The Blog

Blog Entries

Judge Barrett, What Is Right for Children?

| October 26, 2020 |

The law and the impact it has on the lives of children is critical to those who are:

  • abused and neglected,
  • victims of a crime,
  • caught in a custody battle between parents,
  • living in fear because of gun violence,
  • concerned about global warming,
  • accused of a crime,
  • subjected to corporal punishment,
  • victims of human trafficking,
  • denied access to services by adults that dismiss or fail to address their needs,
  • denied self-determination, agency, and inclusion in society by adults that dismiss their voice,
  • punished for the actions or status of their parents, or
  • discriminated against because of their race, ethnicity, gender (including gender identity and sexual orientation), economic status, disability, religion, immigration status, or age.

At First Focus on Children, we spend enormous amounts of time working on addressing the best interests and unique needs of children in policymaking at the federal, state, and local levels of government. Unfortunately, the Supreme Court and the federal courts are often overlooked by us and other child advocates as to the important role that they play in our society on matters impacting children and youth.

However, that failure is, in part, the product of a judicial system that has historically treated children as the property of their father (colonial times) or parents (20th century).

As Barbara Woodhouse, professor of law at Emory University, writes about our nation’s inception in an article entitled “The Constitutionalization of Children’s Rights”:

. . .the Constitutional text of 1789 lacked the broad statements about equality found in the more revolutionary Declaration of Independence of 1776. This is hardly surprising since the delegates who opposed slavery had been forced to strike a bargain which continues to haunt us [over] two hundred years later.

Woodhouse adds:

The American experience shows how difficult it can be to transcend the limitations of a flawed vision of vested property rights and an incomplete vision of liberty and equality. In 1789, each of the subjugated and excluded categories named — blacks, Indians, women, children, landless laborers, indentured servants — were almost universally perceived as lesser and limited beings. Often, they were not civil persons at all, but rather a form of property or quasi-property, belonging to the patriarch or head of household, and subject to his virtually unchecked authority.

Like other subjugated groups, children have made progress over the last two centuries since our nation’s founding, but gains have been limited. Woodhouse explains in “Who Owns the Child”:

Modern historians generally depict American family law as having undergone a process of transformation, from the hierarchical, patriarchal model of the family of colonial times toward a more egalitarian model. Under the earlier patriarchal model, the father’s power over his household, like that of a God or King, was absolute.

The government now has an accepted role in protecting children and, in some cases, parents and the government are expected to act in the “best interests of children.” Anne C. Dailey and Laura A. Rosenbury explain in “The New Law of the Child”:

Analysis may be best conceptualized as an inverted triangle, with parents and the state occupying the top points and children the bottom. Lines of authority connect the three points, as courts and legislatures specify when parental authority over children trumps state interests, when state interests trump parental authority, and the rare instances when children’s desires trump both.

Image for post

The system works best for kids when parents and government (executive, legislative, and/or the courts) are: (1) acting in the “best interests” of children; (2) recognizing their duties and responsibilities toward children; and, (3) including and respecting the voice and agency of children in their own lives.

Moreover, there are critical moments when children need to have their rights affirmed and protected from parental authority, governmental authority, or both parents and government, such as when parents have abused their children and government falls to protect children in a poorly performing foster care system.

Unfortunately, it is at these times, when the rights of children most need to be affirmed and supported, that the inverted triangle often fails children. As Woodhouse points out in her book Hidden in Plain Sight: The Tragedy of Child Rights from Ben Franklin to Lionel Tate, the subjugation of children in our legal system is both shocking and sweeping:

Most would be astonished to learn that abused and neglected children in state custody have fewer rights than accused criminals. While a long line of Supreme Court cases has addressed the rights of adults to counsel when taken into state custody, to protection of their property from unjust takings, and to protection of their familial ties, the Supreme Court has never held that a foster child has a right to legal representation, a right to speak in his own court case, a right not to be deprived of property without due process, or a right to contact with his family.

Dailey and Rosenbury add:

One need not master the field of children and law to recognize that our legal system denies children basic personal, social, and political rights.

Senate Judicial Confirmation Hearings Should Include a Focus on Child Rights and Protections

Consequently, during the Supreme Court confirmation hearings for Amy Coney Barrett in the Senate, we heard a great deal about her seven children but little else with respect to children. Senators showered numerous questions and attention upon her children and Barrett often referred to them as well. They are adorable, and I absolutely congratulate and applaud Judge Barrett for her accomplishments as both a teacher and a parent.

However, other matters should disturb advocates for children. For one, there is her service on the board of directors of Trinity School, Inc. in South Bend, Indiana, which had a policy not to accept children of unmarried or single and same-sex parents. Such a policy clearly discriminates against certain children and their parents and violates basic standards of equal protection that children deserve.

This tweet thread from Sam Spital, Director of Litigation at the NAACP Legal Defense and Education Fund, highlights some of the important issues and standards this policy raises for children.

Moreover, when it comes to children, the Senate should have engaged far more on the important issues before the courts on the rights and protections of children. While judges seeking Senate confirmation should definitely talk about their family, they must be asked and be able to explain to the Judiciary Committee their philosophy on how the courts impact (or fail to impact) the rights and protections that other people’s children need and deserve.

As an example, Sen. Cory Booker (D-NJ) asked questions about fundamental human rights issues related to family separations and the caging of asylum-seeking children. Unfortunately, Judge Barrett refused to answer those questions or discuss her views on how children in desperate need of help and protection should be treated by our government and the federal judiciary.

What is right for children should not be treated as if it is simply an issue of “policy” or “hot political debate,” as Judge Barrett argued. It is, instead, as Sen. Booker pointed out, “an issue of fundamental human rights, human decency, and human dignity” in which cruelty to children was the purpose in order to “send a message” of “deterrence” to asylum-seekers.

In fact, it is shocking that many conservatives, who often speak about “family values,” are supportive of and complicit in the governmental intrusion into and destruction of families, the denial of basic parental rights, and the short- and long-term harm this policy has upon innocent children. This policy of self-acclaimed “zero tolerance” is nothing less than government imposed and enforced cruelty, kidnapping, and child abuse.

