Rights of Children

Abstract

Children are the newest claimants to constitutional freedoms. Their rights are being asserted with increasing frequency in expanding contexts. And the courts are listening. Since 1943 when the Supreme Court ruled that school children had an interest in intellect and spirit which protected them against having to salute the flag in violation of their religious beliefs,' constitutional rights of minors have been steadily enlarged. It is now acknowledged that children have protected interests in freedom of expression (Tinker, 1969), privacy (Planned Parenthood, 1976; Bellotti, 1976), procedural due process in criminal (McKiver, 1971; In re Winship, 1970; In re Gault, 1967) and non-criminal (Goss, 1975) settings, and freedom from double jeopardy (Breed, 1975). Most of the disputes involving children have been between children and the government-whether, for example, school officials may prohibit students from wearing arm bands to class to protest American involvement in the Vietnam War (Tinker, 1969), or whether children must be given the same protection as adults when they are charged with violations of the law (In re Gault, 1967). The decisions which expanded juvenile rights were thus unencumbered by conflicting parental rights to control of children. In that sense, and in retrospect, the decisions were relatively easy ones to make, involving simply the application of familiar constitutional freedoms, well developed in application to adults, to children in analogous contexts. Defining children's constitutional freedoms is vastly more difficult where parental rights (or interests) are also asserted. It is simply not clear in such cases where traditional libertarian allegiances should lie, for emerging children's rights have entered a crowded area of the stage, colliding with other carefully nurtured rights and interests: particularly those of parents as the preferred managers of their children's development, and familial interests in autonomy and privacy.2 The constitutional rights of parents were acknowledged long before those of children, and the Supreme Court cases defining them are now classic (Meyer, 1923; Pierce, 1923; Prince, 1944; Stanley, 1972; Wisconsin, 1972). The Court has spoken of the rights of parents in language usually reserved for rights viewed as basic or fundamental-rights *Walter H. Bennett, Jr., is a member of the North Carolina Bar and practices law in Charlotte, North Carolina, with the firm of Casey, Daly & Bennett, P. A. Laughlin McDonald is a member of the South Carolina Bar and the Georgia Bar and is Director, Southern Regional Office, American Civil Liberties Union Foundation, Inc., 52 Fairlie Street, N.W., Suite 355, Atlanta, Georgia 30303.