Top-Down or from the Ground?: A Practical Perspective on Reforming the Field of Children and the Law
A Response To
Children get a raw deal in this country—at the federal, state, and family levels. Consider, for example, the start of 2018, when Congress recast children as bargaining pieces, leveraging continued funding of the Children’s Health Insurance Program (CHIP) over extending deportation protections to the Dreamers.1 While such debate raged in Washington, D.C., California police arrested two parents who had been horrifically torturing their thirteen children for years, unbeknownst to the state.2 Headlines aside, the law indisputably treats children in many limiting and paternalistic ways, typically designating them as objects to be controlled either by their parents or the government—two parties perpetually duking it out for authority.3
Anne C. Dailey and Laura A. Rosenbury propose a seismic shift to this current framework in their article, The New Law of the Child. They advance a “new paradigm for describing, understanding, and shaping children’s relationship to the law,” which “values the extraordinary richness and variety of children’s lives” as they exist in the present, and not just as future adults.4 Specifically, they identify five “broader interests that the law should recognize and promote,”5 and describe a new “tripartite framework” to recenter the field of children and the law around these broader interests—their “new law of the child.”6
Through their new framework, Dailey and Rosenbury envision overhauling constitutional law to better promote children’s broader interests.7 They believe that this law reform, in turn, will normatively “signal that certain, presently unrecognized aspects of children’s lives should be valued by society,”8 as law has the power to “shape multiple aspects of children’s lives.”9 Theirs is thus a top-down approach to change: by extending the Constitution to safeguard more robust rights for children in a way that “values children as full persons with broad interests and rights of their own,” our communities will also come to embrace and respect children as such beings.10
The article presents a compelling case for reform. It details the many ways in which our current legal scheme imposes a myopic frame on children, viewing them on a one-dimensional continuum from dependency to autonomy.11 Their proposed fix is fresh and innovative, making a real contribution to scholarly conversations about children and the law. However, because their framework demands broad constitutional reform, unabashedly reflecting “a direct departure from existing constitutional law,”12 actual implementation of their new paradigm is ultimately quixotic. Moreover, even if their framework were somehow adopted in principle, it would disappoint in practice because, by design, it relies heavily on the state to vindicate children’s rights, either through state enforcement actions or through lawsuits against or involving the state.13 As such, when played out, the framework necessarily maintains the same troubling dynamic the article describes between parents and state officials now who wrangle for control over children.14 Moreover, given that states struggle presently to fulfill their obligations towards children, piling on new responsibilities seems unwise.
This Response submits that, rather than force change through a constitutional hammer as Dailey and Rosenbury propose, a more practical and effective path forward to alter our cultural narrative and achieve the article’s goal of valuing and respecting children as children is through a youth-led approach. Youth-driven efforts within our current framework, rather than widespread constitutional reform directed by adults, are more likely to produce real changes to the ways in which society views, honors, and treats children. Such a method allows youth to self-select the issues and interests that matter to them, promotes their agency, and capitalizes on their effectiveness as change-agents specifically because of their youth.
Part I of this Response provides a brief overview of Dailey and Rosenbury’s thoughtful accounting of the present field of children and the law, which they term the “authorities framework,”15 and their proposed reconfiguration under the new law of the child, where relationships would be valued, parents and state actors would have responsibilities, and children would possess affirmative rights and a mechanism for enforcement against the state. Part II takes the article at face value and details the presumable steps required to effectuate the new tripartite framework, which are unlikely to happen in the near (or distant) future. Part III sets aside the hurdles of actually creating new constitutional rights for children and assumes the adoption of the new law of the child, analyzing the framework in action. It shows that some aspects might be seamless to institute, while others would be both hard to implement and likely to yield disappointing results.
Part IV offers an alternative, youth-driven approach to achieving at least some of the new law of the child’s important aims. To the extent the article’s ultimate hope is to change our culture’s view of children—to see them as valuable members of society in their own right, with worthy relationships, ideas, and identities—this Response suggests that we foster that new perspective through efforts at the community level that children steer. Such efforts admittedly will not create constitutionally protectable rights, but they could achieve many of the same ends that the article advances, and by a means that actually demonstrates children’s real value and agency. Moreover, this grassroots, child-directed approach might help create a groundswell that could lead to broader law reform in the future.