Furthermore, the Trump Administration adopted this policy even though the Department of Homeland Security (DHS) estimated it would have separated 26,000 children from their parents. Although public outcry caused the Trump Administration to say it would end the policy, it has continued but in a more limited way.

Again, cruelty to children was, in part, the very purpose of this policy. Then-Attorney General Jeff Sessions argued, “We need to take away children.”

Image for post

And despite strong objections from U.S. attorneys along the border about the policy and its impact on children, Deputy Attorney General Rod Rosenstein pushed for family separations to proceed even if the action involved harm to infants.

And once a federal court and public outrage resulted in a halt to widespread family separation, the Trump Administration changed tactics to deterrence by abuse, arguing in court that they should not even have to provide the children and families in border facilities with basic “safe and sanitary” services such as dry clothing, soap, towels, showers, toothbrushes, pillows, or sleep.

Furthermore, despite the fact that a federal judge ruled that separated children and families must be reunited, a new report finds that 545 children remain separated, as many parents were deported by the federal government before being reunited with their kids.

These are fundamental human rights abuses directed at children with tragic and lifelong consequences. As the executive branch went down this catastrophic path, despite clear guidance that “the best interests of the child” should be the governing policy in the treatment of asylum-seeking children, the federal judiciary needed to step in as a check to protect children and families from harm inflicted on them by the government.

Thankfully U.S. District Judge Dolly Gee repeatedly ruled that the government could not violate the basic human rights of children and their families, including numerous rulings against the government’s repeated attempts to gut or ignore the “Flores Settlement,” which dictates that children are treated humanely while in custody and are granted a reasonably prompt release from detention.

U.S. District Judge Dana Sabraw also ruled that the practice of family separation “shocks the conscience.” The Judge added:

These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child. Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.

Judges Gee and Sabraw are correct.

With respect to Judge Barrett, I can certainly understand that she might not be able to speak to cases that may come before the Supreme Court. However, she could have, at the very least, discussed what the intersection is between parents, governmental authority, children, how she believes children should be treated by the law, and whether children have basic and fundamental rights and protections.

In addition to the issue raised by Sen. Booker regarding family separations and the caging of children, most of the Democratic members of the Senate Judiciary Committee raised important issues related to the Affordable Care Act (ACA) and Judge Barrett’s previous statements of hostility toward the Act. Some of the members raised some of the issues of particular importance to children if the ACA were to be struck down by the case going before the Supreme Court a week after the 2020 presidential election (First Focus on Children’s amicus brief, which highlights many of the issues of importance to children in this case, is available here.

According to new estimates by the Urban Institute, 1.7 million children would lose coverage if the ACA were overturned by the Supreme Court, which would increase the uninsured rate for kids by 48 percent.

In addition, Sen. Mazie Hirono (D-HI) was unable to get much in the way of answers from Judge Barrett about her dissent in a case seeking to overturn the Trump Administration’s administrative changes to what is known as “public charge.” As a point of fact, the Trump Administration’s proposed rule “automatically considers being under the age of 18 as a negatively weighted factor, thus punishing children simply for their age.” That was not acknowledged in Barrett’s lengthy dissent defending the Trump Administration’s policy.

Unsurprisingly, the impacts of the Administration’s policies are already having measurable negative consequences on the enrollment of children in Medicaid, the Supplemental Nutrition Assistance Program (SNAP or food stamps), and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), including U.S. citizen children of immigrants. In an article published in Health Affairs, researchers at Ideas42 estimate that 260,000 children lost health coverage as a result of the proposed public charge rule.

Source: Jeremy Barofsky, Ariadna Vargas, Dinardo Rodriguez, and Anthony Barrows, “Spreading Fear: The Announcement Of The Public Charge Rule Reduced Enrollment In Child Safety-Net Programs, Health Affairs, Oct. 2020.

In a number of ways, the regulatory assault and legal challenges to the health and well-being of kids are significant. It seems that if Judge Barrett really cares about children that she could have at least engaged in a discussion as to what the role of the courts should be in protecting children from harm.

Originalism Poses a Threat to the Consideration of the Rights of Children

Without a discussion as to Judge Barrett’s overall philosophy regarding the rights and protections of children, we are left only with her declaration that she is an “originalist.” Describing the judicial philosophy of originalism, Erwin Chemerinsky, dean of the law school at the University of California, Berkley, explains:

Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.

But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.

Judge Barrett and other “originalists” have a difficult time reconciling their judicial philosophy with certain landmark court decisions, such as Brown v. Board of Education (1954). In Barrett’s “Originalism and Stare Decisis,” she even quotes Michael Gerhardt saying, “Originalists . . . have difficulty in developing a coherent, consistently applied theory of adjudication that allows them to adhere to originalism without producing instability, chaos, and havoc in constitutional law.”

While some originalists argue that legal precedent or stare decisis would likely prevent the overturn of landmark cases, it fails to negate the likelihood that, as Dean Chemerinsky points out, school desegregation, changing monetary policy from the gold standard, and the passage of New Deal programs like Social Security would likely have been ruled unconstitutional if left up to originalist judges.

This should be disturbing to child advocates and highlights why this approach poses significant present and future challenges for children.

The problem is that originalists like to refer back to the Founders for guidance on the original meaning of the Constitution. Unfortunately, at our nation’s inception, children were absent from the document, and children were legally treated as the property of their father. Kids had no or limited rights. As Barbara Woodhouse points out in Hidden in Plain Sight:

When they declared it self-evident that all men were created equal, they certainly did not mean to emancipate their slaves, their women, or their children.

It has taken decades to slowly transform the way children are treated by the law. Woodhouse explains:

As late as 1920, a parent who killed a child in the course of punishment could claim a legal excuse for homicide in no fewer than nine states. Well into the nineteenth century, a father could enroll his male children in the army and collect the enrollment bounty, betroth his minor female children to persons of his choice, and put his children to work as day laborers on farms or factories and collect their wage packets.

