Martin Guggenheim on What's Wrong with Children's Rights

December 7, 2005

I love a book that makes me think. What's Wrong With Children's Rights by Martin Guggenheim certainly did just that. Martin is a law professor at NYU, and has spent more than 30 years practicing law during a period of rapid changes in the concept of children's legal rights.

On the one hand, those changes have signaled a shift away from the idea that children deserve gentler treatment than adults at the hands of the law, and that youthful missteps will be more leniently regarded—though the recent Supreme Court decision barring the death penalty for juvenile offenders may signal a shift there. At the same time, the law has evolved to give more children the right to legal representation in cases concerning them, especially in matters of divorce, custody, and visitation.

Martin's book is a powerful reminder that the rhetoric of rights should always be considered in the context of the realities of power. If a formerly powerless group—children—suddenly gets handed a new legal right, it's important to look behind the curtain and see what powerful group stands to gain. Martin makes this point most provocatively in the chapter that explains how grandparents have won the legal right to seek visitation with their grandchildren in many states.

It's wonderful to have Martin available to join us for a discussion today of these issues that are so important to children, especially children in the child welfare and juvenile justice systems. Welcome!

--------------------------------------------------------------------------------

Mamaws3Angels: I have not read anything Mr. Guggenheim has written, but I saw a post about the Dec. 7th interview and a brief bio of his views on children's welfare issues. Based on his beliefs that child neglect is over-reported, I think he and I are on the same page, pardon the pun!

I have 3 grandchildren in foster care, in Tennessee, and they have been there for 13 looooooong months! They were found to have been "neglected," a term with so many meanings.

I guess my question to Mr. Guggenheim would be; do you agree with my views and personal experience regarding these government agencies and how would you recommend that they revamp these programs, "in the best interest" of our precious children, to spare them from the abuses they themselves inflict by placing them in foster care; causing emotional, physical, mental, sometimes sexual abuse, and even death, to the ones they are supposed to protect?

Martin: This question concerns the operation of child welfare. It is always tricky for a lawyer to comment on an area in which current litigation is on-going. My remarks are necessarily broadly focused and not about any particular situation.

In my experience, it is true that too often, in too many places, children who are removed from families for appropriate reasons are kept unnecessarily long in foster care and that these long stays are grossly unfair to the children and their families. I even agree that agencies often have too much power which is not effectively overseen by the courts responsible for monitoring them.

Those interested in improving practice in child welfare should support efforts to change the tone and focus of child welfare from a policing function to a helping one. Agencies should be headed and staffed by professionals who are committed to keeping children with their families unless there is demonstrated evidence that the children would suffer significant harm unless removed. These professionals should recognize that it is not a "safe" course to remove children from their families whenever there is reason to suspect ill-treatment within the family; that children can and do suffer real harm from being separated from their families and placed in foster care; and that not all forms of ill-treatment at home are worse than the cure of removal.

In addition, these professionals should be committed to assuming that parents want what is best for their children and trying always to work with the parents to improve whatever problems are at issue. Child welfare officials would do far better seeing themselves as allies of families with expertise to identify problems and to solve them instead of potential enemies of the children's parents.

--------------------------------------------------------------------------------

Bruce Mitchell, Hamburg, NY: I've witnessed a significant increase in attendance problems over the past 5 years - chronic tardiness and unexcused absences from school. Oftentimes, a single parent is unable to arrange schedules and as a consequence, children miss school. To our consternation, our local CPS repeatedly dismisses our inquiries. At what point do you think this becomes an issue of parental neglect? Who speaks for a child's right to an uninterrupted education? What suggestions might you offer to educators with similar concerns

Martin: This is a tough question to answer. Educators are expected to rely on CPS to do all investigations concerning inadequacies of childrearing. In an ideal world, it would be better, I think, if the school had professionals on its staff to follow up at home. But budget cuts and laws requiring calling in suspected matters of neglect or abuse means CPS is the agency that tends to get involved. One problem, of course, is that CPS often is overwhelmed and understaffed and reacts to cases based on a priority of severity of problems. In this world, educational problems sometimes are undervalued and under-investigated.
My suggestion is that educators try to find our more for themelves and try to avoid using CPS except for truly dangerous situations.

