CONCEPTUALIZING LEGAL CHILDHOOD IN THE TWENTY-FIRST CENTURY.

• Author: Huntington, Clare

Table of Contents INTRODUCTION I. THE RISE AND FALL OF THE PROGRESSIVE ERA FRAMEWORK A. The Rise of Progressive Paternalism B. The Framework Under Pressure 1. Challenging the Progressive Era Model of Juvenile Justice 2. Children's Rights: Conceiving of Children as Legal Persons 3. Parental Rights Under Siege II. AN EMERGING FRAMEWORK: REVIVING CHILD WELLBEING A. Juvenile Justice Reform: The Embodiment of the New Framework 1. Catalysts for Reform 2. Modern Juvenile Justice Policy B. Direct Regulation of Families: Nascent Glimmers of the Child Wellbeing Framework 1. Policies of State Support 2. The Child Welfare System 3. A Blueprint for Reform III. CHILD WELLBEING AND PARENTAL RIGHTS A. Interpreting Parental Rights in the Child Wellbeing Framework B. The Framework in Practice 1. Corporal Punishment 2. Third-Party Contact and De Facto Parents 3. Decisions About Medical Care 4. Homeschooling IV. CHILD WELLBEING AND CHILDREN'S RIGHTS A. Interpreting Children's Rights in the Child Wellbeing Framework 1. Child Wellbeing 2. Social Welfare 3. Developmental Research 4. Racial Equality and Children's Rights B. The Framework in Practice 1. Rights Granted to Minors. a. Healthcare Decisionmaking b. First Amendment Rights in School c. Procedural Rights in Delinquency Proceedings 2. Rights Withheld from Minors V. Anticipating Criticism Conclusion INTRODUCTION

Over the past several decades, the law's treatment of children has become increasingly complex and uncertain in ways that can seem to verge on incoherence. The problem stems from a breakdown of the Progressive Era approach that governed for much of the twentieth century: in that framework, parents had authority to make most decisions about their children, subject to state regulation of issues such as education and child labor. The state also intervened directly with families to protect children from parental abuse and neglect and to rehabilitate children engaged in wayward or criminal conduct. (1) Children in this regime were largely invisible as legal persons, presumed to be vulnerable, dependent, and incapable of making self-regarding decisions. (2)

Several developments in the second half of the twentieth century complicated this approach. Beginning in the 1960s, courts and legislatures started treating children as rights-bearing legal persons for some purposes. (3) This challenged the traditional view of children as lacking the legal capacity for self-determination, while providing little clarity about the conditions under which the law should confer rights and privileges. With the recognition of children's rights, legal questions increasingly were framed as a zero-sum contest in which parents, children, and the state competed for control over children's lives. (4) Moreover, children's rights scholars and advocates contested the parental authority prong of the Progressive Era approach as obsolete, contending that parental rights were rooted in traditional notions of children as property and threatened harm to children. (5)

The overriding Progressive conception of the state as the defender of vulnerable children also lost its way. In the 1980s and 1990s, the rehabilitative model of juvenile justice virtually collapsed under a wave of punitive law reforms that abandoned the long-standing goal of promoting the wellbeing of young offenders. (6) In the twenty-first century, lawmakers retreated from this punitive approach, and a new wave of more benevolent reforms is now underway, but these pendulum swings have undermined the stability of the state's regulatory role. (7) In the child welfare system, scholars and advocates challenged the myopic and ineffective focus on family crises rather than on child abuse prevention and family support. (8) And critics argued convincingly that both the juvenile justice and child welfare systems were highly racialized and skewed against families in poverty. (9) Taken together, these disruptions to the Progressive Era framework fundamentally challenge the rationality and stability of the law's conception of childhood.

