN Committee on the Rights of the Child (2005b). The information collected was then subject to a children’s rights analysis, employing the standards in the CRC and other relevant international human rights instruments. The end result provides a rich insight into children’s experiences in Northern Ireland across many aspects of their lives. For the purposes of this chapter, the data collected in the NICCY research project has been re-examined and analyzed through the lenses specific to religion and education. The sections that follow explore four interrelated issues: the extent to which children’s right to freedom of conscience is respected at school; the impact religion has on children’s enjoyment of their right to an effective education; the effects of religious segregation within education; and protection from religiously motivated harassment. The chapter concludes by exploring the correlation between children’s religious identity and how their rights are enjoyed at school and elsewhere. Respect for Children’s Right to Freedom of Conscience at School Children in Northern Ireland enjoy the right to respect for freedom of conscience under both Article 9 of the European Convention on Human Rights (ECHR) and Article 14 of the CRC. However, State Parties are given considerable leeway in determining the appropriate way to ensure respect for this right within State education systems. For example, some have chosen to pursue secularity in education and to prohibit teaching religion in schools. Others have decided to endorse a particular religion but make appropriate accommodation for those seeking exemption. Northern Ireland has adopted the latter approach, as is true for other UK jurisdictions. Schools in Northern Ireland are lawfully required to provide religious education for all grant-aided pupils and to have a daily period of collective worship. Parents may request their child be wholly or partly excused from attendance at religious instruction, collective worship or both (Education and Libraries Order, 1986, Article 21(5)). This request must be complied with, and the parent is not required to provide reasons. The legislation provides that religious instruction must be arranged in such a way that the school is open to children of all religious denominations. This effectively requires that religious education is taught in separate classes, severing religion from other subjects in the event of an objection. The law also states that pupils who are withdrawn must not be excluded from any other advantages the school offers.

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The statutory framework does not give pupils an independent right to decide whether to receive religious education, even where they have attained the age of 18. Nor do they have any say in the religious education’s content. As the legislation currently stands, if the parent and child disagree on the matter, the parent’s views prevail. Thus, a parent can both insist that their child receive religious education and can withdraw the child from such classes as he or she wishes. Article 14 of the CRC requires respect for the child’s right to freedom of thought, conscience, and religion, subject to the parent’s right “to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child” [italics added]. The parents’ absolute right of withdrawal in Northern Ireland potentially conflicts with Article 12 of the CRC and has been specifically criticized by the UN Committee on the Rights of the Child (2002) in its second periodic report on the UK. The existing approach has been justified on the basis that it is compatible with Article 2 of the First Protocol of the ECHR which enshrines the parental right to have their child educated in accordance with their religious and philosophical convictions. Even so, the child has a separate and individual right to freedom of conscience under Article 9 of the ECHR, but the potential conflict between the two Articles has not yet been tested in the European Court of Human Rights, nor has it been tested in the UK’s domestic courts (Lundy, 2005b). Participants in the NICCY research did not raise the specific issue of withdrawal from religious education or collective worship. This could suggest that they are happy with the present approach or it may indicate that they are not aware of an alternative option. Children and young people in the NICCY focus groups did, however, express concern about various aspects of the religious education they received. That the information was not always presented objectively was of particular concern. One young person describes the following experience: We had a study about Catholicism in our syllabus and we had the teacher who presented the classes and the way she spoke about it was really sarcastic about it, saying they’re wrong, you know. This way is better. Even though this is what we’re learning. (Kilkelly et al., 2005b)

Others complained there was an underlying attempt to convert or indoctrinate: Teachers can be proud of what they support and proud of the religion that they come from. I know that personally two of my teachers were very good and didn’t express issues they had against any other religion but you could tell that they were keen for people to become Christian. They themselves were Protestants and it just is for me being not geared toward any religion at all. It sort of put me off a bit you know. You couldn’t study it without this feeling that you weren’t totally right because you didn’t follow the religion. You’re not really learning to think for yourself. You’re learning how to make a Christian lifestyle. (Kilkelly et al., 2005b)

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Northern Irish schools are required by law to follow a core religious education syllabus prepared by the four main Christian churches. The syllabus is Christian in nature but does not offer a distinct denomination. Children and young people queried the exclusive focus on Christianity and expressed concern that they were not given an opportunity to study other world religions. Their observations included the following: I studied religious education in school because I thought it would be really good I’d get an insight into all different religions. It turns out to be Christian education, and I’m not happy with that. And I was just told that was what the course was about. And in religion, we have to study to get your GCSE Religious Education. You have to study religion. When they say religious studies it’s Christianity, it’s not world religion or anything like that. (Kilkelly et al., 2005b)

Northern Ireland has a very small but rapidly growing ethnic minority population. Children from ethnic minority communities have also queried the exclusive focus on Christianity in schools and the fact that school policies do not teach nonChristian religions. One child pointed out that non-Christian celebrations are not recognized, saying, “In my school you never get off school for festivals without being marked sick or absent, and that’s really bad for your records” (Radford, 2004). Children have also complained of examinations set during important non-Christian religious festivals, whereas Christmas and Easter are ring-fenced as vacations in the school calendar. Children and young people interviewed in the NICCY research saw the inequity and differential treatment of non-Christian children. One person suggested the following: I think that something that maybe the school curriculum needs to be changed and especially since the increases in ethnic minorities and stuff … I’m not saying you have to single those people out but for them you should have another prayer room or another assembly room. (Kilkelly et al., 2005b)

In 2003, the Department of Education for Northern Ireland established a Working Group whose remit was to extend the syllabus to include study of other world religions. However, the group’s membership did not include representatives of the non-Christian churches, in spite of the fact that, by law, membership was to be drawn from those with “an interest in religious education in Northern Ireland” (Education Reform Order, 1989, Article 13). Northern Ireland’s ethnic minority community reacted with dismay at the decision to draft proposals without considering non-Christian faiths. The reality is that the existing human rights framework does not provide a basis to challenge the existing approach to   GCSE stands for General Certificate in Secondary Education. These examinations are taken at 16 years of age.  In the 2001 Census, it was less than 0.5 percent of the population.

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Christianity (common throughout the whole of the UK). The ECHR, in particular, limits respect for parents’ religious convictions to the avoidance of indoctrination, and the European Court of Human Rights regards the right of parental withdrawal as an adequate protection for these purposes. For instance, Article 29 of the CRC requires education to be directed to “the development of respect for the child’s parents, his or her own cultural identity, language and values” and Article 2 prohibits discrimination in relation to both freedom of conscience and education; however, the CRC does not include an individual right to petition, and the Committee on the Rights of the Child has not specifically criticized the exclusive focus on Christianity in Northern Ireland’s religious education. The Impact of Religion on Children’s Right to an Effective Education Northern Ireland has a statutory curriculum with precise details of the knowledge, processes, and skills sets pupils are expected to acquire at each stage of their education. Sex education is not addressed within this framework. The omission can be linked to the influence of the churches within the school system (Lundy, 1998). The argument that sex education is necessary to satisfy the statutory obligation of the Department of Education to “prepare pupils for the responsibilities and experiences of adult life” has not been made explicit by the Department, nor has it been tested in the domestic courts (Education Reform Order, 1989, Article 4). Interestingly, the international human rights instruments do not contain an explicit right to education about sexual health either, although one can be inferred from a combination of relevant articles. For example, the CRC contains specific rights to “seek, receive and impart information” and requires State Parties to “ensure that the child has access to information and material from a diversity of international sources, especially aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health” (Article 13). Moreover, Article 29 of the CRC states that education shall be directed to “the development of the child’s personality, talents and mental and physical abilities to their fullest potential.” The UN Committee on the Rights of the Child (2001, para. 9) has said that this provision is aimed at ensuring that “essential life skills are learnt by every child and that no child leaves school without being equipped to face the challenges that he or she can expect to be confronted with in life … life skills such as the ability to resolve conflicts in a non-violent manner; and to develop a healthy lifestyle, good social relationships, and responsibility.” Moreover, the Committee emphasizes the need for high quality sex education and has repeatedly drawn attention to

 In Hartikainen v. Finland (1981), the United Nations Human Rights Committee was of the view that exemption was an appropriate way of accommodating the views of parents who were atheists.

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the inadequacies of sex education programs in both content and coverage in its periodic reports. The high degree of religious observance in Northern Ireland indicates it is a decidedly conservative society in regards to moral issues. Abortion is still illegal, and homosexuality was only legalized after application to the European Court of Human Rights (Dudgeon v. United Kingdom, 1981). Centers offering young people contraceptive advice are picketed by fundamentalist Christian organizations. Moreover, many parents have indicated they would not want their children to learn about these issues at school (Health Promotion Agency, 1996). This context has a major impact on sex and sexuality education for children. The government has adopted a laissez-faire approach to sex education in schools, which reflects many parents’ conservatism. Unlike all other aspects of the curriculum, sex education is unregulated: everything falls outside the statutory curriculum, everything except for the biological reproductive facts. Although Departmental guidance stresses that schools should not ignore sexual practices running counter to Northern Ireland’s social moral standards, in practice, schools have complete discretion in their curriculum and will, in all cases, give parents an absolute right of withdrawal (Lundy, 2000). The government has justified its approach on the basis of respect for parental rights. However, the position in international human rights law is clear. Children have a right to an effective education preparing them for the experiences of adult life. This right trumps parental rights to have their children educated in accordance with the parents’ wishes. This point was clearly established in Kjeldsen et al. v. Denmark (1976), where the European Court of Human Rights considered that a system of compulsory sex education did not interfere with a parent’s right to have his or her child educated in accordance with his or her religious or philosophical convictions, provided that the information was presented critically, pluralistically, and objectively. In spite of this, Northern Ireland, along with many other countries worldwide, continues to give parents an absolute right to withdraw their children from sex education classes. This potentially negates children’s right to education, to receive information, and fails to consider the child’s views. Children in the NICCY focus groups did not raise a specific concern over the parental right to withdraw them from sex education. However, they did express dissatisfaction with aspects of the sex education they had received. For example, one 15-year-old boy recounts that the information he received was valuable; however, it came too late: Yesterday we had a “love for life” talk which explains the risks of sex and the consequences … the talk was useful but it came a bit too late. We should learn about the risks and consequences of sex and using drugs at the end of primary school. People should know this stuff before they go into high school. (Kilkelly et al., 2005b)  See, for example, its criticism of Libya (Committee on the Rights of the Child, 2003a).

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Others argued that they were not always given information to make an informed choice. Young people complained that they were given inadequate information which tended to be couched in moral terms of “right” and “wrong,” with emphasis placed on abstinence. The predominant attitude was, “you shouldn’t be having sex in the first place.” Typical comments were as follows: It’s not very good … it’s a Catholic school as well so there’s that aspect like you don’t have sex before marriage. Safe. So that’s all that’s coming through. They came from America or something and they were all talking about not having sex before marriage and were all talking about diseases and all. (Kilkelly et al., 2005b)

These views, echoed by a health professional, argued that Northern Ireland was in denial about young people’s sexual activity: There is also an issue around how young people are viewed by Northern Ireland society. Seen and not heard. Have to stay in their place. If we put our head in the sand and say we don’t want young people to have sex, that’s fine … but who is dealing with the consequences? (Kilkelly et al., 2005a, p. 108)

Also excluded from sex education are issues of sexual orientation (Feenan et al., 2001), which is a concern raised by the Committee on the Rights of the Child (2002, para. 11). In recent research, 86 percent of the young people involved said they were aware of their sexual orientation in their school years, yet there is very little, if any, recognition represented in the school curriculum (Feenan et al., 2001). Homosexuality is taboo and therefore not discussed. One young lesbian commented: “If I asked anything about lesbians or alternative families, I was told to be quiet” (Feenan et al., 2001, p. 5). Those who work with and for gay and lesbian young people have expressed concern that the focus in sex education is on the act of sex instead of sexuality. A non-governmental organization (NGO) worker describes: “It’s very much young people talking about safe sex ... not getting pregnant and that’s the worst thing that can happen is get pregnant. So very sort of traditional” (Kilkelly et al., 2005a, p. 31). The churches’ influence within schools makes it difficult for schools and teachers to address issues of sexual orientation. The NGO worker suggested a possible solution was to bring in external experts: “Someone needs to come into schools to talk to children. Teachers can’t do this because these issues place teachers in a vulnerable position” (Kilkelly et al., 2005a, p. 31). This solution has been proposed by children and young people who acknowledge the need for trained education workers to give health education classes (Children and Young Person’s Unit, 2003). Likewise, the Committee on the Elimination of Discrimination Against Women (1999, para. 4) has emphasized that discriminationfree sexual and reproductive health education should be provided “by properly

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trained personnel in specially designed programmes that respect their right to privacy and confidentiality”. Receiving appropriate education is always important. It is particularly compelling in education systems managed by churches, in which teachers may be uncomfortable addressing issues that potentially go against the ideas of the church. The Impact of Religious Segregation in Education The vast majority of pupils in the Northern Ireland education system receive their education in predominantly Protestant or Catholic schools. This presents major challenges. Views on the connection between religious segregation in education and the conflict itself are represented along a wide spectrum (Gallagher, 2005). For some, the mere fact of separation invokes a sense of difference and by its very nature accelerates the conflict. Others argue that separate schools are irrelevant to a political conflict rooted in inequality and injustice, rather than ignorance (Darby and Dunn, 1987). A different opinion suggests that Christian churches have been successful in mitigating the conflict and that this can be applied in schools to “foster good community relations and to develop good citizens committed to the common good” (Barnes, 2005, p. 133). Whether or not the religious segregation of children in schools has contributed to the Northern Ireland conflict, various education initiatives have been pursued over the past 30 years, all of which aimed to address the potential impact of institutional segregation. For example, two of the cross-cutting themes in statutory curriculum are “Education for Mutual Understanding” (EMU) and “Cultural Heritage.” Both are designed to “improve the relationships between people of different cultural traditions” (Council for the Curriculum, Examinations and Assessment, 1997, p. 7). These themes have been part of the curriculum for 15 years, but research shows it has not made a significant impact (Kilpatrick and Leitch, 1999). Teaching children to be tolerant and to respect difference when there is no one in their school environment who is different (in terms of religious background), and therefore requires tolerance, can be difficult. The government’s main response to this dilemma has been to promote cross-community contact schemes. Schools and young people are reluctant to participate in the areas most affected by the conflict. As a result, the UN Special Rapporteur on the Right to Education has recommended to mainstream these programmes rather than offer them as an “addon curricular component” (Tomasevski, 2003, para. 45). Recent research on pupils’ perceptions of the schools’ community relations scheme indicates a number of concerns, including the fact that the programmes are often influenced by curricular objectives; that the opportunity for follow-up and discussion and un-packing of the issues can be limited; and that schools often select pupils to participate in order to promote a positive image of the school (O’Connor, Hartop, and McCully, 2003). There is also increasing recognition that the programmes begin too late. It is estimated that by the age of six, one third of children in Northern Ireland

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see themselves as Protestant or Catholic and one in six have expressed sectarian comments (Connolly and Healy, 2002). Very few of the participants in the NICCY research mentioned religious segregation or lack of integration in the school system. Those who did raise this concern were just as likely to say that they did not want to be educated with children from the other community. Although the religious divisions in the school system did not emerge as a major issue for the children and young people, the high level of religious segregation and low level of integration has been the subject of adverse comments from the Committee on the Rights of the Child (2002) and the UN Special Rapporteur on the Right to Education (Tomasevski, 2003). In spite of this, there is little in the international human rights covenant that is directly supportive of integrated education. An attempt to challenge the level of State support for integrated education before the European Court of Human Rights was found to be inadmissible (X and Y v. UK, 1978). Instead, support for integrated education has to be implied from provisions such as Article 29 of the CRC, requiring education to promote “understanding, tolerance and friendship among nations, racial and religious groups.” One difficulty for the advocates of integrated education is that this mandate is too broad to have any meaningful normative value and therefore offers little of substance to those seeking to effect change. A limitation of international human rights covenants when applied to socially divided societies such as Northern Ireland is the lack of direct support for integrated educational models. Human rights discourse has been deployed strategically to secure equal state funding for children attending Catholic schools within Northern Ireland (Lundy, 1998, 2004, 2006). These arguments have been based, not on children’s rights principles, but rather on minority rights discourse, and in particular, on arguments about religious discrimination in school funding. As a result, all schools in Northern Ireland, including religious denominational schools, receive 100 percent funding for capital and recurrent expenditures. This is an arrangement that goes well beyond international human rights law requirements. The high degree of respect afforded to parental wishes, delivered through a series of equally funded school options, is, arguably, a model of minority rights protection in education. The difficulty is that the successes in terms of children’s right of equal access to education have further embedded the separatist approach to schooling, thereby bringing new challenges to the education system. More needs to be done to ensure that there are places available for children who want to attend integrated schools, and it could also be argued that the predominant focus on integration overemphasizes the physical separation that is an unfortunate but inevitable characteristic of education systems worldwide (where divisions manifest themselves in, for example, race, class or gender). Perhaps more attention needs to be given to a more fundamental obligation: ensuring that education, wherever it occurs, is directed towards fulfilling the wider objectives of Article 29 of the CRC, guaranteeing “the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship

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among all peoples, ethnic, national and religious groups and persons of indigenous origin” (McEvoy and Lundy, 2006). Religious Identity and Protection from Sectarian Harassment Schools in Northern Ireland are one of the most public manifestations of the wider religious schism in society. Along with churches, schools buildings are readily identifiable as belonging to one community or the other and have frequently become the targets of violence and sites of conflict or protest—mostly arson and petty vandalism. However, schools in interface areas—those which form a boundary between the Catholic and Protestant communities—often find it necessary to restrict pupils’ access to playgrounds and recreation areas during school hours in order to protect them from external attacks (Smyth, Fay, Brough, and Hamilton, 2004). Moreover, children often express fear for their safety on the journey to school. School buses are frequently targets for stone-throwing by youths from the opposite community, and individual children are regularly harassed while walking to school. Schoolchildren in Northern Ireland wear distinctive school uniforms, making it easy to identify their school and, ergo, their religion. Because of this, they are easily identified and targeted. A number of the NICCY focus groups expressed concern that wearing their school uniform made them vulnerable to verbal abuse and attack, as a result of which: “we can’t wear our uniform up the town” (Kilkelly et al., 2005a, p. 194). Others recounted the following experiences: I was crossing the bridge and they were all shouting at me and I was in my uniform as well. It didn’t really register until afterwards to me. You are scared to go into some places like [name of a place] because you would be beat up because of your religion. Parents are scared to let you out because there have been people killed not so long ago in that place. (Kilkelly et al., 2005a, p. 194)

An example of terrible harassment occurred at Holy Cross Primary School in 2001. Holy Cross is a Catholic all-girls primary school situated in a predominantly Protestant part of Belfast. In 2001, the local residents blockaded the school to protest at what they argued was a campaign of harassment by the neighboring Catholic community. For over three months, the police dressed in full riot gear and provided a human corridor along the route to the school to shield the schoolchildren from the protestors. During this time, the protestors shouted sectarian insults, blew whistles, and threw missiles at the children (including bricks, bottles, urine-filled balloons, excrement, and other rubbish). On September 6, 2001, a blast bomb was thrown at the children and their parents, injuring four police officers. The protest was disbanded in late November 2001 after a series of financial support packages was put in place in the local community, a resolution reached after months of negotiations by political, church, and community leaders.

