Afterword: The Un Convention On The Rights Of The Child And U.S. Law

• Author: David Benjamin Oppenheimer
• Position: Professor of Law and Associate Dean for Academic Affairs
• Pages: 706-709

Professor of Law and Associate Dean for Academic Affairs, Golden Gate University; J.D., Harvard, 1978; B.A., University Without Walls, 1972.

Page 706

The preceding essays are an apt tribute to the inspiring work of Professor Maria Grahn-Farley, as a scholar and as a teacher. They illustrate her premise that learning requires us to cross personal, institutional, and intellectual borders, just as the study of international law requires the crossing of national borders.¹ They serve as an example of how scholarship can be used to help cross the borders between students/teachers and human rights activists.²

The essay by my colleague Professor Leslie Burton crosses the traditional scholarship border by being (traditionally) descriptive and analytical about the status of Roma children in the Czech Republic, while serving as an activist's roadmap on enforcing the Convention on the Rights of the Child on behalf of those children.³ As Professor Burton indicates, the Czech Republic's wide-spread disregard for the right to education guaranteed to Roma children violates international law as discrimination based on "national, ethnic or social origin," "race," and (most provocatively) poverty.⁴ She gives us a nuanced discussion of the barriers to enforcing equal educational opportunities for a despised and transient community.⁵ Her conclusion that the CRC requires the state to involve Roma children in devising a remedy to their oppression requires crossing another border, separating adults and children into different spheres of autonomy.⁶

The essays by Mr. Jason Hight and Ms. Jennifer Phillips carry these border-crossing themes forward, while asking one to cross the border between national and international law here in the United States.⁷ In the process, they may help illustrate why the U.S. Senate has been reluctant to ratify the CRC.⁸

Page 707

Mr. Hight argues that under the CRC the United States is obligated to provide sex education, including AIDS/HIV education, to American school children.⁹ Failing to do so, he argues, deprives U.S. children of their rights to life and to education guaranteed by the CRC.¹⁰ And, he argues, the willingness of American states to privilege parents' preferences over children's rights has endangered the health and safety of children.¹¹ He too is asking one to cross borders, among them the border standing between parents and the state and the border between parent and child.¹²

Ms. Phillips argues that the CRC guarantees to U.S. children a right to universal health care, a political border that Bill Clinton tried to cross at the cost of his party's control of the Congress, and that most Americans favor in principle, yet a border that has been politically impregnable.¹³ Further, she too argues that children have a right under the CRC to autonomous decision making regarding health care decisions.¹⁴

If we cross the border between scholarship and activism and see these essays as calls to arms, the challenge they present to a number of bedrock American social values and Constitutional law decisions of the U.S. Supreme Court becomes apparent. As Ms. Phillips points out, compliance with the CRC may conflict with principles of American federalism (either "old" or "new"), as it brings the actions of the federal government (the overseer of international treaties under the U.S. Constitution) into spheres usually occupied exclusively by State and local government.¹⁵ Even in this era of growing federal involvement in education and health care, one can easily imagine the...