But family law did evolve. According to Woodhouse:

As family law matured, American law increasingly characterized parents as the guardians not the owners of their children. Parental rights were regrounded in the presumption that parents are motivated by love for their children, share a deep commitment to their children’s future, and will act in their children’s best interests.

Parental rights were not diminished, but as the law began to recognize that people other than white men with property had rights too, children were recognized as also having modified rights. Woodhouse writes:

Although children are never mentioned in the U.S. Constitution, courts have held that various rights apply to children as well as adults. Usually, the rights are modified to meet the special situation of children. Examples of constitutional rights that apply to children as well as adults are the right to a fair trial, the right to be free from race and gender discrimination, and the right to religious and intellectual freedom.

But if left to originalists, even that limited progress would have been virtually impossible. Justice Clarence Thomas is an originalist and his written opinions highlight how this philosophy threatens any future progress for children and may instead lead to significant backsliding and harm.

Josh Blackman, professor of law at the South Texas College of Law, refers to Justice Thomas’s judicial philosophy as “parental paternalism.” Blackman describes:

First, this broad view of parental paternalism continues a philosophy that Thomas discussed in his opinions in Troxel v. GranvilleMorse v. FrederickSafford v. Redding, and most recently in Turner v. Rogers. Broadly stated, he does not view minors as holders of rights, and puts a lot of stake in parents (specifically a “nuclear family”) to protect the interests of the child. When there is any doubt, Thomas will side with the parents. . . .

Judge Thomas would cut children out of the inverted triangle. He believes that children have limited or no rights, based on his interpretation of what he thinks the Founders believed. In his concurrent opinion for the majority in Morse v. Frederick (2007), he writes:

In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.

Thomas goes so far as to argue for overturning the judicial precedent in Tinker v. Des Moines Community Independent School District (1969) that asserted children do have First Amendment rights. According to Thomas:

…early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control. . . Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience.

Justice Thomas implies that schools can also discipline students to the extent they wish short of “excessive physical punishment.”

In Brown v. Merchant Entertainers Association (2011), Justice Thomas takes his judicial philosophy to another level. He writes:

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.

Justice Thomas may have been on the Supreme Court too long since he seems to be unable to fathom a world with the Internet, smartphones, texting, and social media. Instead, Justice Thomas envisions a world in which children have no rights and no agency unless parents or guardians approve.

In Vox, Ian Millhiser points out that Justice Thomas has a history of limiting the scope of First Amendment free speech protections, except when it comes to wealthy donors making campaign contributions. Millhiser writes:

In Citizens United v. Federal Election Commission (2010), the Supreme Court held that the right to free speech includes the right of corporations to spend unlimited money on influencing elections. In a partial dissenting opinion, Thomas complained that Citizens United “does not go far enough.”

Justice Thomas, in other words, envisions a much weaker First Amendment for children, journalists, and, indeed, for muchof the country. But when wealthy donors seek relief from campaign finance restrictions, Thomas takes a maximalist view of their First Amendment rights.

How very convenient.

Originalism is clearly a deep threat to the rights of children in our country. In fact, if you are at all concerned about the rights of children, a potential judge’s adherence to originalist doctrine might be reason for disqualifying that person from the federal bench.

As Dean Chemerinsky writes:

The rejection of originalism is not new. Early in the 19th century, Chief Justice John Marshall wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”

Chemerinsky adds:

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Moreover, it is a myth to think that even identifying an originalist understanding can solve most modern constitutional issues. Can original public meaning really provide useful insights about the meaning of the Fourth Amendment and whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes or obtain stored cellular phone location information without a warrant?

This is very true for children. Our society is profoundly different than it was back in 1789 and standards have changed for the better.

But Dean Chemerinsky is also right to point out that there really is no “original public understanding” in most constitutional provisions. There is no doubt that the Founders, just like parents today, have very different beliefs as to how children should be raised.

We Need a New Social and Legal Compact that Recognizes the Rights of Children

Benjamin Franklin was one of our nation’s Founding Fathers, but he undoubtedly had a profoundly different view about the voice and agency of children than Justice Clarence Thomas would ascribe to “the Founders.”

When he was 12, Franklin became an apprentice and indentured to a printer. However, when he turned 17 in 1723, Franklin had been a “political dissident” writing columns under a pseudonym that, as Woodhouse writes:

. . .strongly endorsed the ideas of free speech and free thought, quoting from great thinkers on the nature of freedom. . . At age sixteen, Ben questioned not only colonial but also domestic authority. He relished speaking truth to power, especially when his speech could be clothed in irreverent parody.

Franklin built his own library as a child that was not reliant upon his parents or master (as Justice Thomas pronounced should be the case in Brown v. Merchant Entertainers Association). Woodhouse adds:

Ben’s life illustrates the role played by American youth, even while under the legal control of parents and masters, in defending the right to free speech and the right to speak out against oppression. With the courage of innocence, young people saw what needed changing and believed in the possibility of change. . . To believe that the right to freedom of speech and expression should apply to adults alone would ignore children’s central role in the battle to secure these freedoms.

On his treatment as a child by his master, Woodhouse quotes Franklin saying:

I fancy his harsh and tyrannical treatment of me might be a means of impressing me with that aversion to arbitrary power that has stuck to me through my whole life.

It is that type of tyranny that Justice Abe Fortas cited in his majority opinion in Tinker v. Des Moines Independent School District (1969). He wrote:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. . . In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

Justice Fortas adds:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

A few years later, Justice Harry Blackmun writes in Planned Parenthood of Central Missouri v. Danforth (1976):

Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.

Justice John Paul Stevens, in Troxel v. Granville (2000) also articulated the independent constitutional rights of children in his dissent in the case involving the visitation rights of grandparents. While he agrees with the “presumption that parental decisions generally serve the best interests of their children” but noted that “even a fit parent is capable of treating a child like a mere possession.” Stevens adds:

Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at minimum a third individual, whose interests are implicated in every case to which the statute applies — the child. . . [T]o the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.