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The mother of a child at Holy Cross challenged the policing strategy in court. The High Court judgment (which was confirmed in the Northern Ireland Court of Appeal), In the Matter of an Application by ‘E’ for Judicial Review (2004), found there had not been a breach of ECHR provisions. In terms of Article 2, the Court considered it had not been proved that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the applicant’s life, even if the child may have felt her life was threatened. The judge was not prepared to hold that the “indignities, threats and naked intimidation” to which the applicant was subjected did not amount to inhuman or degrading treatment, but he considered the policing strategy to be within the range of reasonable responses permitted under Article 3 (Application by ‘E’, 2004, para. 46). The judge also considered that there had not been a breach of Article 2 of the First Protocol, as the children had not been denied their education “because of the sterling efforts of the parents and dedication of the teachers led by their admirable principal” (Application by ‘E’, 2004, para. 51). While the judge was unequivocal in condemning the protests, describing it as “one of the most shameful and disgraceful episodes in the recent history of Northern Ireland,” he refused to question the legitimacy of the policing strategy (para. 46). The decision, which has been appealed to the House of Lords, has left open the possibility that a similar incident would be policed the same way. The Holy Cross litigation was made possible because the United Kingdom incorporated the ECHR into domestic law in 2000, thus enabling citizens to argue breaches of the ECHR before the domestic courts (Human Rights Act, 1998). Children’s rights advocates met this incorporation with enthusiasm, but the considerable potential of its provisions have not been realized fully (Fortin, 2003), most notably in education (Harris, 2005). Failing to provide protection for children subjected to religiously motivated violence on their journey to school stands as a further indictment of the ECHR. Moreover, while Article 19 of the CRC provides children with the right to protection from abuse, the fact remains that provisions are not enforceable in the domestic or international courts, which reduces its utility. Periodic reporting has its advantages as an enforcement mechanism (Lansdown, 2000), but it is a poor substitute for litigation when individuals are subject to harm. The Committee on the Rights of the Child cannot resolve these issues for children at the most crucial moments, that is, when such incidents occur. A minimum indicator of respect for children’s rights in any civilized society is that children of all religious denominations, or of none, should be safe from harassment, abuse, and threat, not just at, but also on the way to, school. Conclusions The CRC provides children with a comprehensive set of rights covering most aspects of experience. Limitations have been recognized from the very beginning (McGoldrick, 1991). Sixteen years later, the Convention’s shortcomings are very apparent. There are obvious gaps in protection, as well as provisions too vague to

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be meaningful, and others that are contradictory (Kilkelly and Lundy, 2006). The CRC was agreed to by consensus, and the end result is the product of extended negotiation and compromise. As is the case with compromise and negotiation, there is disagreement. Some of the most highly contested provisions were those which impacted directly or indirectly on religious or moral issues. For some countries, these were not resolved satisfactorily: the US has declined to ratify the CRC (Kilbourne, 1998), while other countries have signed up but entered sweeping reservations to various Articles. In addition, many of the provisions in the final text are marked by the type of constructive ambiguity which is the inevitable byproduct of extensive negotiation and political compromise. The NICCY research process provided an opportunity to test the substance of the CRC’s promises heuristically across all aspects of children’s lives. The study shows that, while the Convention does for the most part provide concrete standards with which to critique State provision across the core aspects of children’s lives, there are several areas in which protection is less than adequate (Kilkelly and Lundy, 2006). The Convention’s coverage of issues which impinge on matters of religion and morality provides a good example. While Article 14 of the CRC recognizes that children have an autonomous right to freedom of conscience and that the parent’s right to provide guidance and direction is subject to the child’s evolving capacities, at no point are the implications of this addressed in relation to education, even though schools are the arena in which disputes about these issues are likely to come to the fore. In a similar vein, there appears to be little justification for the CRC not to include a specific right to receive sex education, a failure allowing countries such as Northern Ireland to make sex education optional for parents and schools. The CRC also completely neglects to address issues of sexual orientation, thereby reducing the protection for a group of young people who are particularly vulnerable in a number of key respects (Freeman, 2000). The CRC may be the most widely ratified human rights instrument in the world, but this has come at a price: its unprecedented coverage was undoubtedly secured at the expense of the robustness of its content, most notably on issues perceived to have potential interference with religious values and family life. Flaws in the CRC must be acknowledged if they are ever to be redressed. It is equally important to recognize what has been achieved through its ratification. In Northern Ireland, one of the most concrete successes has been the establishment of an independent ombudsman for children, the Northern Ireland Commissioner for Children and Young People. The Commissioner is required by law to consider children and young people’s views in the exercise of his functions and, for this reason, their involvement was a core requirement in NICCY research. In the data collection process, a deliberate decision was made to create an open space in which children could discuss the issues at the forefront of their daily lives. While we did not ask children if they felt that religion impacted adversely on their experience of  A common reservation in Muslim countries is to stipulate that the State will comply, “only so far as this is compatible with Islamic law.”

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their rights, we did collate and analyze the children’s responses with reference to their religious and community background. At the outset, it might have been anticipated that differences between Catholic and Protestant children’s experiences might well emerge in the context of education, given the highly segregated and self-contained nature of Northern Ireland’s school system. In the context of their school lives, the major issue children and young people of both religions identified was their lack of voice in making decisions that affect them (Kilkelly et al., 2005a). Over 50 percent of the issues children raised fell into this category, with school uniform, canteen choices, and extracurricular activities being the most frequently mentioned areas of concern. These issues are specific examples of a broader concern that children’s voices are not heard, as is required by Article 12 of the CRC. A typical comment from an 11-year-old girl was as follows: “Sometimes school can get on my nerves cause I don’t think children get enough respect from teachers and caretakers and I think some children are scarred [sic] about speaking their mind in case they get shouted at” (Kilkelly et al, 2005a, p. 186). The other major issues from children and young people’s perspective include bullying at school, the pressure of schoolwork, and lack of time allocated to favorite extracurricular activities such as art and sport. For example, one 15-yearold observed: We need to be able to leave our books in school, have longer lunches and breaks and better sporting equipment. By applying some of the above points to school, it would make school more enjoyable and maybe would encourage kids to stay in school and not go on the beak [play truant] and they would get on better with the teachers. (Kilkelly et al, 2005a, p. 186)

The vast majority of Northern Ireland’s children are educated in two very separate sectors. Teachers are trained in separate institutions, pupils live in different areas, and each sector has a distinctive ethos. In light of this, it was highly possible that Catholic and Protestant children would have appreciably different school experiences. However, there were no significant differences in the issues raised by children from each community: Protestant and Catholic children raised the same concerns about school life. The variations in terms of age and gender were also minimal. For example, girls complained about not having access to the same sporting opportunities as boys; both boys and girls expressed concern in the adequacy of extracurricular activities (Kilkelly et al., 2005a, p. 178). The children’s age also appeared to be only marginally relevant to their experience at school, although those children facing major examinations were more likely to complain about stress and the pressure of work (Kilkelly et al., 2005a, p. 179). In sum, for Catholics and Protestants, boys and girls, and from the youngest children at primary school to young people at the end of their school lives, the major issues of concern were school uniform, school facilities, extracurricular activities, and

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bullying. Cross-cutting all of this was a palpable frustration in their inability to influence the key decisions affecting them (Kilkelly et al., 2005a, pp. 186–8). The similarity in experiences of children from both communities was one of the most striking dimensions found in the research. For example, children and young people’s desire for a greater say in decision making was one of the most common issues children raised in relation to their family lives. Other frequently mentioned concerns included disputes with parents, lack of privacy in the home, and issues surrounding parents’ divorce and separation. A 14-year-old boy voiced a typical concern: I think parents shout too much and I think they give us too much pressure. I know they try to do their best and sometimes they look after us too much and don’t give us too much freedom. They’re always worrying. I think children should do what they want but learn from their mistakes in the future. (Kilkelly et al., 2005a, p. 57)

When asked about play and leisure, the most significant issue facing children and young people was the lack of access to safe and appropriate facilities. The children often expressed wider concerns about the condition of their area. An 11-year-old girl said: Where I live there are quite a few parks nearby, but there’s just one problem. Every time I go to one, it’s full of people screaming, swearing and drinking. And to make it worse they leave beer cans and bottles lying around and it is just so dangerous. (Kilkelly et al., 2005a, p. 202)

These concerns were raised equally by Protestant and Catholic children. In fact, the only area to yield a religious difference was in relation to crime and policing. Until recently, the Northern Ireland police force was 90 percent Protestant. While policing reforms were a major cornerstone of the Belfast Agreement, the Police Service of Northern Ireland does not have the confidence of many in the Catholic community (Ellison, 2001). Thus, young people from both communities expressed concerns about the police and heavy-handedness with young people; however, Catholic youth are more likely to link this behavior to religious bias (Kilkelly et al., 2005a, p. 219). Given Northern Ireland’s history, it would have been surprising if there had not been any difference in Catholic and Protestant children’s and young persons’ experiences, particularly in a contentious area such as policing. However, the degree of consistency in their views was striking for both Catholic and Protestant children. Some legacy of the conflict and discrimination against the Catholic community is because Catholics generally have more marked “anti-state/antiestablishment” attitudes and identify more readily with human rights and equality initiatives. Indeed, a common complaint is that human rights themselves are the preserve of the Catholic (Nationalist) community and are consequently often

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viewed with suspicion by Protestants (Unionists). This view was anticipated to manifest itself in young peoples’ responses. Instead, research found that children and young people from both communities feel injustice. It is interesting that the main issues raised by children and young people were similar to those raised by children in other parts of the UK (Morrow, 1999). The fact remains that children worldwide share concerns about safe play, lack of influence in school, and the imbalance in power in parent/child relationships. The finding has potential significance in a divided society like Northern Ireland, as this basis of shared experience provides a foundation for the community relations initiatives to build bridges between the two communities. It is particularly significant that 83 out of 604 submissions (14 percent) expressed a desire to end the religious conflict in Northern Ireland, especially because it emerged from children’s responses on their views regarding crime and the police (Kilkelly et al., 2005a, p. 244). Seventyfour percent of those expressing a desire for peace were between 12 and 16 years old, suggesting that children’s desire for peace increases significantly with age in accordance with their awareness of the ways in which the divisions and conflict impact their lives. Many of these young people said they wanted Catholics and Protestants “to get along,” and to “stop fighting with one another.” Other comments in the NICCY focus groups were: Where I live everything is OK except there are people with a different religion who also live near and people give them a hard life. I wish there was no religion so that everyone could get along and there would be no fighting. We should be allowed to go wherever we want and not be criticized and the religion in the area should be handled and dealt with. There should be no people left out and we should all get along. (Kilkelly et al., 2005b)

Additionally, a 14-year-old girl lamented: “I hate when different religions fight with each other and I hate when there is bombs and all those things. I would just love it if the whole world was all the same religion or even all a different religion with no fighting” (Kilkelly et al., 2005b). And a thirteen-year-old boy pondered: “I do not know why Catholics hate Protestants and Protestants hate Catholics. They both worship the same God. This is a stupid feud from the time of Martin Luther” (Kilkelly et al., 2005b). Protestant and Catholic children in Northern Ireland may live in separate communities, attend separate schools, and socialize in separate areas. However, they have much more in common with each other than their highly segregated daily lives suggest. Allowing children to work together on issues that they are mutually concerned with may help to eradicate preconceived notions of “the other,” and help to create a joint vision, which is the necessary foundation for Northern Ireland’s “shared” future.

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Chapter 17

Children, International Human Rights, and the Politics of Belonging Alice Hearst

In the international community, the transition from a needs-based to a rights-based paradigm in thinking about children over the last decade seems to open hopeful new horizons. Invoking the rights principles set forth in the UN Convention for the Rights of the Child (CRC), for example, enhances the opportunities for children to be treated with dignity and respect. Calling for increased attention to international human rights standards in framing issues affecting children’s lives quite simply appears to be the right thing to do. But as always, children’s dependent status means that the picture is complicated. Children may deserve recognition as rights-bearing agents, but they are also embedded in families and communities in ways that adults are not. Indeed, because of their dependency, children may have special claims to the protection of their connections to families and communities. At the same time, families and communities may have reciprocal claims, framed as rights, and running hand-in-hand with duties, to further or protect those connections as well. Children’s dependency has long generated difficulties for understanding the nature and scope of children’s rights on a domestic level. As the lens moves outward to situate the child in international human rights discourses, the complications multiply. Moreover, they multiply in myriad directions. The demand for the recognition of human rights has, in recent decades, shifted its emphasis, in part, from broad, universal claims for individual protection to the protection of particularly vulnerable groups—women, children, ethnic, racial, religious, and linguistic minorities, and aboriginal groups. Children’s rights at an international level cannot be viewed in isolation, but must be understood as intimately woven into the fabric of other rights claims, particularly those of the families and communities in which they are situated. International human rights have thus reached out to envelop children in complicated ways, and nowhere are those complications more apparent than in the practice of transnational adoption. The international transfer of children through adoption, running primarily from poor families in the third world nations to wealthier families in the west, gained momentum in the last few decades and generated a substantial debate. This chapter looks at a small but increasingly important corner of that debate. In the last 15 years, with the emergence of identity politics and its focus on communities and belonging, new questions arose that center on how international human rights discourses are shaping the connections

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between children and their communities or cultures of origin, particularly children from minority and aboriginal communities. As the debate over the rights of those communities took shape in law and politics, the movement of children into a global diaspora raised vexing questions about the politics of belonging, both at the level of individual rights to develop and maintain communal or cultural identities, and at the level of group rights to maintain or develop such ties. The transnational movement of children via adoption may visit unique harms upon minority or aboriginal communities. These communities, often situated at the bottom of the social and cultural hierarchies of the respective nation-states in which they are located, are far more likely than dominant groups in those same nation-states to find their children subject to adoption. Such groups may, therefore, experience the practice as a loss of the community’s future itself. The transfer of such children is often emblematic of the profound and continuing injury—what Charles Taylor (Taylor and Gutmann, 1994) might consider an aspect of the lack of recognition—that the community or cultural group experienced. The justice claims of such groups, therefore, are often compelling and irrefutable; it is not surprising that many groups view the placement of children outside of their boundaries as tantamount to genocide. At the same time, however, the scope and gravity of the injury in its historic context may make the displacement of children a problem that transcends the community’s abilities and resources, even if the community desires to keep “its” children within its fold. In a world with increasingly diffuse communal boundaries, it is especially difficult to determine what community a particular child “belongs” to—a fact that can be complicated by the child’s own agency in determining where he or she fits. These issues raise complex questions about the politics of belonging. Moreover, they are questions that typically strike deep emotional chords on all sides, so the debate often gets framed in inflammatory language that simply stymies discussion. Equity requires a much fuller consideration of the child in context than has heretofore been standard practice. At the same time, it is important to be aware of how protecting communal connections can both open and limit the possibilities for individual flourishing. At present, human rights documents are endlessly ambiguous; parties to the debate can pick and choose those pronouncements of international human rights that serve their position. Creating a just system of transnational adoption depends on how seriously commitments to the whole panoply of international human rights are taken and how a dialogue among competing concerns is fostered.

 These arguments surfaced dramatically in the debate in the United States over the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. (2001), and have arisen frequently in debates around the treatment of aboriginal people elsewhere, particularly in Canada and Australia. In 1972, the National Association of Black Social Workers issued a statement calling transracial adoption in the United States an act of “cultural genocide.”

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The Practice of Transnational Adoption While forms of adoption and fostering existed in all societies across time, the discourse on transnational adoption is relatively recent. In the western world, large-scale transnational adoption first emerged in the mid-1940s as a response to the substantial number of children who found themselves displaced by the war in Europe. In the United States, the practice was not widely established until the 1950s during the Korean War, as the plight of South Korean war orphans was publicized. Over the course of that decade, the number of children sent by Korea for adoption in the US and other western nations skyrocketed. South Korea continued to send large numbers of children abroad for adoption; over the last half-century, some 150,000 South Korean children have been adopted in the United States, while another 50,000 have been adopted in other western nations. During the 1960s, the domestic demographics of the adoption universe shifted, both in the United States and in other western countries. The number of children, particularly white infants, available for adoption dropped dramatically as contraception became more widely available, and the social stigma attached to being an unmarried mother diminished. As the demographics changed, childless couples increasingly sought to adopt internationally. In 1975, Operation Babylift resulted in some 2,000 South Vietnamese children being placed internationally, expanding the practice in Asia. Throughout the 1980s, potential adoptive parents looked increasingly to Central and South America as well. With the fall of the Ceausescu regime in Romania in 1989 came the exposure of the country’s repressive family policies which resulted in large numbers of children abandoned to orphanages and living in appalling conditions. A massive movement to adopt Romanian children ensued. As other Soviet bloc countries disbanded shortly thereafter, a similar rush to adopt children from Russia and other former Soviet satellite States occurred. Since 1992, the adoption of baby girls from China became a phenomenon in itself. Today, some 20,000 children are adopted annually in the United States, originating from more than 50 countries, with children from Russia and China constituting the majority of that population. These adoptions now account for between 20 percent and 30 percent of all adoptions in the United States annually. The majority of domestic adoptions are step-parent and kin adoptions, which means transnational adoptions now constitute the bulk of stranger adoptions in the United States. The practice of transnational adoption in western nations, particularly in the US, seems unlikely to decline. Many prospective adoptive parents are motivated by humanitarian concerns and the belief that children available for adoption internationally are likely to have few life chances without adoption. Others begin their search domestically, but turn to transnational adoption in hopes that, while expensive, waiting times will be shorter and younger children will be available.  The facts in this section have been compiled from the following sources: Selman (2000); International Adoption Facts (n.d.); UNICEF (2001, p. 108).

