The Center for Children, Law & Policy at the University of Houston recently brought together a group of leading scholars to explore the connections and the tensions between “feminist jurisprudence” and “child-centered jurisprudence.” Audio from the conference is now available and video podcast will follow shortly. Publications from these presentations will be published next year in the Houston Law Review.

Agenda

Listen to Audio of the Presentations Below:

Polygamy and Child Welfare, Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law

Five Generations: Child Sexual Abuse and the Search for Transformative Justice, Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley

Voice, Vulnerability and Dependency: Politicizing Childhood, Prof. Annette Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law

Vulnerability Theory: Beyond Equality in Assessing the Interests of Mothers and Children, Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law

“A World Fit for Everyone:” The Role of Economic and Social Rights in Resolving the Tensions between Child-Centered and Feminist Jurisprudence, Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law, Director, Center on Children and Families, Fredric G. Levin College of Law

With Commentary by Prof. Ellen Marrus and Prof. Laura Oren of the University of Houston Law Center.

Hannah Jones, 13, is not afraid of dying - she is afraid of spending her remaining days in a hospital bed. In a case that raises a host of medical and ethical issues, the British teenager from a small town northwest of London has won a battle to refuse a heart transplant operation. That decision by British medical authorities has ignited a debate over whether children should have the right to refuse potentially lifesaving medical treatments or if health authorities have an obligation to intervene.

That heartbreaking story illustrates the difficult issues that surround the law’s treatment of children as individuals with a right to determine their future. When Hannah and her parents decided against the procedure the medical authorities threatened to take them to court to force her to have it.

Doctors are required to obtain informed consent before treating a patient because individuals are thought to have the right to control what is done to their bodies. This includes the right to control the course of medical treatment and even to refuse it altogether. As long as a person is competent, they have a constitutionally-protected liberty interest in refusing unwanted medical treatment, balanced against the state’s interests in protecting and preserving human life. Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). A competent person has a right to refuse treatment even if the refusal ends in the individual’s death.

In general children are thought to lack the capacity to make life-altering decisions on their own. They may not fully understand the consequences or risks of their decision or the nature of their circumstances. The law defers to the judgment of parents or guardians in such situations.

While the Court has found that just like adults, a child also has a substantial liberty interest in not being confined unnecessarily for medical treatment, Parham v. J.R., 442 U.S. 584 (1979), the Court later noted that “In Parham… we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment.” See Cruzan.

So where does that leave us?

In Hannah Jones’ case a social worker was sent to interview her about her refusal to have a heart transplant. After discussing it the social worker then backed Hannah’s decision, which was supported by her parents as well.

According to the Department of Health, when a child is considered competent and refuses treatment, their decision will be respected. When a consensus can’t be reached, the patient can be overruled by either parents or guardians, or in more unusual circumstances, by the courts.

The harder questions are of course when the child and the parents disagree, or the state finds circumstances that they feel justifies overruling both parent and child, such as what effect to give religious views regarding surgery or blood transfusions. The rate at which this issue comes before the courts is only likely to increase given that advances in medical technology may often prolong painful treatment periods that a child or parents may instead choose to avoid to improve the quality rather than the longevity of life.

Further Reading:

• Susan D. Hawkins, Protecting the rights and interests of competent minors in litigated medical treatment disputes. 64 Fordham L.R. 2075 (1996).
• Hillary Rodham, “Children Under the Law”, 43 Harv. Edu. Rev. 487 (1973).

Anyone who’s ever spent a year or two being 15 knows that the question of when childhood ends and adulthood begins is a complicated one. At that age, one can veer between rational decision-making and delusions of fabulous self-importance 30 times each day. That’s why our legal system tries—not always successfully—to draw a nuanced, fact-based line between childhood and adulthood. It’s why the age of consent in some jurisdictions is 14, while in others it’s 18, even though American teenagers everywhere really, really like sex.

And that’s why the comparison between the 465 youngsters seized from a Texas polygamist ranch in early April and the young Canadian man currently facing a military trial at Guantanamo Bay is so illuminating. In both cases, when it came to treating children like adults and adults like children, the government has been hopelessly confused. Considered side by side, the two cases reflect our troubling legal tendency to overprotect the teens we deem to be victims and overpunish those we consider dangerous or violent.