Our children desperately need a legal system that rejects judicial philosophies that treat children as “chattel” or the property of parents, and assumes that children lack independent reason, agency, or understanding of their own “best interests.” The law should balance the interests of parents (who have a developed relationship with a child), the state’s parens patriae role that should be focused on the protection and “best interests” of the child, and the child’s own expressed interests and needs.

In fact, parents, the state, and children should all strive for improvements in the lives of children, as they are all of our future. Founder John Adams wrote:

It should be your care, therefore, and mine, to elevate the minds of our children and exalt their courage; to accelerate and animate their industry and activity; to excite in them an habitual contempt of meanness, abhorrence of injustice and inhumanity, and an ambition to excel in every capacity, faculty, and virtue. If we suffer their minds to grovel and creep in infancy, they will grovel all their lives.

Unfortunately, there is a political movement that is pushing in the opposite direction. It would eliminate any recognition of the rights of children and gut any affirmative responsibility of the government to look out for the “best interests” of children. Instead, it would enshrine “parental rights” as a “liberty” and “fundamental right” in the Constitution (H.J. Res. 36 by Rep. Jim Banks (R-IN in the 116th Congress but was previously introduced by Sen. Lindsey Graham (R-SC) in the 115th Congress). The proposed “parental rights” constitutional amendment is sweeping and affirms the right of parents to control all aspects of their children’s lives (or as Sec. 1 reads, “liberty of parents to direct the upbringing, education, and care of their children”).

The language would preclude any action by the government, such as laws that address child health, education, child labor, or even the protection of children from abuse “without demonstrating that its governmental interest as applied to the person is of the highest order.” This far more limited standard is focused entirely on “governmental interests,” which is quite different than the historical parens patrie state role that serves to protect the “best interests” of the child in a number of matters, including child protection, child custody, child health, etc.

Although parental rights advocates argue it would “not include a right to commit abuse and neglect,” the proposed constitutional amendment only limits “parental rights” by saying it “shall not be construed to apply to a parental action or decision that would end life (emphasis added).”

There are many “actions or decisions,” such as allowing parents to treat their children as property, denying or withholding basic care or services, requiring forced child labor, and imposing punishment or discipline that would otherwise be considered to be assault and battery and even torture without a result that “would end life.”

Image for post
Source: This image is available from the United States Library of Congress’s Prints and Photographs division and is a photograph of a cartoon by Herbert Johnson from the records of the National Child Labor Committee circa 1912.

Samantha Godwin, a resident fellow at Yale Law School, writes:

When evaluating the extent of parents’ legal rights, we should not merely consider how ideal parents exercise their power to provide the effective care and guidance children need. The extent of what the law enables imperfect parents to do to their children must also be taken into account. The issue is not only what role we hope that parents play in their children’s lives, but how the powers actually granted might be used and abused for better or worse. Thinking only in terms of how the best parents conduct themselves is a mistake; it is also necessary to account for what the worst parents can get away with.

In addition, with a “parental rights” constitutional amendment, parents would be able to demand the government and the courts enforce their “rights” against children who refuse to pay respect, deference, or obey parental directions. The courts could also penalize others that aid or abet “uncooperative” kids. In fact, there are already some laws that can trigger state coercion against children that results in detention, probation, or the forced admission of children to mental health or juvenile detention facilities. Rather than protecting kids, the government’s role would undoubtedly increase punitive actions against children.

Over 30 years ago, the UN Convention on the Rights of the Child (CRC) proclaimed that every child “should grow up in a family environment, in an atmosphere of happiness, love, and understanding” and be raised “in the spirit of peace, dignity, tolerance, freedom, equality, and solidarity.” Unfortunately, the United States is the only nation in the world that has failed to ratify the UN Convention on the Rights of the Child.

In the 114th Congress, Reps. Luis Gutierrez (D-IL), Karen Bass (D-CA), and Judy Chu (D-CA) introduced H.Res. 476 to encourage the establishment of a national Children’s Bill of Rights that said children have “the unalienable right to live in a just, safe, and supportive society.”

Image for post
Reps. Luis Gutierrez, Judy Chu, and Karen Bass with D.C. school children at their introduction of H.Res. 476, a Children’s Bill of Rights, in Oct. 2015.

As Georgia State law professor Jonathan Todres writes:

Highly charged rhetoric masks the reality of the CRC and children’s rights more broadly — that is, the fulfillment of children’s rights is consistent with what the vast majority of parents want for their kids. They want their children to have access to health care and education, to be free to observe their faith without government interference, to live without discrimination, and to grow up without suffering violence or exploitation.

Despite the major role the U.S. government played in drafting the CRC and the numerous similarities between U.S. law and the treaty, the U.S. government isn’t likely to ratify the CRC anytime soon.

But given the shared values in what parents dream of and what the CRC mandates for children, the idea of children’s rights remains relevant in the United States. We don’t have to wait passively for government to act; we can take action, guided by children’s rights values.

Todres is right.

It is well past time for child advocates to fully recognize the critically important role that the courts play in the lives of children and to develop a comprehensive judicial advocacy agenda that affirmatively respects and affirms the rights of children. Such an agenda should affirmatively pursue legislative protections in the short-term and a judicial agenda to improve the status and rights of children in the long-term.

The vast majority of parents would agree, and children deserve nothing less.

The myth of standardized testing becomes an attack on public education during a pandemic

| October 23, 2020 |

Education Secretary Betsy DeVos wants to enforce testing standards this year as if it were just any year. Any year, that is, since the war on teachers and public schools reached its fever pitch in the early 2000s, under the guise of quality control.

With its passage in 2002, No Child Left Behind (NCLB) brought with it the rise of K-12 standardized testing as a means of teacher evaluation. Every Student Succeeds Act (ESSA), designed to loosen the stranglehold of test-based evaluation, did little on that front. ESSA relied on testing to evaluate teachers and schools and justified the aggressive movement toward private and charter systems.