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Some parents pursue transnational adoption because they believe it is easier than adopting either a same-race or transracial child domestically. It is significant that the overwhelming majority of transnational adoptions are closed rather than open adoptions, counter to the trend in domestic proceedings. Birth parents typically have little, if any, say in the selection of prospective parents, and there is no assumption that the parent or parents will have any ongoing future contact with the child. This older “clean break” model of adoption appeals to some prospective adoptive parents as raising less potential for disrupting a new family (Bhabha, 2004). Even for parents who prefer an open adoption model, the avenue may not be open in a transnational adoption. Records of the child’s birth family may be sketchy or simply unavailable; indeed, the birth mother and father may be unknown altogether. Transnational Adoption: Critiques and Defenses On September 16, 2005, in Geneva, Switzerland, the UN Committee on the Rights of the Child sponsored a public Day of General Discussion, focused on the topic of “Children without Parental Care.” The object of the discussion was to assist the Committee in formulating international standards to guide States, nongovernmental organizations (NGOs), and other organizations that provide care for children displaced from their families. The discussion was largely a gathering of individuals representing those NGOs who provide everyday assistance for children in need, from children in foster care in Northern Ireland to AIDS orphans across Africa. In the afternoon preceding the UN meeting, a number of NGO representatives met to share ideas about the issues likely to arise before the Committee. Community-based care was the watchword: every organization admirably stressed the need to develop strategies that would keep children in their communities of origin, connected as closely as possible to local kinship and cultural networks. Every person in attendance concurred with that focus as the organizing principle for developing standards for care. The difficult issues did not center on the basic principle of community-based care, but instead upon the monumental problem of finding the resources and funding to provide such care. At the end of that afternoon, a representative of Save the Children, which operates various assistance programs for displaced children around the world, observed that it was curious that at no time during the discussion did anyone mention adoption, particularly transnational adoption. An awkward silence ensued, until another representative pointed out that such children fell outside of the category of children under discussion, as adopted children had parents. Of course, the point made by the representative of Save the Children was a different one: the observation went to whether transnational adoption should be considered in the panoply of options available for parentless children. However, the moment had

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passed, and the conversation returned to its primary focus of designing standards that would facilitate grassroots responses to caring for children without parents. At the UN meeting the next day, the mention of transnational adoption was similarly taboo, and discussions of community-based care took center stage. Speaker after speaker encouraged the Committee to adopt standards that would empower local communities to care for their own children and demand resources to strengthen those efforts. A variety of suggestions were made, many centering on the creation of forms of group care that would keep children nested in their communities. The absence of any mention of transnational adoption was not surprising. Transnational adoption is viewed with anything from deep ambivalence to active hostility by the international human rights community. Indeed, in the best of all possible worlds, transnational adoption would not be necessary, and there is every reason to encourage the international community to support community-based care before putting transnational adoption on the agenda. The issues, however, are complicated: few communities have the resources to provide adequate care, and in many nations, the sheer number of children in need of assistance has created a human rights crisis. The most strident critics of transnational adoption argue that the global transfer of children constitutes a market in human beings and is, in fact, simply a new and insidious form of colonialism. The practice, they argue, has become the ultimate expression of global capitalism, evolving into a status game of boutique babydom involving the display of exotic children. If transracial adoption is criticized at a domestic level as devaluing parenting by parents of color, especially mothers, and privileging parenting by white, bourgeois families, that criticism is amplified on the international level as western privilege is confirmed, and race, class, and gender discrimination are taken to entirely new levels. Finally, opponents note, transnational adoption draws attention away from the overarching moral obligation to provide broad-based economic and social services to families in developing nations in order to eliminate the necessity of relinquishing children in the first place. “Saving” a limited number of children through adoption while hundreds of thousands of others remain in abject poverty, critics argue, is inexcusable when the focus ought to be on improving the conditions of children in their own families and communities. This critique extends to efforts by adoptive parents to construct “cultural connections.” Such efforts, critics argue, are problematic: culture is a lived experience and cannot be instilled from the outside, as it were. Children are often presented with sanitized and domesticated versions of “their” cultures, stripped of the context that is essential to any real understanding. Indeed, in a deeper sense, these reconstructed cultures have arguably been domesticated and represented in forms that drain them of their potency as a challenge to dominant cultures. In this  A report on these proceedings is available (UN High Commissioner for Human Rights, 2005).

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fashion, children’s otherness is policed and contained, and assimilation is assured at the same time that difference is celebrated. Critics also assert that transnationally adopted children face unique stresses that are not adequately addressed by agencies and adoptive parents. Such children may find themselves situated between worlds of poverty and plenty, between profoundly and irreconcilably contrasting value systems, and between different ethnic or racial groups in both their adoptive and original families. Under these circumstances, some children may feel distinctly burdened by the obligation to “be” a member of a culture in which they have not grown up. Other children may appreciate such efforts as a corrective for feelings of loss, although they are unlikely to feel as if they “belong” to the community of origin. Despite these criticisms, the practice of international adoption continues at a gallop. Proponents of transnational adoption acknowledge all of the criticisms noted above, but point out that such adoptions can save at least a few children from living out their lives in institutions under conditions of appalling and inhumane neglect, sexual abuse or torture, or simply wandering the streets. Elizabeth Bartholet (1993), one of the most outspoken proponents of both transracial and transnational adoption, argues that children’s needs for permanent family placement should trump all other concerns. While there is certainly a global need to provide resources for impoverished families and children, she argues, there is an equal moral imperative to provide immediate homes for children who need them, and the bare fact is that many of the children adopted internationally may have no other options for leading a minimally decent life. Proponents recognize that international adoption is driven primarily by the demand generated by potential adoptive parents and that there are abuses in what amounts to a market in adoptable children, but assert that a more extensive regulatory regime, such as that created by the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention), recently ratified in the United States, can limit extortionate fees and curb coercive and inappropriate practices. On the other hand, they argue that prohibition of transnational adoption may doom children to lives of extreme poverty or worse. As the debate over transnational adoptions shifts into the register of human rights, these debates take on a different hue. Critics argue that transnational placement violates the rights of the child to a family and community of origin. Proponents draw on many of those same provisions to argue that transnational placement furthers the rights of children to family and nurture. To date, the debates have not focused much upon the claims of communities themselves to establish or maintain ties to children. Increasingly, however, those involved in the development of an international human rights regime have tried to address the needs of minority and aboriginal communities and make signatory States respond to the special needs of such communities for some form of self-determination and protection by articulating rights to cultural identity. Folding these kinds of rights into the debate over transnational adoption raises unique problems, problems that arise both at the level of the individual child and understanding a child’s potential

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right to be connected to a community of origin, as well as the community’s right or interest in creating or sustaining a connection. The issues are myriad. When does a child belong to a particular community and who decides? What if the child belongs to more than one cultural or ethnic community of origin? Can a child in fact have any coherent community or culture of origin that differs from the culture or community in which the child was raised, given that culture is acquired and not innate? How are the boundaries of the community understood, both within and outside of the group? Even if it can be defined with any certainty, to what extent is the community cohesive and able to provide for the needs of dependent children? These questions are just a beginning. Critics of transnational adoption may invoke the idea of community-based care with too little attention to how such a community can be defined and whether such a community can provide care; proponents may too easily ignore the legitimate claims of communities striving to keep themselves intact. Children’s Rights to Communal Connection Discussions of transnational adoption include the concept of preserving cultural connections for transnationally adopted children; indeed among adoptive parents and social service agencies engaged in transnational placements, it is a matter of intense contemporary concern. Connecting a child to his or her culture of origin is often a matter of preference for parents adopting across international borders who want to lessen the trauma of a child’s transition; it may also be a requirement imposed by sending countries. The form of such cultural connection, however, tends to be individual: it is viewed primarily as a matter of facilitating adjustment of a child to a new family and providing the child with information about his or her culture of origin. Typically, creating such links is not about the interests of communities in preserving ties to children adopted out of communal boundaries, nor is it about facilitating children’s ties to those communities of origin. Increasingly, some argue that children have a right, as individuals, to remain within, or at the very least be provided with access to, their cultures of origin. The two documents of pre-eminent concern for the discussion of children’s individual rights to be connected to a community of origin are the CRC and the Hague Convention. The CRC, adopted by the United Nations in 1989, is a human rights document that has since been ratified by every recognized State in the world except the United States and Somalia. It articulates a wide array of political, economic, social, and cultural rights for children. All of those provisions, however, are tempered by the umbrella provision in Article 3 that in all actions   The Hague Convention (1993) contains specific provisions requiring that potential adoptive parents be counseled about the issues associated with adopting a transnational/ transcultural child. A summary of country-by-country adoption requirements can be located at http://adoption.state.gov/.

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taken by State or private welfare providers, “the best interests of the child shall be a primary consideration.” While the CRC has broad international support and obligates signatory States to enact laws that further its provisions, a number of States ratified the CRC with reservations bearing on issues associated with communal belonging and identity, by declaring that the rights of the child shall not be interpreted in ways that violate a State’s specific religious or cultural values or that otherwise require States to recognize rights that go beyond those articulated in national constitutions and laws. For example, a number of primarily Muslim countries—Afghanistan, Iran, and Jordan, for example—contain reservations to ensure that care for children shall comply with the Islamic law of Shari’a. Canada limited the application of Article 21 of the CRC dealing with adoption to the extent that its provisions may be inconsistent with customary forms of care among aboriginal peoples. These reservations often place transnational adoption in a disfavored position, since such placements automatically raise concerns about religious, ethnic, or other kinds of cultural continuity in a child’s life. Protecting a child’s personal, familial, ethnic, and national identity is a theme throughout the CRC. Article 5, for example, instructs States to respect parental and communal rights and duties with respect to children, to the extent that those rights and duties are “consistent with the evolving capacities of the child.” Article 8 expressly recognizes the child’s right to national and familial identity; Stewart (1992) argued that this Article also implicitly protects personal and communal identity. Article 30 affirms the right of children belonging to ethnic, religious, or linguistic minorities, as well as indigenous children, “in community with other members of his or her group, to enjoy his or her own culture.” Article 9 protects a child from arbitrary separation from his or her parents, and Article 12 guarantees the child a right of access to information. Articles 20 and 21 of the CRC are of particular importance. The former obligates the State to provide “special protection and assistance,” including alternate care, to any child “temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment,” where the alternate care might include “foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” [italics added] (Article 20). Article 21 specifically addresses adoption: States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: … (b) Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive

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family or cannot in any suitable manner be cared for in the child’s country of origin.

On one reading, this language may be interpreted as rendering transnational placements illegal, violating the child’s basic human rights to remain connected to his or her family and culture of origin. At best, it might be viewed as an endorsement of transnational adoptive placement only as a last resort, even behind institutional placement in the child’s country of origin, because of the directive that ‘intercountry adoption may be considered … if the child … cannot in any suitable manner [italics added] be cared for in the child’s country of origin.” In fact, as initially worded in an early draft of the CRC in 1982, Section 20 contained only the directive that States facilitate adoption and foster care when alternative care for children was necessary; the more restrictive language was drafted after delegates from a number of countries objected to foregrounding adoption over other forms of communal and extended family care (Harris-Short, 2001). These interpretations place primary emphasis on providing services to needy children in place and retaining the child’s links to his or her family, national, ethnic, or religious culture of origin. Alternately, these declarations can be simply viewed as ambiguous. The 1986 Declaration that preceded the CRC, for example, appeared to set up a preference for permanently placing a child with a family, wherever that family might be located. Article 4 stated that “[w]hen care by the child’s own parents is unavailable or inappropriate, care by relatives of the child’s parents, by another substitute— foster or adoptive—family or, if necessary, by an appropriate institution should be considered.” Thus, as Sara Dillon (2003) argued, it is possible to read the 1986 Declaration as endorsing transnational adoption before endorsing institutional or other care. She suggests that the CRC should be read as neutral on the issue of transnational adoption, and that its focus on providing “suitable care” is an implicit endorsement of family over institutional placement, even if the familial care must be obtained across international boundaries. The rights language of the CRC must be considered as well in light of the Hague Convention. Following close upon the adoption of the CRC, the Hague Convention emerged in 1993 as a guide for setting standards to govern international adoptions. The Hague Convention is not a human rights document, but the Preamble notes that it was drafted to assure that “intercountry adoptions take place in the best interests of the child and with respect to his or her fundamental rights as recognized in international law.” Since its creation, numerous countries adopted its provisions; the United States ratified the Hague Convention in December, 2007, and it went into effect in April of 2008. The Hague Convention does not take a position on the legitimacy of transnational adoption per se, nor on the priority that transnational adoption should take in relation to domestic adoption, foster, or institutional care. Instead, it attempts to regularize and make transparent the adoption process to limit profiteering in international adoption practices and assure that children subject to adoption

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have not been relinquished under coercive or fraudulent conditions. In addition, the Hague Convention is not significantly more explicit than the CRC about the obligation of States to be attentive to issues of communal belonging. The Preamble “recognize[s] that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,” and goes on to note that “intercountry adoptions may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.” The Hague Convention then contains specific requirements designed to meet the primary practical criticisms directed at transnational adoptions by implementing procedures to ensure that children are available for adoption because of voluntary relinquishment, needs generated by abandonment, or needs generated by loss of parents and family. Article 5, for example, requires that prospective adoptive parents receive appropriate counseling to prepare them for the special needs attendant on adopting a child transnationally, transculturally, and potentially, transracially. Article 17 directly addresses the need to consider communal connections, although it does not speak to the interests of the community from which the child comes: it requires the relevant authority in the sending country to “give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background” and, in light of that information, “determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.” The Hague Convention does not require receiving States to otherwise ensure that adoptive parents will be attentive to the child’s cultural, religious, or ethnic background, and an adoption effected in accordance with the provisions of the Hague Convention terminates any legal relationship between the biological parents and the child. Taken as a whole, what impact might the articulation of such rights have on transnational adoption? Formulating an answer requires some consideration of the complex identity issues that face transnationally adopted children. As Barbara Yngvesson (2003) argued, transnationally adopted children are situated within two distinct narratives of belonging and return. The first narrative portrays them as “found” babies who were previously abandoned or rejected, and adoption provides them with a new identity and a secure place of belonging that erases a former position of insecurity and “nowhere-ness.” The other, according to Yngvesson, is a story of connection to the place of origin: identity is “associated with a root … of belonging that is inside the child … and unchanging” (Yngvesson, 2003, p. 8). It is, at the same time, a belonging that is “outside” of the child, because it is grounded somewhere outside of the place in which the child is physically and psychologically located, but “is assumed to tie her to others whom she is like (as defined by skin color, hair texture, facial features, and so forth)” (Yngvesson, 2003, p. 8). Transnationally adopted children are thus pulled in varying degrees to both their adoptive families, cultures, and nations and to the families, cultures, and nations left behind.

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As noted earlier, many adoptive parents work hard to provide children with information about their cultures of origin; where the information is available, many also make efforts to educate their children about their families. The efforts range from taking children to cultural events associated with their countries and communities of origin, to connecting with support groups for families with transnationally adopted children, to participating in “roots trips” that return the children to their originating countries. These efforts have their supporters and their detractors. Because culture is a lived experience, it is difficult to expose a child to a different culture in any meaningful way; the exposure is often to a “museum” culture that cannot impart the nuances of cultural values and belonging (Bhabha, 2004). No matter how conscientious parents might be, it is virtually impossible for someone from one culture to transmit another, especially when that alien culture is shorn of its context (Kirton, 2000; Tizard and Phoenix, 2002). Over time, too, both parents and children may experience a sort of cultural fatigue. Kirton, for example, relates the reaction of a South Asian adoptee when her mother gave her a sari at 16: “I didn’t know what to do with it. There didn’t seem to be any meaning behind it” (Kirton, 2000, p. 93). Adoptive parents may be accused by their children of appropriating the children’s cultural experience, especially as the children become teenagers and want to create their own sense of belonging and identity. Indeed, one study indicated that providing such alternate cultural experiences has no correlation with the success or failure of transnational placements (Kirton, 2000, p. 93). Similar concerns emerged about roots trips that take children back to their countries of origin: children’s identity issues are sufficiently complicated that it is difficult to draw general conclusions about the function and value of such experiences (Lifton, 1994). Yngvesson points out that roots trips rarely produce a seamless whole for children: “[These] trips reveal the precariousness of ‘I am,’ the simultaneous fascination and terror evoked by what might have been and a longing for the safety of home” (Yngvesson, 2003, p. 9). These moments reveal “the cost of belonging,” and both what has been lost and gained in the process of moving transnationally by revealing the “interruptions, contradictions and breaks in creating the child’s identity” (Yngvesson, 2003, p. 9). Adoptees may experience significant ambivalence about belonging: while some adoptees may feel moments of closure, Yngvesson finds that “the moments of clarity are typically that— moments—in a process of self-constitution that is ongoing, painful, and turbulent, challenging any sense of a stable ground of belonging” (Yngvesson, 2003, p. 21). Another concern with efforts to construct a culture from afar arises because such efforts may be based upon faulty assumptions about the extent to which children should be asked or expected to carry a particular culture forward. Children are as often disrupters of cultural norms as vectors for them, even when they are wholly embedded in a particular culture. On the individual level, it is doubtful that many adoptive parents expect their children to carry forward their “original” cultures. Exposing a child to a culture of origin generally springs from a genuine desire to facilitate the child’s development and ease any sense of dislocation that a

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child might experience. Yet children themselves may feel unfairly categorized as belonging to one or another cultural group when their own lived experience places them between or among cultures and communities. Borrowing from Hawley FoggDavis’s discussion (2002) of domestic transracial adoption, children need tools that enable them to navigate among different spheres of belonging; they will be disadvantaged if legal categories suggest assigning belonging in ways that restrict their ability to traverse the boundaries. To date, the efforts undertaken by parents to introduce children to a culture of origin have not been framed in the context of children’s rights. Although the Hague Convention’s requirement that placements be made with due regard for a child’s ethnic, religious, or cultural background, adoptive parents, like biological parents, have the right to rear children in the way they see fit. What might be the impact of recognizing a right, held by the child, centering around the notion of cultural or communal belonging? The usual concerns about recognizing children’s rights can be raised here—that is, that children, especially young children, cannot exercise rights responsibly or independently; that introducing children’s rights will impermissibly intrude upon the authority of parents and thus damage the security of the family unit—but those arguments are ultimately unpersuasive. There is no reason to presume that the mere fact of recognizing rights held by children means that those rights will be exercised irresponsibly, nor that children will be able to assert frivolous rights that jeopardize the unity of the family. Indeed, the rights granted under the CRC are subject to two important qualifications already noted: the exercise of those rights must accord with the child’s best interests and reflect the child’s “evolving capacities.” A deeper concern involves the irreducible ambiguity associated with the notion of communal or cultural identity itself. Asserting a “right to connection” with an amorphous community—especially one with which the child has little connection in day-to-day life—is profoundly problematic. The community often cannot be defined, and even if the boundaries can be perceived with clarity, such communities are never homogeneous. Thus, difficulties arise in trying to determine what sector of a community a child might connect to. Moreover, no culture or community is static, so that any right to connection must be constantly in flux itself. At the same time, allowing a child the right to access information about his or her origins, or, as the child’s awareness grows, allowing the child to express his or her cultural background through language, clothing or behavior, seem unproblematic. Whether such a right might extend to allowing a child to engage in behaviors that burden a family seems unlikely. Such a right might, however, be construed to impose a duty upon adoptive parents to facilitate ties to an originary group; at an international level, discussions around what kinds of reconnection a child might need and whether and how the process should be regulated are essential. Framing issues dealing with children’s identity in terms of rights does not, by itself, provide any answers, but it assures that the issues will be discussed and that children’s voices will be heard in that discussion.