The decision by Texas Child Protective Services to pluck hundreds of youngsters from the compound of the Yearning for Zion Ranch this spring was rooted in a fatally romantic vision of childhood. In April, the state initiated a sweeping raid based on what may have been a fraudulent sex-abuse hotline call, as well as the state’s allegation that five young girls at the ranch had been sexually abused by older men. Late last month, two state appellate courts determined that the removal of hundreds of small children, including boys, toddlers, and married, consenting women, was unwarranted. While Child Protective Services had argued that these young people were all in immediate danger as a consequence of the polygamists’ dangerous beliefs, the courts disagreed on both counts. Many of those taken into custody were not children at all—of the 31 girls initially removed as underage mothers, 15 were, in fact, adults, and one was 27—nor were they in any imminent danger of harm. Many were old enough to make their own legal decisions. Furthermore, even if those decisions were the product of ongoing religious brainwashing, the appeals courts would not characterize the mere exposure of vulnerable young people to those ideas as abuse.

The Texas authorities mistakenly believed that each one they had grabbed on the
ranch was essentially a too-impressionable child. The Texas courts, on the other hand, credited those same young people with a broad capacity to make autonomous legal decisions. Teenagers who are sober, conservative, religious, and married don’t quite match up with our streetwise notions of contemporary MTV adolescence. But, in the eyes of the Texas courts, that doesn’t necessarily make them all victims of abuse.

Now consider Omar Khadr, a 21-year-old Canadian who has been held at Guantanamo Bay for six years while awaiting trial for crimes he is accused of committing in Afghanistan at age 15. Khadr faces a life sentence for allegedly throwing a grenade in a firefight, which resulted in the death of a U.S. soldier. Khadr’s lawyers had sought to have the case against him dismissed because international law, including the Optional Protocol of the U.N. Convention on the Rights of the Child, affords special protections to soldiers under 18, treating them as victims to be rehabilitated rather than as seasoned killers. But last month, the military judge presiding over Khadr’s tribunal denied that motion, and so Khadr will be tried as an adult, just as he’s been incarcerated and interrogated as one. In the eyes of the Pentagon, a 15-year-old kid was a wholly autonomous adult and faces a life sentence for the choices he made.

The House is contemplating a Child Soldier Bill, which has already passed in the Senate. Like the U.N. Convention on the Rights of the Child, this legislation deems soldiers under 18 as fundamentally different than adults, and one provision would seek to prosecute anyone involved in the “recruitment or training” of juveniles under the age of 15. Nobody really disputes that Omar Khadr was radicalized by his father as early as age 11, when he was trotted around Afghanistan to meet with al-Qaida muckety-mucks, so how can it be that we think of Khadr both as the “victim” of terrorist recruitment and training and also a full-fledged, culpable adult? Like the Texas Child Protective Services system, the Child Soldier Bill assumes that children are enormously susceptible to brainwashing—so much so that their own decisions, even their choice to take up arms, are not free and autonomous. Like the Texas courts, the Pentagon assumes a level of maturity and free will that may not be there. And thus, like the youngsters at Yearning for Zion ranch, Khadr is a child under one legal model and an adult under a second.

So, which one is it? Are we looking at innocent teenage victims or incorrigible adolescent demons? Are they grown-ups with slightly less facial hair? Or the lap dogs of adults who brainwash and manipulate them?

One way to reconcile the confused legal decisions about the children of the Texas polygamists and Omar Khadr is to recognize that the legal system operates in broad caricatures when it comes to children, manifesting a disproportionate fear of violent kids as wholly out of control, while treating all victims as though they are incapable of protecting themselves. Maybe all of this legal confusion is just a function of the dual nature of American teenagers, who always somehow seem too old and too young for their own good. Or maybe it just reflects our own uncertainty about whether to believe too broadly that teens are perfect and pure, or dangerous, unguided missiles.

Since I’ve argued against continued steroid testing of high school athletes, maintaining that steroid abuse by police officers empirically poses a more significant threat, I wanted to point readers to a column by Donald Hooton, father of a steroid using teen who committed suicide for whom Texas’ steroid testing law is named. Writes Hooton in the July 14 Dallas News:

Out of the preliminary findings, two positive tests resulted from more than 10,000 tests conducted by the National Center for Drug Free Sports and the UCLA Olympic Analytical Laboratory. But the law’s primary purpose is to prevent our children from turning to steroids by providing a deterrent – the risk of getting caught gives our kids a solid reason to say no.

Consider speed traps on highways. Many adults and teens drive the speed limit not because they know that doing such is safer and saves fuel, but because they know someone is watching – the fear of getting caught is greater than the desire to disobey the law. What happens when you take away the speed traps? People start breaking the law.

Whether the program yielded two positives, 400 positives or 1,000 positives, no one should be drawing conclusions about the extent of steroid use based on these preliminary lab results. The program was never designed to measure steroid use among high school athletes.

