Children's Rights: The Latest Crusade

YOUNG Gerald Gault may have thought it was just a joke. He telephoned a housewife who lived near by in Globe, Ariz., and made what the Supreme Court subsequently called "remarks or questions of the irritatingly offensive, adolescent sex variety." The boy had no lawyer, the housewife never publicly testified, no hearing transcript was kept and no appeal was possible. It took a writ of habeas corpus to get a review of the case. Gault could have received a maximum jail term of two months if he had been an adult; since he was 15, he was committed to the State Industrial School until he became 21. Two years passed before the Supreme Court turned him loose in 1967, declaring that "neither the 14th Amendment nor the Bill of Rights is for adults alone."

That landmark ruling extended to a juvenile offender many rights that an adult can take for granted: the right to prompt notice of the charges against him, the right to consult a lawyer, to avoid self-incrimination and to cross-examine hostile witnesses. But though it was a breakthrough, the Gault ruling hardly signaled full legal status for children. "Children are the last 'niggers' of our society," says Larry Brown, director of the Boston Task Force on Children Out of School. But Gault at least got something started. As Brown observes: "We're on the verge of the last and greatest frontier in civil and legal rights--the rights of children."

Such rights are still relatively few. The problem is complicated by the differences between an infant and an adolescent, but the basic legal principle for all minors is that the parent knows best. In broad terms, says William Aikman of the Massachusetts Law Reform Institute, "the child's legal status is an amalgam of noncitizen, slave, overprotected pet and valuable chattel." He has no legal right to work, to choose his own friends, or to decide on his religion. Adds Henry Foster, who teaches family law at New York University: "Women used to need a guardian before they could enter a court. Now that feudal concept applies only to children."

Dangers. The concept is not simply arbitrary. "Aristotle separated parental rule from constitutional rule for good reason," observes Monrad Paulsen, dean of the University of Virginia Law School. "He said parental rule is superior because it is based on the personal wisdom of the parents, and because it is guided by love." Unfortunately that is not always the case. Says Professor Sanford N. Katz of the Boston College Law School: "It is in the home that a child's rights are least protected."

Back in 1646, a Massachusetts Bay Colony statute decreed that if a man had "a stubborn or rebellious son" of at least 16 years of age, he could bring him to the magistrate's court where "such a son shall be put to death." The times have grown milder, and yet in many cases the principle of parental rule has continued to defy common sense. Early in this century, for example, the Washington State Supreme Court threw out a suit by a girl named Lulu Roller against her father, who had raped her. The court's ground: "The rule of law prohibiting suits between parent and child is based on the interest that society has in preserving harmony in the domestic relations." As recently as last year, a 14-year-old Filipino girl in Los Angeles sought legal help because her parents ordered her to go back to the Philippines and marry someone they had picked out for her. "She asked me what legal recourse she had," recalls Attorney Riane Eisler, "and I had to tell her she had none."

Far worse can happen when parents are unable to raise a child at all. Consider the case of Pam, now 16. Her mother was struggling to make ends meet after her husband deserted her, and Pam was difficult to handle. So the mother gave her up to the state. "Pam is very bright and fantastically sensitive," explains Chicago Attorney Patrick Murphy, "but she's not very attractive, and that made it hard to find foster parents. So she was sent to a home for delinquents, where she had nothing much to do except watch TV. Then she was sent out to a foster home for a year, then back to the delinquent home, then to the Elgin State Hospital. She'd gotten into fights because other kids taunted her about her looks. At Elgin, things got worse, so they tied her to her bed for 28 days. When they let her go, she hit a matron, and they put her back in restraints for another 30 days. By this time she really needs psychotherapy . . ."

Pam's story is particularly tragic, but it is only one among the many noncriminal cases the law must deal with. In Chicago's Cook County Juvenile Court, the 28,740 cases handled last year included only 3,500 serious offenses but fully 9,200 instances of parental neglect and juvenile runaways. In many cases, the runaways had reason to flee--cruelty, indifference or neglect. "Parents are allowed to beat children," says Sanford Katz, "and no action may be taken unless the child is seriously injured." Nationwide, there are more than 500,000 runaways each year.

Rule. The courts are increasingly puzzled by their responsibilities. In Massachusetts, one intractable 15-year-old girl in a foster home was taken to court after she disobeyed her foster parents' rule that she could not talk to boys.

She was held to be a "depraved child," but the court could not decide on any punishment. "What can you do," asks Dean Paulsen, "with someone who commits no crime but won't behave? We're starting to realize that training schools don't work. They don't train, and they breed crime. So there's a move toward letting these children go free, especially the 16-and 17-year-olds."

But younger children cannot simply be turned loose, and that can lead to even bigger problems. Chicago was shocked recently by the case of Johnny Lindquist, age six. He was living happily in a foster home after his parents declared they could not provide for him. Then his parents changed their minds, and social workers returned the boy--even though he expressed fear of his father. Four months later, according to police, the father beat the boy senseless. Johnny's skull was crushed. After lying for four weeks in a coma, he died. As a result, an Illinois senate committee has been holding hearings on whether to change child-care laws to resemble those of California, where "due weight" is given to the child's own wishes about custody if he "is of sufficient age and capacity to reason."

