Here are some places where children are at risk, despite the best efforts of their parents or guardians:
- in the home, where abuse and neglect can strangle their futures by fostering dysfunction;
- in schools, where a seemingly minor infraction can become a forfeiture of education and opportunity, which in turn too often results in behaviors that lead to incarceration;
- in their everyday lives, where the formation of their social identities, whether by gender, sexual orientation, or otherwise, can subject children to peril and attack; and
- in the courts, where the focus of the judicial process is so many times on satisfying the needs of adults rather than those of children.
The American Bar Association’s (ABA) Rule of Law Initiative sees human rights and access to justice as means to actualize rights that exist on paper but are too many times out of reach for marginalized populations. This includes children, who the ABA recognizes as individuals, separate and distinct from their parent or guardian, possessing separate interests and needs that must be vindicated by their advocates and by the courts.
Our presentation includes articles on participation in various aspects of the judicial process, articles dealing with respect for basic constitutional rights, and articles that put it all together into a comprehensive educational program that can be delivered at scale.
Most fundamentally, because children have not reached their full development into adulthood, the courts, agencies, and advocates step in to speak for them. In many cases, this occurs without consulting the very children whose rights are at issue.
Judge Ernestine Steward Gray (Ret.) and Brenda C. Robinson explore the fundamental right that children have to participate in their own dependency cases. To invoke meaningful participation, Judge Gray and Ms. Robinson observe that the proceedings should be safe, accessible, and understandable to the child. The authors assign roles to counsel, the court, and advocates to ensure these factors are present.
Likewise, Carolyn Levenberg’s article “To Be a Competent Children’s Attorney, Learn to Apply Principles of Child Development” provides a guide to the neural development of children and how this can impact their meaningful participation in hearings. The key is for the process to include meaningful and appropriate opportunities to receive input from children and to interpret that input through the lens of their particular stage of development. One significant payoff that Levenberg identifies is the ability “to find strengths in families that otherwise might not be apparent” when one takes these factors into consideration.
Articles by Riya Saha Shah and Jessica Feierman, along with Judge Jay Blitzman (ret.), explore the constitutional rights of children and challenge the school-to-prison pipeline.
Schools are becoming more highly regulated. The ubiquity of “resource officers” and uniformed law enforcement personnel in schools, along with the collaboration of educators with the police culture, create a situation where any code of conduct infraction can turn into either a trip to jail or a long-term suspension or expulsion where students are deprived of their education. These scenarios increase the risk of future contact with law enforcement. Because most suspensions and school arrests arise from nonviolent conduct that could be readily resolved in the classrooms, the authors propose limiting long-term exclusion and arrest to situations involving serious bodily harm, the general bailiwick of police. This practice would, the authors argue, promote educational continuity and, they reason, break the cycle of school-to-prison.
Whether in schools or other law enforcement settings, the practice of strip-searching children has grown. This degrading practice is constitutionally suspect, and, from a practical point of view, rarely turns up contraband of any sort, let alone of the type that would justify the search. Such conduct, while lacking in efficacy, is certainly proven to be emotionally damaging to children and adolescents. Like its close analog, the forced medication of children in institutional settings, this practice occurs in institutions and places where the adults exercise not only total control over the child in question, but many times do so far away from the eyes of parents. By the time parents know and understand the magnitude of what occurred, the damage has been done.
Thus, the articles on the right of children to be free of strip searches, authored by Riya Saha Shah and Jessica Feierman, and on the right of children to have the right to consent to medication while in custody, by Elizabeth Pitman Gretter, address the institutional undertakings that so many times condition children to feel helpless and program them for a lifetime of potential abuse within the system.
Shah and Feierman advocate for state agencies to adopt the reforms of the ABA resolution prohibiting strip searches of children unless the child is in custody, there is probable cause to believe the child is an imminent threat of bodily harm to themselves or others, all other less intrusive methods have failed, and the child has been given notice that they will be searched to provide a final opportunity for them to reveal any contraband.
Finally, articles focusing on ProjectTHRIVE and community involvement by Bobbi M. Bittker and Richard Hooks Wayman, respectively, leave us with good news: It is possible for children to be empowered with knowledge of their basic rights and to be accorded a proper means to advocate for themselves in the often bewildering world of judicial and administrative processes.
Educating children about their basic legal rights has a twofold payoff: It addresses the immediate problem of giving voice to children that could prevent a misapplication of the law or the facts by taking their perspectives into account, and it sets the stage for them later as adults to pass that empowerment along to their children.
