![]() Essential to that development are their families, neighborhoods, communities, and other adults with whom they commonly interface: caregivers, teachers, coaches, healthcare workers, police officers, and other adults. Ĭhildren’s equality rights ultimately rest on their common humanity, their common value, and their need for support in order to develop. Brown and its progeny have been a failure for children this definition of equality must be challenged and reclaimed. Board of Education, equality has been defined in a crabbed, limited way that has allowed inequalities by race and other hierarchies among children to be perpetuated, even exacerbated, over time. Moreover, even in those areas where children’s equality rights have been recognized, most notably with respect to education, in Brown v. Children’s constitutional rights have been recognized, but the theoretical basis and scope of those rights is an undeveloped area of constitutional doctrine. In this Article, I articulate a constitutional theory of children’s rights under which children have distinctive equality rights. Instead of supporting children’s innate equality, we create hierarchies that are tied to our failures to give them equal opportunities to thrive. ![]() The random opportunity of one context over another, one family over another, embedded within neighborhoods and communities unequally supported, linked to unequal systems of health, education, and economic support, translates into the likelihood of inequality and hierarchy. Rather, the absence of social support and the presence of roadblocks and challenges create the hierarchies that stymie children’s equal development. The differences are not simply the result of individual circumstances. Inequality emerges in infancy, and hierarchies worsen during childhood, not due to anything over which parents or children have any control, but due to differences in context. Differences of context, linked to policies, structures, and systems, become the basis for children’s inequalities and hierarchies. Differences in newborns’ innate capacity for development are dwarfed by the effects of their environments and the inequalities they face. But they are not born into equal circumstances. All children are born equal in human dignity and with equal rights to fully develop their cognitive and human potential. It then grounds a proposal for children’s constitutional rights, including a positive right to developmental equality, in existing constitutional doctrine.Ĭhildren are entitled to equality. To make this claim, the Article unearths existing hierarchies and identifies the parameters of children’s equality that are constitutionally meaningful. Equality of development is a universal right of every child based on the principles of equality, equity, and dignity at the core of our equal protection jurisprudence. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights.Īmong the most critical of those positive rights is the right to developmental equality: the right of every child to maximize their developmental potential. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. ![]() This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. They are not caused nor voluntarily chosen by children or their parents. These hierarchies are not random but fall into patterns by race, gender, and class. Yet as early as eighteen months, hierarchies emerge among children. ![]()
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