The cruel fights over children occur most often in cases of divorce. More than 750,000 marriages end that way every year, affecting more than a million children. Courts go through at least a ritual of concern for what is best for the children, and recently judges have become slightly less automatic in granting custody to the mother. Still "the rights of children in divorce cases have been virtually ignored," says Marie Kargman, an attorney who works with the Massachusetts Advisory Council on Home and Family. "Rights to property or continuity of residence have never been defined." When a child inherits money, his legal interests are usually protected by court order. Yet in a divorce, complains Los Angeles Attorney Eisler, where the entire fabric of a child's life is involved, "the husband and wife are entitled to counsel, but not the children."

One area where there has been marked progress toward children's rights is, appropriately, the first environment that the growing child encounters when he leaves home: the school. In many ways schools had and still have the transferred power of the parent, and they recognize little law but their own regulations. Only last month the Supreme Court declined to interfere with the power of teachers in Dallas to administer corporal punishment. The court has also been unwilling to hear arguments on the question of boys' refusal to cut their hair. But this issue has prompted case after case, fought out in state and federal courts across the country, and in about half of them long hair has won legal protection. The seemingly absurd constitutional controversy has been an important wedge in support of students' rights.

Armbands. Beyond the right to long hair--or blue jeans or nail polish or miniskirts or whatever teen-agers might impulsively want to put on--students in several Des Moines high schools sought the right to wear black armbands as part of a protest against the Viet Nam War. In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court firmly struck down the schools' refusal to allow them, saying that neither "students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Some courts have spread this protection to student newspapers, pamphlets and petitions, but many schools are still reluctant to comply with the spirit of the ruling. Los Angeles Poverty Lawyer Ernest Aubry observes: "If somebody goes to class with a button that says 'Chicano Power,' the authorities immediately say, 'Well, that's not a black armband.' "

Even when courts do endorse the principle of student rights, they usually allow suppression of those rights if the school can prove a "disruption" of the educational process. Spot checks for marijuana in lockers, for instance, would be unconstitutional searches if police performed them, but school officials make such checks as part of their duty to maintain order. The pot is then sometimes used as evidence in a criminal prosecution. The apparent basis of such actions is that schools are still seen as acting in loco parentis rather than as agents of the police.

Schools are also nervous about sex, and many will expel any girl who becomes pregnant. In Chicago, a 17-year-old, whom the court referred to as Mary Doe, became pregnant while she was a senior. She had an A-minus average and had received an Illinois merit scholarship to a university, but her high school nonetheless ousted her. There are two schools for unwed mothers in the city, but they were full. Mary seemed doomed to miss a year in school and to lose her scholarship until the American Civil Liberties Union brought suit on her behalf. She was readmitted to her old school, and Chicago ended the automatic-expulsion policy. The action was part of a trend extending the right to a hearing to students faced with suspension for misbehavior.

Though adolescent problems burgeon as a child nears his majority, the law has traditionally forbidden young people to get medical help without their parents' permission. In the last five years most states have made an exception in the case of venereal disease. Now concern over drug abuse is also helping to break down the old rules. Both Massachusetts and Michigan have new laws that permit children as young as 13 to see a doctor confidentially about a drug problem. Says one Boston psychiatrist: "Almost every kid who comes to me has had some experience with drugs. This gives me the cover to help them any way they need, including contraceptives, without telling their parents--unless they want their parents told."

Runaways. "Children do not belong to parents," says Edward Zigler, director of the U.S. Government Office of Child Development, and one of a growing breed of advocates who are concerned with children's rights. But the new children's advocates do not propose that the family give way entirely to the courts. "Courts can destroy relationships, but they cannot create them," observes Lawyer-Psychologist Joseph Goldstein of Yale Law School. He thus opposes legalistic custodial laws that assign orphaned children to their nearest blood relatives. He prefers laws that would "acknowledge the emotional realities that exist," allowing the judge discretion to assign the children to a distant relative or even a close friend who is fond of them. His Yale colleague, Jay Katz, proposes in the case of runaways "a provision for legally approved separation between parents and children. Better to have it over than to maintain a fiction."

Children's advocates also urge that juvenile courts should no longer have the authority to enforce so-called incorrigibility statutes, which, like vagrancy laws, are used to sweep the streets of "undesirables." The critics contend that these laws are unconstitutional and should be abandoned, since they outlaw no specific offense and leave their victims unjustifiably incarcerated. Director Joe Henning of the A.B.A. Youth Education for Citizenship program urges a gradation of rights that would encourage children "to undertake more of the responsibilities of citizenship as they grow older." Forcing a five-year-old to go to bed at 7:30 may be reasonable, but he points out that it would hardly make sense for the law to back up similar parental regulations for someone who is 17.

The possibility of expanded rights calls up the specter of children constantly litigating with their parents, but that is not very likely. The challenge will be to define rights in a way that expands the child's protection against abuse without undermining the psychic benefits of parental authority. "There is no way the government can supply the 24-hour, seven-day, 52-week care of a good parent," says Virginia's Paulsen. That was certainly the case with Pam, who spent those months tied to her bed at Illinois' Elgin State Hospital. Attorney Murphy won a judgment for her. She is now in a private institution where the state pays $45 a day to undo the psychic damage its agents did to her.

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