The dominant narrative about how we currently conceptualize the field of children and the law ultimately boils down to analyzing the negotiation of rights and responsibilities among children, parents, and the state.16 As the article explains, this understanding reflects a triangulation with parents and the government at the top points of a triangle, trading control over children, who are situated at the bottom point.17 Children’s dependency justifies this prevailing set-up.18 Accordingly, as children mature, the triangle starts to shift, until children reach the age of majority, thereby triggering full-on adult autonomy rights and all their attendant features.
Dailey and Rosenbury want to scrap this model, which they coin the authorities framework. First, they outline its dubious historical roots, detailing how the doctrine evolved from property theory—where parents (more accurately, fathers) controlled every aspect of a child’s life—to the rise of parens patriae and the state’s claimed duty to specially protect children.19 They then expose its incoherence: the field is a patchwork of bright-line age-based tests,20 subjective judicial determinations,21 and limited adult-like rights.22 But most problematic is that the authorities framework obscures children’s interests in the “here and now” because of its laser-focus on children’s trajectory from dependency to autonomy.23 Children, however, lead rich and meaningful lives as children: they have relationships, identities, ideas, experiences, opinions, and more that the law should take into account.24 But because our laws treat children “as lesser versions of adult[s],” those interests are eclipsed.25
In response, the article proposes a provocative and groundbreaking reconfiguration of the law based on the identification of five normative interests (in nonparental relationships, exposure to new ideas, expressions of identity, personal integrity and privacy, and participation in civic life),26 but which adults, namely “courts, legislatures, and scholars,” may further debate and revise.27 They then organize these interests into a tripartite framework of relationships, responsibilities, and rights. The first arm recognizes children’s relationships that merit legal support.28 These include relationships with parents, but also extend to other adults, such as relatives, teachers, mentors, coaches, doctors, lawyers, and therapists; and with other children, including siblings and peers.29
The second arm details the legal responsibilities that adults—both parents and state actors—would have to further children’s broader interests.30 For example, under the new framework, parents would still be tasked with children’s caregiving and protection, but states would also be required to better support parents in this duty by providing more extensive social services.31 Additionally, both parents and states would be required to foster children’s education.32 Parents would be obligated to expose children to ideas outside the home, most concretely by not homeschooling their children,33 and states would have an affirmative duty to provide meaningful, high-quality education including free daycare and preschool.34 Parent and state responsibilities would also mean, for instance, that states would “interrogate” parental bodily intrusions like circumcision and surgery for intersex infants, which undermine children’s interests in bodily integrity among other things.35 Further, both parents and states would need to treat children’s misconduct through the lens of rehabilitation.36 Corporal punishment would be effectively prohibited and juvenile justice systems would need to commit fully to rehabilitating system-involved youth.37 Lastly, parents and states would be tasked with “further[ing] children’s engagement as members of the broader society” via work, volunteerism, sports, political action, and more.38 This would require both parents and states to facilitate children’s engagement by providing both the opportunities and the access to them, meaning everything from transportation to state-funded reproductive healthcare.39
The third arm announces the rights children would have to safeguard their interests. Under the framework “[n]ot all adult responsibilities will give rise to affirmative rights enforceable by children. But many will.”40 Indeed, the article rejects the Supreme Court’s express pronouncement in Deshaney v. Winnebago County Department of Social Services that children have no affirmative constitutional rights.41 Rather, under the new law of the child, children would have affirmative federal constitutional rights to custodial care, education, safety, and rehabilitation, and perhaps also to relationships, exposure to ideas, and access to play, sports, creative arts, and other activities.42 The article posits that under the framework, a judge might weigh these interests when undergoing a “best interest of the child” analysis in an ongoing proceeding.43 In other contexts, however, the article envisions state enforcement actions against parents for failing to honor children’s rights (presumably ones children could trigger by filing a complaint with the appropriate state agency).44 It also anticipates children initiating legal proceedings against the state for failing to uphold its affirmative duties (and presumably, for failing to prevent parents from failing to uphold their affirmative duties, too).45 The article additionally fleshes out children’s autonomy, equality, and other rights, including perhaps even the right to vote.46
The new law of the child thus offers a blueprint for a radical reworking of the law, which Dailey and Rosenbury believe will better protect and promote children’s wide-ranging interests, and ultimately transform our culture’s understanding and views about youth.47 Although the new framework is exciting from a theoretical perspective, its approach to change—through widespread constitutional reform—makes actual implementation doubtful.
