The Court and Young People
By Jean West, educator and consultant in Port Orange, FL.
Around 1910, Alexander J. McKelway wrote a Declaration of Dependence on behalf of the children of America: "That childhood is endowed with certain inherent and inalienable rights, among which are freedom from toil for daily bread; the right to play and to dream; the right to the normal sleep of the night season; the right to an education, that we may have equality of opportunity for developing all that there is in us of mind and heart." McKelway could look neither to the Declaration of Independence, the Constitution, nor the Bill of Rights for language defining the rights of children. Indeed, he would have searched in vain in the supreme laws of the land even to find a definition of "child."
Students I have worked with, from upper elementary to high school, are universally shocked when they hear this. Normally they move fairly quickly from stunned silence to clamorous questioning: What do you mean nobody's defined what a child is? How come we're in this classroom if there's no right to an education? Are you saying judges treat adult criminals differently than juveniles? What do you mean I can't say the same thing in a school assembly as the guys on TV? The state doesn't have to stop a guy from wholloping his kid--that's crazy! Teachable moments like this don't come along every day, and it is natural for teachers and students to look for answers to these questions in decisions of the Supreme Court of the United States.
Unfortunately, that can be daunting. The Court and Young People Time Line features a sampling of cases from 1918 to 2005. There are hundreds of additional cases decided by district, superior, and state supreme courts. Two different reference books on law and the child may take substantially different approaches to categorizing cases, particularly since many cases involve multiple issues or competing rights. Teachers face the problem of how to integrate this sprawling, gargantuan information base into the curriculum. Students look at the overload of information and simply want to know, "What does it mean to ME?"
Many of the cases argued before the Supreme Court affecting the young people of the nation fall into five general categories:
- "Economic and Property Issues" (child labor, child support, inheritance and benefits such as workman's compensation);
- "Parents and Family" (parental rights, custody, visitation, parental consent and notification in abortion cases, citizenship);
- "Health and Safety" (medical treatment, abuse and neglect);
- "Juveniles and Criminal Justice System" (Fifth Amendment double jeopardy, Sixth Amendment and due process in juvenile system, and Eighth Amendment issues of coercion, sentencing, capital punishment);
- "Education and Students' Rights" (Fourteenth Amendment to the U. S. Constitution protection from discrimination on the basis of race, gender, language, handicap, socioeconomic factors; First Amendment freedoms of speech, press, religious exercise and establishment, and association; and Fourth Amendment search and privacy; Eighth Amendment corporal punishment).
These categories fall naturally into typical U.S. history and government classes that study the Constitution and Bill of Rights, the Amendment Process, John Marshall and judicial review, Reconstruction and the Fourteenth Amendment, Child Labor and the Progressive Era, Women's Suffrage, Civil Rights and the Warren Court, and the Vietnam War (adoption of the Twenty-Sixth Amendment and protest.) Five cases, not necessarily landmark ones, that have been decided by the Supreme Court help to illustrate these categories: Western Union Telegraph Co. v Lenroot (1945), Pierce v. Society of Sisters (1925), DeShaney v. Winnebago (1989), In re Gault (1967), and Minersville v. Gobitis (1941). Other cases critical to understanding the issue are also mentioned.
Children before the Twentieth Century
When looking at the time line, students and teachers may wonder about the absence of cases between 1787 and 1918. Simply answered, even today there is no legal agreement on a definition for "child." On the upper end of the scale, the age of majority is unsettled: The Twenty-sixth Amendment to the Constitution confers the vote on all citizens eighteen and older, yet the National Minimum Drinking Age Act of 1984 restricts consumption of alcoholic beverages to persons aged 21 or older. At the opposite end, Roe v. Wade recognizes only the threshold of "viability," where a fetus is capable of "meaningful life outside the womb." Legal rights (to life, protection from abuse, support, etc.) begin with birth but with advances in medical technology, the definition of viability is fluid. From time to time the court has invoked "maturity," but has never defined the term. Lacking a defined beginning or end, our modern concept of childhood is imprecise, just as it was at the time the Constitution was written. The silence in the legal record, along with present ambiguity, comes from changing ideas about the duties of parent to child, child to parent, and both to the greater community.
English settlers of the Atlantic seaboard brought with them a view of children shaped by the Calvinist religious doctrine of original sin, which affirmed the idea of "infant depravity" (from the moment of birth we are sinners) and infant damnation (infants who die before baptism are consigned to hell). English common law presumed children up to seven years of age to be too young to form criminal intent (the doctrine of doli icapax) so did not treat them as adults. However, by the age of seven (and not infrequently, six) children could be indentured or apprenticed and were considered legal parties to those contracts. Benjamin Franklin himself recounts in his Autobiography how he was bound out as a printer's apprentice to his brother James when he was only twelve years old.
Children were viewed effectively as the property of their parents, in particular their father or their apprenticeship master. Colonial parents or masters were generally obliged to provide their children with general support, a basic home-schooling education, job training, and take them to ministers for religious instruction. Failure to do so could result in fines, imprisonment, or loss of custody of the child. Children were expected to support their parents in infirmity and old age, whether they had been good parents, or not.
Although colonists reduced the number of crimes for which a person might be executed (from 250 in England to 13 in Pennsylvania), they would mete out the death penalty to anyone above the "age of reason." Children between seven and fourteen were still presumed incapable of mature reasoning but if the prosecutor could convince the judge otherwise, they were tried in criminal court. Those above the age of fourteen were typically treated as adults, although Massachusetts' 1646 stated, "If a man have a stubborne or rebellious son of sufficient years of understanding, viz. sixteen, which will not obey the voice of his father or the voice of his mother, and that when they have chastened him will not harken unto them ... but lives in sundry notorious crimes. Such a son shall be put to death." While sixteen-year-old Thomas Graunger was hung in Plymouth Colony in 1642, there are no further documented juvenile executions until 1722, so courts rarely exercised this power.
The Enlightenment philosophers had a great impact on those who fought for independence, wrote the Constitution and established the federal judiciary. John Locke asserted in his Second Treatise of Civil Government (1690), "...we are born free as we are born Rational; not that we have actually the exercise of either: Age that brings one, brings with it the other too." Children had the same natural rights as adults and were born not with original sin, but as a tabula rasa (blank slate) free to form their own character, whether good or evil. Jean-Jacques Rousseau explored the rights and education of children in even greater depth, especially in Émile (1762). He believed children were naturally good, but quite different from adults writing, "We are born weak, we need strength; helpless we need aid; foolish we need reason. All that we lack at birth, all that we need when we come to man's estate, is the gift of education."
