Conceptualizing Legal Childhood in the Twenty-First Century

Michigan Law Review Volume 118 Issue 7 2020 Conceptualizing Legal Childhood in the Twenty-First Century Clare Huntington Fordham Law School Elizabeth S. Scott Columbia Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Family Law Commons, Juvenile Law Commons, Legal History Commons, and the Legislation Commons Recommended Citation Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 MICH. L. REV. 1371 (2020). Available at: https://repository.law.umich.edu/mlr/vol118/iss7/3 https://doi.org/10.36644/mlr.118.7.conceptualization This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CONCEPTUALIZING LEGAL CHILDHOOD IN THE TWENTY-FIRST CENTURY Clare Huntington* & Elizabeth S. Scott** The law governing children is complex, sometimes appearing almost incoher- ent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent be- ings. As children emerged as legal persons, children’s rights advocates chal- lenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined the state’s long-standing role as the protector of children. We address this seeming incoherence by identifying a deep structure and log- ic in the regulation of children that is becoming clear in the twenty-first century. In our conceptual framework, the law’s central goal, across multiple legal domains, is to promote child wellbeing. This unifying purpose has roots in the Progressive Era, but three distinct characteristics distinguish the modern approach. Today, lawmakers advance child wellbeing with greater confi- dence and success by drawing on a wide body of research on child and adolescent development and the efficacy of related policies. This is bolstered by the clear understanding that promoting child wellbeing generally furthers social welfare, leading to a broader base of support for state policies and legal doctrines. Finally, there is a growing recognition that the regulation of children and families has long been tainted by racial and class bias and that a new commitment to minimizing these pernicious influences is essential to both the legitimacy and fairness of the regime. In combination, these features make the contemporary regulatory framework superior to earlier approaches. * Joseph M. McLaughlin Professor of Law, Fordham Law School. ** Harold R. Medina Professor of Law, Vice Dean for Curriculum, Columbia Law School. For their comments and suggestions, we are grateful to Susan Appleton, Albertina An- tognini, Katharine Bartlett, Anita Bernstein, Emily Buss, Doriane Lambelet Coleman, Anne Dailey, Nestor Davidson, Maxine Eichner, Elizabeth Emens, Martin Guggenheim, Jill Hasday, Elizabeth Katz, Robin Lenhardt, Solangel Maldonado, Douglas NeJaime, Noam Peleg, Richard Revesz, Robert Scott, Laurence Steinberg, Emily Stolzenberg, Jonathan Weiner, Jordan Woods, and Ruth Zafran, as well as workshop participants at Columbia Law School, Duke Law School, Fordham Law School, St. John’s Law School, the University of Minnesota Law School, and with the New York Area Family Law Scholars. For careful research assistance, we are grateful to Edmund Costikyan, Denver Dunn, Eli Huscher, and Deborah Ogali. 1371 1372 Michigan Law Review [Vol. 118:1371 Rather than pitting the state, parents, and child in competition for control over children’s lives—the conception of family regulation since the 1960s— our Child Wellbeing framework offers a surprisingly integrated regulatory approach. Properly understood, parental rights and children’s rights, as well as the direct role of the state in children’s lives, are increasingly defined and unified by a research-driven, social-welfare-regarding effort to promote child wellbeing. This normatively attractive conceptualization of legal childhood does not define every area of legal regulation, but it is a strong through line and should be elevated and embraced more broadly. In short, our framework brings coherence to the complex legal developments of the past half century and provides guidance moving forward for this critical area of the law. TABLE OF CONTENTS INTRODUCTION............................................................................................1373 I. THE RISE AND FALL OF THE PROGRESSIVE ERA FRAMEWORK ..1379 A. The Rise of Progressive Paternalism .....................................1380 B. The Framework Under Pressure ...........................................1385 1. Challenging the Progressive Era Model of Juvenile Justice ...............................................................................1385 2. Children’s Rights: Conceiving of Children as Legal Persons .............................................................................1390 3. Parental Rights Under Siege..........................................1394 II. AN EMERGING FRAMEWORK: REVIVING CHILD WELLBEING ...1397 A. Juvenile Justice Reform: The Embodiment of the New Framework ..............................................................................1398 1. Catalysts for Reform.......................................................1399 2. Modern Juvenile Justice Policy.....................................1401 B. Direct Regulation of Families: Nascent Glimmers of the Child Wellbeing Framework .................................................1406 1. Policies of State Support ................................................1407 2. The Child Welfare System.............................................1409 3. A Blueprint for Reform..................................................1412 III. CHILD WELLBEING AND PARENTAL RIGHTS ..............................1413 A. Interpreting Parental Rights in the Child Wellbeing Framework ..............................................................................1414 B. The Framework in Practice ...................................................1418 1. Corporal Punishment ....................................................1419 2. Third-Party Contact and De Facto Parents ................1422 3. Decisions About Medical Care .....................................1426 4. Homeschooling...............................................................1429 May 2020] Legal Childhood in the Twenty-First Century 1373 IV. CHILD WELLBEING AND CHILDREN’S RIGHTS............................1431 A. Interpreting Children’s Rights in the Child Wellbeing Framework ..............................................................................1432 1. Child Wellbeing..............................................................1432 2. Social Welfare..................................................................1434 3. Developmental Research ...............................................1435 4. Racial Equality and Children’s Rights..........................1438 B. The Framework in Practice ...................................................1439 1. Rights Granted to Minors..............................................1440 a. Healthcare Decisionmaking....................................1440 b. First Amendment Rights in School.........................1444 c. Procedural Rights in Delinquency Proceedings.....1446 2. Rights Withheld from Minors ......................................1448 V. ANTICIPATING CRITICISM ............................................................1451 CONCLUSION ................................................................................................1456 INTRODUCTION Over the past several decades, the law’s treatment of children has be- come increasingly complex and uncertain in ways that can seem to verge on incoherence. The problem stems from a breakdown of the Progressive Era approach that governed for much of the twentieth century: in that framework, parents had authority to make most decisions about their children, subject to state regulation of issues such as education and child labor. The state also intervened directly with families to protect children from parental abuse and neglect and to rehabilitate children engaged in wayward or crimi- nal conduct.1 Children in this regime were largely invisible as legal persons, presumed to be vulnerable, dependent, and incapable of making self- regarding decisions.2 Several developments in the second half of the twentieth century com- plicated this approach. Beginning in the 1960s, courts and legislatures started treating children as rights-bearing legal persons for some purposes.3 This 1. See infra Section I.A (detailing this approach and emphasizing that state intervention focused primarily on low-income, immigrant families). 2. See infra Section I.A (describing this legal framework and noting that to an extent, it persisted for decades: parents continued to enjoy substantial control over their children, subject to state intervention or preemption when child welfare and social welfare demanded, and for many purposes, children continued

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