--------------------------------------------------------------------------------

Dan, NC: How does the present administration rate in relation to supporting children's rights?

Martin: Quite poorly, I think. Think about No Child Left Behind. Many professionals, myself included, regard that legislation as a failed means by which to improve America's educational system. Beyond education, children's needs in a wide range of matters, are simply not on the agenda of national politics. Certainly, they are not high on this administration's agenda.

--------------------------------------------------------------------------------

Cathy Smith, Washington DC: I have been told many times that children do not have rights in family court. If the child actually does get the chance to speak to a court then the DCFS or CPS people say that the children don't know what is best for them. Also, what about the parents that have never been charged with a crime and have done everything that was court ordered—-and still they don't get their children back. How could this be legal?

Martin: It's complicated to talk about whether children have rights in family court in child welfare cases. Children are commonly "represented" in those cases. But the person who is representing them (sometimes called a guardian ad litem, sometimes a lawyer, and other times still something else), rarely feels obliged to advocate for the outcome the child wants. Child welfare cases are not designed to achieve a result the child wants. Instead, they exist to protect children from harm and to decide the case in accordance with the law.

In many courts in this country, children do not even get to appear or to be heard in child welfare cases. Most often, if their views are expressed at all, they are expressed through some adult who tells the court what the child has said. Here, of course, there is a real danger of distortion or inaccuracy. Many court-appointed lawyers claim that they feel obliged to inform the court what their client wants, even when the lawyer prefers an outcome inconsistent with the client's preferences. But I've seen too many cases where the lawyer does not even bother to make clear what the child wants.

At the same time, it is important to remember that the case is not supposed to be about what the child wants in the first place. For this reason, adults are comfortable ignoring what the children want and seeking a result which the adults believe best conforms with the law and its purpose to protect children from harm.

As for parents who have done everything required of them who still can't get their children back, it is unfortunately true that in many courts in the United States, parents find it exceedingly difficult to obtain the prompt return of their children from foster care even after they've complied with what is expected of them. But that is not supposed to happen. Both the agency and the judge are supposed to focus on developing a sensible, workable service plan for parents, to encourage parents to comply with it, and to congratulate them when they have and return the children to them as soon as the obstacles to the children's safe return have been overcome.

--------------------------------------------------------------------------------

Jan, Virginia: When the "best interests of the child" standard was introduced, it was seen as revolutionary for putting the interests of the child on a par or higher than those of adults regarding placement and other decisions. But then it seemed that when adults were in control of defining the best interests of the child, the balance shifted back to the adults again. I have always seen ensuring legal standing for children in procedures that affect their lives and their placement, and ensuring a child's right to legal representation to advocate for their interest in court proceedings, as a way to even up the balance of power between child and adults. What do you think?

And a follow-up—there are times when adults define the best interest of the child far differently from what the child wants— how do we resolve this dilemma?

Martin: The "best interests of the child" standard was developed as a replacement for the previous standards for deciding custody disputes. Those previous standards were based on the status of the adult. Originally, fathers almost automatically were awarded custody when the substantive law provided that fathers had superior rights to children over mothers. Then the "tender years presumption" gradually replaced fathers' superior rights. This led to mothers winning custody disputes almost invariably. The "best interests" standard was really a compromise reached because feminists no longer (we're into the 1970s at this point) could afford to argue that women were presumptively superior caregivers than men. Such an argument was too inconsistent with the claims made by the women's rights movements that presumptions based on gender should be discarded. So, "best interests" solved a dispute between men and women.