Although children are not mentioned in the Declaration of Independence, Thomas Jefferson's letters and efforts on behalf of the University of Virginia reflect his Enlightenment conviction that an educated citizenry was essential for the success of the republic. Writing to Joseph Cabell in 1818 he warned, "If the children...are untaught, their ignorance and vices will in future life cost us much dearer in their consequences than it would have done, in their corrections, by a good education." Enlightenment belief in rationalism and humanity's power to improve the human condition motivated The Philadelphia Society for Alleviating the Miseries of Public Prisons, to supply Bibles and instruction to inmates, both adult and juvenile, serving together in the Walnut Street Jail (the first in the country which isolated hardened criminals from the general population).
By the turn of the Nineteenth century, Americans' ideas were shifting from Puritan infant depravity to the Enlightenment belief that children were intrinsically good, but could be corrupted by wickedness in the environment. This led to a change in public law and policy. Even prior to the adoption of the Constitution, education was viewed as an essential component in public morality. Compulsory school attendance laws enacted in New England and the mid-Atlantic colonies along with compulsory apprenticeships in the South (to discourage vagrancy) were fortified by the Land Ordinance of 1785. Adopted by Congress under the Articles of Confederation, it set aside township sixteen in the new territories for the support of public education. This was further advanced by the Northwest Ordinance of 1787, which declared, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Increasingly, the government showed a willingness to step in under the doctrine of parens patriae, acting on behalf of children instead of their parents.
The United States Constitution says nothing about the age of majority. While it sets a minimum age for representatives to Congress (25) and the president (35), it does not set the age of voters. When the first U.S. Census was conducted, in 1790, only the names of heads of household were recorded. However, census-takers recorded the number of free white males over the age of sixteen, the number of free white males newborn through fifteen, the number of free white females of all ages, the number of any other free people of all ages, and the number of slaves. States established the rules about who could vote (typically white males over 21), but property-holding was more significant than age in determining suffrage.
Treatment of minors involved in the criminal justice system began to change beginning in the early Nineteenth century. Reform schools emerged as an option for judges who did not wish to place juveniles in correctional institutions (education being viewed as necessary for a young person to reform.) In 1850, the Ohio State Reform School was the first reformatory to provide vocational training. Industrial schools (such as the one Gerald Gault was sent to in the 1960s) were considered a progressive step since they were designed to spare juveniles the hard labor used as punishment in adult institutions and prepare them for employment at the end of their sentences. For those juveniles not sent to reform or industrial school, the Society for the Prevention of Juvenile Delinquency urged separation of youthful offenders from adult convicts in prison and crusaded for the establishment of a completely separate juvenile court system. The first juvenile court was established in Cook County, Illinois in 1899; by 1925, all but two states had juvenile courts.
1. Economic and Property Issues
Mark Twain's Tom Sawyer, written in 1876, captures the Victorian transformation of the concept of "childhood" into an idyllic phase of life. Unfortunately, the reality of childhood in the Nineteenth century was very different from the ideal. With the exception of children of the very rich or urban middle-class families, most children worked, either on the farm, in the household, or in a factory. Children began to do simple chores around the age of three, many were working by five, and large numbers performed adult work by the age of ten or twelve. Children were an important economic asset to most families. The 1900 census revealed that almost one-fifth of the labor force of the United States consisted of boys and girls between the ages of ten and fifteen--nearly two million children. Progressive Era reformers, such as the National Child Labor Committee (who hired photographer Lewis Hine to document child labor across America) pushed the federal government to end child labor. In 1916, Congress passed the Keating-Owen Child Labor Act by which the government used its express power to regulate interstate commerce to try to curtail child labor. It banned the interstate sale of products produced by underage children, or those who worked excessive hours or at night, about ten percent of the total child labor workforce.
Roland Dagenhart worked in a cotton mill in Charlotte, North Carolina along with his two sons, John (thirteen) and Reuben (fifteen); as a consequence of the Keating-Owen Act, John would lose his job and Reuben's hours would be reduced from eleven to eight. Financed by mill owners, Dagenhart sued. In 1918, the Supreme Court heard Hammer v. Dagenhart and in a 5 to 4 decision invalidated the Keating-Owen Act on two grounds. Justice William Day's opinion interpreted that "means of production" (child labor) was not the same as commerce, so the Congress did not have power to regulate it. He also said Congress had extended federal authority into a matter reserved under the Tenth Amendment to the states. Congress responded by passing a second child labor bill signed in 1919, based on its express power to tax. Pomerene's Child Labor Tax provided for a 10% tax on net profits of industries in violation of child labor standards. Drexel Furniture Company was notified it owed $6,312.79 for having employed a fourteen-year-old boy, so initiated a lawsuit. In Bailey v. Drexel Furniture Company (1922) the Supreme Court ruled 8-1 that the ten percent tax was actually a penalty rather than a tax and in violation of the Tenth Amendment. An attempt during the 1920s to amend the Constitution to prohibit child labor failed to obtain the support of enough state legislatures.
The Great Depression led to the election of Franklin D. Roosevelt and the expansion of the role of the federal government through New Deal programs. In 1938, Congress passed the Fair Labor Standards Act (FLSA), which contained provisions about minimum age standards, exclusion of children from hazardous occupations, prohibitions of employing children during school hours, limitations on youth workers' hours, and compulsory documentation by employers of information about young workers. The FLSA was challenged in the United States v. Darby (1941). A unanimous Supreme Court repudiated Hammer v. Dagenhart saying, "The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution."
While it is tempting to say that this ruling prohibited child labor in the United States, it would be untrue. Hundreds of thousands of children who worked in the United States were not involved in the production of articles, but in the provision of services--from the "newsies" who hawked newspapers to children who reset bowling pins in the era before mechanized pin machines. Some states attempted to address this problem, for example, the Massachusetts Child Labor code prohibited boys under twelve and girls under 18 from selling newspapers, magazines, or other merchandize in the street. When Sarah Prince, the guardian of nine-year-old Betty Simmons, allowed the girl to sell religious materials produced by the Jehovah's Witnesses, the local authorities intervened. Prince v. Massachusetts was appealed to the Supreme Court, which found that the state's interest in preventing child labor did not interfere with the family's free exercise of religion.
