Constitutional Rights of Minors: a General Standard of Reasonableness

• Publication year: 1991
• Pages: 2273
• Citation: Vol. 11 No. 1991 Pg. 2273

20 Colo.Law. 2273 Colorado Lawyer 1991.

1991, November, Pg. 2273. Constitutional Rights of Minors: A General Standard of Reasonableness

Constitutional Rights of Minors: A General Standard of Reasonableness

by Bill C. Berger

In 1967, the United States Supreme Court announced in In re Gault(fn1) that minors were entitled to the "essentials of due process and fair treatment." Recently, the United States Supreme Court has begun to analyze the nature of a minor's constitutional rights and, in doing so, to impose a lesser standard of reasonableness. For example, the Court extended the First Amendment's freedom of expression to minors in 1969.(fn2) In 1988, the Court reconsidered the nature of a minor's First Amendment rights and found them to be limited by a general standard of reasonableness.(fn3)

This article surveys the status of the major constitutional rights of minors, as set forth in the Bill of Rights.

Definition of "Minor"

There is no one definition of the term "minor." The following is a brief synopsis of the ages at which individuals are deemed minors in Colorado:

1. Ten years: At less than ten years of age, a child is presumed incapable of committing any crime whatsoever. CRS § 18-1-801.

2. Fourteen years: At fourteen years, a child may be tried as an adult for the commission of crimes that would constitute a felony in severe circumstances. CRS § 19-2-806.

3. Eighteen years: At eighteen years, a child can execute a contract, sue and be

sued, make medical decisions for himself or herself and for his or her children, and make general financial decisions CRS § 13-22-101. At eighteen, a child also is tried for crimes as an adult. CRS § 18-1-801

4. Nineteen years: At nineteen years, a child is presumed to be emancipated for the purposes of child support. House Bill No. 91-1049, effective date July 1, 1991.(fn4)

5. Twenty-one years: At twenty-one years, a child may drink alcohol. 23 U.S.C. § 158.(fn5) Also, this is the default definition for minors as set by CRS § 2-4-401(6).

6. Over twenty-one years: Any individual, at any age, can be deemed to be a. de facto minor for certain purposes. For example, any individual at any age may be treated as a minor if still in school.

First Amendment

Freedom of Expression

The seminal freedom of expression cases are Tinker v. Des Moines Independent Community School District(fn6) and Hazelwood School District v. Kuhlmeier.(fn7) The Colorado legislature recently enacted Senate Bill 90-99, at CRS § 22-1-120, which affects a minor's rights of expression.(fn8)

In Tinker, the U.S. Supreme Court held that minors do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."(fn9) The minor's First Amendment right to freedom of expression may not be impaired absent a showing that its exercise would "substantially interfere with the work of the school or impinge upon the rights of other students."(fn10)

However, in Hazelwood, the Supreme Court ruled that the minor's expression may be limited by educators' actions which are "reasonably related to legitimate pedagogical concerns," when the expression occurs in "school-sponsored activities."(fn11) In Hazelwood, the school-sponsored activity was a school newspaper. School-sponsored activities also probably include theatrical productions(fn12) and student assemblies.(fn13) College or university school newspapers may not be subject to Hazelwood.(fn14)

In an attempt to reverse much of Hazelwood, the...