In Loco Reipublicae.

• Author: Dailey, Anne C.
• Date: 01 November 2023

ARTICLE CONTENTS
                INTRODUCTION 421 I. CHILDREN'S CITIZENSHIP RIGHTS 429 A. Developing Democratic Citizens 431 1. Rights to a Democratic Upbringing 432 2. The Core Right of Access to Ideas 434 B. Current Constitutional Shortcomings 438 1. Near-Absolute Parental Authority 438 2. Parental Rights but Not Duties 445 II. THE IN LOCO REIPUBLICAE FRAMEWORK 447 A. Citizenship Rights and Duties 448 1. Children's In-Custody Status 448 2. The In Loco Parentis Template 451 3. Parents' In Loco Reipublicae Duties 453 4. The State Action Question 457 B. Children's Right of Access to Ideas 461 1. Access to Ideas for Children 462 2. Parents' Duties to Ensure Access to Ideas 462 3. Exposure to Harmful Ideas 474 C. Concerns about State Power 479 1. State Intervention in the Family 479 2. Religious Parents with Secular Duties 482
                III. ENFORCING IN LOCO REIPUBLICAE DUTIES 486 A. Limiting Parental Rights 487 B. Recalibrating State Authority 490 C. Recognizing Children's Agency 493 D. Supporting Parents and Children 494
                CONCLUSION 496
                

INTRODUCTION

The United States Supreme Court has long held that children possess free speech rights under the Constitution. As early as 1943, in West Virginia State Board of Education v. Barnette, the Court held that the First Amendment barred the State of West Virginia from requiring school children to salute the flag. (1) The Court's most famous pronouncement of the principle that children have free speech rights came two decades later in Tinker v. Des Moines Independent Community School District, where the Court declared: "It can hardly be argued that [students] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) Affirming the right of students to wear black armbands in protest of the Vietnam War, the Tinker Court held that, as long as children's speech does not disrupt the learning environment or invade the rights of others, children are constitutionally entitled to express their views in school. (3)

One of the great contributions of the Supreme Court's Tinker decision to the constitutional law of children was its full-throated recognition of children as independent rights-holding citizens. Prior to Tinker, the Court had largely accepted the then-prevailing view that children were vulnerable dependents in need of care and concern rather than rights. (4) The Tinker case heralded a new era in constitutional law that viewed children as independent persons entitled to the enjoyment of certain rights guaranteed by the Constitution. (5) Among the most prominent of those rights was children's right to free speech under the First Amendment. (6)

A less heralded, but no less significant, contribution of the Tinker decision was its assertion that children's freespeech rights in school foster their development as democratic citizens. Tinker's protection for children's right of free speech in school situated children as developing citizens in a pluralistic, often contentious democracy. In the Tinker Court s view, the public-school classroom is "peculiarly the 'marketplace of ideas'" where "leaders [are] trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues.'" (7) Notably, the Court's affirmation of children's free speech rights in school rested on the presumption that children possess free speech rights outside of school. In its oft-quoted passage, the Tinker Court declared that students do not shed their First Amendment rights at the schoolhouse gate. (8) The implication was clear: in school, children's free speech rights may be restricted to prevent children from disrupting the learning environment or violating the rights of others. (9) Outside of school, the Court implied, children enjoy greater expressive freedoms.

But Tinker had it backwards. Children in fact acquire their free speech rights at the public schoolhouse gate. Outside of school, children may exercise their free speech rights only at the pleasure of their parents--which is to say they effectively have few or no actual expressive freedoms. (10) The Court's presumption of out-of-school rights, while narrowly true to the doctrine of state action, nevertheless ignores the reality that all children live under the near-absolute, constitutionally granted authority of parents. Parents can prevent their children from speaking and can punish them for speech that does take place. They can cut off children's access to friends, isolate them in the home, deprive them of money, advertise their sins to the world, or physically punish them. Parents can restrict children's access to books, ideas, and the internet. If children try to evade parental restrictions by running away or otherwise disobeying their parents, the state will step in on the side of parental authority. The police will either return runaway children to their parents or take the "incorrigible" youths into state custody. In fact, public school is one of the few places where children may claim the right to express themselves free from direct parental oversight and restrictions.

Parental authority over children is not simply a matter of state family law but has century-old roots in constitutional law. Parental rights have long been a cornerstone of the Court's substantive due process jurisprudence, protecting parents' authority "to direct the upbringing and education of children under their control." (11) Even those who question the legitimacy of the Court's recognition of unenumerated rights nevertheless make room for parents' constitutional right to raise their children free from state intervention. (12) Established wisdom therefore has it wrong: children's free speech rights actually come into being only when children enter the public schoolhouse gate. Outside of school, children s free speech rights are only as free as parents want them to be.

In constitutional terms, parents, like children, "are different." (13) The Fourteenth Amendment has been held to bestow upon parents unique and near-absolute powers of control over other persons, namely their children. It is this constitutional grant of near-complete custodial power that sets parents apart. No other private actor has such far-reaching, constitutionally sanctioned control over another's life, including control over what that other person can say and hear. Moreover, parents' custodial powers bear on the very foundation of children's place in the constitutional order: their right to become adult democratic citizens. Of course, parents are not state actors, and, doctrinally speaking, private actors are not generally subject to constitutional imperatives. But, as explained in this Article, while parents do not violate the First Amendment when, for example, they tell their children to quiet down at the dinner table, parents' unique custodial powers over children do have legal implications. In particular, these custodial powers, including parents' power to control what their children say and hear, are of serious constitutional consequence.

That consequence is this: constitutional law governing parents and children must be reframed to reflect the fact that parents have more than rights; they also have duties to respect the citizenship rights of children in their custody. Citizenship rights are rights held by children as developing citizens; these rights serve to equip children with the knowledge and skills required of independent, self-governing democratic citizens. Citizenship rights are broad, but well defined. The category includes children's First Amendment rights of free expression, (14) but also much more. As Brown v. Board of Education emphasized, children's right to equality in education is critical to fostering their future citizenship as full and equal members of the democratic polity. (15) Children's right of association facilitates their democratic socialization by exposing children to the views of others and by giving them the opportunity to engage in political activities. (16) Children's due process right to maintain relationships with parental caregivers is essential to the development of the democratic skills of deliberation and choice. (17) Children's right to religious freedom ensures children's developing beliefs are of their own choosing. (18) Even children's criminal-procedure rights reflect not only respect for children as independent persons but also a concern with modeling procedural fairness for developing citizens. (19) In all these areas, children's rights protect and promote their socialization into full adult citizens of our democratic polity. (20)

This Article offers a new framework for children in constitutional law oriented around children's core citizenship rights rather than parental rights of control. The framework recognizes parents' fundamental constitutional duties to respect children's rights as developing democratic citizens while still protecting the integrity of the parent-child relationship. When combined with children's unique custodial status, children's citizenship rights give rise to what this Article terms parental in loco reipublicae duties. Parents' in loco reipublicae duties are rooted in two antecedent constitutional principles: that children are in the constitutionally mandated custody of parents, and that children have citizenship rights that ensure their development as democratic citizens. This powerful constitutional fusion of parents' custodial power and children's citizenship rights produces duties on the part of parents to ensure children's opportunity to acquire the knowledge and skills of democratic citizenship.

The term in loco reipublicae conveys the idea that parents stand in place of the state with respect to children's development into adult democratic citizens outside of school. (21) The term inverts the state's familiar in loco parentis duty to care for children in state custody, thus invoking a well-settled template for shared parent-state...