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.

However, since the ruling, a legal blogger has pointed out that the federal government passed a law in 2006 allowing for this use of the death penalty in the military. Amazingly, the plaintiff, the defendant, the Court Majority and the Dissent all failed to mention this law during the arguments and the decision of the case. As a result, the state of Louisiana is requesting that the Court reconsider its ruling since the discovery of a federal law allowing this use of the death penalty may undermine the Court’s argument of a national consensus against it. However, Louisiana recognized that even if the Court agrees to reconsider its ruling, the ruling may still be upheld due to the Court’s independent judgment against this use of the death penalty.

Please click here to see the Petition for Rehearing.

From the SCOTUSblog:

The state of Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape. The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

The Court’s decision had two parts: a survey of laws and official actions, leading the Court to conclude that there was a consensus against the death penalty for child rape, and a separate expression of the Court’s own “independent judgment” about whether capital punishment should ever be available for a crime that did not result in the victim’s death — a point on which the Court said no.

In the first part, the Court noted the absence of any federal law imposing a death penalty for child rape. After the decision was issued, a military law expert noted that omission. The expert noted a 2006 law by Congress which, the expert said, authorized the death penalty for rape of a child under military law — the law that prescribes crimes and penalties for members of the military services.

A spate of publicity, beginning in The New York Times, led the U.S. Solicitor General’s office to notify the Court of the omission, and to offer to comment on it, if asked. The government was not a party in the case, but it said it should have noticed the fact of the federal law’s existence and told the Court.

Monday was the deadline for Louisiana to seek rehearing of the case. It did so in a petition signed by counsel of record, Georgetown law professor Neal K. Katyal.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid.

The rehearing plea said that the omission would bear not only on the Court’s discussion of a “national consensus” against the death penalty for child rape, but also would have an effect on the part of the ruling in which the Justices relied on “independent judgment.”

Louisiana conceded that the Court might reach the same decision again if it reheard the case, but said rehearing was warranted because that “protects the public’s trust that the Court has before it all relevant information before reaching a final decision,” it “safeguards the perception of fairness,” and it “ensures that the Court’s final decision accurately reflects the state of facts and the law.”

If the Court believes that its decision could stand alone on the exercise of “independent judgment,” that should still lead to rehearing, because, the petition argued, that would make the “national consensus” calculus less important in future cases on applying the death penalty.

A denial of rehearing, the petition argued, would sow confusion about which side of the Court’s calculus weighed the most.

Here is the article’s abstract:

This article describes the general limitation on state authority to intrude on family life as it relates to grandparent visitation cases. It also notes that the right of family autonomy is rooted in common law and is established by seventy-five years of United States Supreme Court decisions as a key component of the Constitution’s guarantee of liberty. The article also reviews the analyses of decisions invalidating grandparent visitation statutes on constitutional grounds, noting that the specific terms of these decisions do not limit the right identified to intact families, but instead describe a right belonging to all fit parents. The article further discussed specific aspects of the recent trend in grandparent visitation decisions to limit suits regardless of the parents marital status or biological connection to the child. The article further notes that courts in jurisdictions that have invalidated open-ended grandparent visitation statutes when suit was brought against the child’s married natural parents have subsequently recognized the same right to family autonomy where the child’s fit parent or parents are single, divorced, or adoptive. The article also explores a trend toward expanding the definition of intact families. It also discussed a trend toward enforcing statutory threshold requirements for a grandparent visitation suit.

The full article:

Pct. 6 Justice of the Peace Gustavo “Gus” Garza will not be able to allow spanking as an option for disciplining children in his courtroom, according to a court ruling Wednesday.

State District Judge Abel C. Limas, who asserted jurisdiction in the case, halted spanking as a form of punishment in Garza’s courtroom on Wednesday. Limas pointed to the protection, safety and emotional well-being of children as his reason for approving the temporary injunction.

“I am encouraged that Judge Limas acted to protect the interests of the children of Los Fresnos,” said Mark Sossi, the attorney who on behalf of three families requested that courtroom spankings be stopped.

The ruling came after the filing of a lawsuit by Mary Vasquez and Daniel Zurita against Garza last week. The lawsuit alleges that Zurita had felt compelled to spank his stepdaughter in lieu of a $500 fine and criminal conviction for truancy.

“Obviously, we had one judge acting outside his authority when forcing parents to spank their children in his courtroom,” Sossi said. “It doesn’t help the children with anything, and it contributes to a circus-like atmosphere in the courtroom.”

Cameron County Chief Counsel Richard Burst said he didn’t know whether the county would attempt an appeal.

“I think it’s best to sit on it and make a decision tomorrow,” said Burst, who with co-counsel Bruce Hodge, defended Garza at Wednesday’s hearing.

With the county’s legal represenation at his side, Garza took the stand early in the hearing to defend the spankings.

“I think that discipline works,” Garza said of paddling, which he said parents select in lieu of paying fines by choice. “It’s effective. It’s efficient. It’s immediate. There are no questions.”

Garza said that he did not compel or coerce parents to paddle children. However, he also testified that he does not provide other alternatives to fines, such as counseling or community service, because he does not believe these are effective.