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Communal Rights to Connections with Children The more politically charged—and less examined—issue in the international realm involves the recognition of group rights to maintain or create connections to children. These rights might assume two forms: a right to exercise authority over the child’s initial placement as an aspect of the group’s right to self-determination; and/or a right to cultivate ties to a child located in the diaspora. These rights emerged in a family of documents that speak to the rights of ethnic, racial, and religious minorities, as well as those dealing with indigenous groups. One interpretation of these documents, coupled with the preference for local foster care and adoptive placement that appears to be dominant in the international instruments dealing with the rights of the child as an individual, raises serious challenges to the practice of transnational placement altogether; other interpretations provide more space for accommodating it. None give any explicit guidance about how to deal with conflicts over issues of group membership and cultural belonging. The Draft Declaration on the Rights of Indigenous Peoples (1994) (Draft Declaration) provides the strongest statement about where children of indigenous groups belong. Article 6 states that “Indigenous peoples have the collective right … to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext” [italics added]. That provision is specifically aimed at preventing the removal of indigenous children from their families, which is problematic in a number of countries, including the United States, Canada, and Australia. Each of these countries engaged in a well-documented historical effort to remove indigenous children and assimilate them, posing a serious threat to the survival of the communities from which the children originated. Given that history, the transnational placement of indigenous children is fraught with significance and triggers considerable outcry from indigenous groups. Defining the removal of indigenous children under any circumstances as an act of violence, coupled with the Draft Declaration’s strong endorsement of principles of self-determination for indigenous peoples, presumptively precludes transnational placement of indigenous children, at least unless such a placement is made by the community itself. For example, the Preamble notes that “indigenous families and communities [have the right] to retain shared responsibility for the upbringing, training, education and well-being of their children.” The Draft Declaration does not provide any mechanisms for determining who such children are, should a dispute over a child’s identity arise. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1993) speaks in roughly similar terms. That document, in Article 2, recognizes the right of individuals belonging to such groups “to enjoy their own culture” and grants such individuals, in common with others, “the right to participate effectively in cultural, religious, social, economic and public life.” Article 2 also confers a right “to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to

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which they belong or the regions in which they live,” and “to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group … as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.” Perhaps more importantly, signatory States are directed, in Article 1, to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories” and to “encourage conditions for the promotion of that identity.” It can be argued, of course, that invoking this language to limit a practice such as transnational adoption is beyond the plain meaning of this Declaration, a document intended to protect members of minority populations from directly discriminatory actions and to permit such fragile communities and their members to live in accordance with the dictates of their own cultures. But the language is not so limited. The emphasis on protecting the rights of minority groups to perpetuate their communities and eliminating discrimination and violence can be compared to the language of the Draft Declaration on the Rights of Indigenous Persons, which, as noted, defines the very removal of indigenous children from their communities as an act of violence. Read against the general reluctance to endorse transnational adoption in the human rights documents discussed in the previous section, such protection might be interpreted to require States to protect the children of minority communities from removal. To date, no international human rights tribunal has been asked to determine whether the transnational adoption of children interferes with the rights of groups to maintain their cohesion and identity. The European Court of Human Rights (ECHR), however, considered a number of cases which challenged a State’s decision to terminate parental rights, typically claiming that the State against which a complaint had been filed failed to follow proper procedures for terminating rights or failed to give credence to factors relevant to the assessment of the child’s best interest. Yet, cultural identity has figured only marginally, if at all, in these cases, usually raised as a defense to a State’s assessment of abuse or neglect. Indeed, no international human rights body has fully grappled with the exceedingly difficult question of defining who belongs to a minority group in the first place, as the issue is a thorny one in the international arena, and is the subject of considerable debate. Defining such groups and who belongs to them are issues that precede the equally difficult question of what authority such groups ought to be able to exercise. Julie Ringelheim (2002), for example, looked at how the ECHR grappled with a number of cases involving the definition of minority groups, especially those which claim a unique cultural identity. Ringelheim discussed three cases that squarely raised the issues of what constitutes cultural identity and how such an identity might be asserted; each case also raised questions about the authority of the ECHR to render such decisions. A brief examination of these cases is instructive in thinking about how issues of children’s identities might be addressed. Sidiropoulos v. Greece (1998) and Stankov v. Bulgaria (2001), as well

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as Gorzelik v. Poland (2001), involved the efforts of self-designated members of a “Macedonian” minority group in the two former disputes and a Silesian minority group in the latter to register as national associations in order to promote their cultural identity. Ringelheim noted that this self-identification was by no means uniform in the region: many people in these regions, “situated at the margin of the political entity they were part of, at the crossroad of various cultures,” (Ringelheim, 2002, p. 11) felt ambivalent about declaring a Silesian or Macedonian identity. Both Greece and Bulgaria, in the first two cases, and Poland in Gorzelik, argued that the very claims to existence asserted by these groups constituted an assault on their national cultures. Greece and Bulgaria both denied the existence of any distinct “Macedonian” population or culture, arguing instead that the populations were Greek and Bulgarian, respectively, and both voiced concern that such efforts were merely precursors to efforts of individuals in the region to demand secession. Poland, on the other hand, recognized the Silesians as an ethnic group, but not a minority group that could avail itself of the benefits deriving from legal minority status. The Court, according to Ringelheim, ducked the hard issues in each case, concluding that “the inhabitants of a region … are entitled to form associations in order to promote the region’s special characteristics … ” (Ringelheim, 2002, p. 13). The Court refused to opine on whether the applicants could “assert a minority consciousness,” falling back on the position that people must be allowed to debate the issues (Ringelheim, 2002, p. 13). Ringelheim concluded that “by ensuring the conditions allowing a free discussion and contestation of cultural identities, by guaranteeing that related issues [were] not excluded from the democratic debate, [the ECHR] preserved the fluid and ambiguous nature of cultural identities” (Ringelheim, 2002, p. 15 ). However, the recognition of minority and indigenous communities is a matter of intense concern in the international community as marginalized groups organize to assert power, and in the future, the hard questions the ECHR avoided will likely have to be faced. Any decision, in turn, is likely to generate a number of problems, especially if the questions are raised in the context of human rights proceedings and involve the placement of children that groups see as members of that community. Marginalized minority and indigenous groups usually sought recognition through one of two means, either requesting non-territorial autonomy provisions or, where a group is territorially concentrated, through claims to self-governance and/ or recognition as an autonomous State. Non-territorial accommodation generally involves some allocation of self-governing authority over particular aspects of communal life. As Ayelat Shachar (2001) noted, this form of accommodation has a long history in the millet system, which granted religious communities the power to manage certain subject matter areas of particular importance for communal life such as religion, education, and family status, independently of State control. Such systems currently operate in a number of countries, such as India and Israel, and were common in former Soviet bloc countries (Kymlicka, 2001; Shachar, 2001). Should such arrangements become more prevalent—and it is certain that the

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demands for such accommodation will increase in the future—adoption and foster care placements will no doubt be of critical concern to such communities. Domestic and international tribunals will be required not only to define group boundaries, but also to grapple with who should assign membership in those groups and what the criteria for assignment should be. This task, as has been noted, is likely to generate irresolvable conflicts and is particularly difficult in the case of children, who often cannot articulate an identity preference on their own. Even within a group, a child may have more than one ethnic, religious or other identity. As the cases discussed by Ringelheim, above, demonstrated, several States strongly resisted recognizing cultural groups whose interests have “simply” been in garnering recognition and promoting their allegedly distinct cultures. The stakes would likely be considerably greater in any dispute over which group (a national or sub-national community) could determine the placement of children. The complications multiply if, as might readily be imagined, a child belongs to more than one minority community by virtue of his or her parentage. Moreover, because culture is imposed on children from the outside, there is some potential for conflict between the rights of the group to acculturate a child and the right of the child to “choose” cultural belonging, if that is even possible. As David Ingram (2000) pointed out, acculturation is necessarily coercive on some level, even though it may be permissibly so. Any contest over who ought to have the power to inculcate a cultural outlook is likely to be a debate without resolution. These are not imaginary conflicts. As noted at the outset of this chapter, the justice claims of historically marginalized communities have distinct merit and are particularly poignant when played out through children. Even commentators who strongly endorse transnational adoption recognize that such historically marginalized groups deserve special consideration in the transnational adoption arena. Sara Dillon, for example, recognizes that “in the case of endangered cultures characterized by small numbers of people and relatively large numbers of children historically taken out of the community,” (Dillon, 2003, pp. 221–2) the fairest way to deal with issues of adoption may be to provide communities with the authority to make placements themselves, drawing from the model of the Indian Child Welfare Act of 1978 (ICWA) in the United States. That Act grants Indian Tribes exclusive jurisdiction to determine the adoptive or foster care placement of Indian children who are domiciled on a Reservation, and permissive jurisdiction over children who are members or eligible for membership in a Tribe and are located outside of Reservation boundaries. Indeed, Dillon suggests that measures like group homes or locally created forms of foster care might be appropriate for the children of historically marginalized groups, although she worries that such alternatives would nonetheless disserve children’s needs for—and rights to—families. This is one of the most difficult issues in the transnational adoption debate. At an international level, many minority and/or sending communities see “institutional” alternatives like foster care and group homes as attractive—and first resort—options for keeping children within the fold, particularly in communities where extended family or communal care is asserted as the norm. Indeed, the “community-based

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care” idea that was at the forefront of the Day of General Discussion mentioned above focused primarily on creating such options. Proponents of transnational adoption, on the other hand, claim that children’s rights to families are denied by endorsing such approaches. Dismissing ideas for creating group homes out of hand as violating a child’s “right” to a (nuclear) family, however, without deferring or listening to the affected communities to determine whether such options might be appropriate, simply reinforces the view of transnational adoption as a new form of colonialism, even when it is unlikely that those communities have the resources to meet the immediate needs of their children. In addition, an ICWA-like approach may only work where a child’s identity as belonging to a particular community is unchallenged. Where a child’s identity is mixed, major disputes may erupt over who may define the child’s relevant community of origin and who defines membership in that community. Barbara Atwood (2002) noted that such disputes have been extraordinarily difficult to resolve under the ICWA, and are likely to be just as difficult at the international level. Any suggestion that jurisdiction over the placement of a child should simply be parsed out among groups raises as many issues as it resolves. Conclusion: Negotiating the Politics of Belonging The expanding universe of international human rights raises a number of challenges when applied to children. This chapter looked at only those issues associated with communal belonging in the context of transnational adoption—issues that are pushed to the foreground when the global movement of children is framed by a rights regime. The advantage of invoking a language of international human rights lies in the power that rights have to give voice to those who are not ordinarily heard, but it also multiplies the potential for intractable conflicts. The practice of transnational adoption, in its largest sense, is about belonging, and that raises quintessentially political questions. As with all political questions, there are no right or wrong answers. Current practices in transnational adoption are neither wholly condemnable nor wholly commendable, and no one in the field can lay an absolute claim to the highest moral ground. Indeed, that kind of engagement with the problem is counterproductive. Any resolution of the issues requires evaluating claims in the here and now, with an eye to understanding the claims on all sides and designing a legal and equitable regime to reflect those competing claims. All the parties affected by the practice of transnational adoption must be responsive to the fact that belonging, especially for children, is contingent on a variety of factors that no single group can—or should—control. Discussion, negotiation, and compromise are the only avenues for resolving the competing claims.

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Chapter 18

The Right of Children to Be Loved S. Matthew Liao

A number of international declarations, bills, and foundations have claimed that children have a right to be loved. The Declaration of the Psychological Rights of the Child of 1979 describes the right to love, affection, and understanding for children. According to the Declaration of the Rights of the Child in Israel of 1989, every child has a right to a family life, including nourishment, housing, protection, love, and understanding. The Declaration of the Rights of Mozambican Children of 1979 states that children have a right to a peaceful, secure climate, with love and understanding. In the United States, the Bill of Rights of Children in Divorce Actions of 1966 mandates that children have a right to love, care, discipline, and protection by their parents. Many, however, are likely to be skeptical of the claim that children have a right to be loved. In recent years, there has been a proliferation of the rights language in our moral, legal, and political practices. A number of writers are concerned that rights are often claimed without sufficient consideration as to whether these claims can be justified. As these writers correctly note, inappropriate use of the concept of rights can have the effect of diluting the important status of rights generally (Griffin, 2001; Sumner, 1987; Wellman, 1999). Moreover, there are a number of questions that can cast doubt on whether children indeed have this right. For example, the right under consideration seems to be a claim right, which means that someone has a corresponding duty to love a child (Hohfeld, 1919). Is it possible to require love as a matter of duty? An argument might be that love as a duty is absurd because love is an emotion and is therefore not commandable, while duties require an action to be commandable. Kant, for example, expresses this objection as follows: “Love is a matter of feeling, not of willing, and I cannot love because I will to, still less because I ought to (I cannot be constrained to love); so a duty to love is an absurdity” (Kant, 1996, p. 161; see also Gert, 1970, pp. 144–5; Schrag, 1980, pp. 243–4; Taylor, 1970). If there is no duty to love, there is no conceptual right of children to be loved. Supposing that it is possible to have this right, though, what is the justification? While some are confident that children have a right to be nurtured and cared for, they may be less confident that children have a right to be loved. Thus, the legal   Previously published in the Journal of Political Philosophy and reprinted by kind permission of the publisher, Blackwells.

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philosopher Neil MacCormick (1976) explains, “every child has a right to be nurtured, cared for, and if possible, loved.” Why is MacCormick less confident that children have a right to be loved? Is it because love is not an appropriate object of a duty? Finally, even if this right could be justified, who has the duty to provide such love for children? Biological parents? Citizens of a State? Everyone? In this chapter, I aim to satisfy critics of rights who believe correctly that rights should not be claimed without consideration as to whether they can be justified. To restrict the scope of the chapter, I assume the following: there are rights, in particular human rights; children, even very young ones, can have rights; and there are positive rights. In other words, the audiences I have in mind are like MacCormick in that they are certain that children have the right to be nurtured and cared for but uncertain that children have a right to be loved. The right of children to be loved can be justified by grounding this right in terms of a human right, by showing that love can be an appropriate object of a duty, and by proposing that biological parents should normally be made the primary bearers of this duty, while all other able persons in appropriate circumstances have associate duties to help biological parents. Finally, policy implications of this right will be considered. Children’s Right to Be Loved as a Human Right The right of children to be loved can be grounded by the following: human beings have rights to those conditions that are primarily essential for a good life. As human beings, children have rights to those conditions that are primarily essential for a good life. Being loved is a condition that is primarily essential for children to have a good life. Therefore, children have a right to be loved. The kind of love at issue, namely, parental love, can be characterized as follows: To love a child is to seek a highly intense interaction with the child, where one values the child for the child’s sake, seeks to bring about and maintain physical and psychological proximity with the child, seeks to promote the child’s well-being for the child’s sake, and desires that the child reciprocates or, at least, responds to, one’s love. One important feature of parental love is valuing the child for the child’s sake. As a child psychologist Mia Pringle argues: The basic and all-pervasive feature of parental love is that the child is valued unconditionally and for his own sake, irrespective of his sex, appearance, abilities or personality; that this love is given without expectation of or demand for gratitude … Parents communicate this unconditional affection through all their relations with him: from physical care and handling to responding to his first smile and sounds; from protecting him from, and then gradually initiating him into, the social world; and from restraining to eventually punishing him for   By parental love, I do not mean that only biological parents can provide this kind of love. Other people such as step-parents, foster-parents, or nannies can also provide it.

