When I teach canonical parentage and child custody cases such as Michael H. v. Gerald D. or Troxel v. Granville, I ask the class what they know about Victoria or Isabelle and Natalie Troxel. Students are often a little startled to hear the names of the children at the core of these cases, and we then discuss how rarely the children’s actual interests are addressed. The cases are framed as battles between adults over their rights to the child; even though Victoria asserted her own liberty and equal protection claims, the Michael H Court was highly dismissive of them.
Catherine Smith has been working to change that situation. Along with Northwestern Pritzker School of Law Associate Dean Robin Walker Sterling and George State College of Law Professor Tanya Washington, Smith has received a grant of over $2 million to fund a new project, The Advancement for Children’s Constitutional Rights Consortium. One goal is to develop a new casebook, Children and the Constitution, which will focus on children’s rights in the constitutional law canon. Professor Smith’s article, “Children’s Equality Law” in the Age of Parents’ Rights, provides insight into some core aspects of what this revisioning of the constitutional canon might involve. The article notes that, while one conception of children’s rights could include both liberty and equal protection rights, an even “broader conceptualization could invoke a panoply of young people’s social and civil rights.”
“Children’s Equality Law” focuses on one aspect of the new conceptualization that Smith envisions, the possibilities of using the Equal Protection Clause to protect young people when discriminatory treatment results in “group-based hierarchies.” The article notes that constitutional law relies on an assumption that parents have the political power and authority to ensure their children’s well-being. That assumption is not always accurate, Smith points out, and children need their own discrete rights because their parents may be unable to provide the protection they need.
As an initial matter, the article observes that the class of children has never (or at least not yet) been deemed to be subject to any level of scrutiny beyond rational basis. This is partially the result of the Supreme Court’s emphasis on parental rights to the care, custody, and control of their children; correspondingly, Smith observes, parents are presumed to act in their children’s best interests. While others have explored the benefits and drawbacks of that assumption, as well as its use as political rhetoric, Smith looks at a different set of concerns.
Even when parents seek to act in their children’s interests, Smith observes, they may not have the power to promote their children’s interests. As an example, Smith turns to Oyama v. California, 332 U.S. 633 (1948). Kajiro Oyama bought property for his six-year-old son, Fred, in 1934, and a second parcel of land in 1937. Kajiro Oyama subsequently petitioned for guardianship of his son. At the time, California’s Alien Land Act prevented those who were ineligible for American citizenship from buying agricultural real estate, with any property purchased in violation of the law escheating to the state. (The Court explained, in note 3, that federal law permitted “only [] free white persons and persons of African nativity or descent” to be naturalized, and that “it seems to be accepted that Japanese are among the few groups [sic] not eligible for citizenship.”). During World War II, California filed a petition against the Oyamas to declare an escheat of the two pieces of land, and the California courts found that Mr. Oyama’s purchase of the land was made with the intent to avoid application of the Alien Land Act.
Both son and father sued, claiming that the Alien Land Act violated their rights under the Equal Protection Clause. The Supreme Court found that Fred Oyama, an American citizen, had been discriminated against because his father was Japanese, without even reaching the claim that his father had experienced discrimination. To be sure, the discrimination was based on citizenship, rather than childhood. That is, the discrimination was based on the parent’s country of origin, not on discrimination between the rights of adults and children.
In other cases, such as Brown v. Board of Education and Levy v. Louisiana, Smith notes that consideration of children’s rights has been critically important. Such cases, and others discussed in the article, show that “children need rights to protect themselves” (P. 546). Their parents were, essentially, powerless, unable to safeguard their children’s rights.
While these cases do give some voice to children’ interests, they do not, by themselves, articulate a robust jurisprudence that addresses the parameters of children’s rights as individual liberties. Moreover, Smith observes that “[t]he cases are rarely seen or interpreted as a collection of cases establishing a children’s equal protection jurisprudence” (P. 550).
By bringing these cases together, Smith persuasively argues for just such a jurisprudence of children’s rights. The overall project of rewriting the constitutional canon to center children’s rights is groundbreaking.
And this effort has resonance with so many other strands of contemporary scholarship. Consider the work of Aaron Tang, who has found that while children won in over 60% of their cases heard by the Supreme Court from 1953-2022, they continue to confront hurdles to improvements in child welfare and educational equity. Tang argues that, “over the long run, real and substantial social progress is unlikely to be driven by nine justices in robes.” Tang suggests that “work[ing]’ in the trenches” to change policy could be a meaningful source of promoting children’s rights. In addition, Smith’s use of Oyama as an example of the utility of children’s rights also provides a stunning example of Kaipo Matsumura’s observation of the need to “fit [] Asian Americans into the story we teach about family regulation.” Rose Cuison-Villazor has already argued for the need to incorporate Oyama into the property and constitutional law canons, and Smith cites Cuison-Villazor’s work to show how children’s rights can impact the “marginalized groups” of which these children are members.
Ultimately, Smith’s article breaks down silos, revealing the extent to which our blinkered categories have resulted in an impoverished understanding of the constitution and the law more broadly. “Children’s Equality Law” shows why children’s equality matters in constitutional law, in other legal fields—and to families themselves.