He estimated that fewer than 100 children have been paddled in his courtroom since he took office in January 2007.

During the hearing, Sossi directed Garza to demonstrate how children are positioned for the paddling. Stepping down, Garza placed his arms on the armrests of a chair and bent down with his buttocks facing Limas.

“I find your approach trying to embarrass me,” Garza told the attorney. Sossi rebutted by asking whether Garza thinks 13- and 14-year-old girls and boys would find it humiliating.

Limas also found that there had been no criminal intent on Garza’s part and that the spankings had not been illegal. The judge ordered Garza to refrain from this form of disciplinary action in the courtroom.

Vasquez and Zurita also took the stand, noting that they do not believe in corporal punishment. Zurita said he felt he had no choice but to paddle his stepdaughter because he did not have the money for the $500 fine.

“There were no other options,” Zurita testified.

Limas indicated agreement in his comments from the bench, noting that he at times would not have been able to pay $500 either and that he had heard no testimony that the fines had been less than $500. “There needs to be a clear option,” Limas said.

Limas indicated that the Texas Legislature would be the body that could address the issue of corporal punishment in the courts.

“We are not here to make law,” Limas said.

Source: Perez-Trevino, Emma. Without a Paddle. The Brownsville Herald. June 11, 2008.

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)

The Court’s Opinion found at: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

New York Times Article on the case: http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html?_r=1&hp&oref=slogin

This case seems somewhat reminiscent to the relatively recent cases of Morse v. Frederick and Doninger v. Niehoff. Although these cases dealt with free speech issues in school while Khan’s case dealt with a students’ right to due process, they all beg the important question of how to appropriately balance the school’s right and duty to educate its students and maintain order while still protecting students’ educational and constitutional rights. Both Morse and Doninger allowed schools to restrict student speech in extenuating circumstances. In Morse, the Supreme Court ruled that schools have the authority to censor student speech that advocates the use of illegal drugs. Doninger saw the 2nd Circuit Court rule that schools can punish students for posting web blogs that create “a forseeable risk of substantial disruption” at the school.

A Houston federal judge this afternoon upheld the Fort Bend school district’s decision to bar George Bush High School’s valedictorian from commencement on Saturday.

Khurrum Khan asked U.S. District Judge David Hittner on Wednesday to overrule the school district’s ban on his participation in graduation ceremonies, which included making a valedictory speech.

The class salutatorian is scheduled to speak instead.

Khan was barred from commencement by Fort Bend Independent School District officials as they investigated a breach in the computer systems at Hightower and Elkins high schools.

In a 13-page decision, Hittner ruled that Texas students have a legitimate expectation of receiving a diploma only after successfully completing required courses and that Khan “will not suffer irreparable injury” if precluded from graduation itself.

Hittner also recognized the district’s need to “enforce rules and maintain order and autonomy.”

”The court finds Khan’s reputation, community standing and credibility will not suffer irreparable harm if Khan cannot attend or participate in graduation,” the judge wrote.

Craig Washington said the Khan family was “extremely disappointed,” but grateful for the process.

“Everything came to a stop so that one little young man could have his day in court,” the lawyer said. “Even though we lost in a technical sense, I read the judge’s order as vindicating him.”

Washington said he considers the decision sympathetic because it does not depict Khan as a bad kid or a criminal.

“It tells him in writing from a federal judge that no one looks down on him, he doesn’t lose his standing in the community and his dignity is intact and he’s still the same person that he was and the presumption of innocence and all that stuff.”

The school district’s attorney, Carolyn Hanahan, said the district recognizes that Khan has worked hard and has been very successful academically.

“He will retain the academic distinction of being first in his class,” Hanahan said. “However, as a result of his own actions, and as the federal judge recognized, he will not enjoy the honor of participating in the graduation ceremony. We hope all students and parents understand and respect the judge’s decision.

Khan, 18, faces a felony charge for his role in what district officials describe as a larger scheme involving missing computers at Bush and alleged hacking at Hightower High School.

Students at three high schools broke into the computer system to change grades, officials said. Khan was punished with a three-day suspension.

In addition, the valedictorian and two other Bush students face felony theft charges on allegations that they stole three computers and three monitors from their Richmond school.

Khan and his family were told at least a month ago that the district planned to exclude him from commencement.

During an emergency hearing Thursday, school district lawyer Jonathan Brush said Khan retains his academic honor of valedictorian, but will not be allowed to represent the district in the graduation ceremony.

District officials made the decision because Khan now attends an alternative school and is the subject of school discipline and criminal charges, Brush said.

Washington said his client is being punished for unfounded allegations.

The district’s ban compromised Khan’s constitutional right to due process, Washington argued, because the teen has neither had his day in court on the criminal charge nor exhausted his appeals of the school’s punishment.

Hittner wrote, however, that the district afforded Khan “sufficient minimal due process.”

The teen’s parents met on Monday with Assistant Superintendent Michael McKie, who on Tuesday refused to reverse the district’s position.

Source: George, Cindy. Houston Judge Bars Valedictorian From Commencement. Houston Chronicle. June 6, 2008.
http://www.chron.com/disp/story.mpl/metropolitan/5823149.html