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going beyond the limits they have set for acceptable behavior. (Pringle, 1986, p. 35)

The “highly intense” aspect of this definition captures the idea that parental love is not just behavioral or attitudinal but has emotional components that permeate through all of a parent’s actions with a child. Furthermore, if parents love their children, they would maintain closeness to the child, both physically and psychologically, other things being equal. Physically, parents would try to be with the child as much as it is appropriate and optimal. Psychologically, parents would try to understand the child from the child’s perspective, and they would try to open their perspectives to the child, when the child is capable of such understanding. Moreover, they would try to increase the child’s prospect of having a good life for the child’s sake. Finally, very young children cannot reciprocate a parent’s love. Nevertheless, a parent who loves his child would desire that a child would love him back if the child could do so. The claim that children need to be loved is an empirical claim. Many people find this claim obvious, perhaps because of their own reflections on their childhood, their personal experience with child-rearing, or their observation of the practice of child-rearing. In recent decades, efforts have been made to demonstrate this claim through scientific research. One approach examines the negative consequences for a person not loved as a child. As it would be unethical to conduct studies of this kind by performing controlled experiments on human beings, researchers investigated in other ways, ranging from studies of children in institutions (Goldfarb, 1945; Spitz, 1945), to studies of monkeys in laboratories (Harlow, Dodsworth, and Harlow, 1965), clinical studies of certain growth disorders of children in their own homes (Coleman and Provence, 1957; Silver and Finkelstein, 1967), and recent neuroscientific studies (Higley, Suomi, and Linnoila, 1991; Meaney et al., 1996). Studies of children in institutions found, for example, that children who did not receive love, and received only adequate care, became ill more frequently; their learning capacities deteriorated significantly; they became decreasingly interested in their environment; they failed to thrive physically by failing to gain weight or height or both; they suffered insomnia; they were constantly depressed; and they eventually developed severe learning disabilities (Spitz and Wolf, 1946). In one study, 37 percent of these infants died by the age of two, compared with none in the lovingly mothered control group (Spitz and Wolf, 1946, p. 320). More recent studies support these findings (Hodges and Tizard, 1989; Kaler and Freeman, 1994). In studies of monkeys in laboratories, infant monkeys raised in maternal privation settings suffered hampered social, cognitive, and emotional development (Harlow et al., 1965). More recent, neuroscientific studies conducted on various animals found that lack of love can dysregulate development of the brain biogenic amine neurotransmitter systems such as norepinephrine (NE), dopamine (DA),  Another approach examines the positive consequences for a person if he is loved as a child. Owing to space, I do not present these studies here.

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and serotonin (5HT), and the hypothalamic-pituitary-adrenal (HPA) axis (Heinz et al., 1998; Higley et al., 1994; Shannon et al., 1995); negatively modify adrenal glucocorticoid responses (Champoux, Coe, Schanberg, Kuhn, and Suomi, 1989; Coplan et al., 1998); and affect the biochemical processes of growth hormone (GH) secretion leading to psychosocial dwarfism (Scafidi, Field, and Schanberg, 1990; Wang, Bartolome, and Schanberg, 1996; see also Gerhardt, 2004). Together, these studies convincingly demonstrate that a child’s psychological, social, cognitive, and even physical development can be seriously hampered if the child is not loved. Human beings have rights to the essential conditions for a good life because these conditions are of primary importance to the human being and because these rights are very powerful tools of protection. Whatever else they may desire, most human beings want a good life. If we attach a certain importance to an end, we must attach importance to the primarily essential means to this end. Needless to say, the notion of a good life is difficult to define. There are ongoing controversies over whether to define a good life in terms of an objective list (Finnis, 1980; Griffin 1996) or in terms of informed desires (Griffin, 1986; see also Darwall, 2002; Frankfurt, 1988). Irrespective of how one characterizes a good life, there are certain primarily essential goods, capacities, and options that all human beings need, whatever else they might need for a good life (Raz, 1994, pp. 16–17; see also Gewirth, 1996; Rawls, 1971). Human beings need certain basic goods such as food, water, and air to sustain corporeally. To pursue the good life, human beings also need certain basic capacities such as the capacity to think, to be motivated by facts, to know, to choose an act freely (liberty), to appreciate the worth of something, to develop interpersonal relationships, and to have control of the direction of one’s life (autonomy) (Sen, 1985, 1992). Finally, to exercise these capacities, human beings need to have some opportunities for social interaction, for acquiring further knowledge, for evaluating and appreciating things, and for determining the direction of their lives (Raz, 1986). Rights are powerful tools of protection. By their nature, rights secure the interests of the right holders by requiring others, the duty-bearers, to perform certain services for the right holders or not to interfere with the right holders’ pursuit of their essential interests. In addition, at least on certain structural accounts of rights, rights typically prevent the right holders’ interests from being part of a first-order utilitarian calculus (Dworkin, 1977; Nozick, 1974). This means that if a right holder has a right to something, then typically a non-right claim cannot override the right holder’s right to that thing. Finally, as some writers pointed out, because right holders are entitled to these services as a matter of rights, they can simply expect the services without requesting them (Feinberg, 1970). Given the strong protection that rights offer right holders, and given the importance to the primarily essential conditions for the pursuit of a good life  Raz’s argument regards the importance of having an adequate range of valuable options for well-being.

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to a human being, it seems reasonable that human beings have rights to these primarily essential conditions. For our purpose, this argument provides a reason why children have a right to be loved, because being loved is a primarily essential condition for children to have a good life. Before continuing, it might be worthwhile to comment on whether adult human beings also have a right to be loved. This is a difficult question to answer because typically the kinds of love in which the adults are interested, namely romantic love and friendship, are different from parental love. Unlike parental love, part of the point of achieving romantic love and friendship is that one obtains these goods by one’s own autonomous efforts. Given this, there may not be any right to be loved for adults. The Commandability of the Emotional Aspect of Parental Love Some worry about children’s having a right to be loved because they do not believe that love can be an appropriate object of a duty. According to this argument, love is an emotion and emotions are not commandable. Duty requires, however, that the action required by the duty is commandable. If there cannot be a duty to love, then there cannot be a right of children to be loved. The objection is premised on the idea that emotions are never commandable. While I do not claim that emotions are always commandable, the claim that emotions are never commandable seems too strong. There are a number of ways by which human beings can bring about particular emotions, such as the emotional aspect of parental love, with success (Liao, 2006). For instance, as an example of internal control of emotions, individuals can give themselves reasons to have particular emotions, or they can reflect on the reasons why they tend to experience particular emotions in particular circumstances or towards particular persons (Gibbard, 1990; Greenspan, 1988; Nussbaum, 2001; Oakley, 1992; Rorty, 1980; Scherer, Schorr, and Johnstone, 2001; Wolheim, 1999). By reflecting on these reasons, individuals may then decide whether to continue to have particular emotions, depending on whether the emotions are supported by good reasons or not. In addition, as a means of external control, individuals can deliberately place themselves in situations where they know they will experience particular emotions. Individuals can cultivate their emotional capacities by practicing the described methods of external and internal control. In other words, by repeatedly reflecting on reasons why they tend to have certain emotions and by placing themselves in situations where they are likely to experience the desired emotions, individuals may be more likely to have certain emotions in appropriate circumstances and have the dispositions for these emotions over a longer period of time.   For a different kind of justification, one might be able to use Goodin’s vulnerability model (1985).

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The emotional aspect of parental love can be brought about with success through these methods. No doubt the emotions of parental love span a wide range. To simplify the discussion, assume a strong sense of warmth and affection to be a crucial part of the emotional aspect of parental love at least sometimes during the course of loving a child. First, we can give ourselves reasons to have these emotions for a child. Many reasons are possible, but one good reason is that children need this emotional aspect of love to develop certain capacities necessary to pursue a good life. Suppose a parent realizes that one’s antipathy toward a child is due to the fact that the child was unplanned. That parent may then recognize that this is not the fault of the child and, therefore, this is not a good reason to dislike the child. If a parent begins to see the child without this initial prejudice, there is a chance that he will be able to bring about warmth and affection for the child (Goldie, 2000, p. 33; Murdoch, 1970, pp. 17–18). As an example of external control, suppose a parent realizes that enough sleep increases his warmth and affection towards his child. That parent might ensure that he has enough sleep each night so that he will be more loving toward the child. To cultivate the capacity to love a particular child, a parent might try repeatedly using the method of external and internal control discussed above, such as repeatedly reminding himself of the importance of love for a child’s healthy development, and repeatedly placing himself in situations where he is likely to feel these emotions. For example, a parent might make arrangements in his daily schedule to allow him to spend quality time with his child. Through engaging in these methods repeatedly over time, there is a good chance a parent will increase his capacity to feel affection and warmth for his child, just as Augustine observed in religion that enacting the behavior associated with religious rituals seems to increase the capacity for religious feelings (Matthews, 1980, p. 339). It is worth noting that cultivating emotional capacities is not just a repetition of internal and external control over time. To be truly successful, one may have to critically evaluate some of one’s own fundamental values (Blum, 1980). Moreover, in each of these methods, the objective is more than just the appearance of appropriate emotions. Some argue that an action is commandable if and only if one can bring it about with guaranteed success, and the argument above only demonstrates that emotions can be brought about with reasonable success. As a result, they might insist that at best there is a duty to try to love a child but not a duty to love the child. First, for the sake of argument, even if there were just a duty to try to love, this would not undermine the idea of a right of children to be loved. If one accepts that rights are grounds of duties, rights are reasons for the duties to which they give rise, although rights are not the only things that can give rise to duties (Raz, 1986, p. 166). There are good, independent reasons to accept this understanding of rights. In particular, this understanding means that we can know that someone has a right without knowing who has the corresponding duty, and it allows rights to give rise to new duties as circumstances change (Raz, 1986, pp. 185–6). If this understanding is correct, then a rights claim to X can exist whether there is a

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duty to X or just a duty to try to X, since the right can be a reason for either duty. Therefore, a right of children to be loved can be a reason for either a duty to love or a duty to try to love. Second, it is false that an action is commandable if and only if one can bring it about with guaranteed success. For one thing, physical actions such as walking and speaking would not be commandable if guaranteed success were necessary, because it is a fact that we occasionally fail to succeed in these actions. For example, we might trip and fall, and we might become tongue-tied. In fact, even simple physical actions such as raising one’s arms or holding one’s breath would not be commandable, because it is a fact that we sometimes fail to succeed in these actions. Some might think that guaranteed success can be necessary for an action to be deemed commandable if we include a clause “provided that certain reasonable background conditions exist.” In other words, under ordinary circumstances, for example, if one’s arm has not fallen asleep or if no one is holding one’s arm down, one would be able to raise one’s arm with guaranteed success. However, the clause “provided that certain reasonable background conditions exist” is too vague. Ordinarily, there is still a chance, however minute, that one’s action can fail, even if reasonable background conditions existed. In the case where one tries to raise one’s arm, even if certain ordinary background conditions exist, it is still possible that one can fail to raise one’s arm with guaranteed success. On the other hand, suppose one understands the clause “provided that certain reasonable background conditions exist” to mean that all possible factors that could potentially defeat an action are rendered impotent so that an action really is guaranteed to succeed. Why could one not speak of guaranteed success regarding emotions such as love? If all possible factors that could prevent a parent from loving a child are rendered impotent, what reasons left would there be for thinking the parent could still fail to love the child? It should be acknowledged that there could be cases where a person’s emotional capacities are so damaged that there is no possibility of the person’s acquiring the emotional aspect of love. In these cases, one would have to accept that this person does not have a duty to love a child, at least in an emotional way, although this person may still have a partial duty to love a child through his or her behavior and attitudes. On the other hand, the source of the duty should be distinguished from the capacities of the duty-bearer. Given that the duty stems from the nature of the child, if a child still needs to be loved, the duty remains and others in society would be required to fulfill it, even if some lacked the capacities to do so. The distinction between the source of the duty and the capacities of the dutybearer is particularly useful in the case of a parent who tries hard to love a child but, nevertheless, fails to have the appropriate emotions. One might say that the person fulfills the duty partially, and is not blameworthy, because the person tried his or her best. Nevertheless, if the child’s need for love is not met, then one must conclude that the source of the duty remains. Indeed, suppose I borrow a thousand dollars from you. I repay part of it, try my best to get a job, but through no fault

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of my own, I am simply unable to pay you back in full. From the perspective of the duty-bearer, one may say that I have partially fulfilled my duty, and that given the circumstances, I am not blameworthy. However, from the perspective of the source of the duty, you are still owed money. What if someone pretends to love a child, when in fact he does not? Would his pretense fulfill the duty to love a child? Most likely, it would not. A child needs to be loved in order to develop certain primarily essential capacities such as knowing how to love others and having a positive conception of self. It is doubtful, however, that a child could adequately develop these capacities from receiving pretended love alone because one can typically pretend to love a child for only a short period of time. At some point, a child will realize that he is not receiving real love. Once this occurs, this realization would most likely impede rather than facilitate a child’s development of the primarily essential capacities. Also, even if one could pretend to the extent necessary to deceive the child, doing so might not fulfill one’s duty. The fulfillment of a duty might require that the object of the duty provided is real. For example, suppose someone owes you five dollars and gives you a fake five-dollar note in return. He might not have fulfilled his duty to you because if it were ever revealed that he has given you a fake bill, he might be required to give you a real one. Also, pretended love will typically involve deception, and while deception might not always be morally wrong, a systematic, lengthy campaign of deception might raise serious moral concerns and undermine the idea that one has fulfilled a duty. Indeed, a person who gives you a fake bill to fulfill his duty might be doing something morally wrong, thereby undermining the idea that he has fulfilled his duty, even if no one ever finds out. Lest it leads to misunderstanding, I do not claim the entire aspect of parental love is commandable if one just employs the methods of internal and external control and cultivation. The dimensions of parental love are complex, and parental love is not just an emotion but involves appropriate attitudes and behavior over a long period of time. Therefore, what is involved in bringing about parental love, in its entirety, is a complex issue. My aim here is to demonstrate that the claim that the emotional aspect of parental love is never commandable is too strong a claim. The Duty to Love: Everyone’s Duty Suppose there is a right of a child to be loved. Who has the corresponding duty to love a child? A common response might be that this duty belongs only to the biological parents, as a result of their causal relationship to the child. Although no one has explicitly claimed that biological parents have the sole duty to care for and love their children, many do think that the fact that parents created their children is a reason for assigning at least some child-caring duties to them. For example, Kant writes in The metaphysics of morals, “[T]he act of procreation [is] one by which we have brought a person into the world without his consent and

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on our own initiative, for which deed the parents incur an obligation to make the child content with his condition so far as they can” (Kant, 1996, p. 64). Similarly, Frederick Olafson (1973) argues that parents are responsible for the predictable and avoidable consequences of their actions. Given this reasoning, if two adults, recognizing the possibility that a helpless child might be conceived, have sexual relations and such a child is indeed born nine months later, then, according to Olafson, they are responsible for its existence and have to care for it. As Sidgwick states, “the parent, being the cause of the child’s existing in a helpless condition, would be indirectly the cause of the suffering and death that would result to it if neglected” (Sidgwick, 1962, p. 249). Biological parents typically incur some responsibility as a result of their actions. Indeed, biological parents play a special role in discharging this duty. However, claiming that this duty belongs only to the biological parents seems incorrect. In particular, it implies that if the biological parents of a given child were dead, no one else would have the duty to love the child. However, it seems that someone still has the duty to love a child even when the biological parents become unavailable. An alternative proposal might be that biological parents have the sole duty, in the first instance, but when they are dead or unable to discharge their duty, someone else would be required to take up their duty (Goodin, 1988, p. 681). This proposal is an advance over the previous one. However, the proposal implies that other able persons do not have the duty to promote children’s being loved except when the biological parents or primary duty-bearers are not available. I believe a stronger conclusion can be reached. As the right of children to be loved is a human right, on certain understandings of human rights, this means that all able human beings in appropriate circumstances have a duty to promote every child’s being loved, even when the biological parents are available (Cranston, 1973, p. 69; see also Gewirth, 1996, p. 63). At the same time, because directly loving a child is best done if only a few individuals are assigned to do so for each child, labor should be devised as follows: under normal circumstances, biological parents have the primary duty to take the direct form of loving their children, while all other able persons have associate duties to help the primary duty-bearers successfully discharge their duties. Biological parents should typically be the primary duty-bearers for the following reason: Usually, when there is a general duty that everyone has but where it would be impractical if everyone tried to fulfill that duty at the same time, a primary duty-bearer might be assigned using such criteria as responsibility, proximity, ability, and motivation. For example, consider the general duty to help someone who is drowning. In theory, every able person has this duty, although in practice, it is impractical if everyone tried to fulfill this duty. In this case, the primary responsibility to discharge this duty could be assigned to someone using the criteria I mentioned above. Suppose I cause a person to fall into a river. The fact that I am responsible for this act makes me a good candidate to be assigned the primary duty to help this person. Suppose instead that someone is drowning,

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and I am the nearest person around. The fact that I am the nearest person also makes me a good candidate for the primary duty to help this person, as I am more likely to succeed. But ability is also important. Suppose this drowning person is being carried towards the ocean, and I am not a good swimmer. Fairly nearby there is someone, Y, who is a much better swimmer. The fact that Y has the ability makes him a good candidate for the primary duty to rescue the drowning person. Finally, motivation is also important. Suppose X is drowning, and Y and Z are equal distance from X. Suppose Y and Z are fairly good swimmers, but suppose Y cares very little whether X drowns or not, whereas Z cares a lot. In such a case, it seems that one would want to assign the primary duty to Z, because, given Z’s motivation, Z would be likely to do a better job than Y. Of course, if Y were the only person present, then Y would have this duty despite his motivation. All other things being equal, it seems that one would want to assign the primary duty to persons who have the stronger motivation. In the case of a duty to love children, biological parents seem good candidates for being primary duty-bearers because they normally meet at least three of the four criteria mentioned. They typically caused their children to come into existence, and so bear some responsibility for this action. They typically are physically most proximate to their children. They are typically motivated to love their children. One cannot say, as a general rule, that biological parents also have the ability, since there are many cases where biological parents seem to lack the ability. But, there is always the possibility that biological parents can be assisted in this matter through some sort of formal or informal parental education (Hobson, 1984, p. 64; Rousseau, 1974, p. 16). Some people might be inclined to think that in addition to coordination reasons, biological parents may have the duty just by virtue of being the biological parents. I am open to the suggestion that this could be a different, sufficient condition, but as explained earlier, this should not be a necessary condition for assigning duty. To illustrate how everyone else has an associate duty to see to it that primary duty-bearers can successfully discharge their duty to love their children, consider the drowning analogy again. Suppose there is a general duty to rescue someone when the cost is minimal. Suppose X is drowning, and you and another person, Y, who is a lifeguard, are present. Since Y is a lifeguard, he may have the primary duty to save this person and may try to fulfill this duty by swimming towards X and trying to bring X out of the water. Although you are not the primary duty-bearer, you have the associate duty to try to assist the primary duty-bearer in whatever way you can, because of the general duty to rescue. For example, you may have to call for additional help, or you may just have to be around to see if further help is needed. Suppose you are not near the scene. Since there is a general duty to rescue, you may have to support certain tax policies that would allow States to pay for well-trained lifeguards and support governmental policies that require stationed lifeguards at every public beach. One can apply this line of thinking to the case of a duty to love a child. A successful discharge of this duty involves a substantial amount of time and