Telegraph services, including Western Union and American District Telegraph (ADT) employed thousands of young messengers. Western Union, believed at one time to be the largest single employer of children in the country, still had twelve percent of its work force under the age of sixteen when it challenged the FLSA. The case of Western Union Company v. Lenroot was decided in 1945 by a 5 to 4 Court, which ruled in favor of Western Union. Justice Robert H. Jackson, writing for the majority, was concerned by the imprecision of Congress' language in the act, noting the difference between goods and services, and how they are produced. He also questioned the disruption enforcement would create: "We think if Congress contemplated application of this Act to the Western Union it would have provided sanctions more suitable than to forbid telegrams to be sent by the only Company equipped on a nation-wide scale to serve the public in sending them. Nor will we believe without more express terms than we find here that Congress intended the courts to issue an injunction, which as a practical matter they would have to let become a dead letter, or enforce at such cost to the public.... If the indirect sanctions of this Act were literally to be applied to great agencies of transportation and communication, the recoil on the public interest would be out of all proportion to the evil sought to be remedied."
Justice Frank Murphy's dissent began with the tart observation, "By reading into the Fair Labor Standards Act an exception that Congress never intended or specified, this Court has today granted the Western Union Telegraph Company a special dispensation to utilize the channels of interstate commerce while employing admittedly oppressive child labor. Such a result is reached, to borrow the words of the majority opinion, ‘by a series of interpretations so far-fetched and forced as to bring into question the candor of Congress as well as the integrity of the interpretative process.'" Western Union Company v. Lenroot is the Supreme Court's most recent child labor case and students need to understand that the high court found no constitutional impediment to child labor in the service industry.
Child labor is just one of many economic and property issues involving children that have been argued before the Supreme Court. The Twentieth century brought new medical technology (such as in vitro fertilization), social programs that provide benefits, and the emergence of non-traditional families along with the disintegration of many nuclear families. The Supreme Court has protected rights of non-marital (illegitimate) children under the Fourteenth Amendment's Equal Protection Clause in Levy v. Louisiana (1968), which granted them equal rights to file wrongful death lawsuits to recover damages; in Weber v. Aetna Casualty and Surety (1972), which granted them equal rights to workman's compensation benefits; in Gomez v. Perez (1973), which granted them equal rights to child support; in Trimble v. Gordon (1977), which granted them equal rights to an inheritance from either biological parent, and in Mills v. Habluetzel (1982), Pickett v. Brown (1983), and Clark v. Jeter (1988), all of which granted them equal time to establish paternity to claim child support.
2. Parents and Family
Throughout the history of the United States, great latitude has been given to parents to exercise parental and familial authority over children in their own households and in the manner in which they rear their children. Justice Wiley Blount Rutledge articulated the problem in Prince v. Massachusetts: "The parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children...."
Robert Meyer, a teacher at the Zion Evangelical Lutheran parochial school in Hamilton County, Nebraska, was charged with teaching a 10-year-old child how to read German, in violation of a 1919 Nebraska law. In Meyer v. Nebraska (1923) the majority found that Nebraska's law was unconstitutional. Justice James Clark McReynold's opinion interpreted the Fourteenth Amendment's guarantee of fundamental liberty: "Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children...his right [Meyer's] thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment."
In November 1922, the voters of Oregon passed a referendum adopting a Compulsory Education Act. Scheduled to take effect in 1926, the law required parents to send all children between eight and sixteen years of age to public school, or be guilty of a misdemeanor. The initiative had been promoted by the Ku Klux Klan and the Scottish Rite Masons, who persuaded voters that it was necessary to Americanize students in public schools in order to reduce the threat posed by immigrants and Catholics. Public school teachers also supported the initiative because they were concerned with losing citizen support for public schools if they did not. The Society of Sisters of the Holy Name of Jesus, a Roman Catholic order, which maintained parochial schools, challenged the law in court along with Hill Military Academy, also a private school.
In Pierce v. Society of Sisters (1925), the Supreme Court posed the issue in terms of a state's right to oversee the education of its youth in balance with the right of parents to educate their children: "No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." Nonetheless, the Court unanimously found Oregon's law unconstitutional: "The inevitable practical result of enforcing the act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the state of Oregon." The Court believed that Oregon's law was arbitrary, unreasonable, and an unlawful interference with a private school's Fourteenth Amendment guarantee of property rights. Most importantly, the Court's opinion reaffirmed the fundamental liberty of parents to rear their children without interference from the government under the Fourteenth Amendment.
Justice James Clark McReynolds explained the Court's position: "Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the 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."
Twentieth-century medical advances have enabled surrogates to bear children, while social changes during the century have brought an increase in non-traditional families and divorce. These new circumstances involving children and their families have led to a series of Supreme Court decisions. The fundamental liberties associated with the Fourteenth Amendment have been extended beyond the nuclear family. In Moore v. City of East Cleveland, Ohio (1977) the court struck down a housing authority rule, which prevented a grandson from living with his grandmother. Justice Lewis F. Powell echoed the decision in Pierce: "By the same token the Constitution prevents East Cleveland from standardizing its children--and its adults--by forcing all to live in certain narrowly defined family patterns." A citizenship case brought by the illegitimate daughter of an American soldier, Miller v. Albright (1998), was denied because the case failed to meet the threshold for protection under the Fifth Amendment and because the power to confer citizenship upon aliens was not delegated to the judiciary.
Custody is the building block of the family, and consequently the court views it as a fundamental liberty. However, the question increasingly arises, what is family? The right of a custodial parent to prevent grandparents' visitation was upheld in Troxel v. Granville (2000.) In Smith v. Organization of Foster Families (1977) the Court concluded that the biological family's liberty claims are more powerful than those of foster parents in custody cases. Under the equal protection clause of the Fourteenth Amendment the rights of biological fathers have been secured in some regards. The Supreme Court ruled in Stanley v. Illinois (1972) that unmarried biological fathers must be guaranteed a custody hearing; and in Caban v. Mohammed (1979), the Court struck down a New York law, which did not require the consent of a biological father for the adoption of his children. Furthermore, it raised the threshold for termination of parental rights from "fair preponderance of evidence" to "clear and convincing evidence" in Santosky v. Kramer (1982). The high Court has limited, however, the conditions in which biological fathers can prevent adoption of their children, first in Quilloin v. Walcott (1978) and later in Lehr v. Robertson (1983), when Justice Stevens wrote: "But the mere existence of a biological link does not merit equivalent constitutional protection." Neither did the Court find a right to visitation by a biological non-marital parent, Michael H. v. Gerald D. (1989). Custody decisions, however, could not be tainted by racial discrimination or even potential bias or stigmatization, as determined by the Court in Palmore v. Sidoti (1984).
