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Children & the Law
University of Missouri School of Law
Abrams, Douglas E.

I.                  INTRODUCTION
 
A.    Factors that Influence Juvenile Legal Matters
1.      Poverty
2.      Violence (i.e., within the family, domestic, neighboring community)
3.      Mental Illness
4.      Substance Abuse
B.     Juvenile and Family Court System
1.      Juvenile Court Jurisdiction
a.      (ü)Abuse and Neglect
                                                                                            i.      Civil= Juvenile Court
                                                                                         ii.      Criminal= Criminal Court
v Jurisdiction= right to decide termination-parental-rights petitioned filed by the state seeking to permanently sever the parent-child relationship b/c of gross abuse or gross neglect
b.      (ü)Adoption:
                                                                                            i.      terminates the parent-child relation btwn the child and the natural parents
                                                                                         ii.      creates a new parent-child relationship btwn the child and the adoptive parents 
c.       (ü)Status Offenses
                                                                                            i.      Misconduct sanctionable only where the person committing it is a juvenile
                                                                                         ii.      Examples= truancy, running away from home, and ungovernability (the juvenile habitually resists reasonable discipline from his or her parent and is beyond their control)
d.      (ü)Delinquency
                                                                                            i.      Alleges that the juv has committed an act that would be a felony or misdemeanor if committed by an adult
2.      Unified Family Court Systems
3.      Problem-Solving Courts
C.     The Nature and Sources of Children’s Status, Rights and Obligations
1.      Sources
a.      The Parens Patriae Doctrine:Confers state authority to protect or promote a particular child’s welfare
b.      Police Power:State’s inherent plenary authority to promote the public, health, safety and welfare generally 
2.      Nature
a.      Constitution
                                                                                            i.      Child’s say is still unknown b/c where there are court decisions that address, there is no protection for the child’s voice embedeed in the constitution
b.      UN:
                                                                                            i.      under umbrella of human rights
                                                                                         ii.      recognize independent rights of children
c.       The Child’s Duty to Obey:
                                                                                            i.      Meyer
                                                                                         ii.      Pierce
II.                THE CONSTITUTIONAL FRAMEWORK OF RIGHTS AND OBLIGATIONS:
Status, Rights & Obligations of Children
A.    Constitutional Framework for Deciding Issue
1.      Ways to Defend a client:
a.      Disprove Facts: My client didn’t do this!
b.      Attack the Law on which the Arrest was Made: This is what they did in Meyer **
                                                                                            i.      Attack on its Face: Argue that the law is unconstitutional on its face b/c its very words itself are in conflict with constitutional provisions
                                                                                         ii.      Attack on its Facts: Unconstitutional as its applied to this set of particular facts
2.      ê Analysis of Constitutional Issue ê
a.      (ü) Nature of the Right/Interest at Sake: What interest does the state have in becoming involved in making decisions for kids
                                                                                            i.      When gov’t tries to interfere with private rightsà question is always going to be why should they?
                                                                                         ii.      How you define interest of right determines what standard is applied to the validity of the law (i.e., fundamental rightà higher standardà “rationally related”
                                                                                       iii.      Must establish that there is a constitutional interest/right that has been affected by the application of this law
b.      (ü)What is the Source of the Interest
In addressing who gets to decide as a basis for state’s legitimate interest in deciding how children are raised, there are two approaches
(1)   Police Power Authority=Harm (Traditional)     Meyer & Pierce
(2)   Parens Patriae                                                                  Prince
a.      Grounded in 2 related concepts
                                                                                                                                                  i.      Parents are presumed to be fit (but this is a reputable presumption)
                                                                                                                                                ii.      Children are dependent on a fit adult to meet their needs
b.      English Common Law
                                                                                                                                                  i.      Under English society, the sovereign the royal was responsible for the welfare of her subjects as a practical matter, queen couldn’t watch everyone, so they picked pp lint he community who were in need of special attention èsick, elderly, & children)
                                                                                                                                                ii.      Idea of government taking an interest in these groups   è all dependent people
c.       State’s Obligation
                                                                                                                                                  i.      If interest of child are not being met, state has a moral obligation to step in
                                                                                                                                                ii.      If parent is not fit to meet child’s needsè state steps in
B.     The Laws Evolving Conception of Child’s Status, Rights and Obligations
1.      The Traditional Roles of Parents and the Government
a.      Presumption of Parental Fitness:
                                                                                            i.      Presumption that parents are fit/capable/sufficient to protect children’s interestunderscores parents right to decide about kids and be left alone
                                                                                         ii.      Parents are empowered to make decisions about how their child is raised without anyone from outside trying to break through wall and trying to control the integrity/privacy of the family
b.      Parents have a fundamental due process liberty interest in directing their children’s upbringing
c.       Confrontation of Rights Between Parents and State
d.      Juvenile court is almost entirely based on judicial discretion. This allows the judge to take each case individually and tailor the remedies. Considered as both a strength and criticism.
                                                                                            i.      Who Gets to Decide?
When gov’t wants to regulate some aspect of “who decides”, the constitutional element involved is due process
v Two Approaches in Addressing Who Get to Decide
(as a basis for state’s legitimate interest in deciding how children are raised)
üPolice Power Authority/Harm (Traditional)
üParens Patriae
v Role of State In making Educational Decisions
1. What we teach our kids in school
Meyer v. Nebraska (1923) (p.19)
FACTS: Teacher is arrested and charged for unlawfully teaching the subject of reading in the German language to a kid who had not attained and successfully passed the 8th grade. Seeks to overturn his criminal conviction on the grounds that law violated due process clause of the 14th Amendment. 
ISSUE #1: What role does the state have in making educational decisions?
ISSUE #2: Did Nebraska law prohibiting the teaching of foreign languages to school children before high school violated the Due Process Clause of the Fourteenth Amendment.
HOLDING: Nebraska law prohibiting the teaching of foreign languages to school children before high school unconstitutionally violated the Due Process Clause of the Fourteenth Amendment.
RULE: Gov’t can’t act to interfere with an individual right (i.e., parents liberty right) unless there is a harm present.
RATONALE: Violated the DP Liberty interest of teacher to teach, and of the parents to hire him to do so. Statute enacted a criminal law that affected how children were taught, but law failed to rise to the type of harm necessary. It was overreaching, overbroad, and not narrowly curtailed to an interest of the state
NOTE: Courts made no mention of any interest, constitutional, or otherwise, held by the students
 