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resources. It may be the case that some biological parents can successfully discharge this duty using their own resources. However, for many others, this can be quite difficult, perhaps owing to the demands of employment or of other family members. The fact that other able persons have associate duties towards the child means that they can help to alleviate the burdens on the primary dutybearers. For instance, the associate duty-bearers could support better child-care programs and more flexible workplace policies that make it easier for primary duty-bearers to discharge their duty. Or, as citizens of a State, they may try to fulfill this duty by paying taxes and voting for federal policies that help parents discharge their duties. Finally, some relatives of the parents may even actually try to love the child, to some extent, to ensure the child receives adequate love. I think it is a virtue of my argument that it has the implication that other able persons now have associate duties to help primary duty-bearers discharge their duty to love a child. Some may ask, what if someone does not have all the resources to discharge this duty? What if society as a whole does not have enough resources to assist in the discharge of this duty fully? Can they still have a duty to love a child? Indeed, our society might not have the resources at the moment to ensure that every child is loved. Carl Wellman refers to this as the “problem of scarce resources,” and discusses how it undermines the idea of a human right to sustain lives: If the claim-right [to sustain life] is really a universal human right, then each potential duty-bearer finds himself or herself confronted with vast numbers of claimants, all of whose lives require sustenance. This raises the problem … of scarce resources. If the individual, organization or state lacks sufficient resources to sustain the lives of all the claimants, then the addressee of so many claims can have no duty to do the impossible. And since claim and duty are logical correlatives, there can be no genuine claims where there are no actual duties. (Wellman, 1982, p. 159)

In my view, the problem of scarce resources does not undermine the right at issue because one can have partial duties. By a partial duty, I mean that even if a person, X, cannot fulfill all that is required in a duty, if X is able to fulfill part of what is required, then X has a duty to do as much as he can. For example, suppose that X owes Y five dollars, X has five dollars, but X needs three dollars to survive. Because X is able to pay Y two dollars, it seems reasonable to expect X to pay Y two dollars, that is, X still has a partial duty to pay Y. The idea of partial duties is applicable to Wellman’s case of the human right to sustain lives, and to our case of the duty to love a child. For example, although individuals, institutions, and States may not have enough resources to sustain all lives, they may have some surplus resources that can be used to sustain some lives. If so, then they can be obliged to use these resources to help as many as possible, even if they are not able to help all. Similarly, in the case of the duty to love children, even if individuals, institutions, and States do not have enough resources to make sure this duty is fulfilled in all

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cases, they may have some surplus resources that they can use partially to fulfill some duties. If so, they can also be obliged to do so, even if they do not have enough goods and resources to fulfill all of the duties fully. Policy Considerations Suppose children do have a right to be loved. What priority should we give to this right vis-à-vis such rights as children’s right to education, the right to be cared for, the right to food, and so on? Should the right to be loved be given more or less priority than these other rights? Also, other people have other rights that may conflict with children’s right to be loved. Parents, as autonomous adults, may have a right to pursue their life plans. How should their rights be balanced against the right of children to be loved? In general, what policy implications follow from this right? One might think that, all things considered, the right of children to be loved is simply not as pressing as some of the other rights that children and others may have. To support this idea, one might appeal to Alan Gewirth’s idea that one should promote first whatever is most needed for action, what Gewirth calls the “criterion of degrees of needfulness for action” (Gewirth, 1996, p. 45). On such a view, children’s being loved will not be as pressing as, for example, the poor’s being fed or being supported, because the latter interventions are more necessary for the recipients’ action. While this is true, children’s being loved is still very urgent, given that children, despite being well fed, have died or have suffered serious physical, social, and cognitive harms from the lack of love. So, even granting that being fed is more urgent than being loved, we should still give the right of children to be loved a very high priority. Indeed, being fed is also typically more urgent than receiving basic education. Few would question the importance of promoting children’s right to basic education. Governments and other public institutions recognize that they cannot give absolute priority to whatever is most necessary for action. To see this, consider the value of life. As a precondition for action, life is obviously very important. Still, we do not always promote life before we promote other values. For example, governments build schools and museums when they could build more hospitals to ensure that more people survive illnesses. As this does not seem morally objectionable, it suggests that although life is very important, we do not give it an absolute priority over all other values. Hence, even if one grants that being loved is not as urgent as being fed, it does not follow that being fed has absolute priority over being loved, especially given that both are essential needs for children. Moreover, to develop institutional arrangements that adequately provide for children’s various essential needs, it is important to take into account all of their essential needs, including their need for love. Otherwise, the kind of institutional arrangements that we develop for children may be inadequate. Consider the reallife example of trying to meet the needs of children orphaned as a result of HIV/

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AIDS in Africa. The US government currently funds a 15 billion-dollar global initiative, known as the President’s Emergency Plan for AIDS Relief, or PEPFAR, to combat the HIV/AIDS epidemic. If we focus solely on children’s rights to food and shelter, the kind of institutional arrangements we would recommend and develop under this initiative could be very different from ones in which we also take into account children’s right to be loved. The reason is that children can be fed and sheltered well in a large and efficiently run institution that pays no attention to their need for love. So, if we only focus on children’s rights to food and shelter, we might recommend such a large institution, with the effect that children’s need for love would not be met. Taking into account that children need to be loved, we would recognize from the very start that we need to develop smaller institutions that can provide not only food and shelter but also love for children. Indeed, a touted success story of PEPFAR involves a hospice in Nairobi under the leadership of Father Angelo D’Agostino, which brought together 750 children who lost their parents and 250 elders who lost their children, to create the Nyumbani Village. The village, according to the Office of the US Global AIDS Coordinator (2005), offers “what every child needs most—love.” To develop adequate institutional arrangements for children, it is crucial to take into account their need for love from the very beginning. How should we promote a child’s right to be loved? Previously, I mentioned some familiar possibilities, such as better child-care programs and more flexible workplace policies for men and women that would make it easier for primary duty-bearers to discharge their duty to love their children. The general idea here is that children’s right to be loved gives us further reasons to promote the primary duty-bearers’ welfare, health, psychological well-being, and so on, through generous welfare policies. Arguably, these policies are necessary in any case, but this right further underwrites their normativity. It may also be possible to adopt Anne Alstott’s proposal (2004) to give every family involved in raising children a Caretaker Account of $5000 annually for one of three purposes: child care, retirement savings, or education. The grant would be paid to the caretaker parent or parents until the last child turned 13, but it could not be used for consumer goods such as rent or groceries. Alstott reasons that this proposal would improve the long-term opportunities of caretaker parents, as paid child care would help those parents who wish to preserve their skills and opportunities by holding paid jobs; education would help parents improve or refresh their marketable skills; and retirement savings would improve old-age financial security. Without debating the merits and disadvantages of Alstott’s proposal, the Caretaker Account could facilitate children’s being loved because it is motivated to ensure a continuity of care for children and because a necessary, but not sufficient, condition for children’s being loved is a continuity of caretaker. Here I would like to explore two other possibilities in virtue of children’s right to be loved. I present these possibilities as mere rough sketches and, therefore, by no means does the following amount to a full defense of them. First, it may be possible to introduce mandatory basic parenting education for all children

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during middle- and high-school years. Parenting education involves acquiring the knowledge and skills to help a child become an adequately functioning individual. Basic parenting education, as I envision it, would focus on teaching basic scientific knowledge about childhood development; the nature of parenting; and how society can influence the parent/child relationship. Such an education would seek to inform middle- to high-schoolers about the latest scientific research and theories on prenatal development; the role of proper nutrition during pregnancy; an infant’s perceptual, motor, learning, and social skills, sleeping patterns, eating habits, and temperament; the varying needs of children from birth to adolescence; and how to create a safe, healthy, stimulating, and loving environment for children generally. While some suggest middle-schoolers may be too young and immature to absorb the kind of education I propose, they do engage in sexual activities, and sex education is already offered at this age. Perhaps basic parenting education could be an ongoing module in classes tailored to different ages, much like language or history classes. Some studies regarding the effectiveness of parenting education in schools show positive results in the United Kingdom and elsewhere (Cutting and Tammi, 1999; Hope and Sharland, 1997). One reason to mandate basic parenting education in schools is that one of the aims of basic education is to help one acquire the necessary knowledge for developing into adequately functioning individuals, that is, individuals who have enough goods and capacities to pursue a good life. Since having a good life for many people means being good parents, having the necessary knowledge to be good parents will be important for many people. Indeed, having basic parenting education could be as important as learning math and sciences. In addition, mandatory basic parenting education would complement sex education because it would inform middle- to high-schoolers of the duties involved in parenting, a goal that both “abstinence only” and “abstinence-plus” advocates would share (Collins, Alagiri, Summers, and Morin, 2002). Indeed, basic parenting education could be taught in conjunction with sex education or other existing courses, general science or biology, home economics, or psychology, to avoid overcrowding the existing curriculum. Moreover, providing basic parenting education in schools ensures that everyone will receive some basic knowledge about the important task of parenting, irrespective of socio-economic background and culture (Halpern, 1990). At the same time, basic parenting education as I envision it would restrict itself to teaching about the scientific facts regarding childhood development and the like. The education would not involve teaching “morals” to children—an objection some leveled against what might be called comprehensive parenting education, which seeks to teach not just basic scientific facts about child development but also more value-laden types of parenting skills, such as empathy and caring. For example, the former governor of California, Gray Davis, vetoed two bills, Senate Bill No. 305 and Senate Bill No. 1348, that sought to introduce the kind of “comprehensive parenting education” exemplified by Cooper, Schiffer, Chevrier, and Schuver (2002), on the ground that this kind of teaching should be

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left to parents in their own homes. While I am skeptical that any teaching can be completely value-neutral (even neutrality is arguably not a “neutral” value), basic parenting education that focuses only on scientific facts of childhood development should avoid this particular problem. Judges, social workers, and educators who are part of the prison system relied on parenting education as a remedial response to families who abuse or neglect their children (Chalk and King, 1998; Reppucci, Britner, and Woolard, 1997). Mandating basic parenting education in schools provides such knowledge before abuse and neglect occur. Finally, for our purpose, such an education also helps every middle- to high-schooler become fully aware of a child’s developmental process, including a child’s need for love. Second, an adoption scheme should be considered. At present, we subscribe to what might be called a Single-Family Adoption (SFA) scheme, which aims to place a child in a single family, typically consisting of a mother and a father. I suggest that we explore the possibility of supplementing the SFA scheme with what might be called a Multi-Family Adoption (MFA) scheme, which allows a child to be adopted by individuals from different families who are not biologically related (Kupenda, Wallace, Travis, Dorsey, and Guy, 1999). The co-adopters would be parents of the child and would share a significant portion of the childcare responsibility. Child-care responsibility includes: providing love, housing, nurturance, and care for the child; ensuring the child has health insurance coverage and visits health-care providers regularly; making sure the child receives education, and so on. In short, child-care responsibility provides for the general welfare of the child. Some of the co-adopters would be designated as the primary parents and would have the primary responsibility of housing the child and providing for the general welfare of the child. The other co-adopters would be designated as the secondary parents and would supplement the child-caring efforts of the primary parents. If the primary parents die, the secondary parents would take on their responsibilities. Other details of the MFA scheme might depend on the particular circumstances of the parents and the legal arrangements of particular countries. For example, in the US, there is at present no universal health-care coverage. So, the primary parents might typically be the ones responsible for insuring the children. However, it may occasionally be the case that the secondary parents cover the adopted child through their health insurance plan. Indeed, presently in divorce cases, the Qualified Medical Child Support Order enables a custodial parent to obtain health insurance coverage for the children through the non-custodial parent’s group health insurance plan (Employee Retirement Income Security Act [ERISA], 1974, §§ 4(b), 609(a), and 607(1)). One might introduce a modified version of such an order to enable secondary parents to cover their adopted children. In addition, the primary parents might claim the child for a dependent deduction on their tax forms, but perhaps there could be a way to divide the deduction so both sets of parents claim some amount of it.

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The MFA scheme is inspired by the extended family model where grandparents or aunts and uncles sometimes share a significant portion of the child-care responsibility with the biological parents, including providing love for the children. The MFA scheme seeks to extend this model to adoption, where children might thrive by being raised by non-biologically related individuals from different families, provided these individuals are able to give children, among other things, the kind of love children need. Moreover, if all of us have associate duties to see to it that primary duty-bearers can successfully discharge their duty to love their children, some might find the MFA scheme a preferred way to fulfill these associate duties. The MFA scheme also has some affinity with “open adoption,” which is an adoption plan that allows the biological parents to have some contact with their child and the adoptive family (Grotevant and McRoy, 1998). Although some prospective adoptive parents worry that in an open adoption, the biological parents might try to reclaim their child, many of the individuals who have participated in open adoption have found the experience satisfying (Berry, Dylla, Barth, and Needell, 1998). The MFA scheme could address an important deficiency in our current adoption system. Over 500,000 children in the US currently reside in some form of foster care and about 30 percent of these children have severe emotional, behavioral, or developmental problems, owing to the fact that a significant number spend long periods of time in care awaiting adoption or other permanent arrangements (American Academy of Child and Adolescent Psychiatry, 2005; see also Crenson, 1998; Selwyn and Quinton, 2004). At the same time, nearly four in ten Americans (39 percent), or about 81.5 million adults, have considered adopting at some time in their lives (Harris Interactive, 2002; Princeton Survey Research Associates, 1997), but no more than 2 percent of Americans have actually adopted (Mosher and Bachrach, 1996). There are a number of possible explanations for this, but in the Harris survey of 1,416 Americans of 18 years of age or older with diverse ethnic backgrounds, it was found that a major concern for 49 percent of the individuals interviewed is having the time to raise an adopted child. In addition, the cost of adoption concerns 45 percent of middle-income individuals (those earning from $25,000 to $99,000), and 52 percent of lower income individuals. Moreover, 50 percent of the individuals would like to see counseling services and support groups for adoptive parents. By allowing more than one family to coadopt, the MFA scheme could be especially attractive to those who are qualified to adopt a child but may not have the time and resources to do so, because the time and cost required to raise an adopted child would be shared. It would also allow the co-adopters to form their own support group, much like an extended family. The Harris survey also found that the highest percentages of Americans who had considered adopting a child were those aged 35 to 54, married, and female. So, the MFA scheme could enable, for example, a working woman in her forties— who wants to adopt a child but may not have the time—to adopt a child with, for instance, some of her close friends.

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In general, by meeting the concerns of a large percentage of Americans who refrain from adoption because of time and monetary concerns, the MFA scheme could enable more children to be adopted into families where they are more likely to receive the love they need in order to develop adequately. No doubt, before implementing the MFA scheme, it will be important to investigate further whether children will in fact receive adequate love under such a scheme, how one should delineate and enforce responsibilities among primary and secondary parents, whether people in fact would be willing to participate in such a scheme, and how the diffusion of parental responsibility might affect a child’s development. But if such a scheme could ensure that, on the balance, more children are really loved, it may be worth the effort to explore it further. Conclusion While many intuitively believe that children have a right to be loved, and while many international declarations on children’s rights proclaim that children have such a right, a number of people, especially philosophers, are concerned that rights such as the one considered here are often claimed today without sufficient consideration as to whether these claims can be justified. In this chapter, by proposing that this right can be grounded as a human right and by showing that love can be an appropriate object of a duty, I argue that the claim that children have a right to be loved is not merely empty rhetoric. Furthermore, I challenge the common notion that the duty to love a child belongs only to the biological parents. If the right of children to be loved is in fact a human right grounded in the fact that children need to be loved to develop essential capacities needed for a good life, then we, as a society, also need to accept part of the duty to promote a child’s being loved as our responsibility. The idea of “associate duty-bearers” encourages us to rethink where our responsibilities toward children begin and end. To facilitate children’s right to be loved in practice, I also propose that we explore such institutional arrangements as mandating basic parenting education and promoting the Multi-Family Adoption scheme.

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Appendix Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49 Preamble The States Parties to the present Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the

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United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries, Have agreed as follows: PART I Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

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Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members. Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the

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child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 6 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. Article 7 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Article 8 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

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3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. Article 10 1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. Article 11 1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

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Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Article 13 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Article 15 1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

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2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 16 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. Article 17 States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29; (b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; (c) Encourage the production and dissemination of children’s books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18. Article 18 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary

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responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. Article 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

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Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. Article 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same

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protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention. Article 23 1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote selfreliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries. Article 24 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality;

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(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; (d) To ensure appropriate pre-natal and post-natal health care for mothers; (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; (f) To develop preventive health care, guidance for parents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. Article 25 States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement. Article 26 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

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Article 27 1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements. Article 28 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

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2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international co-operation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

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Article 31 1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity. Article 32 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances. Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

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(a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. Article 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare. Article 37 States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

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Article 38 1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest. 4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, selfrespect and dignity of the child. Article 40 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

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(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used; (vii) To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children

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are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. Article 41 Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: (a) The law of a State Party; or (b) International law in force for that State. PART II Article 42 States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. Article 43 1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided. 2. The Committee shall consist of ten experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. 3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. 4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the SecretaryGeneral of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated,

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indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention. 5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting. 7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee. 8. The Committee shall establish its own rules of procedure. 9. The Committee shall elect its officers for a period of two years. 10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly. 11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention. 12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide. Article 44 1. States Parties undertake to submit to the Committee, through the SecretaryGeneral of the United Nations, reports on the measures they have adopted which

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give effect to the rights recognized herein and on the progress made on the enjoyment of those rights: (a) Within two years of the entry into force of the Convention for the State Party concerned; (b) Thereafter every five years. 2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned. 3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided. 4. The Committee may request from States Parties further information relevant to the implementation of the Convention. 5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities. 6. States Parties shall make their reports widely available to the public in their own countries. Article 45 In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention: (a) The specialized agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

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(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications; (c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child; (d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties. PART III Article 46 The present Convention shall be open for signature by all States. Article 47 The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 48 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 49 1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

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What is Right for Children?

