As a person of a certain age, I’ve attended my fair share of dinner parties hosted by parents of young children. More times than I can count, the conversation has been interrupted by sounds emanating from a baby monitor; parents will activate their smartphones, searching night-vision images of fidgeting children for the telltale glowing eyes that indicate that their child is awake. This innocuous-seeming surveillance is the entry point into what Nila Bala describes as “a parenting culture…defined by constant involvement and supervision” in her compelling new article, Guilt by Parenthood. (P. 41.) As children age, parents monitor their locations with wearables, track their smart phone usage, and watch their comings and goings through motion-activated cameras. In all my years passively observing these parents trade one form of monitoring for another, only a few have ever even questioned whether they were invading the privacy of their children. None of them doubted their right to do so.
Much has been written by family law scholars in recent years about the expansion and evolution of parental rights as a legal concept, especially as courts and lawmakers have used it as a justification to limit what is taught in schools and to curtail children’s exploration of their gender and sexual identities. Much, too, has been written by criminal law scholars about the public’s desire to punish parents for the transgressions of their children, as recent high-profile prosecutions of the parents of school shooters illustrate. Bala, whose expertise lies at the intersection of both realms, convincingly argues that recent developments in these seemingly disparate areas share the same normative underpinning. The assumption that parents have the right to monitor their children draws support from the conception of children as property of their parents. This conception is a holdover of coverture, the regime that vested total control—akin to ownership—of wives and children in the male head of household.
The first important contribution of Bala’s article is to synthesize an account of parental liability in criminal law. Although scholars have been critical of statutes holding parents criminally liable for the acts of their children for decades, the issue of parental liability has gained visibility with the recent convictions of parents of school shooters—prosecutions brought under general criminal laws rather than laws speaking directly to parental liability. What Bala shows is that high-profile prosecutions are but the tip of the iceberg: states have increasingly enacted legislation imposing parental liability for failure to safeguard firearms, failing to prevent online misconduct like cyberbullying, and promoting or restricting access to reproductive and gender-affirming care. (Pp. 8-13.) Many municipalities have also enacted laws imposing criminal liability on parents for misconduct like truancy and curfew violations. (Pp. 14-16.) Bala’s descriptive account not only succeeds in capturing the expansiveness of the phenomenon, but also reveals common patterns in these laws, like the frequent absence of mens rea requirements and the pervasive imposition of criminal fines.
Bala then juxtaposes this expansion of parental liability with an account of the parental rights doctrine, which is also the site of significant legal activity and evolution. She points to the enactment of laws at the state level granting parents greater control over public school curriculum as well as access to information about their children pertaining to matters like the child’s chosen gender identity. Some states have also enacted laws requiring parental consent for access to reproductive and sexual healthcare. And, of course, the U.S. Supreme Court recently held in Mahmoud v. Taylor that parents are entitled to notice of, and the option to opt out from, LGBTQ+-inclusive curriculum that they find objectionable. The through-line of these developments is the aggrandizement of parental authority vis-à-vis the state, and the continued absence of children’s autonomy as a relevant consideration. (P. 28.)
Bala argues that although one might perceive a tension in these developments—the expansion of parental authority and the imposition of criminal consequences for parental inaction—they both “rest on a shared analytical foundation: a legal presumption of parental control so strong that it borders on the erasure of the child as a distinct agent, with her own interests.” (P. 28.) She persuasively argues, building on the work of Barbara Bennett Woodhouse, that this assumption of parental control was central to the foundational Meyer v. Nebraska and Pierce v. Society of Sisters cases—both of which objected to the confiscation of the parents’ proprietary interest in deciding how to educate their children (albeit in dicta). Laws imposing criminal liability likewise turn on the assumption of parental control, which explains the absence of parental mens rea requirements. “If the child is understood to fully ‘belong’ to the parent, then any misconduct is attributed to the parent.” (P. 37.)