(A)                Nature of the Right/Interest at Stake:
Must be “rationally related” to the interests of the state; narrowly curtailed to an interest of the state
 
(1)                 State’s interest in getting involved
What is the state’s interest in interfering with the parent’s decision regarding child’s education?
a.     Ideal society is one of pure equality and the way to achieve pure equality is to put everybody on an equal footing
b.     Court talks about Plato b/c there was a time when there was a question of what possible role a gov’t should have in deciding how children are educated as well as an underlying philosophy that Plato’s idea made sense to the extent that issues of how a child is education should not be left solely to parents
c.      Plato says when kids are born, they don’t just belong to the states, not sole property of parents, also belong to community
d.     So it’s fitting to remove children from their parents for purposes of educating them and send them a place where every child receives the same quality of education
(2)                 Teacher’s Interest
a.        Constitutionally protected right to teach students in the manner in which the teacher thinks students are most likely to learn
b.       Law is infringing on teacher’s right to teach
(3)                 Parent’s Interest
a.        Right to be protected against intrusions on their life, liberty or property 
(4)                 Children’s Interest
a.        Do not seem to matter at all in this case. Not even addressed in this opinion.
 
(B)                Source of the Interest= Due Process Clause of 14th
No person shall be deprive of life, liberty or property without DP of Law àGov’t must afford citizens process to challengesomething before it affects their rights or opportunity to do something before it’s undone
 
(1)                 Teacher’s Interest= Liberty Interest
a.        Protection recognized for teach is being discussed in terms of its relation to parents
b.       Carrying out a function of what the parents ultimately wants for their child
 
(2)                 Parent’s Interest= Liberty Interest
a.        Parent has a liberty interest in making decisions just as a teacher has to be given a certain amount of freedom in teaching
b.       A parent has to be given protected freedom to make decisions about how their child is to be raised
 
(3)                 State’s Interest
a.        Parens Patriae
b.       Police Power=Protect Against Harm
² State has a justifiable interest in intruding/can interfere where is harm is based on police power
² B/C police power gives gov’t authority to interfere with constitutionally protected rights (i.e., liberty) in order to protect citizens and the community against harm
² However, Nebraska failed to show that teaching children in the German language is harmful
² Thus, the Nebraska statute was invalid/unconstitutional b/c the mere teaching of German is not harmful
 
