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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
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],
6 The UNCRC recognizes this in Article 23. UNCRC, supra note 1, at 6–7. 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, 2464–65 (2012) (citing Graham v. Florida,
560 U.S. 48, 68 (2010) and Roper v. Simmons, 543 U.S. 551, 569–70 (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, 36–37 (2013)
[hereinafter Unfinished Equality]; Nancy E. Dowd, What Men? The Essentialist Error of the
“End of Men,” 93 B.U. L. REV. 1205, 1205–07 (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).