In the wake of Roe v. Wade (1973), parental consent and notification involving abortion by minors have been involved in repeated litigation that has made its way to the Supreme Court. The Due Process clause of the Fourteenth Amendment has been repeatedly cited to empower minors to make decisions about having abortions with or without parental notification or consent. In Planned Parenthood of Central Missouri v. Danforth (1976) the Court said that states could not grant parents an unconditional right to prevent minors from having an abortion. This was clarified in Belloti v. Baird (1979), when the Court required that minors have judicial bypass if parental consent is withheld or if the minor did not want to seek parental consent. In Akron v. Akron Center for Reproductive Health (1983) the Court struck down a parental consent law, while in Planned Parenthood Association of Kansas City, Missouri v. Ashcroft (1983) it upheld another; the central issue was whether a judicial bypass was available to immature minors to demonstrate they were mature enough to make the decision about having an abortion on their own. The Court has not defined "maturity," although the justices often equate it with "emancipation," the legal term for a child freed from their parents to live on their own or under supervision of others.
Parental notification has also been reviewed by the high Court. In H. L. v. Matheson (1981) the Supreme Court upheld a Utah law, which made it a crime for a doctor to perform an abortion on a minor without parental notification. In 1990, the Court struck down parental notification of both parents by a minor without judicial bypass, Hodgson v. Minnesota, while upholding parental notification of one parent, with judicial bypass, in Ohio v. Akron Center for Reproductive Health. Parental notification with bypass was also upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
Consent issues in non-abortion cases have been argued less frequently in federal courts. An appellate court in 1941 affirmed a decision against a doctor who had performed a procedure on a boy to benefit the child's cousin, but without the consent of his mother in Bonner v. Moran. One case, involving the psychiatric treatment of a minor, reached the Supreme Court. In Parham v. J.R. (1979), the Supreme Court found that the procedures for committing children to a Georgia mental hospital adequately protected the fundamental liberty rights of the children under the Fourteenth Amendment, while sustaining the rights of both the state and parents in determining what was best for children.
3. Health and Safety
Traditionally, in common law, parents have the duty to support, protect, and educate their children as well as the power to discipline them (administering corporal or non-corporal punishment, within reason); to approve legal agreements for them (marriage or apprenticeship contracts, for example); to act as the trustee of any estate they might have; to receive the benefit of the child's labor; and to delegate their authority (to a guardian or school.) The right of parental privilege to discipline their children has been expressly incorporated into the statues of 29 states. No state has expressly denied it or prohibited corporal punishment of a child by a parent.
In earlier times, the level of violence used in discipline exceeded what is acceptable today, but abusive parents and masters could lose custody of children and apprentices throughout the colonial era. In the 1870s, the children's aid movement began to organize societies for the prevention of cruelty to children and various children's guardian boards were formed, marking the beginnings of government intervention in child abuse. In 1874, Mary Connelly was convicted of attacking her foster child with whip and scissors, the first documented child abuse prosecution in the nation. Today, child abuse or child neglect is no longer protected by parental privilege. Each of the 50 states, however, has been left to define through its statutes what constitutes child abuse and child neglect, and there is a considerable degree of variation. Generally defined, child abuse includes sexual abuse and physical abuse such as beating, shaking, slapping, burning, injuring, or denial of food, drink, or access to bathroom. Child neglect includes physical neglect (refusal or delay of healthcare, abandonment, malnourishment, inadequate clothing and hygiene, and reckless endangerment), inadequate supervision, emotional neglect, and educational neglect. The general doctrine of parental immunity, articulated in the states in the 1890s, also has been abandoned. An abusive parent may be charged criminally with battery, assault, murder, as well as charges specific to minors--child abuse and child neglect. If convicted they may also face termination of parental rights and personal injury lawsuits (affirmed in a 1972 Pennsylvania case, Falco v. Pados.)
The Supreme Court, as mentioned in the previous section, views the termination of parental rights with utmost seriousness since they accept it as a fundamental liberty protected by the Fourteenth Amendment. The case of Santosky v. Kramer (1982) involved the parents of three children who had neglected their children and "were incapable, even with public assistance, of planning for the future of their children." New York courts terminated their rights based on the evidence level of a "fair preponderance of evidence." The Supreme Court ordered the case heard again, with the evidentiary threshold for termination of parental rights set at "clear and convincing evidence."
So, does a child have a constitutional right to protection from abuse? The Supreme Court considered the question of the responsibility of a state to protect a child once abuse has been reported to it in DeShaney v. Winnebago (1989). Over a two-year period, Winnebago County Department of Social Services investigated and documented numerous instances of injuries to Joshua DeShaney at the hands of his father, Randy DeShaney, and took the boy into protective custody for a short period of time. Nonetheless, they did not permanently remove him from his father's custody. When he was 4, Joshua's father beat him so severely that he went into a coma and was left profoundly retarded. Although Randy DeShaney was convicted in criminal court of child abuse, Joshua's mother sued Winnebago County on the basis that their failure to remove him from his father's custody had denied Joshua his fundamental liberty under the Fourteenth Amendment to "bodily integrity." The Supreme Court rejected her suit 6 to 3. Chief Justice Rehnquist wrote the majority opinion: "The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." Because the Due Process Clause does not require a state to protect its citizens, "it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." While the Supreme Court urged the state of Wisconsin to legislate better safeguards, it refused to expand the Fourteenth Amendment's protection to safeguard children in the custody of their parents from physical neglect or abuse.
Federal and state courts have heard a number of cases involving medical treatment of minors, particularly when First Amendment protections for the free exercise of religion conflict with the Fourteenth Amendment's protection of a person's fundamental liberty to life. A New York Court of Appeals refused to order surgery for a disfiguring disease which was not life-threatening in the face of a mother's objection on religious grounds (In re Sampson, New York). Pennsylvania also refused to order a blood transfusion in a non-life threatening procedure without consulting the child about his wishes in the case of In re Green. When Jehovah's Witnesses challenged, however, the legality of hospitals and physicians to administer life-saving blood transfusions to their dependant children on the basis of the First Amendment free exercise of religion clause, the U.S. District court ordered that transfusions continue if children's lives were in imminent danger (Jehovah's Witnesses in State of Washington v. King County Hospital, Washington); on appeal, the Supreme Court affirmed the district court's decision.