The article is quick to concede that many rights under the new law of the child do not exist under our current constitutional doctrine.48 Indeed, in addition to Deshaney, a slew of other Supreme Court cases touching on children would also need to be greatly revised or overturned. These include, among others, cases: affirming parents’ rights to direct the upbringing of their children, and, with that, restrict their children’s relationships with others;49 limiting children’s (and adults’) rights to sue for services;50 denying children a fundamental right to education;51 restricting student speech in schools;52 condoning corporal punishment;53 permitting drug testing in schools;54 allowing school officials to search a student’s property;55 and upholding a state’s right to try a child as an adult.56The framework also seemingly implicates, for example, cases deciding parental and other caregiver due process rights in child welfare proceedings57 as well as cases concerning federal child welfare statutes like the Indian Child Welfare Act.58 As such, a full-throttled, comprehensive litigation strategy to reread or reverse these and other Supreme Court decisions would be necessary to actually bring the new framework to life. Alternatively, a new constitutional amendment would be required. As explained below, neither approach seems achievable in the near, or perhaps even distant, future.
Widespread law reform through strategic litigation can certainly alter or reverse Supreme Court precedent that fails to recognize sought-after constitutional rights. For example, the NAACP’s campaign to overturn Plessy v. Ferguson and the “separate but equal” regime that condoned racial segregation began in the mid-1920s and, through a series of structured test cases, culminated in Brown v. Board of Education in 1954, which found that “in the field of education the doctrine of ‘separate but equal’ has no place.”59 Similarly, gay rights advocates fought for decades to attain relationship equality, initially challenging state sodomy laws through impact litigation and culminating with a federal constitutional right to marry.60
But impact litigation campaigns meant to destabilize existing legal regimes face significant hurdles. First, overturning or dramatically revising precedent is hard. Stare decisis tethers lower courts to past Supreme Court rulings, and it cabins the Supreme Court from departing except for limited and justifiable reasons,61 assuming the Court even grants plenary review, which occurs only one percent of the time.62 As such, the Supreme Court will overrule one of its cases only if it was wrongly decided, if “a series of prudential and pragmatic considerations” demand overruling, or if a “special justification [requires] departing from precedent.”63 To be sure, strategic impact litigation schemes have reversed past precedent in the civil and gay rights contexts, among others. But those wins were not guaranteed, and their decades-long fights speak to the inherent challenges of overcoming stare decisis and reforming the Constitution.64
Further, the change envisioned in the new law of the child is arguably much harder to achieve than past wins. Whereas the racial and marriage equality campaigns sought to bring disenfranchised groups to equal status with the majority, the new law of the child wants no such thing. Indeed, the article takes pains to explain that the new framework does not simply confer adult-like rights on children or make children equal to adults.65 Rather, the rights sought under the new law of the child are diffuse and dynamic. They are not viewed through the lens of freely autonomous adults, and indeed may extend farther than adults’ rights.66 Accordingly, there is no majority against which to measure children’s new rights: there is no clear end-game. This setup thus would force judges not only to cast aside large swaths of Supreme Court precedent, such as the cases noted above, but also to do so beyond a known bar of what is equal and fair—a seemingly far greater reach than other law reform litigation efforts.
Second, litigation does not in itself yield change on the ground. Favorable outcomes are not guaranteed, and even when won, they are simply slips of paper. Judgments must be monitored and enforced to have meaning, which often amounts to a lifetime of battle.67 Subsequent lawsuits, contempt actions, and other advocacy is routinely needed to make judgments stick.68 Indeed, Thurgood Marshall, who shepherded Brown to success, is quoted as saying to those celebrating its victory: “You fools go ahead and have your fun, but we ain’t begun to work yet.”69 Post-Brown litigation reflects this reality: decades of lawsuits have ensued to try to eradicate segregation in our schools, which continues to this day.70 As such, even if lawyers were able to secure reversals and reinterpretations of past Supreme Court precedent governing children, such wins would not in themselves bring about the societal change the article envisions to honor children in the here and now.