But, adults were (and will always be) in control of defining the best interest of the child. An important sense in which the balance has shifted back to the adults again is that today it is far more likely that children of divorce will be forced to go through an extremely contentious familial fight over custody and visitation. At least the prior rules for resolving custody disputes had the advantage of reducing the incentive for such fights. Because "best interests" means no one can be sure whom the court will conclude is best for the child, more cases than ever are contested. I doubt that is good for children. Nor am I in favor of solving this problem by adding a third lawyer to the dispute. For one thing, this greatly increases the costs of the contest. As a result, fighting parents commonly waste huge sums of money on legal fees, reducing the amount available to the family. In addition, adding a lawyer sometimes adds more conflict and means the case takes even longer. Finally, lawyers for children often feel free to seek the result they think is best for their client. But, in my experience, encouraging randomly assigned members of the bar to advocate their views of what is best for a child is only another form of adults remaining in control of defining the best interests of the child. Only now, the person expressing this opinion is a member of the bar. What I think is that custody disputes have been allowed to get ever more contentious because adults want the opportunity to fight as hard as they wish to win over the other parent. This almost never serves children well. Shorter, less contentious proceedings would be better for children. But, paradoxically, this may require abandoning the "best interests" test, because its very indeterminancy contributes to more contentious lawsuits.

With regards to your follow-up question, as I understand it, you are conjoining the child's best interests and the preferences of children. Courts don't do that. The best interests standard is not about empowering children to increase the probability that the outcome is what they want. It empowers the decision-maker to decide what he or she thinks is best for the child.

--------------------------------------------------------------------------------

Susan, CFK: How well are children's rights observed in juvenile delinquency proceedings, and what kinds of reforms would you like to see?

Martin: There are a couple of glaring problems associated with how children are treated in juvenile proceedings. One in particular has to do with the quality of lawyers children are provided with. In many localities in the U.S., juvenile defenders are expected to handle such high caseloads that they are unable to give the kind of individualized attention to each case that was the underlying goal of juvenile justice in the first place: to give each child the kind of attention s/he deserves to find out whether and how intervention may help the child grow up to be a happy and productive person.

Not only are lawyers expected to work under conditions which make this goal improbable, judges and other court personnel also commonly have ridiculously high caseloads.

Beyond the court process, there are often inadequate services made available to children.

On the other hand, a fair question is, against what should juvenile justice be gauged? It turns out that, as compared with most municipal adult criminal court systems, juvenile justice starts to look a bit better. But this is faint praise.

--------------------------------------------------------------------------------

Lydia Pettijohn: What do you think about parental alienation? Is it a smokescreen or a real syndrome affecting innocent children and parents?

Martin: Marital split-ups are very common in the United States, as are post-split-up arguments between parents. In some situations, a parent is so angry at the other parent that he or she will try to "split" the allegiance of the children. Parental alienation is real and is a terrible thing to expose children to. At the same time, in some situations, a parent is so angry at the other parent that he or she will make up the claim that the other parent is trying to alienate the children. For this reason, it is impossible to say without investigating closely whether the claim of parental alienation is a smokescreen or for real. (A parallel situation occurs with respect to sexual abuse. Sometimes the allegation is valid. Other times it isn't and was made to help the accusing parent gain the upper hand.)

--------------------------------------------------------------------------------

Clara, VA: Is America behind in protecting children compared to western Europe?

Martin: A great question! By some measures, America is way ahead. But these measures are, I think, misleading and it is my view that America is actually way behind most western European countries.

The measure which would suggest our leadership is the amount of money we spend on child protection services (including the maintenance in every state of child abuse hotlines and registries). We are the world's leader in such measures. And we lead the world in the number of children placed in foster care over parental objection.

But this does not really demonstrate leadership. We spend these resources because we refuse to follow the lead of western European countries of making it relatively easy for families to raise children well by subsidizing families with benefits, such as universal health care, nursing and day care, family-friendly work leaves, guaranteed minimum income, and the like.

Our method of child protection is to wait until a known problem manifests itself before the state pays attention to children's well-being.

This is a flawed method.

--------------------------------------------------------------------------------

Mike Newdow: Where in the Constitution is there any justification for placing the rights of children above the rights of parents? If nowhere, then how are family courts permitted to approach custody matters with their universal view that the rights of the parents don't matter? [Please note, that this question does not relate to protecting children, which is an entirely different subject. Rather, it relates to the overwhelming number of situations where both parents are fit, and some judge makes a completely arbitrary decision that has a marginal (if any) benefit to the child, and a devastating effect upon a parent.]