Bala rounds out the article by identifying and critiquing problems caused by the persistent ideology of child coverture. As an initial matter, she criticizes child coverture for justifying the disregard of children’s autonomy and individuality. She notes how parental liability insidiously corrupts the parent-child relationship by incentivizing, and in some cases requiring, parents to surveil and control their children. Through this process, children lose privacy rights nominally protected by the Fourth Amendment: the state “effectively deputizes parents to perform oversight it could not constitutionally impose itself[.]” (Pp. 39-40.) Fragile parent-child relationships are further strained. And the entire surveillance apparatus can be applied unequally based on race and class, justifying the monitoring of families of color and making it more likely that those families enter the child welfare system.
Bala closes with two reasonable reforms. The first is to reconceptualize the parent-child relationship for the purposes of criminal law as one akin to agency rather than ownership. Under this approach, a parent (principal) would only be liable when the child (agent) acted “within the scope” of the parent-child relationship, the parent “exercise[d] control over the conduct,” or when the child acted “to further the [parent’s] purposes.” (P. 49.) This change would effectively mean that parents could not be prosecuted simply because of their parental status. For example, in a typical case involving parental prosecution for a child’s truancy, the prosecution would have to show that the parent “actively facilitate[d]” or “encourage[d]” the child to miss school; otherwise, parents would not be criminally liable. (Pp. 49-50.) Bala argues that by narrowing the scope of parental responsibility, the shared responsibility of the state for the raising of children would come into sharper view. Her second suggested reform is therefore to increase state support for families in the form of economic support payments, child tax credits, and childcare grants. (P. 54.)
Both of these ideas are good ones, but they only go part of the way to addressing the insight that this article so compellingly reveals: the need for a new conceptualization of the parent-child relationship. Bala backs off from saying that the agency relationship is the most appropriate paradigm, characterizing it instead as an “illustrative” “analogy.” (P. 49.) Moreover, she expressly limits the scope of her analysis to the criminal law realm, setting aside civil parental liability. (P. 7.) These are perfectly reasonable moves and do not detract from the quality of the article, but they leave room for future work in this area. Any reassessment of the parent-child relationship should account for all its manifestations.
Moreover, as Bala herself acknowledges, the expansion of parental rights and the imposition of parental liability are at least partly based on underlying substantive views about matters besides the parent-child relationship itself. As Aníbal Rosario Lebrón has argued, courts have used rights-granting logic initially developed to protect vulnerable minorities to grant counter-rights to majorities, effectively wiping away gains in the realms of sexual orientation and gender equality. He points out that when the Supreme Court decided United States v. Skrmetti, the case upholding Tennessee’s gender-affirming care ban, concerns about parental rights were conspicuously absent despite the parents’ support for their children’s right to transition. This example is consistent with Bala’s insight that “parental rights have historically operated less as a genuine recognition of family autonomy and more as a strategic tool, deployed or withheld depending on whether they serve state interests.” (P. 34.)
We must therefore ask what interests the parent-child relationship serves. Here, too, Bala points to an answer that exists somewhat apart from her reform proposals. Bala notes that the concept of parens patriae and the emergence of the juvenile court system were rooted in the idea of “parental blame,” which served to distinguish between bad and good parents, or “our” and “other people’s” children. (Pp. 17-18.) At the close of the nineteenth century and during the first several decades of the twentieth century, these distinctions were thought to reflect genetics. Lawmakers embraced the logic of eugenics that treated criminal behavior as hereditary. (P. 19.) Perhaps these beliefs linger. Is it a mere coincidence that Black and poor parents are disproportionately targeted under the current regime,1 and that upper-middle-class surveillance of children is not pathologized but celebrated? Although Bala does not make this claim, perhaps the system of parental discipline that she describes is nothing short of the law operating as it should to denote “good” and “bad” subjects in a stunning example of Foucauldian biopower.
If all this is true, then genetic parenthood and child coverture are mutually constitutive. The genetic tie traditionally implied in the phrase “my child” bolsters claims of ownership; the ownership imperative elevates genetic relationships over non-genetic ones. Bala’s insightful article provides the means to see that one cannot be dismantled while the other remains intact.3
- As Dorothy Roberts has argued, our society and legal system continue to treat race as the ultimate heritable characteristic. Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 211 (1995).
- As Dorothy Roberts has argued, our society and legal system continue to treat race as the ultimate heritable characteristic.2Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 211 (1995).