State courts have regularly considered issues surrounding medical treatment of pregnant minors. Some of the girls were living at home, others were runaways or emancipated and living on their own. One successfully sued to be able to have an abortion (In re Mary P., New York), in another instance a girl was not forced to have an abortion (In re Smith, Maryland), and in yet another case a girl was allow to apply for Medicaid payment to have an abortion (Alice v. Department of Social Welfare, California.) Also, the supreme court of Georgia affirmed a court-ordered cesarean section in order to save the life of an unborn child of an adult woman (Jefferson v. Griffin Spalding County Hospital Authority, Georgia). The Supreme Court of the United States ruled in Carey v. Population Services International (1977) that New York had violated the Fourteenth Amendment by denying non-prescription contraceptives to minors under the age of sixteen. Justice Thurgood Marshall clearly stated that "...the right to privacy in connection with decisions affecting procreation extends to minors as well as to adult."
The Supreme Court has also decided several cases attempting to protect children from pornography. Ginsberg v. New York (1968) involved a New York luncheonette owner who had been convicted of selling pornographic magazines to a sixteen-year-old boy. The court upheld the New York statute prohibiting the sale of obscene material to those under seventeen pointing out that obscenity is not protected by the First Amendment's right to free speech, and that the state had a rational interest in safeguarding minors from harmful exposure to pornographic material. The high Court has not supported anti-pornography legislation to protect children in instances where indecency is so poorly defined that it threatened protected free speech. The Supreme Court struck down a film-classification system that attempted to protect children under the age of sixteen from "unsuitable" films because it was too vague, Interstate Circuit v. Dallas (1968). More recently, addressing internet pornography in Reno v. ACLU (I, 1997), the Court declared two provisions of the Telecommunications Act of 1996 unconstitutional because the terms "indecent" and "patently offensive" were not defined and could criminalize the possession or transmission of material with educational or other value, protected free speech under the First Amendment.
The Supreme Court has consistently upheld the right of the government to protect children from sexual exploitation in pornographic films by prohibiting distribution of material that show a child under the age of sixteen engaging in sexual activity, New York v. Ferber (1982), and possession and viewing of child pornography, Osborne v. Ohio (1990). However, in Ashcroft v. Free Speech Coalition (2002), a 6-to-3 Court struck down two provisions of the Child Pornography Prevention Act of 1996, which prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image offered as if it were so. The majority concluded that the act was overbroad and had violated the First Amendment protection of freedom of speech.
4. Juveniles and Criminal Justice System
Perhaps the best articulated rights for children protected by the Constitution are those pertaining to juvenile justice. This was not always the case. Through the Nineteenth and early Twentieth century, children did not have the right to personal liberty. As Justice Abe Fortas explained: "The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right ‘not to liberty but to custody.'" The only question was who would be awarded custody, their parents or the prisons?
Largely through a series of Supreme Court decisions based on the Due Process Clause of the Fourteenth Amendment, children's personal liberty rights have been steadily secured over the past 60 years. The earliest case, Haley v. Ohio (1948), arose because a fifteen-year-old boy accused of the murder of a candy store owner was interrogated by a team of police and denied access to his mother or her lawyer until a confession had been signed. A divided Court ruled in the boy's favor: "The Fourteenth Amendment prohibits the police from using the private, secret custody of either man or child as a device for wringing confessions from them." The Court upheld this decision in a second case, Gallegos v. Colorado (1962), involving the confession of a fourteen-year-old boy obtained during a five-day detention, during which he was denied access to family or legal counsel. In Kent v. United States (1966), the Supreme Court ruled that the District of Columbia Juvenile Court had failed to follow due process procedures for a sixteen-year-old before waiving jurisdiction, causing him to be tried as an adult in the United States District Court for the District of Columbia. These cases set the stage for a landmark decision in 1967.
In June 1964, an Arizona woman received an obscene phone call placed by two boys, one of whom was fifteen-year-old Gerald Gault. Gault was on probation for having been in the company of another boy who had pick-pocketed a woman. Arrested by the county sheriff, he was taken to a Children's Detention Home without any effort made to contact his parents, who were working. The following day, at Juvenile Court, the assistant probation officer filed a petition to have Gault declared a juvenile delinquent and placed in the State Industrial School until he was twenty-one. Gerald's parents were not told about the petition at a second Juvenile Court hearing, and only learned of it over two months later at the habeas corpus hearing. Gault's six-year commitment was challenged by his parents and reached the Supreme Court as In re Gault (1967). Writing for the majority, Justice Abe Fortas angrily wrote: "Under our Constitution, the condition of being a boy does not justify a kangaroo court." He pointed out that, if Gerald had been18, an adult, the maximum sentence he would have received would have been a fine of $5 to $50 dollars, or a maximum of 2 months in prison. Disturbed by the disproportionate severity of the Juvenile Court punishment, Justice Hugo Lafayette Black, in his concurring opinion declared: "Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment."
Justice Abe Fortas recited the litany of due process failures in a rapid-fire staccato: "Gerald's father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared." The majority of the Supreme Court found Arizona's juvenile court system had failed to provide adequate notice of charges, denial of right to counsel, denial of the right of confrontation and privileges against self-incrimination and cross-examination, and denial of appellate review and access to a transcript of proceedings. All were violations of procedural safeguards specified in the Fifth and Sixth Amendments. Fortas' opinion unambiguously declared: "...neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." This is the first time the Supreme Court asserts that children in and of themselves have rights, some of which are protected by the Constitution.
In re Gault served as the foundation for subsequent cases involving the rights of minors involved in the criminal justice system. The Court's next significant case involving a minor was In re Winship (1970). A twelve-year-old boy, Samuel Winship, was convicted in Family Court of New York of having broken into a locker and taking $112. Committed by an adult, the crime would have been a larceny, but the court did not use the standard of "beyond a reasonable doubt," when considering the evidence, merely, "the preponderance of evidence." The Supreme Court ruled 5 to 3 in Winship's favor, saying: "The accused has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by conviction...." The Court further concluded that, with such high stakes, the boy should have been entitled to the higher threshold of evidence to protect his due process rights guaranteed by the Fourteenth Amendment.
The following year, in McKeiver v. Pennsylvania (1971), the Supreme Court refused to require state juvenile courts to provide youths with a trial by jury under the Fourteenth Amendment. Justice Byron Raymont White wrote, in his concurring opinion, that "there are strong arguments that juries are desirable when dealing with the young, and States are free to use juries if they choose." Later, in Fare v. Michael C. (1979) the Supreme Court ruled that denial of a sixteen-year-old juvenile's request to speak to a probation officer was not the same as denial of an attorney because the probation officer was "not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer." Protection for juveniles from double jeopardy through the Fifth Amendment was affirmed in Breed v. Jones (1975), when a seventeen-year-old juvenile accused of armed robbery was subjected to an adjudicatory juvenile hearing and also prosecuted in superior court. Pre-trial detention of juveniles was examined in Schall v. Martin (1984), which originated with fifteen-year-old Gregory Martin's detention for fifteen days prior to a hearing for robbery and assault. The Supreme Court upheld the constitutionality of New York's preventive detention statute in the case, saying it had upheld the Due Process Clause of the Fourteenth Amendment.
