This article is the fourth in a series covering attacks on the rule of law. The rule of law is a political philosophy premised on the promise that all citizens, leaders, and institutions are accountable to the same laws, guaranteed through processes, practices, and norms that work together to support the equality of all citizens before the law. This series argues that regressive governance is increasing around the world, including in putatively democratic countries, quashing human rights through strategic actions designed to undermine the rule of law.
When it comes to children, the United States has a unique set of laws and legal principles that it applies — or fails to apply, as the case may be. The United States is uniquely absent among States that have ratified the UN Convention on the Rights of the Child (CRC). With 196 states party to it as of 2019, the CRC is the most ratified human rights legal instrument. In refraining from ratifying it, the United States is joined only by Somalia.
In domestic law, the United States is also an outlier. The Supreme Court developed legal principles early on that centered parental rights in legal discourse, not children’s rights. In fact, the right of parents to guide the upbringing of their children without government interference was one of the first substantive due process rights regularly recognized and reaffirmed by the Court. This legal theory has recently been used by regressive politicians to bolster economic rights, religious freedom, and states’ rights arguments made by schools and school districts wishing to change their curricula and tighten restrictions on teachers.
Education: The anomalous legal position elevating parental rights intersects with federalism. The rise in decisions from the Court expanding states’ rights has set the stage for a host of problems for children in public schools, and by extension, for public education in the United States. From state laws prohibiting the teaching of slavery to genuine fears about death in school by gun violence, America’s schools are in trouble. At least eighteen states have passed laws limiting the way teachers can talk about race and gender in the classroom. Florida’s Board of Education reportedly went so far as to approve a curriculum holding that Black people in America benefitted from slavery. At least 64 state laws have been passed allowing states to reprimand, suspend, or fire teachers for lessons including “divisive concepts.” This includes bans on content, such as teaching material such as Mary Wollstonecraft’s Vindication on the Rights of Women, an Indigenous People’s History of America, material from books written by Ibram X Kendi, Howard’s Zinn’s A People’s History of the United States which includes a diary entry from Christopher Columbus, data sets on police use of force, or Twain’s Adventures of Huck Finn. It also includes bans on what teachers can say, such as using a child’s preferred name or pronouns, or speaking about sexual orientation. A single parent complaint can force a teacher to modify or eliminate a lesson plan, regardless of what a child wants to learn or what would benefit society as a whole.
This power the Court grants to “parental rights” would seem to have bypassed principles expressed in cases like Brown v Board of Education, where the Court acknowledged that receiving limited or inferior education harmed children by generating feelings of “inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The Court in Brown went on to link that harm to democracy itself, explaining that when some children failed to receive the education necessary to become adults capable of the sort of reasoning and judgment necessary to fully participate in democratic elections, this harmed democracy and was therefore unconstitutional. States restricting curriculum have attempted to turn the reasoning in Brown on its head, arguing that white children should not be made to feel uncomfortable due to their race or gender. This “reverse racism” argument has been effectively used to overturn affirmative action in higher education. It is worth noting that in countries suffering years of violent ethnic wars premised on nationalism and engaging in gender and race war crimes, one of the last unresolvable post-war issues was what the history curriculum should be in primary schools, and who should write it. Many scholars have demonstrated that nationalism is most effectively fostered in the classroom, and that the quickest route to entrenching nationalist, theocratic, and patriarchal governments is the manipulation of curriculum and teaching in primary education. Furthermore, the quickest route to disenfranchising a large group of citizens is to restrict or alter education for some, as much of the regressive US did during slavery and segregation, and as the Taliban is currently doing to girls and women in Afghanistan.
Health and Safety: Another consequence of legally elevating parental rights is poor health outcomes for children in the United States. Rates of child food insecurity in America are high relative to other prosperous nations. Child deaths are at their highest rate in thirteen years. Child abuse rates are extremely high, as are child sexual abuse rates. One in four girls and one in six-to-thirteen (sources vary) boys experience sexual abuse. Ninety-one percent of the time the perpetrator is a family member or someone known and trusted by the parents. Sexual abuse occurring in the home or hidden by the family is underreported, and the few routes for mandatory reporting of suspected child abuse, teachers and medical professionals, are severely understaffed and overworked in most of the same jurisdictions described above, even while a parental rights perspective governs legal proceedings.
Gun violence is now the leading cause of death for children and teens in the US. Although most parents worry that their children will be shot in school, the Supreme Court’s rulings have made it difficult for the federal government and even willing states to enact restrictions on guns in general and around schools, finding that the 2nd Amendment rights trump state or federal public health and safety concerns. With respect to vaccinations and many public health issues, individual state law governs whether children must be vaccinated and what exceptions may be invoked by parents.
Several states in the US have restricted or banned gender-affirming care for minors or even criminalized doctors who provide it or parents and other adults who help them access it. Other states have made it a fireable offense for teachers to provide emotional support to students around issues of gender identity or sexual orientation. Five states have made it a felony to provide certain gender-affirming care to minors. Data on high levels of suicidality among transgender and non-binary youth in the US, and on a significant reduction in suicidality gender-affirming care has been largely ignored or dismissed by these states.