Martin: It isn't that the Constitution places children's rights above parents, it's that custody disputes are (usually) fights between two equal stakeholders (parents) who are going to court to resolve their dispute only because they are unable to resolve it themselves. The Constitution protects parents' rights to resolve these disputes themselves (even when such a resolution would not be "best" for children. In this sense, the Constitution actually places parents' rights above children's, not the other way around).

It is quite true, as you say, that frequently judges make a completely arbitrary decision that has a marginal benefit to the child which adversely affects one of the parents. But this isn't evidence of a preference for children's rights over parents' rights. It is, instead, a means for resolving a dispute that the state would not otherwise become involved with but for an invitation to get involved from one of the parents. (The disincentive for seeking state involvement is that courts will be empowered to resolve the dispute arbitrarily. The arbitrary nature of the resolution is empowering a judge to enter an order based on the judge's own views of what is best for the child—views which might not be shared by many other judges, hence the arbitrary nature of the decision.)

--------------------------------------------------------------------------------

Gilbert, Arizona: My question is when your court orders say that in the best interest of the child the father is given sole custody, what exactly does that mean, and when is it determined that the child can state she does not want to visit the co-parent?

Martin: I'm not sure exactly what you are asking. When a parent is awarded sole custody, usually the parent has the primary right to make the important child-rearing decisions for the child. In many states, the non-custodial parent retains a right to remain informed about various aspects of the child's life, but does not have the power to veto the custodial parent's choices. With respect to visitation, usually the court sets some kind of schedule for it. If that is the case, it doesn't matter that the child does not want to visit with the non-custodial parent. A court order gives the non-custodial parent the right to visit and the custodial parent is obliged to carry out the court order (or to seek to have it changed). I hope this answers your question.

--------------------------------------------------------------------------------

Ronald, Tampa FL: Do you see any hope in leveling the disparities between the races when it comes to foster care & adoption?

Martin: Another great, and important, question. For better or worse, race affects virtually all matters of importance in the U.S. I really can't think of any special way to isolate the complexities of race and the disparate treatment accorded Americans based on their race as it affects foster care or adoption. These problems are larger than these fields.

--------------------------------------------------------------------------------

CG, Washington: Martin, Aside from issues of protecting children, how does the U.S. fare in comparison with other countries in terms of according rights to children?

Martin: The U.S. is almost alone in the world in thinking about rights as being essentially "negative." By this I mean rights that protect individuals against state overreaching (such as the right to remain silent). The world tends to think of rights as largely "positive." That is, the right to something (such as health care). These differences in approaches make it difficult to answer your question.

Certainly we are much harsher than any country in terms of our willingness to submit children to adult-like sentences. (About half of the states still would like the authority to execute minors - though the Supreme Court earlier this year declared that possibility unconstitutional.)

An interesting study done about 20 years ago reflects the difference in children's minds about these different meanings of rights. Ask an American youth what their rights are and they are likely to talk about freedom of speech, etc. Ask a Norweigian child and s/he is likely to mention the right to health care or an adequate income allowance for food and clothing.

--------------------------------------------------------------------------------

Lisa M., Portland OR: My daughter is mentally ill and lost custody of my grandson, who was adopted by the father's side of his family. After the adoption went through they stopped my visitations. Can I do anything about this?

Martin: The right of a biological grandparent to maintain ties to an adopted grandchild varies by states. In some states, the adoption severs the legal relationship between the grandparent and grandchild. In those circumstances, no "rights" survive the adoption. When this happens, the only remedy available is persuasion. Someone is always free to try to persuade a parent to permit a relationship with their child to continue. But, when that fails, courts won't step in.

In other states, biological grandparental relationships do survive adoption and, in some of those states, grandparents have the right to go to court to seek court-ordered supervision over the objection of the parent.