There are times, especially in sexual abuse cases, when children are witnesses, and the courts have to wrestle with balancing the Sixth Amendment right of confrontation with the wellbeing of young witnesses. Beginning in with Coy v. Iowa (1988), the Supreme Court upheld the right of an accused adult to confront his child accuser without a screen separating them: "That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs." The Court revisited the issue in Maryland v. Craig (1990), this time deciding in a 5 to 4 decision that the right to confrontation was not absolute and that closed-circuit testimony was a sufficient safeguard to due process. Two years later, in White v. Illinois (1992) hearsay evidence collected from a mother, investigator, and medical professionals about an the sexual assault on a four-year-old girl was ruled to be admissible evidence because they repeated what the child said had happened to her. In another case, The Globe Newspaper v. Superior Court (1982), the Supreme Court ruled that the First Amendment protections of freedom of the press trumped the Fourth Amendment privacy rights of minors. The Court struck down a Massachusetts law that closed courts to the press in cases involving sexual offences and testimony of witnesses under the age of 18.
Eighth Amendment issues of sentencing and capital punishment have been the area of rights most recently articulated by the courts. In United States v. R.L.C. (1992), the Supreme Court determined that a sixteen-year-old Chippewa sentenced to serve 3 years for involuntary manslaughter had received harsher sentencing than the 21 months an adult would have faced under sentencing guidelines. The Court overturned his sentence on Eighth Amendment grounds. This decision did not hold, however, that the possibility of a longer term uniformly violates the Equal Protection Clause of the Fourteenth Amendment.
The ultimate penalty for either adult or juvenile is the death sentence, and the Supreme Court has increased the permissible age for capital punishment since 1988. In Thompson v. Oklahoma (1988), the Court ruled that a fifteen-year-old found guilty of first degree murder could not be executed: "Relevant state statutes--particularly those of the 18 States that have expressly considered the question of a minimum age for imposition of the death penalty, and have uniformly required that the defendant have attained at least the age of sixteen at the time of the capital offense--support the conclusion that it would offend civilized standards of decency to execute a person who was less than sixteen years old at the time of his or her offense." Looking at two cases involving the death sentence for sixteen and seventeen year olds, Stanford v. Kentucky and Missouri v. Wilkins (1989), the Court left the question to be decided by the states. In Roper v. Simmons (2005), a divided Supreme Court abolished, however, capital punishment for anyone convicted of a crime committed under the age of eighteen, thereby canceling 73 pending death sentences. The court noted that five fewer states (20) had the death penalty for offenders under the age of 18 in 2005 than in 1989. Writing for the majority, Justice Anthony Kennedy noted also the international opposition to putting young people to death: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part upon the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."
5. Education and Students' Rights
The Supreme Court has dealt extensively with education and the rights of students in schools, both public and private. Many of these cases involve competing rights of family, state, and the student as an individual. In an effort to impose some order on this broad body of opinion, three subcategories are useful: right to education and equal access to schools, Bill of Rights personal liberties (excluding religion), and religion and the schools (First Amendment free exercise and religious establishment.)
Right to Education and Equal Access to Schools
Writing the unanimous opinion in Brown v. Board of Education (1954), Chief Justice Earl Warren asserted the fundamental link between a person's access to education and the chances for leading a productive life: "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." This landmark decision invoked the equal protection clause of the Fourteenth Amendment to strike down the Plessy v. Ferguson (1896) "separate but equal" doctrine, which had been the justification for racially segregated schools.
Brown is also the wellspring for numerous other equal access decisions, both involving public and private schools. In Runyon v. McCrary (1976), the Court ruled that private schools could not deny admission solely on the basis of race, basing their decision not on the Constitution, but the Civil Rights Act of 1866. Bob Jones University, a religious institution that prohibited interracial dating or marriage, lost its tax-exempt status and appealed to the Supreme Court in Bob Jones University v. United States (1983). Weighing the First Amendment religion arguments against the school's race policies, the Court concluded that the school's racism violated a fundamental national public policy and taxpayers were not obliged to support it with a special tax status. The question of whether affirmative action based on racial preference itself violated the Equal Protection Clause of the Fourteenth Amendment arose in the case of the University of California Regents v. Bakke (1978). A fragmented Court concluded that rigid racial quotas did, in fact, violate the Equal Protection Clause; racial preference is permissible, however, if it is one of several criteria for admission to a school.
The importance of education was further articulated in Goss v. Lopez (1975). Nine students from three schools in Columbus, Ohio were suspended for ten days without hearings to determine whether they were actually guilty of misconduct. By a 5-4 vote, the Supreme Court determined that, "Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred, and must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause, and that may not be taken away for misconduct without observing minimum procedures required by that Clause."
It is very important to realize that the Supreme Court did not say that students have a fundamental constitutional right to education. Indeed, the Court has specifically rejected the idea. In San Antonio Independent School District v. Rodriguez (1973), the Court refused to strike down the method for financing public education in Texas, which allows local property taxes to supplement each district's educational funding, thereby resulting in unequal funding. They found no violation of the Equal Protection clause under the Fourteenth Amendment. More importantly, the majority clearly rejected the idea that education is a fundamental constitutional right: "It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected."
The decision in San Antonio v. Rodriguez did not mean that the Supreme Court had not, and would not, look closely at cases involving the schools. "Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that ‘the grave significance of education both to the individual and to our society' cannot be doubted." Accordingly, the Court has considered equal access rights protections for minorities, illegal aliens, and special education students (with physical or mental handicaps). When the territorial government of Hawaii required 163 private foreign language schools to obtain permits and pay a fee to operate, the law was appealed to the Supreme Court in Farrington v. Tokushige (1927). The Court ruled in favor of those parents with children in the schools, citing the Fourteenth Amendment: "The Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue."
The issue of accommodating minority language speakers in public school would not be decided, however, until almost 50 years later in Lau v. Nichols (1974). The Supreme Court ordered the San Francisco Unified School District to provide language accommodation for its Chinese-speaking pupils, but invoked the Civil Rights Act of 1964 rather than the Fourteenth Amendment. In the case of Plyler v. Doe (1982) the Court struck down a Texas law depriving local districts of state funding for illegal aliens enrolled in their schools citing the Equal Protection Clause of the Fourteenth Amendment.
