Family law in the United States has long embraced the image of a triangle to describe the allocation of legal authority over childrearing. Parents, children, and the state stand at the three points of this triangle. (1) Much of family law concerns when parental authority over children should trump state interests, when state interests should trump parental authority, and when children's own rights should trump either. Although struggles over authority remain, a general principle has long been clear: absent abuse or other forms of perceived family default, (2) parents enjoy almost complete authority over their children at home, whereas the state may exercise authority over children at school by mandating school attendance and regulating educational curricula--even those of private and home schools. With limited exceptions, children have few rights in either realm. (3)
This settled equilibrium ignores a fundamental reality: children are not confined to home and school. Much of childhood takes place in spaces between home and school: in playgrounds, parks, child care centers, churches, community gyms, sporting fields, dance studios, music rooms, after-school clubs, and cyberspace. Family law has been virtually silent about what happens or should happen in these spaces. (4) Either the childrearing that takes place in them is ignored altogether, or it is seen as an extension of the childrearing that takes place in either home or school, (5) obscuring the distinct childrearing that can be performed between home and school by individuals other than parents, state actors, or children themselves. The triangle thus remains intact, and the spaces and actors between and around its three points are rendered invisible.
This Article explores what it would mean for family law to consider explicitly all of the sites of childrearing, the actors who occupy those sites, and the types of childrearing that take place at those sites. Part I draws upon social science literature to identify the diverse spaces of childhood and the actors who socialize children in those spaces. The social science literature confirms that home and school are indeed important sites of childrearing, but that children are also socialized in other spaces by various actors. The identity of those actors, and the degree of their influence, varies from child to child in ways that may correlate to class, race, geography, religion, gender, or parental philosophy. The important common denominator, however, is that the actors in these other spaces are rarely the children's parents or teachers. The social science literature reveals that children know that they are interacting with actors who are neither their parents nor their teachers--and that they respond differently than they would either at home or at school.
The current scope of family law implies that childrearing between home and school is not important to child socialization. The social science literature refutes this inference, explaining the vital roles that such childrearing plays in child development. It is not only social scientists, however, who have noticed the importance of childrearing that occurs between home and school. Though such childrearing has been largely ignored within family law scholarship, it played a pivotal role in a high-profile Supreme Court case: Boy Scouts of America v. Dale. (6) Dale was not a family law case, nor was it framed as otherwise concerning childrearing, but the central question presented was who may control messages conveyed to boys during Boy Scout activities, conducted in various spaces other than home or school. The Boy Scouts argued that it had a First Amendment right to choose, free from state regulation, the adults who help the organization instill values in boys. (7) James Dale, a troop leader who was expelled from the Boy Scouts after the organization learned he was gay, argued that the Boy Scouts was subject to New Jersey's public accommodations law, which prohibits private organizations like the Boy Scouts from discriminating on the basis of sexual orientation. (8) The Supreme Court sided with the Boy Scouts, holding that the organization was entitled to teach by example the values of heterosexuality. (9) The case thus provides an opportunity to begin a legal exploration of the childrearing that exists between and around the three points of the family law triangle.
Part II proceeds to provide a family law reading of the Dale case, situating the holding in relation to family law's traditional approaches to questions concerning the allocation of childrearing authority. Although many commentators already have analyzed Dale, this Article provides the first analysis from a family law perspective. Analogizing the Boy Scouts's activities to those performed by parents within the home provides support for the Supreme Court's decision, as parents also are given much room to instill values in their children free from state regulation. Analogizing the Boy Scouts's activities to those performed at school provides support for the opposite result, because even private schools are subject to state regulations prohibiting discrimination. These conflicting outcomes indicate that analogies to home and school can be of limited utility when analyzing childrearing that takes place between home and school.
Part III therefore calls for a theory that acknowledges childrearing between home and school for what it is, as opposed to how it is similar to the childrearing that takes place at either home or school. Such a theory initially would not have to call for state regulation, or for non-regulation, in the spaces between home and school. Rather, the very acknowledgment of this childrearing could contribute to existing attempts within family law to better reflect the reality of family life. Beyond better reflecting the reality of family life, acknowledging this childrearing could also reshape aspects of family life. Family law's neglect of this childrearing, however benign, necessarily shapes family behavior to some extent: home and school are salient to parents and children in part because these are the spaces subject to explicit state regulation or nonregulation. Legal acknowledgment of the spaces between home and school could allow these other spaces to take on some of the socialization that is currently thought to be properly performed only at home or school.
Once childrearing between home and school is acknowledged, family law scholars could begin to address how the law should respond to various attempts by parents, the state, and other actors to exert control over childrearing activities occurring in the spaces between home and school. Family law's current silence about this childrearing could reflect, by default, a normative view of parental control over children in all spaces but school. Pursuant to such a view, family privacy is not limited to the home, but rather attaches to the childrearing function--even when that function is performed outside of the home or performed by parental surrogates instead of parents themselves. If family law scholars do in fact support this view, it would be useful to have its rationale explicitly articulated, particularly because courts do not always reinforce parental control in the spaces between home and school. Indeed, various cases have upheld state regulations that temper parents' authority when their children are between home and school. These cases challenge the idea that there is broad support for a normative view that parents should control such childrearing.
The last Section of Part III posits the beginnings of an alternative normative approach to childrearing between home and school, one that supports parental prerogatives yet also calls on states to ensure that children are exposed to diverse ways of life in these spaces. This proposed theory is grounded in the value of liberal pluralism that permeates much of family law, but the theory also seeks to promote pluralism within the family. Childrearing between home and school thus becomes the exclusive domain of neither parents nor the state, but rather is acknowledged as a vital part of civil society and is sustained accordingly. Finally, Part IV offers a brief conclusion highlighting how this theory of childrearing might affect some of the foundational normative positions of family law as a whole.
THE SPACES OF CHILDHOOD
Much of family law revolves around children. For example, states specify who may be legal parents, (10) the minimum level of care those parents must provide, (11) and the consequences for failing to meet that standard. (12) It is thus not surprising that family law's approach to children focuses largely on the allocation of childrearing authority between parents and the state. This focus is reflected in the titles of casebooks, such as Children, Parents, and The Law: Public and Private Authority in the Home, Schools, and Juvenile Courts (13) and Child, Family, and State, (14) as well as in casebook chapter headings like "Allocating Power over Children: Parental Rights and State Authority." (15) The focus is also reflected in family law scholarship, with law review articles entitled Medical Decision Making for and by Children: Tensions Between Parent, State, and Child (16) and Allocating Developmental Control Among Parent, Child and the State (17) or containing section headings like "The Place of Children in a Dispute Between Parents and the State" (18) and "The Vertical Context: Protecting Families Against the Government." (19)
Recent law review articles, both explicitly within family law and not, continue this trend. For example, Anne Dailey argues that family law should embrace a developmental approach to childrearing because that approach maintains that the early parent-child relationship, rather than school curricula controlled by the state, plays the determinative role in cultivating democratic skills and values in young people...