For an intensive breakdown of the wild contradictions in the world of high-stakes testing, check out educator and experience curriculum designer Bob Shepherd’s great piece on the staggeringly low quality of these tests. In a recent mini-poll sent to The Children’s Network here First Focus on Children, 80% said students should not be tested this year.

The purpose of testing is to reduce learning to something objective that can be maximized under the guise of productive efficiency. That doesn’t make sense in a year where, in the face of crisis, students and educators are working to find new ways to learn. Standardized tests are not flexible and cannot provide us a true measure of how kids are learning or developing. Even before the crisis, the same teacher might score in the top percentile and bottom percentile in the same year, on the same test, for different classes.

In reality, testing provides the justification for an attack on teachers. The tidal wave of tests, and their evaluation systems, coincided with the greatest teaching crisis in the history of our public education system. Derek Black, the author of Schoolhouse Burning and professor of constitutional law at the University of South Carolina, points out that between 2009 and 2012 schools lost 300,000 teaching positions. As the effects of the pandemic resonate, advocates fear that up to 2 million education jobs could be lost. A host of factors – punitive evaluations based on testing, a dearth of school resources and support, and the coordinated devaluation of teaching as a profession – is to blame for what has become a shortage of teachers.  

“Standardized” testing is anything but. From year to year, Black explains, teachers may go from being considered extremely effective to being considered ineffective, with little difference in teaching practice. He writes:

“Isolating one teacher’s effect on a student’s scores from the effects of all the other teachers a student had that year (and in prior years) is nearly impossible. Isolating the effects of teaching from those important factors that exist outside school – poverty, family crisis, parental engagement – is just as hard.”

These tests – which are highly biased against non-white students, ineffective at quantifying student engagement, and disconnected from any concept of critical thinking – have leapfrogged curriculum. Instead of demonstrating effective curriculum, post hoc, it informs curriculum from its inception. Shepherd writes in Combating Standardized Testing Derangement Syndrome (STDs) in the English Language Arts:

“The tests drive how and what people teach and much of what is created by curriculum developers. These distortions are grave. In U.S. curriculum development today, the tail is wagging the dog. To an enormous extent, we’ve basically replaced traditional English curricula with test prep.”

Testing looks to create a tangible object out of the process of learning. Learning, by nature, is flexible. It changes, bends, and warps over time. Today, K-12 education has become the servant of a rigid test. We’re asked to accept a dubious claim: a collection of multiple-choice questions are the key to evaluating teachers and schools, or at least enough to make important decisions on which students and schools deserve adequate funding. But the soul of education doesn’t lie in rote testing ability or data retention. To learn is to actively engage with the world; to teach is to encourage the growth of those who seek to change it. Tests don’t tell that story.

In the wake of the coronavirus crisis, teachers are adapting to a new teaching environment. They are working to build remote relationships with their students while adjusting their pedagogical practices to a wildly different setup, whether they are physically back in school or not. Students, too, are learning to learn in new ways. Testing has long been used as the justification for attacking public education and teachers. It has never told the whole story of classroom learning, and that is especially true now. The Department of Education’s push to enforce a testing mandate, this year, in particular, is an attack on public schools, teachers, and students.

The Next Presidential Agenda Should Invest in Kids – At Home and Abroad

| October 23, 2020 |

Former Obama White House Council of Economic Advisers Chair Jason Furman recently published a “Memorandum on Priorities for Economic Policy” addressed to the next Director of the National Economic Council (NEC) – whoever that may be under President Trump or a President Biden.

In the memorandum, published as part of a series by the Peterson Institute for International Economics, Furman writes that one of the NEC Director’s “key priorities” must be “Making the US economy work for families,” writing:

“Making the US economy work for families is critical in its own right and also to give Americans the security and confidence to participate in greater global integration and a greater US role in the world. Many elements go into this, but if you had to prioritize one, it should be investments in children, which not only provide direct assistance today but have long-run benefits in the form of increased work, higher earnings, better health, and less imprisonment.”

Furman is right – investing in kids pays dividends not only in the short term, with healthy and happier families, but in the long term, with improved potential on many different fronts that would boost the economy. Since Fiscal Year (FY) 2016, the children’s share of federal spending has dropped 9%, reaching just 7.48%of the budget in FY 2020. This level was inadequate before the COVID-19 pandemic, and it is woefully inadequate in light of it.

Furman also stressed the need to invest in children internationally, noting:

“The 2014 G20 included a goal of increasing women’s labor force participation; consider whether a similar goal of investing in children would make sense for the G20 going forward.”

A G20 commitment to this effort would help put children’s issues front and center on the global stage; in Children’s Budget 2020, we estimate that just 0.08% of federal spending goes toward helping children abroad. That’s about one-twelfth of what we spend on foreign aid as a whole, which is a mere 1 percent of the federal budget.

It’s well past time that lawmakers get serious about investing in the next generation. Following Furman’s advice would be a welcome step in the next presidential agenda.

Don’t put kids on mute this election

| October 22, 2020 |

Tonight, there will be a new rule for the final presidential debate — the candidates will be muted when the other is speaking. This has never been done before, but everyone seems to understand that it’s just like a kindergarten teacher muting their students in a Zoom class.

And while remote learning is on the minds of most voters, it’s not clear that the candidates will actually talk about kids in those Zoom classes, or the terrifying rise in child poverty, or the unprecedented decline in health care coverage for children.

Or any of the questions these kids raise in this video…👇

Kids can’t vote, but that doesn’t mean they don’t get a say in this election. The issues facing our nation’s children are simply too important for us to ignore their voices. That’s why we’ve teamed up with the National Children’s Museum — whose mission is to inspire children to care about and change the world — to create the #Commit2Kids Virtual Video Booth so kids can ask candidates where they stand on the issues that matter most to them.

Take a look at a few of our favorite questions so far — from climate change to homelessness and poverty to STEM education — and find out how the kids in your life can ask their own question.