Similarly, recent cases affirming states’ rights and religious freedom have trumped child health concerns and even parental rights on access to abortion, even in instances of rape or incest. In one of the cases overturned by the Dobbs decision, Casey v Planned Parenthood, the Supreme Court upheld a state law that required pregnant minors to have the consent of their parents to secure an abortion. Now the states’ “right” to ban abortion trumps parental consent. In the United States, only a few states that ban abortion have exceptions for rape and incest, and these exceptions are not really available in practice. Either there are no remaining clinics or doctors, or obtaining an exception is such a long and onerous process that the pregnancy proceeds.
Child migrants: In 2018, the US adopted a formal policy of separating children from their parents at the US/Mexico border, What actually happened was that parents seeking asylum in the US were jailed and prosecuted for “crimes” of allegedly smuggling or trafficking their own children, or crossing the border without documentation. The parents were not trafficking or smuggling. In most cases, they were not even crossing the border “illegally,” as US and international law allows people with a well-founded fear of persecution to seek asylum. As parents were put in prison or detained, their children were put under the supervision of the US Department of Health and Human Services (HHS). More than 5,500 children were removed from their parents and four years later hundreds had not been reunited with their parents. A lawsuit filed to enjoin the practice was successful and the judge ordered the US government to reunite the children with their families within 30 days. When this failed to transpire, it was revealed that the US government did not have enough information on the children and their parents to reunite them. Children taken when they were too young to know who they were, or who their parents were, could not be readily reunited with their parents. Further inquiries revealed that over 1,000 children were separated from their parents after the injunction was issued. The Trump Administration argued that it had no plans to reunite these children because it would “destabilize their existing home environments.” More lawsuits revealed that many children were held in cold, overcrowded concrete cells, with inadequate food and water, and some forced to drink from toilets.
There remain inadequate solutions for migrant children. HHS contracts out its child welfare obligations and many facilities have received waivers allowing them to skip state child welfare checks. In 2019, the Trump Administration instituted a DNA requirement allegedly aimed at “assessing whether migrant parents and children share a “bona fide parent child relationship.” This policy contravenes US immigration law, which permits adoptive parents and stepparents to immigrate or seek asylum with their children. It also raises the real probability of parents and children learning about a lack of biological relationships from CBP agents. Despite the policy having no merit and causing more harm than good, the Biden Administration has continued the policy.
State politicians engaging in political theater to boost their presidential bids have risked the lives of immigrant children, bussing them to so-called sanctuary states, resulting in the death of at least one child. Texas National Guard “deployed” to the southern border shot across the border river into Mexico in 2015, killing a 15 year old. In 2017, a border patrol agent shot across the border and killed a 16-year-old. In 2023, the Texas National Guard shot yet another Mexican citizen. These same states permit vigilantes, encouraged by federal immigration enforcement officers, to remove life-saving water sources in the desert, and deploy their national guard to erect water barriers that have killed at least three people. The Supreme Court has held that those responsible for these killings cannot be held accountable, deferring “extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.”
Child labor: Despite the putative justifications for violent border patrol tactics necessary to deter transnational “alien smuggling,” and despite family separation being justified as “saving children from being trafficked by their parents,” the Department of Labor recorded a 37 percent increase in child labor in 2022. To be clear, child labor is unlawful in many states, and citizen children are also increasingly working unlawfully and in unsafe conditions. Despite children being deemed legally unable to consent to most contracts, child labor is on the rise in all states within the US, in the factories of most major food producers and meat processing plants, in agriculture, roofing, and construction, in most hotels and vacation destinations, and in heavy machinery plants.
The easiest way for unscrupulous recruiters and employers to exploit a worker is to hire the most legally vulnerable worker they can find, and given the lack of legal protections, that is often a migrant or a minor. Restrictive immigration laws put power into the hands of recruiters and unscrupulous employers, both of whom would be considered human traffickers under the Trafficking Victim Protection Act (TVPA) when threats of deportation are deployed to coerce labor. Whereas a minor engaging in commercial sex is presumed trafficked under the TVPA, minors working in exploitative labor are only considered trafficked when “severely” exploited. This distinction in the law is essentially a morality clause – consent is irrelevant for minors with sex trafficking, while children engaged in labor that exploits them may be considered to have consented, even if they are not legally able to consent. Instead of companies being prosecuted for hiring children, reporting child labor violations often leads to DHS raids and results in the deportation of workers and families.
Under the TVPA, Congress requires the Departments of State and Labor to track child labor in every country in the world and to create and update a list of goods created with child labor. Yet, the Department of Labor acknowledges both that child labor in the US is a problem, and that the law established to protect against it is not enforced. Child labor in America is not only a problem for migrants and children of migrants; US citizen children are also working in dangerous conditions in violation of the law. In the weeks after journalists exposed the rampant use of child workers in the US, several states responded by drafting laws to lower the age for child workers and reduce restrictions on children working in dangerous occupations.
Conflicting laws and their hypocritical application and enforcement are working to harm children in America. Sometimes courts prioritize parental rights to guide the upbringing of their children, but other times, as when parents are attempting to access gender-affirming care for children or see them educated with a curriculum that accurately reflects US history, Courts prioritize states’ rights. Some regressive presidential candidates, mindful that young people are aware that they are currently unprotected by the systems that govern them and are agitating for change, have attempted to disenfranchise them by proposing raising the voting age to twenty-five.
Young people in America, who bear no responsibility for either the location of their birth or the sharp rise in regressive governance over the past few decades are nevertheless bearing the heavy burden of it.