--------------------------------------------------------------------------------

Constance Kosuda: US children have a legal right not to starve to death, not to be denied medical care and attention; to be given a free, and fair education, eh? How can these rights be protected and enforced?

Martin: The rights that American children have to minimal health care, education and nourishment form the core rights embedded in child welfare laws which require parents to raise children in a minimally adequate way. The legal standard for minimal adequacy is that parents are obliged to ensure that their children are fed, provided with adequate medical care, and comply with compulsory education requirements. When parents do those things, they are considered "fit" and the state is supposed to stay out of the business of paying further attention to the children's upbringing. When parents are found to be "unfit," the state will take over either by supervising the home and ensuring that the children receive what the law insists they get or by placing them in foster care.

--------------------------------------------------------------------------------

Jan, Virginia: Here's a follow-up about a child's representation in court proceedings about their placement. Do you think children should have legal standing in such cases so there is an adult who represents their wishes, like lawyers represent the wishes of the adults? Some people say, "How can kids make such decisions?" but we do it for people with mental deficiencies and other disabilities, where their counsel serves their interests and at the same time advisesthem on how best to proceed.

Martin: I think it is best to think about your question in two parts. First, when do we want a child's opinion to count when making placement decisions (and, when we think it should count at all, to what extent)? After resolving that, we can talk about the wisdom of appointing them lawyers. The problem today is that we too quickly conclude that it is among a child's "right" to be assigned a lawyer without first agreeing that the child's opinion really should matter.

Take, for example, child protection proceedings. They are prosecuted on a theory having nothing to do with the child's preferences. Cases are brought in court when officials believe children are at risk of harm. They will be prosecuted even when the children don't object to their placement. In this circumstance, appointing a lawyer for the purpose of advocating for the result the child wants may seem inconsistent with the purpose of the proceeding.

Or, take child custody cases. In these cases, many psychologists would say that the *worst* thing we can do to children is inform them that their views matter and that the court will award custody to the parent the child prefers to live with. They would say this only exacerbates the pain and sense of loss children commonly experience when their parents split up and forcing them to choose is equivalent to forcing them to reject a parent. So, if we don't want children to think that the placement decision will be based on what the children want, then we ought not structure a process by which they are given lawyers to advance their preferences.

--------------------------------------------------------------------------------

Barry, Virginia: How much should the question about children's rights, especially about where they are placed and for how long, depend on the age of the child? Would you say an infant should be returned to a family whose drug problems seriously interfere with caretaking in the same timetable as a 10-year-old?

Martin: I'm unsure how to answer this question. If you mean that we should consider returning children to parents once we believe the children will not be exposed to signficant safety issues, I am in substantial agreement. If this means that infants, who obviously require constant care, should be kept from parents about whom there is reason to believe could not safely raise them, I also agree. This does mean, then, that the age of the child is pertinent in deciding placement decisions.

--------------------------------------------------------------------------------

Robin Cook, Harrison Twp, MI.: If a child can be prosecuted in Michigan at 11 as an adult, why do they not have the right to decide where they want to live and be heard by the judicial system?

Martin: Robin, your question is, why are children sometimes treated as adults (such as when they commit particular crimes) when at other times children are denied adult-like rights such as where and with whom to live. One can try to answer this important question in many ways. Current laws that punish children as adults focus more on the potential harm these children can exact on others and de-emphasize society's moral obligation to treat children as inexperienced and immature.

To some, adults (and others) would be the losers if children were regarded as only children when deciding how severely to punish them. When adults benefit from treating as children, there is no resistance to doing so. For this reason, in most areas of the law, children are denied adult-like rights because adults prefer treating children as children. But, in some areas, adults (or a significant percentage of adults) refuse to treat children too leniently because the adults don't want to do so.

There is no requirement in American law that our laws are consistent. Our laws are designed by adults to serve adult interests.This is not to say these laws don't also serve children's interests, but their principal purpose is to further adults' interests. Seen through this lens, there may be greater consistency to the patchwork of laws affecting children than may otherwise be apparent.