More than 35 million Americans have already cast their votes. Whether they’ve entered a literal voting booth or dropped their ballot into the mail, our nation’s adults have had their say. Will you help us ensure that kids get theirs?

The election is less than two weeks away. Candidates are busy crisscrossing the country or their respective states to ensure they are addressing the concerns of all constituents. But the issues that affect kids, affect all of us. Kids are one-quarter of our population, but they represent all of our future. Let’s make sure that anyone on the ballot this November has the best interest of the child in mind before they take office.

It’s time we all #Commit2Kids. Before it’s too late.

A big chance for Congress to put kids first

| October 21, 2020 |

Photo by ElevenPhotographs on Unsplash

As Congress and the White House teeter on the edge of compromise for an overdue, additional emergency relief package, the coronavirus has claimed over 220,000 lives and left jobless numbers hovering around 12 million, well above their pre-pandemic levels. But as Caitlin Emma points out in Politico, the relief package is just part of an enormous budget agenda facing Congress. She writes:

“Congress is already heading into a big budget year, regardless of the outcome on Election Day. After a decade of enduring strict budget caps and operating under the threat of automatic spending cuts, lawmakers face no overall limits on defense and non-defense discretionary spending for fiscal 2022. Washington will also have to again grapple with raising the debt limit on federal borrowing next summer in order to stave off calamity.”

This “new budget territory,” as Emma calls it, offers a rare opportunity to prioritize children. For example, the temporary continuing resolution (CR) funding the federal government expires on December 11, 2020, and action will be required to avoid a government shutdown. The election outcome likely will have a huge impact on how long Congress extends the CR deadline into next year or if it tackles some appropriations bills sooner, such as the Labor-HHS-Education bill, which provides more than 70% of annual spending for children’s programs and services.

As Emma points out, FY2022 offers a clean slate as the spending limits set out by the 2011 Budget Control Act sunset after FY2021. Depending on the election results, Congress also may decide to use a reconciliation package — which requires a simple majority vote for passage — to pursue policy priorities such as health care, climate change, and infrastructure improvements, and of course, to revisit the lopsided provisions in the 2017 tax law, which favor the wealthy. The Republican majority used the reconciliation process to usher through the tax legislation. Democrats used it to pass the Affordable Care Act.

On top of all this, Congress will need to address the debt ceiling limit before its expiration next July and may even consider eliminating it at a time when budget hawks will be calling for austerity measures. All of these decisions could profoundly impact the well-being of our children as the dual public health and economic crises intensify their needs and compound existing disparities in our society.

Even before the pandemic, children regularly fell into the shadows during budget negotiations. On September 30, 2020, we released the 14th edition of our Children’s Budget book, presenting our analysis of more than 200 federally supported programs dedicated in part or entirely to children. Unfortunately, our analysis identifies a persistent and alarming trend: Children continue to receive a smaller and smaller share of federal spending.

In 2020, the share of federal spending on children hit just 7.48% — a decline of 9% from its FY2016 levels. For the record, children make up roughly one-quarter of our population. Under the president’s FY2021 request, investment in our children would drop to just 7.32% as it proposed harmful cuts and recommended eliminating or consolidating into block grants 59 different programs benefitting children.

Our investment in children overseas is not doing any better. The Children’s Budget 2020 marks the first time that we at First Focus on Children have analyzed federal spending on children from the international affairs budget, which spans seven entities including the State Department and U.S. Agency for International Development (USAID). Our research finds that the dollars dedicated to aiding children globally reflects far less than 1% of our spending — a dismal 0.11 percent of the overall federal budget.

There are two legislative proposals introduced in the U.S. Senate sponsored by Senators Kamala Harris (D-CA) and Bob Menendez (D-NJ) to help bring greater transparency to Congressional budget decisions. The Focus on Children Act (S.1780) and the Congressional Budget Act (S.1776) would authorize the Congressional Budget Office and the Office of Management and Budget, respectively, to regularly conduct a clear and full accounting of federal spending on children’s programs and services. These complementary bills would help policymakers and the public better understand and accurately evaluate how children are faring in critical, federal budget decisions.

So, as Congress and the president negotiate critically important budget decisions in the coming days, weeks, and months, we urge them to place children front and center to ensure kids are not left further behind. Our future depends on our children and budget decisions expose our leaders’ priorities for that future.

“We have a real opportunity to infuse equity and justice throughout our budget process,” Rep. Debbie Wasserman Schultz (D-Fla.) told Emma.

Let’s remember that this election season. Put kids first.

New Research Supports Investing in the Needs of Young People in Foster Care During the Pandemic

| October 21, 2020 |

Adulting is hard, but for the 20,000 youth who “age out” of foster care each year, suddenly required to be self-sufficient, it is downright cruel. Historically, many youth who age out of foster care fail to achieve their full potential because they don’t enjoy the same parental support as kids who are not in foster care. Roughly 34 percent of non-foster care youth aged 18-to-34 still lived at home with their parents in 2015, according to one study, and during this time, they received approximately $48,000 in financial support.

Youth in foster care deserve and need similar support. The Fostering Connections to Success and Increasing Adoptions Act of 2008 incentivized states to provide that type of care. Since the law’s enactment, more than half of all states have extended foster care, some using federal funds and others using state funds, to allow foster youth to remain in care until age 21 and to receive support and services sometimes up to age 26. The supports were designed with the hope that young adults who aged out of foster care would start attaining housing, employment, and education outcomes more similar to those who do not have foster care experience.

So new research from Georgia State University Ph.D. candidate Alex Prettyman suggests good news. Using data from the National Youth in Transition Database (NYTD) from Fiscal Years 2011 and 2014, Prettyman assesses the costs and benefits of extended foster care and finds that “a dollar spent on extended foster care maintenance payments yielded a return of $2 to $4.” In “Happy 18th Birthday, Now Leave: The Hardships of Aging Out of Foster Care,” Prettyman explains:

“All else equal, if no states implemented extended foster care during 2012 to 2016, then 362 more youth might have experienced homelessness, 361 more youth might have been incarcerated, and 169 fewer youth might have graduated high school by age 21… Specific to the NYTD FY2011 and FY2014 cohorts, extended foster care reduced costs to society by $88.4 million to $190 million, depending on the cost of incarceration.”