According to the statistics from the 2007 National Youth Risk Behavior Survey, recognized as the premier organization in this field, 3.9 percent of high school students are abusing anabolic steroids nationally. Given that 10,407 students were tested in Texas in the past year, the results should have yielded at least 400 positive tests. Based on the preliminary results that we’ve read about, what we do know is:

• The random testing preliminary results of Texas students identified that 99.98 percent of the sampled student-athletes tested clean for performance-enhancing drugs.

• At least two kids are going to get help before something tragic happens. (I can only wish that my son had been “caught” and been able to receive help.)

• Ten thousand kids know firsthand that we are taking this issue seriously here in Texas.

• Millions of Texas families now know about the dangers of anabolic steroids.

Those results are, to me, an excellent definition of success.

The speed trap analogy is a particularly poor one. If officers only gave tickets at 2 out of every 10,000 traffic stops, there’d be scarce incentive to continue them. Speed traps make money because traffic violations are a lot more common than that.

Also, even if the “program was never designed to measure steroid use among high school athletes,” the results are more directly probative than a survey that merely asks verbally about steroid use. The size of the sample is quite large and Texas specific. I don’t think we can rely on that 3.9% figure based on these results - certainly not if next year’s round of steroid testing duplicates the lower number.

I’ll agree with Hooton the program served a short-term public relations benefit, but that has already been realized. Now the public relations message is actually being undermined by extremely de minimus results.

To the extent steroid abuse is a widespread problem, these data show the main nexus of its use does not lie with high school athletes. That means education and prevention resources are likely adequate for that population and enforcement spending (the 10,000 tests cost $3 million) should be reserved for groups where testing gets more bang for its buck.

The case began when Palmer wore black jeans, a black jacket and a black T-shirt to school on Sept. 21, 2007, and was asked by Assistant Principal Brenda Johnson to change because his attire was prohibited by the dress code, according to the lawsuit. His father brought him the Edwards T-shirt to wear instead, though both he and his son knew it broke a recently adopted rule that barred students from expressing messages that did not concern colleges, universities, or the school district’s “clubs, organizations, sports, or spirit.”

Johnson told Palmer his shirt promoted a political candidate and thus was unacceptable. Officials offered him the options of remaining in in-school suspension for the day, leaving school or changing into acceptable clothing. He changed and returned to class, and then he and his parents unsuccessfully sought to appeal the administrators’ order to the school board before filing a lawsuit.

The U.S. District Court for the Northern District of Texas dismissed the Palmers’ first request for an injunction after the school district said its policy of prohibiting students from expressing political messages on T-shirts did not apply to polo shirts and said it would not prohibit Palmer from wearing a politically emblazoned polo for the remainder of the year. The court ordered the district to distribute a clarified dress code, and told Palmer to submit a list of specific logo items he wanted to wear.

But on May 19, the school district changed its policy. The new rules require that “student clothing be free of any slogans, words, or symbols” except those that “promote the school district and its instructional programs” and are “campus principal-approved.” All other T-shirts and polos can only bear manufacturer’s logos 2-by-2 inches or smaller.

After the new dress code was adopted, court documents say Palmer requested to wear three different political shirts to school, including the original Edwards T-shirt. Citing the new restrictions on slogans, words or symbols, the school denied the request.

When the district officials prohibited Palmer from expressing his support for John Edwards, they “not only violated the First Amendment, but also struck at the very heart of what the First Amendment was designed to protect — core political speech,” Palmer’s second motion for an injunction says.

District officials did not return calls from the Student Press Law Center requesting comment on Monday. A press release posted by the district when the initial lawsuit was filed stated the dress code requiring solid colored T-shirts and collared shirts “enhances discipline and reduces distractions to the learning environment.”

In Palmer’s case, though, his attorney Hiram Sasser of the Liberty Legal Institute said the administrators are repressing purely political speech protected under Tinker v. Des Moines Independent Community School District. In Tinker, the Supreme Court ruled that school officials may not punish or prohibit students’ speech unless they can clearly demonstrate that it will result in a material disruption of normal school activities or invade the rights of others.

Because the school district has “effectively admitted that its prohibition of Pete’s speech cannot pass the Tinker test, this case presents a textbook example of a First Amendment violation,” Palmer’s new motion contends.

Sasser said the school district is arguing Palmer’s speech falls under the standard established in a 1968 Supreme Court case, United States. v. O’Brien, in which the Court ruled that expressive conduct could be censored if the restrictions advance a substantial government interest and are unrelated to the suppression of free expression.