--------------------------------------------------------------------------------

Ted Adams, Washington DC: Greetings, I work with a nonprofit called KaBOOM! that through the leadership of communities creates great playspaces. We are working hard to advocate for a child's right to unstructured play and the benefits that come from access to great, safe playspaces. Is this messaging in your opinion polarizing vs. inclusive to some constituent groups? I am intrigued by your experience and questioning of "who stands to gain". We are trying to motivate and advocate not alienate.

Martin: I think this question is beyond my ability to answer. For what it's worth, I'm glad you're working on something like this. We need more effort to make this world a happier, safer place for children to grow into. But, I am aware that certain themes in advertising are buzz words that can set off irrational opposition.

As fair as it is to ask me, I'm not really equipped to suggest an answer. This one is better reserved for advertising mavens.

Susan, CFK: I'll chime in here, since we are in the communications business in some sense, and say that the rhetoric of rights is more successful with some audiences than others. Martin's earlier comment about how European children perceive their own rights is an example of how a social milieu makes all the difference. People generally are leary of approaches that put children in a political context.

--------------------------------------------------------------------------------

Anonymous: Do you think children should be able to contact CPS themselves to report abuse—of themselves or others? Does CPS give credence to children's reports on a par with reports by so-called mandated reporters like nurses or teachers?

Martin I do, and they are. And, yes, I think they are given credence by investigators.

At the same time, it is important to appreciate that these laws give children a certain degree of power unknown a generation ago. Children now can threaten their parents that they will call CPS if they don't get their way. I've known of a few instances in which adolescents have done this. I have no information, however, about the degree of frequency with which something like this occurs.

--------------------------------------------------------------------------------

Susan, CFK: Martin, in your book you talk about how grandparents have had more success winning a legal right to visitation than individuals who have played the role of parent in a non-traditional couple -- gay or lesbian for example -- then lost access to the child through a break-up. Can such couples protect themselves legally in advance of a break-up, through some kind of binding contract?

Martin: In some states, yes. But in others, there can be no binding agreement when it comes to child custody or visitation. In these states, whenever there is a dispute over custody or visitation, the court (a judge) will decide the outcome and the judge will do so based on his or her sense of what best serves the child's interests. In these states, courts won't allow parties to restrict the judges' power to enter an order which serves the child's best interests.

--------------------------------------------------------------------------------

Richard Doonan, Chicago, IL: What parts of the "Convention on the Rights of the Child" from the UN are most objectionable to people in the Child Welfare community in the USA? Why haven't we made a push to ratify this convention of the UN?

Martin: The United States is the only functioning country in the world that has refused to ratify the Convention on the Rights of the Child. Although some people suggest that the reasons for our refusal have to do with children's rights, I don't believe that is the case. The actual reasons for our refusal to ratify the convention have to do with our reluctance to join the world community in terms of the establishment of binding norms on American prerogatives to choose the structure of society. The United States has demonstrated its disdain for the United Nations and for the world's opinion on many matters. The fight over ratifying the Convention unavoidably bumps up against these other, larger fights.

For this reason, when one reads about substantive objections to the Convention as a barrier to the U.S. ratifying it, I believe these are make-shift objections and not really the reasons for opposing it. Many on the right express a fear that the Convention would authorize too much oversight of parenting or provide children with too many rights within the family. In particular, many worry that the Convention would make it more difficult for parents to instruct their children's religious upbringing. I do not believe these objections are valid or that our signing the Convention would have much immediate impact on our laws.

The one glaring change that would occur were we to ratify the Convention is that the states could no longer sentence minors to life in prison without parole (which is prohibited by Article 37 of the Convention). This is only another illustration of structural objections to the Convention (apart from substantive objections to its provisions). he U.S. regards each state as sovereign and as free to enact and enforce all laws except those that would violate federal law. The Convention would restrict state's sovereignty to this extent. Something many Americans are loathe to support.

