In Loco Reipublicae
abstract. The Supreme Court has long held that children enjoy a range of constitutional rights and has emphasized the critical importance of many of these rights to children’s development as democratic citizens. At the same time, the Court has been resolute in its protection of parents’ near-absolute authority to control the upbringing of children. Indeed, the Supreme Court’s steadfast commitment to broad parental rights under the Due Process Clause effectively diminishes, if not outright nullifies, the Court’s stated protections for children as rights-bearing citizens. The stakes for children have only heightened as parents increasingly seek to exercise their authority to shield their children from certain ideas, such as ideas about racial injustice or gender inequality, that are essential to their development as full citizens in a pluralistic, democratic polity.
This Article offers a new framework for children in constitutional law, one that elevates children’s rights as developing citizens by recognizing parental duties to respect those citizenship rights. The in loco reipublicae framework positions parents as standing in place of the state with constitutional duties to ensure children’s acquisition of the knowledge and skills needed for citizenship in our democratic polity. Parental in loco reipublicae duties are rooted in a potent constitutional mixture of parents’ unique custodial authority over children and children’s own citizenship rights. While children’s free speech rights are not the only constitutional rights that protect children’s citizenship interests, they are a powerful exemplar of parental duties to ensure children’s access to ideas outside the home. In articulating a theory of children’s citizenship rights and parents’ corresponding duties, the in loco reipublicae framework aims to fortify the parent-child relationship while, at the same time, respecting children as developing democratic citizens in their own right
author. Ellen Ash Peters Professor, University of Connecticut School of Law. Many colleagues and friends helped me develop the ideas in this Article. For their comments on early drafts, I thank Anne Alstott, Susan Frelich Appleton, Kiel Brennan-Marquez, Emily Buss, David Cole, Richard Dailey, Clare Huntington, Leslie Levin, Martha Minow, Doug NeJaime, Robert Post, Peter Siegelman, Nomi Stolzenberg, and Martha Umphrey. Special thanks go to Laura Rosenbury and Steven Ecker. I also benefited from faculty workshops at the University of Arizona James E. Rogers College of Law, Harvard Law School, the University of Connecticut School of Law, and the New York Area Family Law Scholars. Finally, I am very grateful to Donovan Bendana, Callie McQuilkin, and Jackie Bashaw for research assistance and to the Yale Law Journal editors, especially Emma Findlen LeBlanc, for excellent editorial work.
The United States Supreme Court has long held that children possess free speech rights under the Constitution. As early as 1943, in West Virginia State Board of Education v. Barnette, the Court held that the First Amendment barred the State of West Virginia from requiring school children to salute the flag.1 The Court’s most famous pronouncement of the principle that children have free speech rights came two decades later in Tinker v. Des Moines Independent Community School District,where the Courtdeclared: “It can hardly be argued that [students] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”2 Affirming the right of students to wear black armbands in protest of the Vietnam War, the Tinker Court held that, as long as children’s speech does not disrupt the learning environment or invade the rights of others, children are constitutionally entitled to express their views in school.3
One of the great contributions of the Supreme Court’s Tinker decision to the constitutional law of children was its full-throated recognition of children as independent rights-holding citizens. Prior to Tinker, the Court had largely accepted the then-prevailing view that children were vulnerable dependents in need of care and concern rather than rights.4 The Tinker case heralded a new era in constitutional law that viewed children as independent persons entitled to the enjoyment of certain rights guaranteed by the Constitution.5 Among the most prominent of those rights was children’s right to free speech under the First Amendment.6
A less heralded, but no less significant, contribution of the Tinker decision was its assertion that children’s freespeech rights in school foster their development as democratic citizens. Tinker’s protection for children’s right of free speech in school situated children as developing citizens in a pluralistic, often contentious democracy. In the Tinker Court’s view, the public-school classroom is “peculiarly the ‘marketplace of ideas’” where “leaders [are] trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues.’”7 Notably, the Court’s affirmation of children’s free speech rights in school rested on the presumption that children possess free speech rights outside of school. In its oft-quoted passage, the Tinker Court declared that students do not shed their First Amendment rights at the schoolhouse gate.8 The implication was clear: in school, children’s free speech rights may be restricted to prevent children from disrupting the learning environment or violating the rights of others.9 Outside of school, the Court implied, children enjoy greater expressive freedoms.