Article 50 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted. Article 51 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General. Article 52 A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

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Article 53 The Secretary-General of the United Nations is designated as the depositary of the present Convention. Article 54 The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed the present Convention.

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Eisenstadt v. Baird, 405 U.S. 438 (1972). Elsholz v. Germany, 2 F.L.R. 486 (2000). Employment Division v. Smith, 294 U.S. 872 (1990). Eski v Austria (Application no. 21949/03) (2007). Farrington v. Tokushige, 273 U.S. 284 (1927). Fields v. Palmdale School District, 427 F. 3d 1197 (9th Cir. 2005), reaffirmed, 447 F. 3d 1187 (9th Cir. en banc, 2006), cert. denied 127 S.Ct. 725 (2006). Freeman v. Pitts, 503 U.S. 467 (1992). G. v. G., EWCA Civ 170 (2005). Ginsberg v. New York, 390 U.S. 629 (1968). Goldman v. Weinberger, 476 U.S. 503 (1986). Gorzelik v. Poland, App. No. 44158/98 (Sect. 4) (2001). Graham v. Collins, 506 U.S. 461 (1993). Gratz v. Bollinger, 539 U.S. 244 (2003). Griffin v. County School Board, 377 U.S. 218 (1964). Griswold v. Connecticut, 381 U.S. 479 (1965). Grutter v. Bollinger, 539 U.S. 306 (2003). Hansen v. Turkey, 39 EHRR 18 (2004). Hartikainen v. Finland, Communication No. 40/1978 (views of 9 April 1981), U.N. Doc. A/36/40 (1981). Hearn v. Muskogee Public School District, Consent Order, E.D. Oklahoma CIV 03-598-S (2004). Hodgson v. Minnesota, 479 U.S. 417 (1990). Hoffman v. Austria, 17 Eur. H.R. Rep. 293 (1993). Hudoyberganova v. Uzbekistan, Communication No. 931/2000, U.N. Doc. CCPR/ C/82/D/931/2000 (2004). In re C.W., 818 N.E. 2d 1176 (2004). In re Gault, 387 U.S. 1 (1967). In re Marriage of Wang, 896 P.2d 450 (Mont. 1995). In re Stanford, 575 U.S. 968 (2002). In re Texas Department of Family and Protective Services, Texas Lexis 510, 51 Texas Sup. J. 967 (2008). In the Matter of an Application by ‘E’ for Judicial Review (2004), NIQB 35 (N. Ir.). In the matter of W., 2 FLR 1043 (2003). Ingraham v. Wright, 430 U.S. 651 (1977). Isaacs v. Board of Education of Howard Co., Maryland, 40 F. Supp. 3d 355 (D. Md. 1999). J. (A Child) [2007] EWCA Civ 906 (2007). J. v. C., AC 688 (1970). Johansen v. Norway, 23 EHRR 33 (1996). Johansen v. Norway, 23 EHRR 134 (1997). Johnson v. Calvert. 851 P.2d 776 (Cal. 1993). Karaduman v. Turkey, 74 Eur. Comm’n H.R. Dec. and Rep. 93 (1993).

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Witte, J., Jr. (2001). A Dickensian era of religious rights: An update on religious human rights in global perspective. William & Mary Law Review, 42, 707–770. Wolheim, R. (1999). On the emotions. New Haven: Yale University Press. Woodhouse, B.B. (1992). Who owns the child?: Meyer and Pierce and the child as property. William & Mary Law Review, 33, 995. Woodhouse, B.B. (1995). Of babies, bonding, and burning buildings: Discerning parenthood in irrational action. Virginia Law Review, 81, 2493–2521. Woodhouse, B.B. (1996). “It all depends on what you mean by home”: Toward a communitarian theory of the “nontraditional” family. Utah Law Review, 1996, 569. Woodhouse, B.B. (1999). Child custody in the age of children’s rights. Family Law Quarterly, 33, 815. Woodhouse, B.B. (2008). Hidden in plain sight: The tragedy of children’s rights from Ben Franklin to Lionel Tate. Princeton, NJ: Princeton University Press. World Congress of Families II. (1999). Geneva 1999: The Geneva declaration. Retrieved March 18, 2005, from http://www.worldcongress.org/WCF2/wcf2_ conv.htm World Congress of Families III. (2004, March 29–31). A call to all people of good will … Retrieved March 18, 2005, from www.worldcongress.org/WCF3/ wcf3_conv.htm World Congress of Families IV. (2007). Warsaw declaration. Retrieved February 13, 2008, from http://www.worldcongress.org/WCF4/wcf4.ini.htm WorldNetDaily.com. (2006, September 6). Sexual indoctrination bill vetoed. Retrieved November 30, 2008, from http://www.worldnetdaily.com/news/ article.asp?ARTICLE_ID=51866 Wright, W. (2007, February 23). CEDAW: A global tool that would harm women. Retrieved March 15, 2008, from Concerned Women for America, Beverly LaHaye Institute website: http://www.cwfa.org/articles/13101/BLI/nation/ index.htm Yngvesson, B. (2003). Going “home”: Adoption, loss of bearings, and the mythology of roots. Social Text, 21, 7–27. Yoo, J. (2004). Peeking abroad?: The Supreme Court’s use of foreign precedents in constitutional cases. University of Hawaii Law Review, 26, 385. Young, B.A. (2000). Characteristics of the 100 largest public elementary and secondary school districts in the United States, 1999–2000 (NCES 2001-346). Washington, DC: US Department of Education, National Center for Education Statistics. Yuracko, K.A. (2008). Education off the grid: Constitutional constraints on homeschooling. California Law Review, 96, 123. Zelizer, V.A. (1985). Pricing the priceless child: The changing social value of children. New York: Basic Books. Zellman, G.L. (1992). The impact of case characteristics on child abuse reporting decisions. Child Abuse & Neglect, 16, 57.

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Index abuse and neglect see child abuse and neglect; child protection/abuse and neglect system adoption co-adoption (Multi-Family Adoption (MFA) scheme) 361, 362, 363 feminist and religious fundamentalism in 70–3 hearings 188 national laws and CRC 17 open adoption (contact with birth parents) 165, 332, 362 permanency planning vs reunification 145, 149, 152 problems with emphasis on 151–3 see also transnational adoption Adoption Assistance and Child Welfare Act (AACWA/1980), US 148, 161, 184 Adoption Promotion Act (1997), US 152 Adoption and Safe Families Act (ASFA/1997), US 138, 145, 146, 148–9, 151–2, 153, 161, 185 adult criminal justice system see under juvenile offenders Africa, HIV/AIDS in 358–9 Aid to Families with Dependent Children (AFDC/1961), US 147–8, 150–1 Allen, M. 152 and Bissell, M. 152, 153, 163, 166 American Bar Association 109, 116, 129, 195 American Medical Association (AMA) 111–12 Amish sect (Wisconsin v. Yoder) 68–9, 72–3, 156, 173–4, 200, 289–90, 292 Appell, A.R. 131, 132–3, 134, 139, 140, 190 armed conflict, children in 8, 17 Atkins v. Virginia 89–90, 97

autonomous family theory vs public family theory 130–3 autonomy child representation 190–1 and dependent status of child in family 229–30 of family, US Constitution 62 of non-dominant families 142–3 of private provider agencies 190 Bartholet, E. 156, 334 battered women and child abuse, relationship between 163–4 removal of children 160, 164 Begum/R v. Headteacher and Governors of Denbigh High School 264–7, 299–303, 309 Belgium 17 Bergh, H. 179, 180 best interests of the child Article 3, CRC 7, 30, 271–2, 335–6 Belfast Agreement 313 child representation 191, 192 ECHR 271–3 paramountcy principle 270–1, 272, 273–4, 276, 277, 278–9, 282 and parental rights 128, 135, 141, 274–5, 276 parents’ emotional bond with child vs property right 154, 155 safety and family connection goals 167 vs welfare 274, 277, 279 Bias Free Curriculum Act, US 69 Bill of Rights of Children in Divorce Actions (1966), US 347 International 46–8 US 200 Bingham, Lord Justice 266, 278–9

440

What is Right for Children?

Blackmun, Justice 63 Blackstone, W. 3 Bradley, Justice 62–3, 65–6 Bradwell v. Illinois 62–3, 65–6 brain imaging/neuroscience 112, 349–50 Brennan, Justice 294 Brown v. Board of Education 53, 57, 207, 224–5 Bulgaria, transnational adoption case 342–3 Bulger case (V. v. United Kingdom and T. vs. United Kingdom) 120–1 Butler Sloss, Lady Justice 279 CA see Children Act Caban v. Mohammed 125, 128 Cahn, N. 147–9, 151, 153, 158, 159, 160, 164, 165–6, 167 Campaign for Children and Families, US 69 Canada 2, 61 wearing of religious symbols in schools (per se accommodation model) 304–6 CAPTA see Child Abuse Prevention and Treatment Act Caretaker Account 359 Carlson, A.C. 25, 26, 33 and Mero, P.T. 27, 29 Case, M. 32, 60 ‘Charter of the Rights of the Family’ 37–9 CEDAW see Convention on the Elimination of All Forms of Discrimination Against Women child abuse and neglect and battered women, relationship between 163–4 and parents’ emotional bond with child vs property right 154 protection from 16–17, 30, 323 Child Abuse Prevention and Treatment Act (CAPTA/1974), US 183, 184, 186, 187, 190 child pornography and prostitution 8, 17 child protection/abuse and neglect system 145, 146, 147–8 agencies 161 parental fitness 156–7

post-removal 164–6 and poverty 136–9, 149–50, 155–9, 163 pre-removal 161–4 and race 136–7, 138, 142, 150, 158, 160–1 and welfare law 150–1 see also adoption; fostering; private providers; entries beginning state Child Welfare League of America 162 childbearing as parental paradigm 125 Children Act (CA/1998), UK 270–1, 273–4, 276, 278–9, 280 Children’s Defense Fund, US 52 Children’s Internet Protection Act (CIPA/2000), US 13 China, adoption of children from 331 Choudhry, S. 269, 270, 275 Christian cross 286 Christian rosaries 293 Christianity concepts of family 21–2 ‘familism’ 33–4 natural family manifesto 27–8 organizations 23–6 rejection of sex equality 32–3 subsidiarity 33–4, 41–2, 43 US Conference of Catholic Bishops (NCCB) 22, 35–43 home schooling 26, 28, 34, 50, 54–5, 234, 235 opposition to human rights instruments 28–32, 45, 54–5 opposition to sex equality 32–3 in child custody and adoption 70–1, 72–3 in education 67–9 proponents for role of religion in public life 295–6 Roman Catholicism, France 296, 298 UK schools 298–9 see also religious division and education, Northern Ireland Christianson v. Northwest Marriage Institute 67 Civil Rights Act (1964), US 208, 225 civil rights movement 53, 57, 207–8 class see poverty; race

Index co-adoption (Multi-Family Adoption (MFA) scheme) 361, 362, 363 collaborative enforcement of federal right to education see under education colonial indentures 177–9 Commissioner for Children and Young People Order (2003), N. Ireland 313, 314 Committee on the Rights of the Child 17 education 214–15 religious freedom 244, 250, 251–2, 263 transnational adoption (‘Children without Parental Care’ discussion) 332–3, 344–5 communal connection see transnational adoption community -based care vs transnational adoption 332–3, 335, 344–5 duty of biological parents and wider 354–8 involvement in child protection 160, 161–2, 163, 164–5, 193 complaint mechanisms, education rights violations 215–16, 220 Concerned Women for America (CWA) 23 confidentiality in court proceedings 113 contact rights and disputes 273–7, 279 see also termination of parents’ rights (TPR) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 20, 21, 22, 49 opposition to 21, 22, 23, 28, 29, 30, 31, 32, 33 Convention on the Elimination of All Forms of Racial Discrimination 49 corporal punishment in schools 234 court participation by private providers 187–90 Cranston, Senator 184 Crenson, M. 146, 147 crime juveniles as victims of 52 and policing, Northern Ireland 326–7 see also juvenile offenders

441

Crouse, J. 28, 31, 32, 44 and Wright, W. 31–2 cruel and unusual punishment (Eighth Amendment) 101–4, 108, 109 culture and identity issues in transnational adoption 333–5, 338–40, 344 custody child health insurance 361 feminist and religious fundamentalism in 70–3 lesbian and gay parents 135 sex equality legislation 280–2 state, ambiguous relationship of children in 200–2 Dahlab v. Switzerland 261–2 Davis v. Page 67–8, 69 death penalty see juvenile death penalty Declaration of the Psychological Rights of the Child (1979) 347 Declaration on the Rights of Persons Belonging to National or Ethnic, Religios and Linguistic Minorities (1993) 341–2 De la Vega, C. 93, 109, 119, 217 Denmark, Kjeldsen et al. 253, 254, 255, 318 dependent status of child in family 229–30 DeShaney v. Winnebago County Department of Social Services 174–5, 201–2 development principle see evolving capacities of the child direct file/prosecutorial waiver 115 disability rights Article 23, CRC 245 Individuals with Disabilities Education Act (1975) 225 dispositional reviews 188–9, 191 divorce 135 Bill of Rights of Children in Divorce Actions (1966), US 347 of child from parents (Kingsley) 202, 203 and non-custodial parent’s emotional bond with child vs property right 155 see also contact rights

442

What is Right for Children?

domestic violence see battered women Draft Declaration on the Rights of Indigenous Peoples (1994) 341, 342 dress see head coverings; Islamic headscarf; Islamic veil (hijab and jilbab); religious expression in public schools Drizin, S. 113 drug abuse and parental rights doctrine 137 testing and treatment 151, 153, 163 Dwyer, J.G. 68, 72, 236, 243, 268 early prevention in child protection 162–3 Economic Covenant see International Coventant on Economic, Social, and Cultural Rights economic rights, US opposition to CRC 51–3 education ‘Charter of the Rights of the Family’ 38 collaborative enforcement of federal right case for 222–7 definitions 216–17 federal attempts to address inequalities 207–11 international human rights models as guideposts 211–16 legislation 208–10, 220–7 model 217–20 feminist and religious fundamentalism in 66–9 inequalities between states 205–6, 232 objectives of 230–1 and religion 156, 173–4, 177, 229, 236 see also religious division and education, Northern Ireland; religious expression in public schools education rights US and CRC 53–4 violations, complaint mechanisms 215–16, 220 Eichner, M. 130, 153, 159, 166 Elementary and Secondary Education Act (ESEA/1965), US 208–9, 225

Elsholz v. Germany 272, 274, 275 emotional bonds with child vs property right 154–5 see also love Employment Division v. Smith 290–1, 292 England 2, 3 see also United Kingom (UK) ethnic minorities non-Christian, Northern Ireland 316–17 religious freedom, Article 30, CRC 248–9 see also race European Court of Human Rights (ECHR) 269–70 corporal punishment 234 and CRC, articles pertaining to religious freedom and education 250, 314, 317 home schooling 234 sex education 318 transnational adoption 342–3 and UK law Article 8 (right to respect for ‘private and family life’) 270–82 passim, 336 Holy Cross Catholic primary school, Northern Ireland 323 V. v. United Kingdom and T. vs. United Kingdom (Bulger case) 120–1 see also religious freedom, ECHR evolving capacities of the child (Article 5), CRC 10, 30, 34, 245–6, 336 extreme sanctions/proportionality 119–21 Fagan, P. 24–5, 29, 30, 32 ‘familism’ 33–4 family Christian concept of see Christianity, concepts of family state and religion 2–4 traditional/natural, US and CRC 9–14, 21–2, 23–8 family autonomy US Constitution 62 vs public family theory 130–3

Index Family and Medical Leave Act (FMLA/1993), US 63, 64 family perspective paradigm 22, 39–43 family preservation and reunification 145, 146, 149, 161, 165–6 services, early prevention efforts 162–3 family privacy definition of father as non-maternal parent 125–6 political harms of devaluing 139–43 value of 130–3, 134–9, 141–2 Family Research Council (FRC), US 25–6, 30 Family Unification Program 163 Farrington v. Tokushige 156 fathers contact rights and disputes 274–5, 279 definitions and roles of 125–7, 281–2 federal legislation adoption and children’s rights 159 education 208–10, 220–5 family preservation services 167–8 permanency planning and adoption vs reunification 152 and state intervention, abuse and neglect system 181–5 federal right to education see education, collaborative enforcement of federal right federalism, US 15 Federle, K.H. 135, 190, 191 feminist and religious fundamentalism in child custody and adoption 70–3 in education programs 66–9 Texas FLDS case 74–7 Fineman, M. 38–9, 63, 104, 129, 130, 134, 135–6, 154, 156, 196 Finland 272 Forsythe, D. 47 fostering ambiguous relationship of children in state custody 200–2 families’ identity, children’s interests 153–9 federal involvement in 146–9 increase in 185 long term 165

443

parent and birth parent relationships in Family-to-Family program 164–5 potential adoption families 362–3 and poverty 146–8 problems with return to removal 149–53 rights issues in US 195–6, 202–3 suggestions for more humane implementation 159–66 Tony (case example) 196–9, 202–3 US Constitution 199–200 US Department of Health and Human Services (DHHS) data 197 France 61 wearing of religious symbols in schools (secularist/assimilationist model) 296–8 freedom of association (Article 15), CRC 246–7 freedom of expression right (Article 13), CRC 11–12, 246–7 freedom of thought, conscience and religion (Article 14), CRC 13–14, 246–7, 247–8, 249–52, 268 Freeman, M. 215, 245, 324 Fundamentalist Church of Latter Day Saints (FLDS) 74–7 funding Caretaker Account 359 education faith schools 298 federal 219–22 school finance litigation 218, 222–4, 226 school vouchers 236 Garrison, M. 135, 136, 137, 177 Geneva Convention on Civilians 86, 88 Germany 17 Elsholz 272, 274, 275 Konrad 234 Ginsberg v. New York 11 Goldman v. Weinberger 294 Gordon, L. 136, 142, 180 Greece Jehovah’s Witnesses cases 255–6, 257, 261 transnational adoption case 342–3 Grisso, T. 111, 113

444

What is Right for Children?