Lastly, litigation can lead to client disempowerment and provoke widespread backlash that undermines gains. Because litigation necessarily requires a lawyer’s specialized skills, education, and access, an inherent imbalance exists between lawyers and clients.71 This is especially so when lawyers advocate on behalf of marginalized groups that society already sidelines,72 and especially children, who are by nature dependent on adults.73 Additionally, litigation that aims to change our culture, as the article envisions, can spark a counter-mobilization movement.74 For example, Roe v. Wade, although undoubtedly a hallmark of women’s rights, is also criticized, most notoriously by Justice Ruth Bader Ginsburg, for sparking a far-reaching right-wing movement to erode the decision.75 Similar backlash occurred in the gay rights movement in 2003, where Lawrence v. Texas decriminalized sodomy laws and subsequently led to thirteen state constitutional amendments defining marriage as between a man and a woman.76 The new law of the child might marshal even broader resistance, as backlash would likely spring from both ends of the political spectrum. Conservatives would likely challenge extensions of children’s rights for fear that doing so undermines parental sovereignty—the same reason they have staunchly opposed ratifying the U.N. Convention on the Rights of the Child.77 Liberals might oppose the new framework for fear that it may undercut women’s rights, particularly rights of single-mothers to make choices for their children and perhaps even adult women’s abortion rights.78 The Jewish community would also likely oppose the framework, at least to the extent it prohibits circumcision.79 As such, if the new law of the child were to gain momentum in the courts, states might counter with a surge of laws buoyed by bipartisan support aimed at strengthening parental control.
In view of these challenges, advocates might attempt an alternative tack to effectuate the new law of the child through a constitutional amendment, drafted to hold states accountable to protecting children’s interests and (arguably for the first time) positive rights.80 A well-crafted amendment could theoretically effectuate the new law of the child and reverse Supreme Court precedent—such an amendment would not be the first aimed at negating past Supreme Court decisions.81 But this approach is even more doomed to fail. The U.S. Constitution is one of the most difficult in the world to alter.82 Change is possible, but only with significant effort and near unanimity in view of Article V’s requirements for two supermajorities at both the federal and state level.83 Indeed, Justice Scalia once calculated that it would take fewer than two percent of the population to prevent a constitutional amendment.84 As such, no one should pin their hopes of law reform on this method.85 Consider the Equal Rights Amendment (ERA), one of the most recent near misses. The ERA soared through both houses of Congress in the early 1970s,86 but failed (and continues to fail) to achieve ratification from thirty-eight states.87 Defeat occurred despite there being a comprehensive and concerted campaign for passage, building on the momentum of the women’s rights movement in the 1960s.88 Even though Congress granted a ratification extension beyond the now conventional seven-year limit,89 the ERA still did not come to fruition. The ERA has been reintroduced to Congress every year since 1982 to no avail.90 As such, the possibility of an amendment bringing to life the new law of the child seems remote. In view of these practical obstacles towards implementation, the new law of the child seems more poised for scholarly debate rather than a means to actual change.
But let’s assume that the new law of the child improbably becomes the law of the land. States would then need to develop mechanisms to give effect to children’s new rights. Some newfound rights might be integrated seamlessly into state codes. For example, states could simply pass legislation that would outlaw homeschooling, so as to protect children’s interests in exposure to new ideas.91 They could additionally outlaw circumcision and intersex surgeries, and strip licenses for doctors who perform them. States could also enact laws prohibiting corporal punishment to protect a child’s bodily integrity, and adopt key juvenile justice reforms to meet states’ responsibilities towards rehabilitation.
