An obscene phone call allegedly placed by a 14-year-old boy in 1967 launched a wave of legal reform and an unresolved controversy over where to draw the line on children's legal rights.
In courts and legislatures across the country, a new breed of juvenile lawyers and child advocates is arguing for greater constitutional rights and government services for children. Their opponents, charging the reform has already gone too far, tend to lump children's legal rights with permissive education and other so-called threats to adult authority.
When Gerald Gault, 14, stood before a juvenile judge in Arizona 12 years ago, he never was given a chance to prove his innocence or guilt. The judge declared him guilty of making an obscene phone call and gave him a maximum of six years in a state reform school.
Had Gault been an adult, he would have been allowed a defense and a maximum punishment of a $50 fine or two months in jail.
"At that time, whether a child was guilty or not sometimes took a back seat to whether the judge thought he needed rehabilitation," says Frank Farmer, associate director of the D.C-based Children's Legal Rights Information and Training Program. "The informality of the hearing allowed the judge a great deal of subjectivity. We were no longer hanging 8-year-olds for burning barns, but there was still little limitation on juvenile court procedures."
Today Gault's case is rattled off by the legal profession as common knowledge, because the Supreme Court overturned the lower court's ruling (and accepted practices of the juvenile justice system). The landmark decision stated Gault had been denied certain constitutional protections, including the right to a hearing, the right to counsel and the right to evoke the Fifth Amendment against self-incrimination.
Whether the authors of the Constitution of the United States included children in their references to "any person" is debatable, but the Supreme Court set a precedent in deciding children do share in constitutional protections.
Once the Gault case and the 1954 Brown case (in which the Supreme Court ordered an end to racially-segregated public schools) asserted children's rights under the Fourteenth Amendment to "equal protection under the law," other constitutional rights of children began to be defined. At the same time, state and federal legislatures have enacted new statutes protecting children.
Children's rights include:
Freedom of speech and expression in school when it does not disrupt classrooms (school boards' interpretation of this right varies).
protection of due process in court cases involving children charged with deliquency and children in need of protective services.
Free education for handicapped children and certain procedural rights, including a placement hearing (not fully implemented in all states).
legal representation for children in child-abuse and neglect cases is required in some states, including the District of Columbia and Virginia; representation is used, but not required, for children in divorce and custody cases.
Protection from discrimination -- racial and sexual -- in school programs (not fully implemented in all states).
Abortion, treatment for VD and birth-control services for mature minors without parential consent. (Confidentiality is not always protected.)
Procedural safeguards in school suspensions and expulsions.
"These are not special rights granted to children," says Farmer.
"These are rights granted to all human beings. What has happened is that children are now recognized as human beings and not as property."
The property status of children dates back to the era when they toiled long hours in city sweatshops and country fields, had little or no public education and served criminal convictions. At the turn of the century, new laws abolished some of the worst of the abuses, but children were still subject to the absolute control of adult caretakers and had no recognized constitutional rights.
As children have gained the power to sometimes circumvent adult dictates, they also have roused opposition, especially in firing-line issues like abortion.
This opposition is a disparate collection of irate parents (who are incensed at their children's rights to secure birth control without their consent); public officials (who want to cut back on tax-absorbing programs such as day care, education and child welfare); state employes (who don't want to lose their jobs at state institutions in the push for community-based juvenile homes); and philosophical objectors (who dispute the value of day-care, or of government intervention in family life, or of leniency in juvenile crime cases).
The increase in children's rights is equated by some with a decrease in adult rights: parents' right to demand obedience; school officials' rights to uphold discipline; and law officers' rights to protect the community from crime.
Traditionalists' worst fear -- children challenging adult competency -- has already been tried and lost in several suits.
When Andrew Donohue graduated from a New York high school in 1976, for example, he had failed numerous courses and couldn't read at his grade level. He brought suit against his school district for failing to properly educate him, but the court declared schools are not bound to protect against the "injury" of ignorance.
In Colorado last year, a son sued his mother for "intentional infliction of emotional duress and neglect." The case, Hansen versus Hansen, was dismissed.
As ardently as some are protesting children's new legal force, child advocates are lamenting children's "second-class status. At issue are some of the same questions raised in struggles for Black Power and Women's Liberation. Except in this case, few advocates are arguing for total equality, but use phrases like "fair treatment," "historic discrimination" and "victimized young."
For Wallace Mlyniec, director of the Georgetown University Juvenile Justice Clinic, the victories of the last decade are barely a beginning.
Children, he says, "still don't have many personal liberties. They can't work without a permit; they have no alternatives to going to school; they can't leave an onerous family life without government intervention; and they can't have an operation, other than an abortion, or refuse medical treatment, other than experimental without parental consent.
"We have made incredible strides from 2,000 years ago.You can't kill children, or sell them for a large dowry, or leave them on the side of a mountain.
"But," adds Mlyniec, "there has not been much substantive change in the last 100 years. Just because there are good procedures doesn't mean there well be better results."
According to Judge Andrew Ferrari of the Juvenile and Domestic Relations Court of Arlington, children's rights must be balanced by parents and the government's duty to set standards. "You can't say you want to care for a child, and then say he can do anything he wants.
"Children's right to fair play during a court hearing has been immensely enhanced since the Gault decision. But when you talk about what we are doing for children, who are found guilty, we need to do a lot more work in corrections."
Progress has been made in the courtroom, agrees Dan Yohalem, legal coordinator of the Children's Defense Fund. But he also see "a lot of activity with children, through their parents, challenging state or federal agencies for their failure to provide existing rights to a service."
The very act of establishing rights has set in motion another round of legal action to enfore delivery.
Suits have cited, for example, the inadequacy of a federally mandated health program for poor children; the inappropriateness of institutional care for foster children; and racial discrimination in school suspension practices.
The adequacy of the District of Columbia School Board's education program for handicapped children has been brought under court review by the Mental Health Law Project.
When the parents of an 18-year-old autistic boy were advised by his private day school to send him to a residential school, they appealed to the D.C. School Board for funding. The school board refused to pay for the residential schooling, so the parents hired an attorney and took their case to court. After several hearings, the court ruled last week that the school must pay -- for the last nine months' tuition and up to the boy's 22nd birthday.
Court disputes can also result in children losing rights.
When the mother of a 10-year-old hyperactive boy (who was having school problems and running away) decided to place her son in a community mental health center, the D.C. court asked an attorney to represent the boy's interests.
Shortly afterward, however, the Supreme Court ruled that the Constitution does not require states to provide an admissions hearing and represenation for children who are being committed to mental-health institutions. The attorney was removed from the case.
Lack of funds, overlapping of prochild agencies and the red tape of new regulations also hinder the monentum of legal reform.
Child advocates, however, are determined to continue their battle, targeting personal liberties and programs in health, welfare and day care -- particularly for children handicapped by poverty.
"We don't always succeed," says Judge Ferrari. "We have services, but we must always look higher -- not always for more, but for better quality."