Grutter v. Bollinger 56, 98, 104 Guardianship of Infants Act (1925) 280–1 Guggenheim, M. 133, 138, 159, 160, 175, 191, 243, 254 Hague Convention 334, 335, 337–8, 340 hair length, Native Americans 293, 294–5 Hale, Baroness 302, 303 Hamilton, C. 250, 255, 256 Harris, D.J. 47, 257, 258 head coverings African/Jamaican headwrap 293 Sikh turbans 296, 299 see also Islamic headscarf; Islamic veil (hijab and jilbab) health insurance 361 health risks of poverty 52 Heritage Foundation, US 23–5 historical perspectives human rights, US 46–9 US legal system response to child abuse and neglect 176–85 Holy Cross Catholic primary school, Northern Ireland 322–3 Home School Legal Defense Association (HSLDA), US 50, 54–5 home schooling Christians 26, 28, 34, 50, 54–5, 234, 235 sex equality 68 home visiting programs 162 homosexuality see lesbian and gay issues Hoodfar, H. 285, 286 housing vouchers 166 Howard Center 26 Human Rights Act (HRA/1998), UK 270–1, 275, 279, 282, 323 Human Rights Committee (HRC) 215–16 human rights, US 46–9, 95–100 Human Rights Watch/Amnesty International (HRW/AI) 102, 104, 119–20 ICCPR see International Coventant on Civil and Political Rights ICESCR see International Coventant on Economic, Social, and Cultural Rights

Improving America’s Schools Act (IASA/1994) 209 incarceration African American mothers 160 of juveniles with adults 118–19 life imprisonment without possibility of parole (LWOP) 101–3, 119–20, 121 Indian Child Welfare Act (ICWA/1978), US 344, 345 Indian/Native Americans’ hair length 293, 294–5 information access rights Article 13, CRC 317 Article 17, CRC 12–13 International Bill of Rights 46–8 International Covenant on Civil and Political Rights (Political Covenant/ICCPR) and CRC 9–10 rights pertaining to religious freedom 247–8, 249, 250 educational rights violations complaint mechanism 215–16, 220 historical perspective, US 47–8, 49 juvenile death penalty, US 86, 88, 89, 91, 92, 93, 94–5, 96 juveniles in adult criminal justice system 117, 119 legal standards for juveniles, US 104–5 life imprisonment without possibility of parole (LWOP) 102 International Coventant on Economic, Social, and Cultural Rights (Economic Covenant/ICESCR) 47–8, 49, 51, 53 education rights, definition and enforcement mechanisms 211–14 Iraq invasion and occupation 195 Islamic headscarf Switzerland 261–3 Turkey 258, 259–61 Islamic Shari’a law 251 Islamic veil (hijab and jilbab) 285–6 Canada 304 France 296–8 UK 264–7, 299–303, 309

Index US 288–9, 292, 307, 308 Jewish kippah/yarmulke 285, 286, 288, 294 Jewish school, free transport case 264 Johansen v. Norway 274–5 judicial transfer/legislative waiver 114–15, 116–17 juvenile death penalty, US CRC 14–15, 89, 90, 92, 93–4, 96 international law 92–7, 105–6 Supreme Court 83, 84–92 see also Roper v. Simmons Juvenile Justice and Delinquency Prevention Act (JJDPA), US 119 juvenile offenders in adult criminal justice system 112–13 extreme sanctions/proportionality 119–21 incarceration with adults 118–19 trial in adult criminal court 113–18 lesser culpability principle 110–13 life imprisonment without possibility of parole (LWOP) 101–3, 119–20, 121 Karst, K.L. 131, 125, 142 Kempe, C.H. 181 Kent v. United States 114 Kilbourne, S. 50, 324 Kilkelly, U. 253, 268 et al. 311, 313, 314, 315–16, 318–19, 322, 325–6, 327 and Lundy, L. 245, 268, 323–4 Kingsley 202, 203 kinship care 164 Kjeldsen et al. v. Denmark 253, 254, 255, 318 Konrad v. Germany 234 Korea, adoption of children from 331 Kymlicka, W. 284, 343 Ladd, H.F. and Hansen, J.S. 205, 210, 223–4 Larsen, J. 137 Lawrence v. Texas 97

445

legislative waiver/judicial transfer 114–15, 116–17 Lehr v. Robertson 125, 127 lesbian and gay issues custody 135 in education 69–70, 319 parenting rights 72 lesser culpability principle 110–13 life imprisonment without possibility of parole (LWOP) 101–3, 119–20, 121 love deprivation studies 349–50 duty of biological parents and wider community 354–8 capacities and commandability 351–4 as human right 348–51 policy considerations 358–63 see also emotional bonds Lundy, L. 311, 312, 313, 315, 317, 318, 321, 322 McClain, L. 24, 32, 33 McGuinn, J.P. 205–6 Mangold, S. 185 Margulies, P. 191 marriage promotion of 67 see also Christianity, concepts of family Mary Ellen (child abuse and neglect case) 179–80 matrifocal parental rights doctrine 124–9 Menora v. Illinois 286, 288, 289–90 mentally retarded offenders, prohibition of execution of 89–90, 97 Meyer v. Nebraska 11, 156, 170, 171, 172–3, 174, 175 Michael H. v. Gerald D. 125–6, 127, 156, 200 Minow, M. 55, 153–4, 162, 170–1, 183 Mississippi University for Women v. Hogan 60, 72 Mnookin, R.H. 169, 170 Mondale Hearings 182–3 Mormonism 75

446

What is Right for Children?

motherhood African American 134, 160 attacks on 30–2, 140–1 childbearing as parental paradigm 125 matrifocal parental rights doctrine 124–9 pension laws 147 rights vs welfare approaches 281–2 and women’s employment 39, 41 see also drug abuse Motion Picture Association of America (MPAA) 12–13 Mozert v. Hawkins County Board of Education 54, 67 Multani v. Commission Scolaire Marguerite-Bourgeoys and Attorney General of Quebec 286, 304–6 National Child Abuse and Neglect Data System (NCANDS), US 16 National Commission on Excellence in Education, US 226 National Conference of Catholic Bisphops (NCCB) 22, 35–43 National Family Preservation Network, US 162 National Juvenile Defender Center 109, 117 ‘The natural family: manifesto’ 27–8 Neighborhood Children’s Protection Act (NCIPA/2000), US 13 neuroscience/brain imaging 112, 349–50 Nevada Department of Human Resources v. Hibbs 63, 64, 65 Nicholson v. Williams 164 No Child Left Behind Act (NCLB/2001), US 206, 209–10, 217, 219, 225–6 non-discrimination (Article 2), CRC 7, 317 Northern Ireland see religious division and education O’Connor, Justice 86–8, 91, 96, 105–6 Oliver, Lord 276, 278 Olsson v. Sweden 254, 270, 271 open adoption 165, 332, 362 Ormrod, Lord Justice 278

Palmore v. Sidoti 65 paramountcy principle 270–1, 272, 273–4, 276, 277, 278–9, 282 parent–child–state interests in education 229–37 parent–child–state triangle of rights 170–6 parent–child–like relations based on nurture 126 parental choice in child’s education 231–2, 233–4, 235–7 parental control, US vs CRC 11–14, 29–30, 50, 54–5 parental rights CRC 10, 11, 14 extent and nature of 127–9 and parental fitness 156–7 post-removal child welfare arrangements 165 religious beliefs and education of children 289–90, 294–5 sex education 318 two-tier model 157 see also contact rights; termination of parents’ rights (TPR) parental rights doctrine alternatives to 139–41 criticisms of 123, 134, 143 matrifocal 124–9 see also family privacy parenting education 360–1 parents definitions 124–7, 139–41 see also emotional bonds; love participatory rights, CRC and US 10–11 Payne v. Payne 276 permanency planning vs reunification 145, 149, 152 Personal Responsibility and Work Reconciliation Act (PRWRA/1996), US 135, 137, 185 Peters, J.K. 136, 192 Pierce v. Society of Sisters 156, 170, 171–3, 174, 175, 289–90 Plessy v. Ferguson 53 Poland, transnational adoption case 342–3 Political Covenant see International Coventant on Civil and Political Rights

Index polygamy 74–7 Postcards from Buster (US TV series) 69–70 poverty 51–2 and child protection services 136–9, 149–50, 155–9, 163 and educational opportunity 206 and family privacy 135–7, 141–3 and foster care 146–8 pregnant women, drug testing and treatment of 163 Prince v. Massachusetts 172–3, 175 Pringle, M. 348–9 private education institutions, US 232–3, 236, 290 private providers current system 186–90 development 179–81 historical perspective 176–85 roles cases developing 175–6 as representative of children 190–2 proportionality/extreme sanctions 119–21 prosecutorial waiver/direct file 115 public family theory vs autonomous family theory 130–3 Quilloin v. Walcott 125, 127 race African American mothers 134, 160 and child protection 136–7, 138, 142, 150, 158, 160–1 and class issues in US opposition to CRC 51, 53, 56 Draft Declaration on the Rights of Indigenous Peoples (1994) 341, 342 and juvenile crime 114–15, 116, 120 and poverty 150, 158 school desegregation 207–8 US constitutional commitment to equality 65 see also ethnic minorities; transnational adoption Race Relations Act (1976), UK 299 Re D. (a child) (intractable contact dispute) 277

447

Re K.D. (A Minor) (Ward: Termination of Access) 276, 278 Re T. (contact: Alienation: Permission to Appeal) 277 Rehnquist, Chief Justice 63–5, 87, 89, 91, 96 religion state and family 2–4 see also feminist and religious fundamentalism; specific religions religious division and education, Northern Ireland and CRC shortcomings 323–5 crime and policing 326–7 family life 326 impact of religion on right to effective education 317–20 NICCY research 313–14 Protestant and Catholic conflict 311–12 religious identity and protection from sectarian harassment 322–3 respect for freedom of conscience in school 314–17 school segregation 312, 320–2, 325 treatment of non-Christian ethnic minority population 316–17 religious expression in public schools cultural significance of dress 285–7 models and legal standards 287–306 turning the tables 306–10 religious freedom ECHR 252–63 Article 9 252–3, 257–8, 259, 260, 262, 265, 266, 300–1 child’s right 257–63 parental rights (Article 2) 250, 253–6, 257–8 respect for religious convictions of parents 254–7, 317 mixed messages and need for leadership 267–8 UN CRC 244–52 contribution of Committee on the Rights of the Child 244, 250, 251–2, 263 international consensus 244–5

448

What is Right for Children?

parental guidance in exercise of child’s right 249–51 parental rights and evolving capacity principle 245–6 participation rights 246–7 religious freedom right 247–9 US Constitution 62 Religious Freedom Restoration Act (RFRA/1993), US 291, 292 Reno v. Flores 201–2 Restatement (3rd) of Foreign Relations Law of the United States 95–6 reunification and family preservation 145, 146, 149, 161, 165–6 following state care of child 138 housing vouchers 166 multiple demands of differing public programs 151 vs permanency planning and adoption 145, 149, 152 Roberts, D. 134, 156, 158–9, 160, 162 Roberts v. City of Boston 53 Roberts v. Roberts 71, 72 Romania 17 adoption of children from 331 Roper v. Simmons 15, 83, 89–92, 93, 96–7, 108–9 arguments of amici in 98–100, 109–10 implications of references to international law 100–5 lesser culpability principle 110–11, 112, 113 extreme sanctions/proportionality 119, 121 incarceration with adults 118, 119 trial in adult criminal court 113–14, 117–18 Ross, C.J. 137, 147, 151, 153, 157, 160, 164, 294 Ross, C.J. and Cahn, N. 147, 159 Russia, adoption of children from 331 Rwanda 17 Sahin v. Turkey 259–61, 265, 267 San Antonio Independent School District v. Rodriguez 206, 223, 226 Santosky v. Kramer 11, 126, 128, 174, 203

Save the Children 332–3 Scalia, Justice 87–8, 91–2, 93, 96, 97, 111, 201, 202 school desegregation, US 207–8 school finance litigation 218, 222–4, 226 school segregation, N. Ireland 312, 320–2, 325 school vouchers 236 Scotland 17 secularism ‘pervasive secularism’ in US public schools 293–4 wearing of religious symbols in schools (secularist/assimilationist model), France 296–8 sex education, N. Ireland 317–20 sex equality Christian opposition to 32–3, 67–9, 70–1, 72–3 and gender neutrality doctrine 30–1 legislation and custody rights 280–2 as particular and universal value 59–61 US Supreme Court cases 61–6 see also feminist and religious fundamentalism; lesbian and gay issues sexual abuse in religious cults 74–5 Shepp v. Shepp 75 Sikh kirpan 285, 286, 289, 304–5, 306 Sikh turbans 296, 299 Smith v. Organization of Foster Families for Equality and Reform (OFFER) 125, 126, 175–6, 200, 203 Snyder, H.N. and Sickmund, M. 114, 115, 116, 117, 118 social class see poverty; race Social Security Act, US 148, 185 Society for the Prevention of Cruelty to Children (SPCC), US 180–1 sodomy laws, US 97 Somalia 8 Souter, Justice 67 spanking 30 Spitz, R. 349 Stanford v. Kentucky 87–9, 108, 109 Stanley v. Illinois 125, 127, 128 Stanton v. Stanton 62, 65 state custody 200–2

Index state intervention and parental rights 127–8, 129, 130, 136–8, 139, 142 vs private providers 193 see also child protection/abuse and neglect system state parental responsibilities 138, 201 Steed (In re Sara Steed) 74–5 Steinberg, L. 111 Steiner, H.J. and Alston, P. 213, 218 stewardship principle 10, 14 subsidiarity 33–4, 41–2, 43 Telecommunications Act (1996), US 12 Templeton, Lord 276 Temporary Assistance to Needy Families (TANF), US 150–1, 163 termination of parents’ rights (TPR) 188, 189 case examples 196–7, 198, 202, 203 Thompson v. Oklahoma 83, 84–7, 109, 117, 119–20 Tinker test 289, 309 Tinker v. Des Moines Independent Community School District 200, 285, 292 transnational adoption 331–2 children’s right to communal connection 335–40 communal rights of connections with children 341–5 critiques and defenses 332–5 negotiating politics of belonging 345 trial in adult criminal court 113–18 Troxel v. Granville 128, 203, 290 Tulkens, Judge 260–1 Turkey 258, 259–61 UNICEF 8, 17, 20, 32, 44, 250, 251 United Kingdom (UK) Children Act (CA/1998) (and ‘paramountcy principle’) 270–1, 273–4, 276, 278–9, 280 corporal punishment in schools cases 234 cultural diversity 284 England 2, 3

449

Human Rights Act (HRA/1998) 270–1, 275, 279, 282, 323 Scotland 17 wearing of religious symbols in schools (mutual reasonable accommodation model) 298–303 see also under European Court of Human Rights (ECHR) United Nations Convention on the Rights of the Child (CRC) 1–2 articles 366–87 appendix core areas 7–8 founding 7 preamble 365–6 appendix ratification 8 and reservations 336 see also CRC under United States (US) and specific issues Universal Declaration of Human Rights 47 United States (US) Bush Administration 46, 56, 95–6, 106, 195–6, 292 Carter Administration 49 Conference of Catholic Bishops (NCCB) 22, 35–43 and CRC 9–14, 18, 104–5 non-ratification 8–9, 20, 21–2, 45–6, 195–6, 236–7 opposition to 45, 49–57 Optional Protocols 8 sovereignty concerns 14–17, 31–2, 33–4 dress and school codes 287–8 Equal Rights Amendment (ERA) 64 historical perspective on human rights 46–9 non-ratification of CEDAW 20, 21, 22, 49 President’s Emergency Plan for AIDS Relief (PEPFAR) 358–9 transnational adoption 331 ‘war on terror’ 95–6, 99, 103, 106, 195 wearing of religious symbols in schools (individualized accommodation model) 287–96

450

What is Right for Children?

White House Conference on the Care of Dependent Children (1909) 146–7 US Constitution 61, 62, 65, 195–6 Eighth Amendment 101–4, 108, 109 First Amendment 72, 289 Fourteenth Amendment 174 Free Exercise Clause vs Establishment Clause 289, 290–1, 308 and international legal standards for juveniles 104–5 matrifocal parental rights doctrine 124–5 US Department of Education 288, 291 US Department of Health and Human Services (DHHS) 16, 17, 148, 158, 161, 183, 186, 197 US Department of Justice 292–3 US Supreme Court 15 articulation of sex equality as priority 61–6 educational opportunities 206, 207–8 juvenile death penalty 83, 84–92 matrifocal parental rights doctrine 124–7, 130 parent–child–state triangle 170–5 parental rights 156–8 V. v. United Kingdom and T. vs. United Kingdom (Bulger case) 120–1 Vienna Convention on the Law of Treaties 84

Vietnam 17 adoption of children from 331 views of the child (Article 12), CRC 7, 8, 246, 251–2, 311 violence Protestant and Catholic conflict, Northern Ireland 311–12, 322, 327 see also battered women Volokh, E. 72, 291 Wang (In re Marriage of Wang) 71, 72, 75–6 ‘war on terror’ 95–6, 99, 103, 106, 195 Weinberger v. Wiesenfeld 64–5 Wellman, C. 357 West, R. 129. 130, 142 West Virginia State Board of Education v. Barnette 305 White House Conference on the Care of Dependent Children (1909) 146–7 Wilder v. Bernstein 175, 176 Wisconsin v. Yoder 68–9, 72–3, 156, 173–4, 200, 289–90, 292 Woodhouse, B.B. 7, 11, 129, 154, 170, 171, 183, 290, 294 World Congress of Families (WCF) 26 Wyman v. James 157–8 Yousef v. Netherlands 272 Zeidenberg, J. 114, 116 Zelman v. Simmons-Harris 67, 290