The article’s five interests could also be introduced into the family law context without much heavy lifting. As the article contemplates, states could simply require courts to incorporate the new interests into their “best interests of the child” analysis, which all states, U.S. territories, and the District of Columbia already use when deciding various actions implicating children.92 In fact, many state statutes already account for at least some of them. Twenty-eight states reference avoiding removal of the child from his or her home, thereby recognizing a child’s relationship with non-parental adults and children,93 and twenty-one states specify that courts should consider the relationships between children and their siblings, family, household members, and/or other caregivers when making decisions.94 With respect to children’s autonomy and other interests, twelve states and the District of Columbia already require courts to consider a child’s wishes when undergoing a “best interests” determination.95
Moreover, at least seventeen states direct courts to consider all relevant factors, even those not articulated in their statutes, such that courts in these states can already weigh children’s broader interests in their decisions.96 Indeed, a Massachusetts court recently did just that. In In re Adoption of Odetta, a court granted post-adoption visitation rights to a child’s paternal uncle, although he was not explicitly covered by statute.97 After the father, who was Muslim, killed the mother, who was Christian, and lost his parental rights, the child was placed with her maternal aunt and uncle.98 The court held—and the appeals court affirmed—that visitation with the paternal uncle was in the child’s best interests as it would further her contact with her father’s side of the family and continue her exposure to her Muslim religion and culture, thereby respecting her interests in the relationship, her exposure to new ideas, and her expressions of identity.99 Similarly, an Alabama appellate court affirmed visitation with an aunt and uncle, absent a statutory right to it, and let stand an order not to homeschool the children for at least one year.100 The court found such a ruling was based on the children’s best interests, including their interests in maintaining ties to their deceased mother’s family, relationships with their peers, and involvement in extracurricular activities.101
But even though some aspects of the framework might be relatively easy to administer, others prove unadvisable at best and unimaginable at worst. To play out one scenario under the new model, an aggrieved child would be able to file a complaint with a state agency to investigate her parents’ alleged failure to satisfy their duties in, for example, her education, by insufficiently exposing her to new ideas outside of the home.102 Assuming the state adopts an enforcement model similar to that used in the child welfare context, the state would then presumably open an investigation and send a social worker to the home to interview the parents and child, make observations, and write a report. The complaint might be found unsubstantiated and “screened out,” or substantiated and “screened in.” If substantiated, presumably the state would provide various supports to help the parents fulfill their obligations. If the parents nonetheless failed to improve, the state might take more coercive actions, including court intervention.
Alternatively, the article anticipates that the child might be able to file a lawsuit to vindicate her rights. Since the child’s rights are grounded in the Constitution, the suit would necessarily be against the state and not her parents, who are private actors and beyond the Constitution’s reach.103 Presumably then, a suit could involve not only the state’s failure to uphold its primary obligation to provide an education, but also its failure to uphold its secondary obligation to prevent parents from failing to uphold their primary obligation to provide an education.
Both scenarios expose inherent defects of the new law of the child. First, at a fundamental level, the new framework reinforces—rather than abandons—our current triangular model where parents and the state battle for decision-making authority over children. A child unhappy with her parents’ actions can pull the state lever and initiate an investigation or a lawsuit. In turn, the state will either vindicate the parent, or vindicate the child, but ultimately still remain the final arbiter when a conflict arises. The field will not be recentered. Rather, all the same players will still fight for control. The framework cannot escape this triangulation because the rights are constitutional and are therefore bound up with state action.
Second, the framework necessarily foists numerous new affirmative responsibilities on the state to protect and promote children’s rights in the areas of (at least) caregiving and protection, education, rehabilitation, and civil engagement.104 This is unwise. To begin, states have a remarkably poor track record of safeguarding children’s rights and interests as currently conceived, let alone as reimagined. For instance, in the child welfare context, states generally fail to adequately address and prevent child abuse and neglect.105 The federal Department of Health and Human Services estimates that, on our states’ watch, 1,750 children died from abuse and neglect in 2016, reflecting an average of five children per day and a 7.4% increase from 2012.106 An estimated 3.5 million children received a child protective services investigation or alternative response, an uptick of 9.5% in the past five years, and 676,000 children are estimated to have suffered from abuse and neglect in 2016.107 The ongoing opioid crisis seems to have only made matters worse, having an “immeasurable” impact on our child welfare systems, as states report exponential increases in the number of children placed in foster care.108 Various federal laws,109 state laws,110 and programs111 exist to curtail these rising statistics to no avail, vexing federal and state governments alike.
States also fail children in the education context, another sphere of state control. The United States lags in student achievement compared to other nations, based on the Programme for International Student Assessment (PISA) test, which measures the academic performance of fifteen-year-old students around the globe.112 The most recent results show that the United States ranks, out of seventy-three countries: fortieth in math, twenty-fifth in science, and twenty-fourth in reading.113 Our students are stagnating or falling further behind their international peers compared to previous years’ PISA results, demonstrating a decline in our states’ abilities to educate our youth.114 In view of state failures in the child welfare and education contexts, adding new state responsibilities, including expanded obligations in these two areas, seems likely unproductive.