But Tinker had it backwards. Children in fact acquire their free speech rights at the public schoolhouse gate. Outside of school, children may exercise their free speech rights only at the pleasure of their parents—which is to say they effectively have few or no actual expressive freedoms.10 The Court’s presumption of out-of-school rights, while narrowly true to the doctrine of state action, nevertheless ignores the reality that all children live under the near-absolute, constitutionally granted authority of parents. Parents can prevent their children from speaking and can punish them for speech that does take place. They can cut off children’s access to friends, isolate them in the home, deprive them of money, advertise their sins to the world, or physically punish them. Parents can restrict children’s access to books, ideas, and the internet. If children try to evade parental restrictions by running away or otherwise disobeying their parents, the state will step in on the side of parental authority. The police will either return runaway children to their parents or take the “incorrigible” youths into state custody. In fact, public school is one of the few places where children may claim the right to express themselves free from direct parental oversight and restrictions.
Parental authority over children is not simply a matter of state family law but has century-old roots in constitutional law. Parental rights have long been a cornerstone of the Court’s substantive due process jurisprudence, protecting parents’ authority “to direct the upbringing and education of children under their control.”11 Even those who question the legitimacy of the Court’s recognition of unenumerated rights nevertheless make room for parents’ constitutional right to raise their children free from state intervention.12 Established wisdom therefore has it wrong: children’s free speech rights actually come into being only when children enter the public schoolhouse gate. Outside of school, children’s free speech rights are only as free as parents want them to be.
In constitutional terms, parents, like children, “are different.”13 The Fourteenth Amendment has been held to bestow upon parents unique and near-absolute powers of control over other persons, namely their children. It is this constitutional grant of near-complete custodial power that sets parents apart. No other private actor has such far-reaching, constitutionally sanctioned control over another’s life, including control over what that other person can say and hear. Moreover, parents’ custodial powers bear on the very foundation of children’s place in the constitutional order: their right to become adult democratic citizens. Of course, parents are not state actors, and, doctrinally speaking, private actors are not generally subject to constitutional imperatives. But, as explained in this Article, while parents do not violate the First Amendment when, for example, they tell their children to quiet down at the dinner table, parents’ unique custodial powers over children do have legal implications. In particular, these custodial powers, including parents’ power to control what their children say and hear, are of serious constitutional consequence.
That consequence is this: constitutional law governing parents and children must be reframed to reflect the fact that parents have more than rights; they also have duties to respect the citizenship rights of children in their custody. Citizenship rights are rights held by children as developing citizens; these rights serve to equip children with the knowledge and skills required of independent, self-governing democratic citizens. Citizenship rights are broad, but well defined. The category includes children’s First Amendment rights of free expression,14 but also much more. As Brown v. Board of Education emphasized, children’s right to equality in education is critical to fostering their future citizenship as full and equal members of the democratic polity.15 Children’s right of association facilitates their democratic socialization by exposing children to the views of others and by giving them the opportunity to engage in political activities.16 Children’s due process right to maintain relationships with parental caregivers is essential to the development of the democratic skills of deliberation and choice.17 Children’s right to religious freedom ensures children’s developing beliefs are of their own choosing.18 Even children’s criminal-procedure rights reflect not only respect for children as independent persons but also a concern with modeling procedural fairness for developing citizens.19 In all these areas, children’s rights protect and promote their socialization into full adult citizens of our democratic polity.20
This Article offers a new framework for children in constitutional law oriented around children’s core citizenship rights rather than parental rights of control. The framework recognizes parents’ fundamental constitutional duties to respect children’s rights as developing democratic citizens while still protecting the integrity of the parent-child relationship. When combined with children’s unique custodial status, children’s citizenship rights give rise to what this Article terms parental in loco reipublicae duties. Parents’ in loco reipublicae duties are rooted in two antecedent constitutional principles: that children are in the constitutionally mandated custody of parents, and that children have citizenship rights that ensure their development as democratic citizens. This powerful constitutional fusion of parents’ custodial power and children’s citizenship rights produces duties on the part of parents to ensure children’s opportunity to acquire the knowledge and skills of democratic citizenship.