The Supreme Court has not specifically ruled on the access of emotionally or mentally challenged students to public schools, but it let stand in 1972 in Mills v. Board of Education (District of Columbia) and Pennsylvania Association for Retarded Children v. Pennsylvania (Pennsylvania) the rulings that school districts should attempt to place special needs children in regular public school classrooms, then special education public school classes, and separate public facilities as a last resort. The Supreme Court ruled in Irving Independent School District v. Tatro (1984) that the school was obliged to provide simple medical-related services to spina bifida stricken Amber Tatro so that she would have, under the Education to the Handicapped Act, "a free appropriate public education." The case was decided on the basis of statute, rather than the Constitution.
Discrimination based on gender has been addressed both in all-male institutions and in all-female institutions. The Court determined that the Equal Protection Clause of the Fourteenth Amendment had been violated in Mississippi University for Women v. Hogan (1983) when Joe Hogan, a qualified applicant, had been denied admission to the School of Nursing at this historically all-woman institution. Over a decade later, the state of Virginia attempted to create a separate-but-equal institution at Mary Baldwin College to provide military education to women, despite the existence of the venerable, excellent all-male college, Virginia Military Institute (VMI.) In United States v. Virginia (1996) Justice Ruth Bader Ginsburg succinctly announced the court's 7 to 1 decision: "Virginia's public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree."
Bill of Rights Personal Liberties
Schools, of course, are not merely places of education. They are venues where virtually every aspect of personal liberty for children has been examined by the Supreme Court. Decisions have looked at students' First Amendment freedoms of speech, press, religious exercise and establishment, and association; Fourth Amendment protections against search and seizure and privacy rights; and the cruel and unusual punishment prohibition of the Eighth Amendment.
The First Amendment's protection of free speech was first extended to school students in a case involving thirteen and fifteen-year-old siblings who wore black armbands to their schools in protest of the Vietnam War despite prior warnings that they could be suspended for such activities. In Tinker v. Des Moines (1969), the Court ruled that symbolic political speech was indeed protected. Justice Abe Fortas wrote: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.... These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression."
Several years later, however, in Bethel School District v. Fraser (1986), the Court upheld the suspension of Matthew Fraser for using "lewd and indecent" speech during a school assembly, and stated that non-political vulgar speech at school was not protected by the First Amendment. The First Amendment's guarantee of freedom of expression has been interpreted in other school settings as well. In Papish v. Board of Curators of University of Missouri (1972) a graduate student at the University of Missouri was expelled for having distributed an authorized newspaper that contained, in one particular issue, material deemed "indecent." The Supreme Court found that the university had violated the young woman's First Amendment freedom of expression and ordered her reinstatement in the graduate program in which she had been previously enrolled. When Hazelwood School District suppressed student-authored articles on pregnancy and divorce from appearing in the school newspaper, Spectrum, students brought the district to court. The Supreme Court ruled in Hazelwood School District v. Kuhlmeier (1988) that the students' First Amendment freedom of speech had not been violated because a school newspaper was an extension of the school curriculum and not designed as a public forum for self-expression. Censorship of school libraries was considered in Board of Education v. Pico (1982). Following the removal of nine books from the junior and senior high schools in Island Trees, New York students sued the school district for violating the asserted First Amendment. The Supreme Court ruled in the students favor. Justice Blackmun a "that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education, would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books, when that action is motivated simply by the officials' disapproval of the ideas involved."
Fourth Amendment issues have been rising more frequently in recent years. In New Jersey v. T.L.O. (1985), a principal searched the purse of a fourteen-year-old girl accused of smoking in the girls' restroom and found marijuana and drug paraphernalia in it. The Supreme Court rejected her claims that the search had been without "probable cause" and was in violation of the Search and Seizure Clause of the Fourth Amendment. Ten years later, in Vernonia School District v. Acton (1995), James Acton was prevented from participating in football because he refused to submit to random urinalysis drug testing. The Court asserted that the Oregon school's responsibility in preventing sports-related injury to children under their supervision took precedence over the child's Fourth Amendment right to privacy. The question was revisited in Board of Education v. Earls (2002) and an Oklahoma school district's random drug testing was upheld. Justice Clarence Thomas wrote: "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren." One non-drug matter involving students' privacy rights has been examined by the Supreme Court, that of peer-grading in the case of Owasso Independent School District v. Falvo (2002). The Court unanimously ruled that peer-grading was not a violation of students' privacy under the Federal Educational Rights and Privacy Act of 1974.
In Ingraham v. Wright (1977) the Supreme Court rejected the application of the Eighth Amendment's injunction against "cruel and unusual punishment" to corporal punishment in Florida's schools, and further rejected idea that the due process procedures already in place had failed to protect pupils. Two years earlier, in Baker v. Owen (1975), the court sustained the right of school administrators to administer corporal punishment to students, even over the objection of a parent.
Religion and the Schools
Parental and student rights, especially those bound with the First Amendment's right to free exercise of religion and protection against state establishment of religion, have been visited by the Supreme Court both in the context of private and public schools.
Two cases, Minersville v. Gobitis (1940) and West Virginia v. Barnette (1943) illustrate the tension between the state and students' free exercise rights in the classroom. Both cases involved children who were Jehovah's Witnesses, a religious group that believes that saluting the American flag violates Biblical injunctions against false worship including John 5:21, Matthew 22:21, and Exodus 20:4-5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them. Lillian and William Gobitas (ages 12 and 10 respectively; the name was misspelled by the court as Gobitis) were expelled from their Pennsylvania school for refusing to salute the flag. Billy hand-wrote a letter to "Our School Directors" explaining, "I do not salute to the flag not because I do not love my country but I love my country and I love God more and must obey His commandments, Your pupil, Billy Gobitas." Their family appealed to the Supreme Court which rebuffed them saying that the flag was a symbol of national unity, that compulsory flag salute was a valid way, "to promote in the minds of children who attend the common schools an attachment to the institutions of their country," and did not infringe on the free exercise of their faith.
Three years later, on Flag Day, June 14, the Supreme Court overturned Gobitis by 6-3 with ruling in West Virginia v. Barnette (1943). Justice Robert H. Jackson, writing for the majority asserted that the flag salute was an illegal intrusion on free exercise of religion: "There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent... If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Embedded in his decision was another significant factor in the Court's reversal, a case of symbolism gone bad: "Objections to the salute as 'being too much like Hitler's' were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women's Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. What is now required is the 'stiff-arm' salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: 'I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.'"