Moreover, satisfaction of states’ new responsibilities under the new law of the child would require an immense scaling up of states’ administrative apparatuses and would produce a resulting eruption in costs. The new framework would call for myriad additional state employees at every level, including social workers, educators, licensors, court personnel, judges, lawyers, administrative officers, mental health specialists, doctors and other health care providers, juvenile detention specialists, parks and recreation staff, transportation workers, accompanying support personnel, among countless others. New agencies, buildings, offices, parks, transportations systems, programs, health facilities, schools, daycare centers, juvenile detention facilities, and other structures would be needed to carry out the state’s new affirmative duties. Yet, states are in fiscal distress: thirty-three were facing real or projected budget gaps for fiscal year 2017-2018, amounting to a collective revenue shortfall of $15.9 billion.115 Further, recent data show that at the close of the 2017 fiscal year, states’ total balances in their general fund budgets would allow them to run operations for a median of only 29.3 days.116 The United States is an incredibly wealthy society, but it dramatically underfunds social programs. Under these circumstances, it is difficult to foresee how the state and federal economies would be restructured to supply the qualified human capital and the infrastructure needed to faithfully execute the new law of the child.
Rather than orchestrate a widespread lawyer-driven campaign to constitutionalize children’s interests in order to change the ways in which we parent, care for, teach, rear, and respect youth—a campaign that seems destined to fail at all levels—children would be better served by an alternative, ground-level approach that they control and direct. The article proposes forcing change through a trickle-down method: if we change our laws, we will in turn change society’s limited views of children.117 But laws do not necessarily change society. The #MeToo movement is a prime example. Multiple laws, regulations, and Supreme Court cases have come down since the 1960s to create a robust legal framework that treats women as equal to men.118 And yet sex discrimination persists in our offices, paychecks, schools, and communities. Only with the #MeToo movement—started, led, and galvanized by women—is our culture facing a reckoning and accomplishing what the law could not.119 Thus, if the article’s real aim is to value children and honor their many dimensions, why not skip the constitutional step and simply work at the community level to help children achieve this themselves? I propose that, rather than use the article to spark top-down constitutional reform, we instead use its premise to inspire youth, with parents, lawyers, and other adults as support, to produce real change on the ground.
Children across the country are already advocating for our communities to fully respect them as they exist now. For example, in Burlington, Vermont, students recently petitioned the school board to fly the Black Lives Matter flag on its high school campus so as to recognize students of color and create a welcoming space.120 The board passed the measure unanimously, with the support of 450 students, the principal, and the superintendent.121 Theirs was the second community in Vermont to take such action: Montpelier High School did the same weeks earlier after an appeal from students the previous year.122 In another expression of children’s identity and civic participation, students in Portland, Oregon, spoke at a 2015 school board hearing to protest their school’s discriminatory dress code policies, which were unevenly enforced against young women.123 The school board adopted the students’ recommendation to form a committee of students and adults to create a nondiscriminatory gender-neutral dress code.124 That code was enacted the following year.125 Students in Evanston, Illinois, got wind of the change and petitioned their own school board to adopt a similar measure, adding protections against racially discriminatory dress-code enforcement, too.126 It passed in 2017.127
More recently, since the high-school shooting that killed seventeen people in Parkland, Florida in February 2018, youth have mobilized to lead a sweeping and unprecedented campaign against gun violence, dubbed #NeverAgain.128 They are inspiring youth (and adults) not only in the United States, but around the globe, to join in their activism for safe schools.129 #NeverAgain has already orchestrated national school walkouts and a historical march on Washington, D.C., along with 800 sister marches worldwide.130 The surviving students from Marjory Stoneman Douglas High School have also launched mass lobbying efforts at state houses, rallies, and other events, while also educating voters about gun control issues.131 They appear regularly on television,132 their activism dominates in the press,133 and their social media accounts have been followed by millions.134
Their reform effort is working. Since the shooting, Oregon lawmakers have passed gun-control legislation to ban convicted domestic abusers and stalkers from buying and owning guns.135 In signing the bill, Governor Kate Brown recalled the #NeverAgain movement, noting that “the voices and outrage of youth devastated by gun violence” spurred the state to act.136 Further, despite deep resistance from the NRA, Florida lawmakers passed a $400 million gun control and school safety bill—the first successful gun control law in the state in more than twenty years, all because of the #NeverAgain movement.137 Although the Stoneman Douglas students sought further reforms, the legislation is still considered a major victory, raising the minimum age for all gun purchases to twenty-one from eighteen, creating a three-day waiting period to purchase guns, and banning bump stocks, among other things.138