In this Article, we show that the legal regulation of children is not incoherent. Indeed, in what we call the Child Wellbeing framework, there is a deep unifying structure and logic to the regulation of children that is emerging across multiple domains, including systems of state intervention, parental rights, and children's rights, as well as, to a much lesser degree, policies of state support for families. The core principle and goal of the legal regulation of children is the promotion of child wellbeing. Three features distinguish the contemporary approach from that of the Progressive era. First, twenty-first-century regulation is increasingly based on psychological and biological research on child and adolescent development, as well as growing evidence about the effectiveness of policy interventions. This broad body of knowledge makes it possible to advance child wellbeing with much greater confidence, sophistication, and effect. (10) Second, lawmakers and the public increasingly appear to recognize the social welfare advantages of promoting child wellbeing, thereby broadening support for contemporary policies. (11) And third, a growing acknowledgment of embedded racial and class bias in state regulation of children has led to tentative steps toward reducing these pernicious influences, even if these efforts are at an early stage.

The goal of promoting child wellbeing shapes regulation and policy ex ante and should not be confused with the best interest of the child standard, applied in individual cases in some legal settings. (12) Indeed, in some contexts, a rule of general applicability defined in accord with the Child Wellbeing framework may result in a decision in an individual case that is contrary to the child's interest. (13)

The elements of the Child Wellbeing framework--reliance on research, recognition of social welfare benefits, and acknowledgment of systemic racism--are clearest in sweeping twenty-first-century juvenile justice reforms. (14) Rejecting the punitive reforms of the 1990s, which largely targeted youth of color, lawmakers have acted to promote adolescent wellbeing, drawing on developmental knowledge and focusing on the social welfare benefits of reducing recidivism and helping delinquent teenagers transition to productive adulthood. With these goals in mind, lawmakers have closed institutional facilities and expanded community-based programs tailored to the needs of young offenders. Across the political spectrum, supporters have endorsed these changes as cost-effective policies that serve the interests of both young offenders and society. (15) The reforms are far from complete and have not eradicated racial disparities, to be sure, but lawmakers have begun to recognize the harms of the system and the ways in which it disproportionately impacts youth of color. (16)

Identifying and crystallizing the core components of this framework makes clear that it also undergirds other aspects of the regulation of children; (17) indeed, the central aim of this Article is to identify these common themes across domains of legal regulation. The Child Wellbeing framework is apparent, for example, in more nascent systemic reforms that expand the obligation of the state to support parents in raising children to productive adulthood. (18) These reforms reflect an understanding that research-driven policies, such as universal prekindergarten, not only benefit children but also promote social welfare. (19) And the framework is evident in a growing awareness that decisions about state intervention in families often are tainted by racial and other biases. (20) The framework thus provides a contemporary rationale for state action under its parens patriae and police power authority.

At a structural level, the Child Wellbeing framework sheds light on the current allocation of decisionmaking authority over children. Instead of a zero-sum conception, with state authority, parents' rights, and children's rights pitted against one another, the legal regulation of children is grounded in the overarching goal of promoting child wellbeing, which knits together the interests of parents, children, and the state. Understood this way, the regime of strong parental rights and the opaque pattern of children's rights can be unified and rationalized. In both domains, the law generally promotes child wellbeing, is increasingly informed by developmental research, and usually enhances social welfare. (21) Parental rights also serve a particularly important protective function for families of color and low-income families, who have been the focus of zealous state intervention. (22)

The approach we offer thus elevates the promotion of child wellbeing as the key justification for parental rights--a rationale that is too often ignored by children's rights advocates. (23) Extensive research establishes that the stability of the parent-child relationship is essential to healthy child development, and restricting the state's authority to intervene in families promotes the constancy of this core relationship. Parental authority is not absolute, however, and the modern rationale for parental rights is self-limiting, providing a sounder basis for restricting parental authority than the Progressive Era approach: in a regime in which parental rights are justified as protecting child wellbeing, parents are not free to inflict serious harm on their children, even on the basis of religious beliefs. (24)

The Child Wellbeing framework also provides a logic for laws granting some rights to young persons and withholding other rights. (25) Children, and particularly adolescents, have an emerging interest in exercising agency as they prepare for adult roles, so long as their choices do not threaten harm to themselves or others. (26) First Amendment speech rights in school, for example, allow students to prepare for citizenship. (27) More urgently...