Another case pitting the First Amendment's religion clauses against public schools was argued before the Supreme Court in Wisconsin v. Yoder (1972.) Members of the Old Order Amish religion and Conservative Amish Mennonite Church, including Jonas Yoder, were prosecuted for withdrawing their children after eighth grade in violation of the state's compulsory attendance law, which required all children attend schools until the age of sixteen. In a 6 to 1 ruling, the Supreme Court concluded that the First Amendment right of the Amish to free exercise of their religion outweighed Wisconsin's interest in requiring their children to attend high school. The Amish proved that they "believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children." Furthermore, in the words of Chief Justice Warren Earl Burger: "Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life." He pointed out, "Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government." The Chief Justice observed, "We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today's majority is "right" and the Amish and others like them are "wrong." A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different." He warned, "The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." The opinion concludes, "that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age sixteen."
As previously discussed, with its decisions in Meyer and Pierce, the Supreme Court provided a constitutional base for parochial and other private schools. Although less well articulated, their decisions also provide underpinnings to contemporary options such as home-schooling, and school vouchers. On the matter of aid to private schools, the Court has struggled to chart a course between not supporting private religious schools in violation of the Religious Establishment Clause without becoming anti-religious to the point of violating the Free Exercise of Religion Clause. In Everson v. Board of Education (1947), the Supreme Court upheld a New Jersey transportation subsidy to parents who sent their children to private religious schools as well as public schools. In doing so, Justice Hugo Black broadly interpreted the establishment clause: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'"
The following year, the Court considered whether voluntary religious classes conducted on school property were in violation of the Establishment Clause of the First Amendment. In McCollum v. Board of Education (1948), the Court determined use of tax-supported property for classes coordinated with a religious council constituted a clear violation of the First Amendment. In 1952, the Supreme Court considered whether releasing students so they might participate in religious instruction elsewhere was constitutional. The justices ruled 6 to 3 in Zorach v. Clauson (1952) that release time did not violate the Religious Establishment Clause. Because both Rhode Island and Pennsylvania offered some forms of financial support to non-public schools, the Supreme Court heard their combined cases in Lemon v. Kurtzman (1971). Chief Justice Warren Earl Burger, writing for the majority, concluded that the states had violated the Religious Establishment Clause. He also formulated a three-part test for laws involving religious establishment: 1) a statute must have secular legislative purpose, 2) it may neither advance nor inhibit religion, and 3) it may not entangle government and religion excessively. In 1994, the Supreme Court found that New York had violated the Establishment Clause by drawing a school district that defined an orthodox Hassidic Jewish enclave, in Board of Education of Kiryas Joel v. Grumet (1994.) Widmar v. Vincent (1981) explored whether student religious groups may be denied use of public facilities for meetings; the Supreme Court ruled that a school could not deny students their First Amendment rights to free exercise, free association and free speech, and that schools were obliged to provide access to school facilities for such meetings.
The curricular and extracurricular activities of schools have been repeatedly scrutinized by the Supreme Court to insure a proper balance between protected free exercise and prohibited religious establishment. New York's nondenominational, voluntary school prayer was struck down in Engel v. Vitale (1962) as was compulsory daily Bible reading in Abington v. Schempp (1963) and Alabama schools' "moment of silence" in Wallace v. Jaffree (1985). In Santa Fe Independent School District v. Doe (2000) the Court also rejected student-initiated, student-led prayer before football games or other extracurricular activities. The Supreme Court struck down an Arkansas statue which prohibited the teaching of the theory of evolution as a violation of the Establishment Clause in Epperson v. Arkansas (1968)--despite the fact that most people think the matter was settled by the 1925 Scopes "Monkey" Trial held in Rhea County, Tennessee. In Edwards v. Aguillard (1987) the Court considered the other side of the coin, whether Louisiana could mandate that the theory of evolution could not be studied unless the theory of creation science was also studied. The court ruled 7-2 that Louisiana had violated the "Lemon test" (see Lemon v. Kurtzman, above) and, consequently was in violation of the Religious Etablishment Clause.
Conclusion
The Supreme Court through its decisions over the past century has touched the lives of young people profoundly. Looking through the decisions to the question "What does it mean to me?" they will discover the Court touches their lives directly every day, in virtually every aspect of their lives. If students are impatient with the gaps in the Court's work on childhood and wonder about what future directions the Court will take to remedy persistent vulnerabilities and problems, they might think back over the years to a time before any of the high Court's rulings described in this essay had been uttered and imagine how utterly unprotected children's lives were compared to today.
Selected Bibliography
Print Sources
Downey, Gregory J. Telegraph Messenger Boys: Labor, Technology and Geography, 1850-1950. (New York: Routledge, 2002).
Hansen, Drew. "The American invention of Child support: dependency and punishment in early American child support law." Yale Law Journal (108.5: 1123-1153.)
Keeley, James H. "The Metamorphosis of Juvenile Correctional Education: Incidental Conception to Intentional Inclusion." Journal of Correctional Education (December 2004.) and also:
http://www.findarticles.com/p/articles/mi_qa4111/is_200412/ai_n9466367Mason, Mary Ann. From Father's Property to Children's Rights: A History of Child Custody. (New York: Columbia University Press, 1994.)
Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg: Aspen Law & Business, 2000.)
van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.)
Internet Sources
Furman University, Perspectives in American Education, Massachusetts Education Law of 1642 and Massachusetts Instruction for Punishment of Incorrigible Children of 1646:
http://facweb.furman.edu/~svecmichael/ED11/library/ed11laws.htmlLetter from Billy Gobitis Explaining why he cannot salute the flag, Library of Congress American Memory:
http://www.loc.gov/exhibits/treasures/trr006.htmlLighting the Freedom Tree, by Stephen Nissenbaum, December 15, 1996:
http://www.ruf.rice.edu/~soci/Sociopath/sp/Volume1/sp14.5.htmlNational Archives and Records Administration, Our Documents, The Keating-Owen Child Labor Act of 1916:
http://www.ourdocuments.gov/doc.php?flash=true&doc=59Teaching with Historic Places, Thomas Jefferson's Plan for the University of Virginia: Lessons from the Law:
http://www.cr.nps.gov/nr/twhp/wwwlps/lessons/92uva/92uva.htmThe History of Education and Childhood, Thesis by Robert McCole Wilson, A Study of Attitudes Towards Corporal Punishment as an Educational Procedure from the Earliest Times to the Present, 1971 (new afterword for online edition, 1999)
http://www.socsci.kun.nl/ped/whp/histeduc/wilson/