Fall 1996 Human Rights Magazine

By Andrea Passalacqua

All American citizens are guaranteed some inalienable, absolutely indisputable rights.

These rights will hold up in any court in the United States and prove more powerful than any competing arguments. They are the ones that offer many Americans a secure peace of mind and have allowed the U.S. to become the most efficient democracy in the world.

These rights grant the justice system a certain sense of credibility and give the judicial branch a basic ground to start from.

But for children, these same rights are virtually nonexistent.

"Illegal aliens have greater rights than American-born children," said Joel Tenenbaum, a family practitioner in Wilmington, Del. "That is just plain unacceptable."

Tenenbaum spoke about the civil and criminal rights of children. His arguments were part of the program, "Protecting Our Children, Protecting Our Future: Who Speaks for the Child?" cosponsored by the Section of Individual Rights and Responsibilities and the Section of Family Law.

The seminar was one of many presented in the ABA's 1996 Annual Meeting under the umbrella slogan, "Freedom, Justice, Liberty: Without Lawyers They're Only Words."

In Tenenbaum's eyes, children are currently nothing more than the "disenfranchised class of U.S. citizens who have no standing, no rights, who have nothing but their birth right."

In an effort to support this theory, Tenenbaum described a story of injustice that was exemplary of his arguments.

"Can you imagine a situation of a 15-year-old child making a prank phone call, being arrested, his parents not being told he was arrested?" he said. "No attorney. No trial. And imprisoned until he was 21 because he made a prank phone call.

"You say I'm ridiculous. You say I'm being melodramatic. Twenty-nine years ago, that's exactly what happened."

The situation involving the 15-year-old prank caller was the case in which the Supreme Court first recognized that children had rights in a criminal proceeding.

The rights to due process are not guaranteed for children in the constitution.

Tenenbaum emphasized that much progress has been made in criminal rights for children over the past 29 years, while civil rights for children are still almost nonexistent.

In addition to problems with constitutional rights for children, the panel, moderated by San Francisco attorney Kathi Pugh, discussed the need for change in international rights for minors and the rights of children with special needs. Pugh is cochair of the IR&R Section's Committee on the Rights of Persons with Disabilities. Internationally, the United Nations is currently holding a convention to scrutinize the rights of children.

If the UN's new laws are adopted, many Supreme Court decisions would have to be reconsidered, said University of Oklahoma Law School professor Robert Spector. For instance, the convention would require the court to go through different grounds for authorizing the death penalty for minors.

Along with this, the new rules would cause a shift on limitations from the states. However, substantive rights would remain virtually untouched, Spector said.

"I am beginning to see more and more proceedings that will allow children sufficient understanding to be able to present their views and to have those views adjudicated much in the same way that adults would present their views," he said.

A similar sense of progress is being made in certain rights of children with disabilities in education, said Vanderbilt Law School associate professor Alex Hurder. But the changes already made don't at all signify perfection in this area.

"I want to point with pride and view with alarm what s going on in special education," Hurder said. "First, I want to point with pride to the Individuals with Disabilities Education Act and the American Disabilities Act.

"I want to view with alarm some of the changes that are happening largely because of the anticipation of the IDEA by the federal judiciary and particularly an erosion of what the goals of education are for children with disabilities."

The IDEA has been responsible for some major milestones in education for disabled children. This act first guaranteed that children with disabilities would be integrated into public education.

It also allows parents of disabled children to negotiate their child's educational plan with the school system. Parents now have a level of judicial review over the decisions made by the school involving their children.

Most recently, the IDEA has developed individualized programs to achieve the goals of each child, including assigning the amount of time that should be spent on particular tasks and standardizing the criteria to move from one project to another.

Hurder expressed concern at the idea that goals for many disabled children are being set at less than the standards for other children or even their own potential.

Since disabled children's educational rights certainly differ from state to state and, unintentionally, from school to school, this sometimes makes it difficult to abide by both the constitution and the state's method of dealing with certain matters.

In fact, this conflict arises in all areas of children's rights. There is a continuous dispute between the treatment of children as persons under the constitution and the state's policy in safeguarding children, said Texas Wesleyan Law School professor Gilbert Holmes.

"The state's interest in protecting children includes an interest in promoting their economy," he said. "The conflicts between the state's protective interests and the economy of the children should be resolved by focusing on the one aspect that these two often warring positions have, and that is the goal of promoting children's autonomy." Part of the dilemma is caused by the possibility that society views children in much the same way that parents do, Holmes said.

He added that this view is unrealistic considering the large difference in the number of children with which each party must deal.

"We want to protect our children, and, at the same time, we know that overprotection does not cause the development of responsible adults," he said. "In addition, the legal system must apply doctrine and rules that apply to society as a whole, whereas parents merely have the problems of developing doctrine and rules for their own individual children."

Despite such problems, the courts have made progress in granting children certain rights.

For example, recent court cases involving condom distribution, curfew statutes and the ability of minors to seek an abortion have all been decided in favor of allowing children some level of autonomy.

"An autonomous child is a contradiction in terms," Holmes said. "But in spite of this contradiction, the court continues to declare that children are autonomous." Part of the autonomy problem could be solved by making laws more limited to particular sectors of minors, Holmes said.

"Curfew statutes should be more age specific," he said. "There is a significant difference between a 9-year-old and a 15-year-old, and having a blanket law that says all people under 17 years old must be at home after a certain hour does not address the development of autonomy."

Holmes expanded on this idea, suggesting the possible use of a photo identification system organized through the school system to distinguish older minors from younger children.

While he didn't offer any potential solutions for mandatory drug testing, Holmes said that this area needs to be re-examined for the purpose of promoting children's autonomy.

The current system revokes all rights from children since they have no voice in the matter whatsoever.

But Spector offered an opinion that shows that many people believe children have all of the rights that they need and deserve.

"All the talk of children's rights flounders on the dilemma that a 6 month old is never going to be an autonomous person and neither is a 4-year-old," he said. "And that children obtain a pass to these decision-making facilities as they get older and as they mature."

Andrea Passalacqua is a writer in Orlando, Florida.

As published in Human Rights, Fall 1996, Vol. 23, No. 4, p.7.