But Sasser argued that O’Brien has no place in student speech law, citing Supreme Court Justice Samuel Alito’s concurring opinion in Morse v. Frederick, popularly known as the “Bong Hits 4 Jesus” case.

The Court declared that a high school student’s banner was not protected by the First Amendment because it could reasonably be read to promote illegal drug use. Yet Alito wrote in a concurrence joined by Justice Anthony Kennedy that the majority opinion “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue[.]“

Said Sasser, “Our argument is what Alito said in Morse.”

Markus Loening, a member of the Free Democrats (FDP), had argued in January that the time had come to give more importance to children’s place in society at a time when Germany is concerned about its aging population and low birthrate. The MPs cited “numerous studies” which they said have found that it is in the public interest that children and adolescents be allowed to exercise political rights.

The Article’s Abstract:

Deeply ingrained ideas about children’s rights, often unacknowledged and unexamined, shape the way children are perceived and treated in immigration law. This article examines the development of competing conceptions of children’s rights in other areas of the law and demonstrates how critical frameworks of immigration law simultaneously reflect and reinforce discredited approaches to children’s rights. This article explores the manner in which immigration law’s adherence to discredited notions of children’s rights creates barriers to child-centered approaches in immigration law. This exploration then serves as a starting point to suggest an agenda for reform.

In the article, Thronson discusses the evolution of the understanding of children’s rights, noting that children were once considered to be nothing more than the property of their parents. He notes that these ideas still exist to some extent as seen in the “legal language used to define the custody making process. At the most basic level, the very idea of ‘custody’ implies control and possession.” At the other extreme, Thronson discusses that some have viewed children as having exactly the same rights and obligations as adults, ignoring their younger age and lack of maturity. Indeed, this debate over the rights and responsibilities of children is still alive and well today, and it directly affects the United States’ handling of and response to immigrant children.

Source: Thronson, David. Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law. Ohio State Law Journal, 2002.

The Case’s Background:

Sophia Willis is a single mother raising her eleven-year-old son, J.J., who has a history of untruthfulness and taking property belonging to others. The events at issue in this case began at an elementary school Friday, February 3, 2006. On that date J.J.’s fifth grade teacher, Ms. McCuen, saw J.J. giving a bag of women’s clothing to a classmate. Finding this to be an “odd exchange,” Ms. McCuen contacted J.J.’s mother. Willis met with Ms. McCuen and identified the clothing as hers. Experiencing ongoing disciplinary problems with J.J., Willis sent him to her sister’s home over the next two days to ponder her options. When J.J. returned on Sunday Willis had a long conversation with her son and questioned him about his conduct. J.J. denied taking the clothing and instead concocted a story that shifted blame to other students. Willis warned that if he did not tell the truth he would be punished. J.J. again gave the same story. In response Willis instructed J.J. to remove his pants and place his hands on the upper bunk bed. J.J. complied, and Willis proceeded to strike him five to seven times with either a belt or an extension cord. [Footnote: The evidence on this point is in conflict.] Although trying to swat J.J. on the buttocks, his attempt to avoid the swats resulted in some of them landing on his arm and thigh leaving bruises. J.J. testified that during this exchange his mother was “mad.” Tr. at 9. Willis countered that she was not angry but “disappointed.”

The following Monday J.J. returned from gym class and asked to see the school nurse. Showing the nurse the bruises, J.J. told her that he received a “whooping” from his mother “[b]ecause I had took some clothes and I had lied.” The nurse contacted child protective services that in turn contacted the Indianapolis Police Department.

An Excerpt of the Indiana Supreme Court’s Decision:

[We adopt the Restatement (Second) of Torts view:] “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education….

In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:
(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case. But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable….Thus, to sustain a conviction for battery where a claim of parental privilege has been asserted, the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control her child and prevent misconduct was unreasonable.

1. Changes to the Kansas Juvenile Justice Code since 1984 have eroded the benevolent, child-cognizant, rehabilitative, and parens patriae character that distinguished it from the adult criminal system. Because the Kansas Juvenile Justice Code has become more akin to an adult criminal prosecution, it is held that juveniles henceforth have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments.

2. The proceedings under the KJJC fit within the meaning of the phrase “all prosecutions” as set forth in §10 of the Kansas Constitution Bill of Rights, and juveniles have a right to a jury trial under the Kansas Constitution.

3. The right to a jury trial in juvenile offender proceedings is a new rule of procedure, it does not operate retroactively. This right will apply only to cases pending on direct review or not yet final on the date of filing of this opinion.

Please click here to see the full Court’s decision.

Source: In the Matter of L.M., Appeal No. 96,197 (June 20, 2008)