The term in loco reipublicae conveys the idea that parents stand in place of the state with respect to children’s development into adult democratic citizens outside of school.21 The term inverts the state’s familiar in loco parentis duty to care for children in state custody, thus invoking a well-settled template for shared parent-state responsibilities to children. The designation in loco reipublicae is meant tocapture the idea that, as children’s custodians, parents have vital constitutional duties to ensure that children acquire the knowledge and skills of democratic citizenship.
The concept of parental duties to children is not entirely foreign in constitutional law. Almost a century ago, the Supreme Court affirmed that “those who nurture [a child] and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”22 More recently,in Wisconsin v. Yoder,the Court clarified that“[t]he duty to prepare the child for ‘additional obligations’ . . . must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship.”23 And, in Bellotti v. Baird,the Court further explained that “[t]his affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.”24 These cases and others lay the foundation for a constitutional jurisprudence that recognizes parents’ obligations to respect and further children’s rights as developing citizens.
In elaborating the in loco reipublicae framework, the Article focuses on a constitutional right at the heart of children’s democratic development: their First Amendment right of access to ideas. The First Amendment protects not only children’s right to speak, but, more importantly, their right to receive ideas.25 Access to ideas promotes children’s democratic upbringing in four distinct ways: access to ideas provides the opportunity for children to acquire the knowledge that alternative ways of life exist and that, as adult democratic citizens, they will be free to live lives of their own choosing; it promotes children’s deliberative skills; it serves to inculcate the democratic values of equality, pluralism, and tolerance; and it gives children the tools with which to develop and express their own values and beliefs as full citizens. The in loco reipublicae framework recognizes that, as the constitutional custodians of their children, parents have duties to respect children’s right of access to ideas. The core of these duties concerns parents’ obligation to allow children meaningful exposure to ideas outside the home, including ideas that might conflict with parental beliefs and values.
To be clear, parents’ in loco reipublicae duties do not require them to give children free expression in the home nor to expose their children to democratic values around the dinner table. The in loco reipublicae framework recognizes the importance of a life without significant governmental interference in day-to-day family decision-making for both childrenand parents; it also respects parents’ own free speech interests. Instead, in loco reipublicae duties are oriented toward children’s engagement in the world outside the home. Parents are the primary influence in a child’s life and are free to inculcate their own values in whatever way they wish. Yet, the in loco reipublicae framework shows us that, while parents are free to teach their children that their own way of life is the one true way, they are not free to raise their children to believe it is the only way of life. Parents may seek to inculcate their beliefs in their children, but they cannot deprive children of the basic knowledge that other belief systems exist, a knowledge critical to developing the skills of democratic life. Parents are not obligated themselves to instill democratic norms, or agree with them, but they are obligated to respect and facilitate children’s opportunity to become democratic citizens by exposing children to the world of ideas outside the home.
The enforcement of in loco reipublicae duties will entail bold new thinking about children’s relationship to parents in constitutional law. The primary avenue for enforcing parental in loco reipublicae duties is through courts and legislatures setting limits on parents’ rights to prevent children from acquiring the knowledge and skills of democratic citizenship. In the First Amendment context, for example, enforcement would involve limiting parents’ rights to shield children from exposure to ideas outside the family.26 Thus, the in loco reipublicae framework would prevent parents from homeschooling children in ways that isolate children from activities and people outside the family. Parents would also be prevented from opting children out of classes on the history of racial injustice or discussions about gender identity; from denying children access to information about sexual health or contraceptives; and from refusing children relationships with important caretakers and peers outside the home.