Prettyman’s findings underscore the wisdom of addressing the needs of older foster youth, especially during this pandemic. Investing in older youth, issuing a moratorium on aging out, and expanding access to services for young people in foster care, as proposed in bills like the Child Welfare Emergency Assistance Act (S.4172) and the Supporting Foster Youth and Families through the Pandemic Act (H.R. 7947), are likely to save our society significant amounts of money and, more importantly, will allow us to live up our responsibility to parent the youth in state care as they become adults.

Child poverty surpasses pre-pandemic levels, with 2.5 million more children in poverty since May 2020

| October 16, 2020 |

Credit: Max Whittaker| The New York Times

Journalist Jason DeParle of the New York Times is one of the leading media voices covering child poverty in the United States, and in a front-page article this week he once again highlighted the issue by covering new research on the impact of COVID-19 on poverty, including child poverty. Referring to two new studies, one from Columbia University’s Center on Poverty and Social Policy and a joint study by the University of Chicago and Notre Dame, he wrote:

Both studies also found child poverty rising at a rapid rate, with an additional 2.5 million children falling below the poverty line since May. Research shows that even short stays in poverty can cause children lasting harm.”

The study from Columbia’s Center on Poverty & Social Policy finds that assistance provided in the Coronavirus Aid, Relief, and Economic Stimulus Act (CARES) Act, particularly expanded Unemployment Insurance benefits and Economic Impact Payments, temporarily prevented child poverty from spiking earlier this year.  However, given that this assistance has run out, our child poverty rate is now higher than before the pandemic.

From Columbia Center on Poverty & Social Policy.
Note: Monthly Supplemental Poverty Measure (SPM) rate accounts for income received in the given month. The large distribution of Earned Income Tax Credit (EITC) benefits in March largely accounts for the observed dip in that month.

“The Cares Act was unusually successful, but now it’s gone, and a lot more people are poor,” Zachary Parolin, an author of the Columbia analysis, told DeParle.

By calculating monthly estimates of poverty, including child poverty, CPSP is able to not only provide more recent information on poverty than annual estimates (which lag behind by nearly a year and do not reflect the impact of COVID-19) but also supply more detailed information on how temporary influxes of resources throughout the year affect a household’s ability to weather economic volatility.

DeParle’s article also highlights research from the University of Chicago and Notre Dame showing similar trends for child poverty.

Both studies make clear that more assistance is needed immediately to prevent poverty levels from remaining elevated or potentially spiking further.

“‘The Cares Act was very successful,” Columbia researcher Christopher Wimer told DeParle. “But one of its shortcomings was its temporary nature.”

For more information:

Judge Barrett wouldn’t say if it was wrong to separate children — we will

| October 15, 2020 |

This week, the nomination hearings for Judge Amy Coney Barrett have been noteworthy only perhaps for how un-noteworthy they’ve been — with Judge Barrett declining to answer most questions pertaining to the law or precedent. But, there was at least one question that has captured the attention of the country — even though it, too, featured Judge Barrett refusing to answer.

Yesterday afternoon, Senator Cory Booker (D-NJ) asked if the judge believes “it’s wrong to separate children from their parents to deter immigrants from coming to the U.S.”

Watch the full exchange below:

Judge Barrett did not answer the question, stating — as many Supreme Court nominees have in the past — that the issue was a matter of debate and that she “can’t express a view or be drawn into as a judge.”

But, we believe the answer is clear — yes, yes it is wrong to separate children from their parents as a method of deterrence.

We’ve been clear on this issue, dating back to at least 2009 when First Focus President Bruce Lesley said:

As a bipartisan children’s advocacy organization, we see the ramifications of our broken immigration system every day. Family separation is detrimental to both the physical and mental health of any child. And children of immigrants comprise one-fifth of all U.S. children and are the fastest growing child population in this country. Therefore, it is paramount that our nation, founded by immigrants, enacts reforms to immigration laws that promote family unity.

Sadly, we were echoing these same sentiments over the last week when a New York Times investigation found that the Trump Administration “intentionally implemented a plan to separate children from their parents” and in comments to the Department of Homeland Security. It has been clear to us — and the entire children’s community — that this policy is cruel and, as we said back in June of 2018, it amounts to child abuse.

With dire urgency, the administration’s anti-immigrant and anti-family policies must be rejected. In a democracy, we are all accountable for our government, which includes how we treat the most vulnerable among us. The Administration’s family separation policy directly harms children and amounts to child abuse. Anyone concerned about the tragedy of family separation and the harm it is doing to children should contact their elected officials and demand the end to this policy. Our country has to be better than this.

And, with all due respect to Judge Barrett, this has also been clear to those on the bench. U.S. District Judge Dana Sabraw found (in June of 2018) that the practice of separating minor children and parents is a violation of constitutional rights and “shocks the conscience.” Judge Sabraw went on to say:

These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child. Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.

If confirmed, a then-Justice Barrett may have this question before her again. Let’s hope it’s as clear to her then as it has been to all of us.

EPA rejects its own science to declare banned pesticide not a threat to children 

| October 15, 2020 |

The Trump Administration has yet again rejected science in a new and harmful Environmental Protection Agency (EPA) risk assessment that proclaims the pesticide chlorpyrifos — banned for household use since 2000 — not hazardous to children. In fact, to make the ruling, the agency has rejected its own research, directly contradicting the findings of federal scientists who concluded five years ago that chlorpyrifos can stunt brain development in children.

The EPA dismissed its previous conclusion by saying that the “science addressing neurodevelopmental effects remains unresolved,” yet it excluded several epidemiological studies that established a link between prenatal exposure to the pesticide and developmental disorders in young children, such as lower IQ and impaired working memory.

