Do children and teenagers have constitutional rights?
It’s tough being a kid. You’re living at home under your parents’ thumb. You have no money, no education — no real autonomy at all. You can’t even see certain movies without an adult with you. So, when it comes to the law, what rights does the average child or teenager have? If you think the answer’s “none,” prepare to think again.
Under the law, children in the United States are fully formed human beings with the same basic constitutional rights that adults enjoy. Like every other citizen, children have the right to due process under the law and the right to counsel. They’re also protected against cruel and unusual punishment and unreasonable searches and seizures. However, the law also recognizes that children aren’t physically and emotionally mature enough to handle the responsibility attached to legal activities like drinking, let alone the right to vote or run for public office. The law reconciles these two ideas by implementing ages of majority designed to define when a person has the ability to exercise his or her rights responsibly. These usually vary by state, but they govern everything from the right to drive to the right to marry.
There are some exceptions, however. In the juvenile justice system, for example, children don’t receive bail, nor are they tried by juries of their peers. Juveniles do have the right to seek legal counsel if there’s a chance that they could be tried as adults, as well as the right to a hearing before a judge. Children can also petition for Legal Emancipation from Parents, but they would face an uphill battle there: The Liberty Clause of the 14th Amendment gives parents the right to raise their own children, as long as there is no abuse or neglect.
The Constitutional Rights of the Student
Although children and teens enjoy the same rights as their elders, the Supreme Court has repeatedly limited school students‘ rights to free speech and expression in school. The Court has also upheld censorship of school newspapers and suspensions of students for inappropriate language and behavior. Schools have even been allowed to search students’ private property without probable cause.
In that particular case, New Jersey v. T.L.O., the Court found that a school’s responsibility to educate and protect children trumps student privacy, and allows school authorities more leeway than the police would have outside school.
The court ruled on that case in 1985, but student rights have been further restricted since then.
More recently, the High Court has allowed school officials to punish students for behavior outside school grounds.”
In November 2010, Virginia Attorney General Ken Cuccinelli even issued an official opinion advocating the search of students’ personal cell phones and laptops if there’s “a reasonable suspicion that the student is violating the law or the rules of the school.”
Children and adults share many of the same rights under the law, but the exceptions to the rule make it clear that most children lack the maturity to truly understand what having those rights actually entails. What does it really mean to be able to vote, marry or have due process in a court of law? Does that understanding depend solely on one’s birthday? Should it?
The ACLU believes that schools are not constitution-free zones, and continues to fight for students’ privacy rights, challenging unreasonable strip-searches, electronic monitoring, searches and seizures of property such as cell phones, and inappropriate sharing of students’ personal information across a range of public and private organizations.
Free Speech › Student Speech
If students are to become adult citizens trained in the democratic process, they must enjoy the right to express themselves freely without fear of censorship or surveillance.
Your Right to Free Expression: Wondering if your school is allowed to have a dress code? Or if you have to say the pledge of allegiance? The Bill of Rights guarantees that the government can never deprive people in the U.S. of certain fundamental rights, including the right to freedom of religion and to free speech and the due process of law. Check out this resource for answers to those questions and more.
Your Social Networking Rights
A growing number of schools and employers are demanding that students, job applicants, and employees hand over the passwords to their private social networking accounts, such as Facebook and Twitter. If you are a public school student and a coach, principal, or other school official asks you to turn over your password to Facebook or any other personal account or device, you should say that you wish to talk to a parent or a lawyer before answering any questions. Though you may be a student, you have privacy rights like any American, and school officials do not have the right to fish through your password-protected information. Find out more here.
LGBT Rights in Schools
Our Don’t Filter Me project is pursuing the removal of web filters on school computers that are unconstitutionally blocking access to hundreds of LGBT websites, including sites that contain vital resources on subjects like bullying and student gay-straight alliances. We filed lawsuits in several school districts and sent demand letters in many more on behalf of students and organizations whose sites are being blocked. The filters do not block access to comparable anti-LGBT websites that address the same topics, and that violates the First Amendment. Learn More >>
LGBT Youth and Schools: We’re working to make public schools safe and bias-free for LGBT students, defending their free speech in school, and working to help students start gay-straight alliance clubs. Check out our information for students, parents, teachers, and administrators. Learn about your rights, download resources and get support.
A child is a person and not a subperson over whom the parent has an absolute possessory interest. The term “child” does not necessarily mean minor but can include adult children as well as adult nondependent children. Children are generally afforded the basic rights embodied by the Constitution and Civil Rights of Children. The Equal Protection Clause of the 14th Amendment is said to apply to children, born within a marriage or not, but excludes children not yet born. There are both state and federal sources of child-rights law.