A second avenue for enforcing in loco reipublicae duties entails recalibrating the state’s authority over children: on the one hand, by restricting the state’s authority to endorse and expand parental control of children and, on the other hand, by affirming state authority to enforce parental duties to children outside the home. With respect to restrictions on state authority, the framework would prevent the state from passing laws that give parents a veto power over children’s exercise of their citizenship rights, such as laws that require parental consent before children may engage in expressive freedoms. Some states have passed laws that require parental consent before a child can access social media and provide parents with access to any content a child sees or writes.27 As this Article explains, the in loco reipublicae framework would deny states the power to restrict children’s exercise of their citizenship rights by anointing parents as children’s constitutional gatekeepers. Conversely, the in loco reipublicae framework would permit states to pass laws that support and enforce parental duties to respect children’s citizenship rights.
Two further avenues exist for enforcing in loco reipublicae duties. The first involves recognizing children’s independent decision-making authority in certain contexts. For example, judicial-bypass opportunities might be set up to allow older children to make important decisions regarding issues critical to their democratic development. These bypass opportunities have long existed in the context of a minor’s right to abortion.28 For example, such bypass procedures might be created to ensure children’s access to important people and activities free from parents’ unilateral control. Children themselves might be allowed to mobilize politically for changes to school curricula or to act free from parental control in certain contexts. Children might take legal steps to require the state to enforce parental duties, as some former students educated in very restrictive private schools have done.29 A final avenue of enforcement would be to provide parents with the support they need to fulfill their in loco reipublicae duties. As explained here, in an ideal world, Congress might establish a Children’s Rights Bureau to support parents financially and in other ways. The Bureau might also receive petitions from children challenging systemic failures on the part of the state to either fulfill its own educational duties or to support parents’ in loco reipublicae duties.
Some might argue that children’s citizenship rights are not an effective avenue for securing their citizenship interests. This critique of rights is well taken in many contexts.30 A discourse of constitutional rights can be abstract and formalistic and detract from real political change. Yet, children in particular do not have the luxury of dispensing with rights. While adults may have other avenues for pursuing their fundamental interests, children do not. It is true that children are increasingly engaged in political activism,31 but the fact remains that children cannot vote or hold office, and nothing guarantees that adults will adequately represent their interests at the ballot box. Letting go of children’s rights while, at the same time, enforcing near-absolute parental authority means accepting a system of family governance under which children have no independent existence apart from their parents. The in loco reipublicae framework respects children as persons in their own right, aiming to eradicate the current system of near-absolute parental control that effectively denies children rights of democratic citizenship.32
The Article proceeds in three Parts. Part I sets forth the Court’s most important cases recognizing children’s place in a democratic polity and the duty of the state to provide children with the knowledge and skills of democratic citizenship. Part I then details two critical shortcomings of the current framework: its disregard of the implications of parents’ unique and near-absolute custodial authority for children’s citizenship rights, and its failure to consider parental duties as well as parental rights as part of our constitutional culture. Part II presents the in loco reipublicae framework, which recognizes parents’ constitutional duties to respect and further children’s citizenship rights. This Part illustrates the in loco reipublicae framework by examining children’s core right of access to ideas and parents’ corresponding duties. This Part ends by addressing two possible concerns: that the in loco reipublicae framework will unduly amplify the state’s power to intervene in family life and that the framework imposes secular duties on conservative religious parents in ways that will burden their religious freedom. Finally, Part III proposes four main avenues for enforcing parents’ in loco reipublicae duties. These avenues include limitations on both parental rights and state authority, as well as opportunities for children themselves to exercise their citizenship rights free from parental control. Concrete support for parents and children is critical to ensuring that all parents have the resources to fulfill their in loco reipublicae duties.
The Supreme Court may not be inclined at the present time to acknowledge parents’ in loco reipublicae duties, but that fact should not deter efforts to frame a new constitutional vision of children’s citizenship rights and parents’ corresponding duties in constitutional law. State courts and legislatures can implement the in loco reipublicae framework pursuant to state constitutional or parens patriae powers.33 Moreover,the framework provides an impetus for children’s political engagement, as well as the state’s provision of opportunities for children to mobilize on their own behalf. Even in the absence of specific enforcement mechanisms, the recognition of children’s citizenship rights can inspire and shape youth-led social movements. This Article offers a constitutional vision of children as developing citizens in preparation for the day when a future Supreme Court may decide to make that vision a reality.