Select Page

Children in the Legal System
University of Mississippi School of Law
Davis, Samuel M.

Children in the Legal System
Fall 2007
Dean Davis
 
 
I. Allocating Power over Children
Assumption that parents are the primary caretakers of children
Role of the state is a subsidiary one of support and supervision
Intervention by the state is warranted only when an important state interest is implicated & that interest would be threatened by deference to parental authority
Parent’s interest in raising their children is constitutionally protected under the 4th & 14th Amendment (“no state shall deprive any person of life, liberty, or property without due process of law”)
Parent’s liberty right to raise and educate their children
Meyer- state statute made it a misdemeanor to teach a language other than English
Plaintiff argued it was within his liberty right as a teacher to instruct the students
Court engaged in a balancing test:
State interest
Having an educated society
Acquire American ideals before learning others
Individual interest
Teacher’s right to teach
Parent’s right to instruct
Child’s right to education
Due Process rights
Court invalidated the statute
State means exceeded their power
Statute conflicted with the liberty rights of the parents and the children
Pierce- statute requiring parents to send their children to public schools
Court balances state interest against individual’s interest
State’s interest
Educated society
Individual’s interest
Parent’s right to choose schools
Rights of children to influence parent’s choice of school
Rights of schools to engage in a useful business or profession
State can’t interfere with liberty interest of parents in upbringing their children
“The child is not the mere creature of the state; those who nurture him & direct his destiny have the right, coupled with the high duty, to recognize & prepare him for additional obligations”
State has power to
Reasonably regulate all schools
Inspect, supervise, and examine schools, their teachers and students
Require all children attend some school
Require teachers to be of good moral character & patriotic disposition
Require certain studies to be taught
Require nothing be taught that is inimical to society
Prince- law prohibiting children from selling newspapers, magazines, etc.
Petitioner allowed her child to hand out Jehovah’s witness pamphlets
Petitioner argues the statute infringes on her 1st amendment rights applied through the 14th Amendment
Court engages in balancing test
State interest of protecting children from harm outweighed the liberty interest of the parent in rearing child
Court upholds statute  
State’s power is not nullified because the parent grounds his claim to control the child on religion or conscious
State’s power to protect children & promote welfare derives from two sources
1) Police power- promote the interest of society as a whole in the health, safety, education, and welfare of its members
2) Parens patriae- promote the welfare of children when their parents failed to do so, either through neglect or poverty
Yoder- state compulsory law requiring parents to send their children to school until 16
Amish petitioners withdrew their children after the 8th grade – believed it would ultimately lead to the destruction of the Amish community
Amish children received vocational education after the 8th grade within the community
Court applied a 3 prong test
1) Is the belief sincerely held
Amish religious belief is intertwined in their way of life
Amish have been around for 300 years
Amish have a history of self-reliance
2) Does the statute impose an undue burden on the free exercise of religion
Religious belief is their way of life
After 8th grade, there are too many influences (sports, music)
Young people will the leave the faith
3) Does the state’s interest significantly outweigh the individual interest
Jefferson’s ideal of universal education
An educated citizenry is necessary in a participatory democracy
School prepares citizens to be self-reliant & self-sufficient
Court held the state interest was already being achieved; statute was inapplicable to the Amish
Very narrow application – Few groups would be able to make the showing of the Amish that the religion

ys we should use a reasonable person standard adjusted for age, intelligence, and experiences under like circumstances
o        If a minor engages in an adult activity, the standard for negligence is the usual adult standard
o        Parental liability
§         2 bases of liability
·         Statutory- imposed liability for the willful and wanton acts of their children, but limits damages of parents
·         Negligence theory- parents were negligent in failing to supervise
o        Moore- must show 1) parents have reason to believe a child needs supervision; 2) knowing #1, they failed to supervise
o        Intrafamily Tort Immunity
§         1st recognized in MS
§         One family member should not be able to sue another family member → promotes family harmony
§         Today, theory is mostly abolished
§         D) Children as Persons Under the 1st Amendment
o        Tinker- students were suspended from school for wearing black armband protesting the Vietnam War
§         “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”
§         Test: speech or activity cannot be prohibited unless it materially and substantially interferes with the requirements of appropriate discipline in the operation of the school
§         Applying test, court ruled in favor of students because the armbands did not substantially interfere with school
o        Morse- “Bong Hits for Jesus”
§         S.Ct. ruled the 1st Amendment was not violated when the student’s sign was confiscated
§         Court applied the substantial interference test
§         School argued it promotes the use of illegal drug use