--------------------------------------------------------------------------------

Jan, Connect for Kids, Washington DC: There is an effort in Pennsylvania to pass a foster youth bill of rights law. The Juvenile Law Center in Philadelphia says this law, if passed, would affirm the state's responsibility to all youth in substitute care and clarify the safety, permanency and well-being guaranteed to older youth by state and federal law. It would reiterate many of the rights already provided to foster youth in state regulation, such as rights to family visitation, a safe and family-like placement and educational opportunities. Do you think this kind of effort to codify rights for older youth in public care is effective, or a waste of time? Why?

Martin: I am in favor of the Juvenile Law center's efforts to create a bill of rights for foster children. Though I'm unsure whether and to what degree such a law will actually translate to good things for children, it is, in my view, essential that we strive most of all to do right by state wards. One of the worst things we can do to children is raise them outside of a family into which they are deeply integrated emotionally. Children need and deserve a sense of belonging and when we deprive them of that we take away a essential meaning of being human. The state has long demonstrated its inability to be a very good parent. Foster children are an especially vulnerable group which deserves special protection.

--------------------------------------------------------------------------------

Scott, Rockville: This may not be your area, but what about children's rights to vote, drive, drink...Is the setting of those age limits a political or legal issue?

Martin: Political issues are commonly legal issues, of course. The Constitution was amended in 1970(??) to lower the voting age from 21 to 18. That came about as a result of strong opposition to the Viewnam War and the slogan "old enough to fight, old enough to vote" proved to be very persuasive.

I am quite confident, however, that any movement to lower the voting age further would have no chance of gathering much support. With respect to driving and drinking, the really interesting thing is that the same generation that lowered the voting age, raised the drinking age. Restrictions based on age for driving and drinking really are safety laws enacted by adults who want to lower the associated dangers when young people (even young adults) engage in those activities.

Challenges to these restrictions raise legal claims, but courts invariably uphold these laws whenever they are able to conclude that they are rationally based (an easy test to meet). Unlike laws that distinguish among people based on race or gender, laws based on age will be upheld whenever courts find that the legislature had a justification for enacting the law. Whether you agree or not, there are justifications for laws that restrict both driving and drinking.

--------------------------------------------------------------------------------

Gene Steuerle, Washington DC: Many issues surrounding children involve probabilistic decisions. Who would be better for the child in the case of divorce: father, mother or father/mother split? What level of abuse should lead to a child being taken out of a home? What is the right level of interference? It's easy to find anecdotes where even good decisions ex ante led to a bad result ex post. But what is the right type of rule to use when we honestly admit that in many circumstances any decision could turn out to be inferior to alternatives?

Martin: What a wonderful set of observations about the complexity of any public policy/public law choice. Child welfare decisions have for too long been driven by worst case scenarios in which we look at harms which children have been inflicted on children and concluded that we must do everything possible to prevent like harms in the future. But sound public policy must ask simultaneously whether the cure is really better than the disease. Though we may wish to find a method by which we can ensure that no child is ever the victim of wrongdoing, we also must recognize the impossibility of such a task. Thus, our goals must be more modest. Instead of trying to achieve the impossible, we should strive to do the least harm to the greatest number of children.

This doesn't come close to answering your question, but it suggests we very much agree that your question must be asked whenever we try to make policy decisions.

--------------------------------------------------------------------------------

Anonymous: How do you see the issue of children's rights to free speech, say in the context of wearing a t-shirt with a message to school that administrators don't like, or writing unflattering articles in school newspapers or on the web?

Martin: Another great question. Let me suggest that the answer to this question is a test of one's view of what it means to send children to school. If one sees this as an important experience for the child to grow, then schools should not be permitted lightly to restrict a child's freedom in school, even when the child is expressing unpopular views. If one sees things very differently, howeever, the answer will be quite different. Some see sending children to school as being about teaching them how to behave appropriately. When this is the perspective, school officials will have much greater authority to control the student's behavior.

Personally, I'm closer to the former view than the latter.

--------------------------------------------------------------------------------

Susan, CFK: That's all we have time for today. Thanks to Martin Guggenheim for being our guest, and thanks for your questions.


#

tags