Whether kids have to go to public vs. private school
Pierce v. Society of Sisters (1925) (p.22)
FACTS: Society’s alleged that the enactment of Compulsory Ed Act of 1922, requiring parents to send their children between 8-16 to public school, and not private or parochial school was unconstitutional.
HOLDING: Act of 1922 unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control
HOLDING: Court struck down statute that required parents to send their children between 8-16 to public school, and not private or parochial school.
RATIONALE: Rights guaranteed by the Constitution may not be abridged by legislation which as no reasonable relation to some purpose within the competency of the state
PRINCIPLE/RULE: “The child is not there mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
 
 
 
(A)                Nature of the Right/Interest at Stake: (PRINCE) (p. 25)
(1)                 State’s interest in getting involved
a.     Productive Members of Society
–      has an interest in how children are raised b/c if children are raised properly by fit parents, they can benefit the state/society as productive members of society (i.e., democratic gov’t is dependent on ppl exercising their right t

ise their child or about what would overcome the presumption of a parent’s fitness
RULE: Law can’t take away a parent’s fundamental right to make decisions for kid without evidence that parent is unfit (i.e., there’s got to be a reason to take that right away) 
b.      What would have changed the outcome of Troxel
                                                                                            i.      If there was a question about this parent’s fitness
v if someone brought the claim that the parent was neglectful, government is involved in family’s private right
v Court would have reached a different outcome b/c “presumption of parent’s fundamental right is in doubt”
c.       Concerns/Issues Troxel failed to address
(Justice Stevens, Dissent)
                                                                                            i.      Wishes of the child
                                                                                         ii.      How much weight should the law give to the wishes of the child and what happens when this conflicts with what the parents wants (balance rights and interest in conflict)
III.             THE LIBERATION OF CHILDREN: THE CHILD AS A LEGAL FORCE
What happens when the child steps up and claims rights, when those rights come into conflict with the authority of parents or states
A.    How Far is the Court Willing to Recognize the Status of the Child?
1.      School’s power to regulate Student’s First Amendment Rights
Tinker v. Des Moines Independent Community School District (1969) (p.34)
FACTS: School adopted policy banning arm bands protesting against Vietnam; students wear arm bands in protest of the war. 
ISSUE: What happens when students in the exercise of their 1st Amendment rights collide with the rules of school authorities
HOLDING: Court upheld the First Amendment Rights of 3 students to wear black armbands in their public schools to express their opposition to the Vietnam War
ANALYSIS: Authority of school to maintain a certain environment that would be conducive to learning and that would in fact be safe vs. kids right to free expression
RATIONALE: Kids were engaging in a silent, passive expression of political opinion, without disorder or disturbance to school operations
GENREAL PRINCIPLE: student’s do not “shed their constitutional rights of speech or expression at the schoolhouse gate”
 
a.      Need Constitutionally valid reasons: in the absence of a specific showing of constitutionally valid reasons to regulate their speech, students
b.      Need Material or Substantial Disruption: In order to infringe on a student’s protected rights, the school system must be able to articulate that the expression would create a material or substantial disruption in the education purpose/process
                                                                                            i.      Students can challenge decision of school authorities regarding what is material or substantial disruption
c.       Threat of violence isn’t enough
                                                                                            i.      Need evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline
                                                                                         ii.      Undifferentiated fear or apprehension of disturbance if not enough to overcome the right of freedom
v School’s can’t practice totalitarianism
v School’s responsibility to “foster a homogenous people”
v School’s authority over students is not absolute
v Protect market place of ideas à prepare kids for society
d.      Must be more than a mere desire to avoid discomfort: that accompany an unpopular viewpoint
e.      Tinker left open:
                                                                                            i.      Doesn’t answer how much disruption/risk must be present/threatened before the authorities can act to curtail the activity
                                                                                         ii.      This was left to lower court decisions
2.      How far are courts willing to go to let kids engage in activities which are challenged by school authority
a.      Not all forms of expression are protected under the 1st Amendment
                                                                                            i.      Pure Speech in a Public Forum
v In order to obtain first amendment protection, students must establish that speech is pure speech that is offered in a public forum
v Tinker protects protect pure speech in a public forum
v Threshold issue in expression cases= are we faced with pure speech in a public forum, if not , then we can argue that Tinker doesn’t apply
                                                                                         ii.      What is pure speech in a public forum?
v Court doesn’t elaborate on what is pure speech and what is public forum
                                                                                       iii.      Closest definition is based on the allusion of pure speech being akin to “political speech”
v In both Tinker and Zucker, students were expressing views in opposition to Vietnam
v Tinker: wearing of arm bands was an expression constituting pure speech b/c it was akin to political speech
                                                                                        iv.      Does a Newspaper Article Pure Speech a Public Forum
v Yes