There is a trend towards taking children seriously as distinct subjects of moral and political theory who have complex and evolving interests. Children are developing beings whose moral status gradually changes. This view is now generally accepted but its implications are variously understood. It is no longer possible to assume a simple harmony between the interests of children and those charged with the responsibility of rearing them. Indeed, the challenge is to deepen our understanding of children’s interest and to explore how the conceptualization of these interests affects the character of the moral claims they have.
United Nations Declaration of the Rights of the Child
- The enjoyment of the rights mentioned, without any exception whatsoever, regardless of race, color, sex, religion, or nationality;
- Special protection, opportunities, and facilities to enable them to develop in a healthy and normal manner, in freedom and dignity;
- A name and a nationality;
- Social security, including adequate nutrition, housing, recreation, and medical services;
- Special treatment, education, and care if handicapped;
- Love and understanding and an atmosphere of affection and security, in the care and under the responsibility of their parents whenever possible;
- Free education and equal opportunity to develop their individual abilities;
- Prompt protection and relief in times of disaster;
- Protection against all forms of neglect, cruelty, and exploitation;
- Protection from any form of racial, religious, or other discrimination, and an upbringing in a spirit of peace and universal brotherhood.
Those who deny children all or some of the rights possessed by adults nevertheless believe that children, as humans, have a certain moral status that ought to be protected.
Indeed there are many adults who in making their choices fail to display the maturity and ‘understanding of what is involved’ that is dictated as necessary for the child. Why then should a child have to display a competence that many adults lack both in general and in particular cases?
Civil Rights of Children
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.
Within the last century, the idea that children need safeguards and protections separate from those of adults greatly impacted both domestic and international law. Although the children’s rights movement has roots as early as the eighteenth century, it wasn’t until the twentieth century that children were viewed as more than a labor hand or an economic value. What began as an effort to protect children from long hours of labor and its corresponding health defects, turned into an organized and influential movement.
The children’s rights movement promotes legal protections and safeguards for children, distinct from those of adults. After each world war, international legal instruments increasingly included protection for children across the globe. The League of Nations Declaration of 1924, and the successive United Nations’ Declaration of the Rights of the Child in 1959, declared that children need safeguards and protections separate from those of adults and that these protections should begin even before birth.
The major global and regional legal instruments of the twentieth and twenty-first century are included in The Law Library of Congress’ Children’s Rights: International and National Laws and Practices, a superior and comprehensive analysis of the significant children’s rights laws.
Children’s Rights will enable researchers, legislators, and academics to compare and contrast how children are treated among the different continents and which policies and laws have had the most profound impact on the younger generations.
There has been much progress in the children’s rights movement, but more nations must act to protect those who most need it. As a former judge, I saw firsthand how crimes against children affected their future. Children are a nation’s future. The best gift we can give to the world is to ensure a safe, healthy, educated, and able future generation. And that’s just the way it is.
Introduction by Dr. Rubens Medina
Ancient civilizations entrusted heads of families with omnipotent authority over their children. The rather common underlying legal assumption was that children lack the capacity to discern correctly between prescribed behavioral standards, a condition that made them legally comparable to property and therefore sellable. Academicians have debated on the boundaries of patria potestas (currently translatable into parental authority). As an example, the THE TWELVE TABLES assigned this power to the fathers. Strict interpreters sustained that this authority was extreme and a remnant of pre-existing “practices of barbarous origin and primitive character” (Table VI, Law I, II and III. S. P. Scott: The Civil Law – Constitution Society, Vol. XII, 64-65 (The Central Trust Company 1932). A more conciliatory approach interpreted the precepts as having gradually evolved to restrict irresponsible and abusive exercise of such authority.
It was not until the 20th Century that the legal status of children was subjected to serious reviews and corrections. The idea that children have rights finally emerged and were embodied in Family Codes and Code of Minors. They were enacted to recognize children as “developing beings whose moral status gradually changes” thus demanding a realistic understanding of their interests within the families and the larger social context (Introduction to Philosophical Views of Children: A Brief History in The Moral and Political Status of Children (David Archard & Colin Macleod eds., 2005).
Children hold our hopes for a better future. Their status has been a subject of concern for lawmakers, scholars, judges, lawyers, and common citizens. National laws and regulations as well as international treaties have been dedicated to children with increased interest during the last century.
This legal study represents the current status of enforceable laws in a number of countries. Hopefully, this study will help readers have a more detailed understanding of the universal standards on the rights of children to make the relationships, between children and their parents, teachers, judges, lawyers, and adults in general, more conducive to a peaceful society.
For Ashleigh DeVault