Straight out of Compton: Developmental Equality and a Critique of the Compton School Litigation

Author:Nancy E. Dowd
Position::Professor and David Levin Chair in Family Law, University of Florida Levin College of Law. My thanks to the students, faculty, and administration of Capital University Law School for the honor of presenting the 2016 Wells Lecture. I am particularly grateful to Denise St. Clair, Executive Director of the Family and Youth Law Center. Kevin Paule,...
Pages:199-247
SUMMARY

Developmental equality can be used to impose concrete obligations on the state, consistent with the purposes of Articles 2 and 3 and the affirmative obligations of Article 4 of the United Nations Convention on the Rights of the Child (UNCRC).

 
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STRAIGHT OUT OF COMPTON: DEVELOPMENTAL
EQUALITY AND A CRITIQUE OF THE COMPTON
SCHOOL LITIGATION
NANCY E. DOWD*!
Article 3 of the United Nations Convention on the Rights of the Child
(UNCRC) and its core standard of serving the best interests of the child” is
closely interlinked with the Article 2 guarantee of equality and non-
discrimination for all children.1 The best interests of children are the
interests of all children in growth, support, development, and becoming adult
citizens who maximize their own potential as well as contribute to the
community and the broader society.2 The universal language of Article 3,
then, must be read in conjunction with the strong guarantee in A rticle 2 that
ensures attention to outcomes and opportunities for all children.
One way in which the concept of best interests takes on real meaning is
to link it to a developmental measure.3 This ensures that best interests are
normatively nuanced, as well as individually meaningful.4 So, for example,
the needs of an infant and a teenager are quite different in terms of the
* Professor and David Levin Chair in Family Law, University of Florida Levin College
of Law. My thanks to the students, faculty, and administration of Capital University Law
School for the honor of presenting the 2016 Wells Lecture. I am particularly grateful to
Denise St. Clair, Executive Director of the Family and Youth Law Center. Kevin Paule, J.D.
2016, provided outstanding research assistance for this article. Part I of this article was
previously published as a chapter and is republished here with the permission of the press,
with minor revisions. Nancy E. Dowd, A Developmental Equality Model for the Best
Interests of Children, in IMPLEMENTING ARTICLE 3 OF THE UNITED NATIONS CONVENTION ON
THE RIGHTS OF THE CHILD: BEST INTERESTS, WELFARE AND WELL-BEING (Elaine E. Sutherland
& Lesley-Anne Barnes Macfarlane eds., 2016). The balance of the article has not been
previously published.
1 G.A. Res. 44/25, at 2–4, Convention on the Rights of the Child (Nov. 20, 1989)
[hereinafter UNCRC], http://www.ohchr.org/en/professionalinterest/pages/crc.aspx [https://
perma.cc/CW4M-95FK]. Also critical to equality rights is Article 4, which requires states to
implement all rights in the Convention but states in particular,[w]ith regard to economic,
social and cultural rights, States Parties shall undertake such measures to the maximum extent
of their available resources . . . . Id.
2 See U.N. Comm. on the Rights of the Child, General Comment No. 14 (2013) on the
Right of the Child to Have His or Her Best Interest Taken as a Primary Consideration, ¶¶ 32
35, 4145, U.N. Doc. CRC/C/GC/14 (May 29, 2013), http://www2.ohchr.org/English/
bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf [https://perma.cc/BV6R-A9TM] (discussing
the flexible and contextual nature of the range of factors necessarily considered to determine
the best intere sts of a particular child and the specific correlation of a child’s best interests
and his or her rights to life, development, non-discrimination, and to be heard).
3 See id. ¶¶ 8 487 (discussing the importance of continued monitoring and analysis of
child development in relation to assessing best interests).
4 See id.
200 CAPITAL UNIVERSITY LAW REVIEW [45:199
structures and policies that maximize developmental opportunity and
potential.5 If a particular child has developmental or physical disabilities,
that child has needs that also may require different support structures to
maximize development.6
American law has increasingly recognized the value of the
developmental perspective.7 The United States Supreme Court has cited to
developmental scholarship as the basis for a series of decisions on
punishment of juvenile offenders, reasoning th at state consequences should
take account of youth brain development to determine both culpability and
the potential for rehabilitation.8 At the same time, in the reproductive realm,
the Court has recognized the maturity of youth to make decisions about
contraceptives and abortion.9 American state courts also commonly
incorporate developmental insights when framing custody and parenting
plan orders, recognizing the different needs of children at various ages and
stages, and therefore the need for flexible and supportive arrangements that
meet developmental needs over time.10
This Article argues that this progressive use of interdisciplinary research