Youth advocates and youth movement scholars are not surprised by the power of #NeverAgain movement—they believe the movement is formidable precisely because youth are leading it.139 As history and research shows, youth are effective change agents for a variety of reasons.140 To start, their activism has weight because it is passionate, as the issues they advance directly affect them.141 The Stoneman Douglas students not only speak with rawness and urgency because of the tragedy the endured; they also make others feel it, too, posting pictures and videos of hiding from the gunman, giving others an inescapable view of their reality.142 Their fervent speeches and tweets are unmatchable because they originate from first-person accounts, tapping a deep emotional response.143 Relatedly, because many youth are digital natives, they can deftly use social media platforms to mobilize their peers and supporters and counter their critics.144 Their facility with Twitter, Instagram, Facebook, and other outlets allows them to directly reach and galvanize other youth, pressure politicians, and ultimately influence the democratic process.145
Collectively, this nationwide advocacy, spanning dress codes to gun control, speaks to all of the broader interests that the article articulates, honoring children’s relationships, ideas, identities, personal integrity, and participation in civic life. But this method of change differs from that advanced in the new law of the child: youth—not adults—are the ones prioritizing their interests and issues. Moreover, they are the ones directing the reform, and their successes are concrete and real. Our aim should be to spark more of this.
Adults can buoy youth activism in multiple ways. Perhaps most effectively, they can facilitate youth mobilization and organizing efforts, so that children can define the issues and interests for which they want to fight and also lead the charge in doing so. To that end, adults, including parents, can create spaces to bring youth together and unite around the matters affecting them, whether locally or nationally. They can also consult on strategy and provide needed trainings. Such support is helping to sustain the #NeverAgain movement.146 Adult organizers of the Women’s March have provided youth activists with background assistance in planning their walkouts and marches, the marketing firm 42West has helped students handle public relations, and gun-control advocacy groups have partnered with the students to help educate youth about the issue and register them to vote, all with the aim of propelling youth forward on their mission for gun regulation.147
Lawyers can also provide strategic and tactical advice for organized youth, educate youth about their rights, offer advice about areas of the law most vulnerable to reform efforts, and represent youth or their groups when discrete legal issues arise.148 For example, in support of the #NeverAgain movement, the ACLU held a “Know Your Rights Training” conference call with students around the United States to educate youth about their rights to free speech and expression in anticipation of planned school walkouts.149 Lawyers can also promote children’s lobbying efforts, draft sample policies or legislation that is supportive of the youth’s goals, and assist with media campaigns to bring attention to the issues.150 Such behind-the-scenes assistance from lawyers would actually put children at the center of a reform movement, rather than adults (as the new law of the child does), and allow youth to dictate the changes most meaningful to them in their communities. This approach thus helps shift society’s perceptions about youth in two important ways: through the direct effects of youth’s reform efforts that promote their interests, which create the policy reforms; and through the indirect effects of a method that showcases youth as full people with important ideas, interests, and identities advancing their own agendas. It may also in time spur expanded legal rights. As the marriage equality movement evinces, a societal sea change can pave the way to future constitutional reform.151
The article represents a revolutionary call to arms to reform the field of children and the law, which rests on outdated and limited understandings about youth. It articulates the fundamental flaws and conflicts within the current doctrine and offers an inventive new framework to break free from the status quo. But when actually played out, the framework falters: the steps needed to put it in place are unlikely to occur in the foreseeable future, and even if adopted would not yield the desired outcomes.
Perhaps the article’s real motivation is simply to spark an academic conversation about what the law could be, without real concern for the mechanics of how to get there. But if the conversation is worth having, then so too is actually achieving the results. A youth-directed approach that empowers children and supports their efforts to achieve their broader interests seems not only more likely to produce transformative change, but also more aligned with the article’s ultimate purpose to honor and respect children in the here and now.
Cheryl Bratt is an Assistant Professor of the Practice at Boston College Law School. She is grateful for helpful conversations and comments from Jessica Berry and Dan Farbman. Joe Noreña and Srish Khakurel provided superb research assistance.
Preferred Citation: Cheryl Bratt, Top-Down or from the Ground?: A Practical Perspective on Reforming the Field of Children and the Law, 127 Yale L.J. F. 917 (2018), http://www.yalelawjournal.org/forum/top-down-or-from-the-ground.