The chlorpyrifos assessment is just the latest in a series of Administration rollbacks that put the needs of the agriculture industry and chemical companies above the health of our nation’s children. In June, the Trump Administration finalized a decision to not regulate perchlorate, a toxic chemical found in rocket fuel that can contaminate drinking water. Perchlorate has been linked to fetal and infant brain damage.

The EPA has also been lax on the regulation of lead. Lead is a well-established toxin, and any exposure is considered dangerous to children, as it can cause irreversible damage to the nervous system. The EPA failed to require the replacement of 6 million water lines throughout the country that are made of lead; refused to lower the enforceable level of lead in water, known as the “lead action level;” and did not tighten the standards for lead-based paint exposure at home. Furthermore, the EPA has failed to effectively regulate a group of synthetic chemicals called PFAS, that are used in a wide variety of household products and industrial processes even though research has shown that children are extremely vulnerable to these toxins. The Trump Administration has not enforced monitoring, testing, and cleanup of PFAS in water. They had also continually blocked the release of a government study which found that PFAS could be more toxic than we thought, calling the study a “public relations nightmare.” The study was finally released in June 2018; it found that PFAS exposure could be dangerous at levels the EPA deemed safe.  

When will enough be enough?

How much longer will this government continue to ignore science and put the health of our children at risk? The Trump Administration’s disregard for our environment spans from indulging corporations on these toxins to ignoring the impact of climate change. It is our children who will bear the brunt of the negative impacts of climate change – and we should demand more from our leaders.

Learn more about the Trump Administration’s attack on the environment and children here

Trump Administration attacks on the International Criminal Court deprive children of justice

| October 14, 2020 |

The International Criminal Court (ICC) is not a court many Americans know about. People may talk about sending officials who commit crimes to “The Hague,” but many do not understand what that means or how it happens. But for children around the world who are victims of atrocities such as war crimes, genocide, and crimes against humanity, the ICC is an important avenue for justice. However, the Trump administration has targeted this court with harmful rhetoric and sanctions. In doing so, the administration may be depriving the world’s child victims of justice.

In 1998, 160 countries came together in Rome to establish the ICC. The United States was among them. At the end of that conference, 120 countries signed a treaty called the Rome Statute, and the ICC was born. Its mandate? To be a permanent court of last resort, investigating and prosecuting individuals “for the most serious crimes of international concern”— war crimes, genocide, and crimes against humanity. The United States has signed the treaty, which indicates support of the institution, but is not a member state, which would have required Congress to ratify it.

The Rome Statute explicitly gives the ICC jurisdiction over international crimes against children, including the use of child soldiers, the forcible transfer of children from one national, ethnic, racial, or religious group to another, attacks against educational buildings, and gender-based violence. The Rome Statute integrates the consideration of children in the court’s procedures, including electing judges and appointing advisers with legal expertise on violence against children. The court’s first trial, in 2009 against Thomas Lubanga Dyilo of the Democratic Republic of Congo (DRC), exclusively addressed charges of child conscription in hostilities, and many individuals have since been charged for using child soldiers. The ICC has also tried several defendants for gender-based violence against girls in the DRC, Uganda, and Sudan.

The current ICC prosecutor Fatou Bensouda has worked to elevate the issue of crimes against children and has taken steps to specifically consider these crimes. Since 2012, she has worked with Diane Marie Amann, the prosecutor’s special adviser on children in and affected by armed conflict. In 2016, Bensouda launched the ICC Policy on Children, pledging that every ICC investigation will consider crimes against and affecting children.  

Though the United States is not part of the ICC, it has historically supported the court’s mission. But under the Trump administration, support has turned into contempt. As the ICC prosecutor and trial chamber have continued to investigate alleged war crimes by U.S. officials in Afghanistan, administration officials have called the court “illegitimate” and “dead.” Those words turned into action in 2019 when the State Department revoked Bensouda’s entry visa, preventing her from reporting her work at the United Nations. In June 2020, President Trump signed an executive order authorizing sanctions against ICC personnel and any individuals who directly engage with the ICC. Since the Executive Order, Secretary of State Mike Pompeo has sanctioned Bensouda and the court’s head of jurisdiction Phakiso Mochochoko.

These sanctions directly affect access to justice for children. The number of countries experiencing violent conflict is the highest it has been in 30 years, and children have paid the highest price. In 2019, parties to armed conflicts committed more than 170,000 grave violations against children. When countries are unable or refuse to hold perpetrators of grave crimes accountable, the ICC provides another avenue to ensure that they face consequences for those crimes. The U.S. should champion, not undermine, this important work.  

The administration’s executive order and sanctions not only directly impact the ICC, but also affect advocates who support the court’s work. U.S. human rights lawyers have sued the Trump Administration over the executive order, stating that it infringes on their right to free speech and has forced them to stop research, presentations, and communication with the ICC in support of victims. Amann, the special adviser on children, noted that since the prosecutor was sanctioned, “I have refrained from giving her any advice,” “withdrawn from public presentations,” and “refrained from engaging student research assistants to assist me in work in the subject area,” for fear that she also will be sanctioned. Many other human rights advocates, including those working on behalf of children and families, are likely to be similarly wary of continuing to engage with the ICC.

This aggressive anti-ICC stance is harmful and unnecessary. The United States has historically supported international criminal justice — from Chief Justice Robert H. Jackson’s role as Chief Prosecutor for the U.S. at the Nuremberg trials to the Obama Administration offering rewards and supporting the transfer of indicted defendants to the ICC. Polls show that an increasing number of Americans support the work of the ICC and think that the United States should either join or support it. Now is not the time to cripple an entity seeking to bring justice to those who need it most.

Even if the U.S. government does not wish to join the ICC, it can and should rescind sanctions against ICC personnel, rescind the executive order that has had a chilling effect on advocates seeking justice for victims of the worst crimes, and robustly support the efforts of the Court to hold accountable perpetrators of war crimes, crimes against humanity, and genocide. The United States must let child victims of the gravest crimes know that we stand with them and stand for accountability for those who harm them.