to incorporate a developmental perspective nevertheless requires attention
to persisting inequalities among children.11 The developmental lens must be
adjusted to serve developm ental equality. Otherwise, well-meaning
5 This is reflected in common developmental stages and indicators used to evaluate
children and to provide guidance to parents. See, e.g., Developmental Milestones, CTRS. FOR
DISEASE CONTROL & PREVENTION [hereinafter Developmental Milestones],
http://www.cdc.gov/ncbddd/actearly/milestones [https://perma.cc/YDL2-3XU4].
6 The UNCRC recognizes this in Article 23. UNCRC, supra note 1, at 67. Such
differential needs are also the foundation of American legislation including the “Individuals
with Disabilities Education Act.” 20 U.S.C. § 1400(d)(1)(A) (2012).
7 See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 246465 (2012) (citing Graham v. Florida,
560 U.S. 48, 68 (2010) and Roper v. Simmons, 543 U.S. 551, 56970 (2005)).
8 See id.
9 See Hodgson v. Minnesota, 497 U.S. 417, 423 (1990); City of Akron v. Akron Ctr. for
Reprod. Health, 462 U.S. 416, 426 (1983); Bellotti v. Baird, 443 U.S. 622, 643 (1979); Carey
v. Population Servs. Int’l, 431 U.S. 678, 681 (1977).
10 For example, the Florida custody statute includes developmental considerations as a
factor to craft parenting plans. FLA. STAT. § 61.13(3)(s) (2016).
11 This article draws on my prior work on African-American boys. Nancy E. Dowd,
Unfinished Equality: The Case of Black Boys, 2 IND. J.L. & SOC. EQUALITY 36, 3637 (2013)
[hereinafter Unfinished Equality]; Nancy E. Dowd, What Men? The Essentialist Error of the
“End of Men, 93 B.U. L. REV. 1205, 120507 (2013). The life circumstances of African-
American boys and the developmental equality model is developed in greater detail in Nancy
E. Dowd, Black Boys Matter: Developmental Equality, 45 HOFSTRA L. REV. 47 (2016)
[hereinafter Black Boys Matter]. Extended treatment of the developmental equality model,
the life course of Black boys, and the policy implications of both is the subject of my work
in progress, NANCY E. DOWD, EQUALITY REIMAGINED: THE CASE OF BLACK BOYS [hereinafter
EQUALITY REIMAGINED] (forthcoming New York University press).
2017] DEVELOPMENTAL EQUALITY 201
neutralmeasures to foster development replicate subordination by failing
to address the enormous developmental challenges placed in the path of
children who are the objects of inequality. It is critical that a developmental
perspective, essential to m eaningful best interests, should incorporate
developmental equality, meaning that each child should have the same
opportunity to maximize their developmental capabilities.12 The
developmental perspective must incorporate what we know of inequalities
that persist among children.
The equality principle of Article 2, then, is the trigger to infuse Article
3 best interests with developmental perspectives that serve all children. The
purpose of this developmental equality lens is twofold: (1) to identify risks
and challenges that must be immediately addressed, but more importantly,
(2) to trigger an obligation by the state to eliminate its role in supporting,
directly or indirectly, identifiable challenges that create or exacerbate
developmental inequality for children that perpetuate their potential for, or
reality of, subordination.13
In this Article I frame the concept of developmental equality and show
how it can be used to impose concrete obligations on the state , consistent
with the purposes of Articles 2 and 3 and the affirmative obligations of
Article 4.14 In other words, the Convention by its terms provides the
mechanism for implementation of the theory, because of its goals of
achieving children’s equality as well as maximizing their developmental
potential.15 In the United States, the failure to ratify the Convention means
that while this UNCRC analysis may be persuasive authority, additional and
different strategizing is necessary to implement a litigation strategy or a
proactive public policy.16 Those strategic and theoretical issues are part of
a larger project to implement developmental equality.17 I begin that project
in this Article by using a developmental equality model to evaluate the 2015
lawsuit brought against the Compton Unified School District.18
12 See Unfinished Equality, supra note 11, at 50 (discussing the inequality of
developmental opportunity for young black men and boys).
13 This model might also inform our perspective on how race, gender and class privilege
is generated and replicated. See, e.g., Peggy McIntosh, White Privilege: Unpacking the
Invisible Knapsack, in R ACE, CLASS, AND GENDER: AN ANTHOLOGY 7478 (Margaret L.
Anderson & Patricia Hill Collins eds., 9th ed. 2015); BARBARA J. FLAGG, WAS BLIND, BUT
NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW 27 (1993).
14 See infra Part II.
15 See UNCRC, supra note 1.
16 On the failure of the United States to ratify the UNCRC, see BARBARA BENNETT
WOODHOUSE, HIDDEN IN PLAIN SIGHT: THE TRAGEDY OF CHILDRENS RIGHTS FROM BEN
FRANKLIN TO LIONEL TATE 6–13 (2010).
17 See EQUALITY REIMAGINED, supra note 11.
18 See infra Section II.A.

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