The law and the rights of children
Interesting FindLaw article by Michael C. Dorf, a FindLaw columnist and the Robert S. Stevens Professor of Law at Cornell University:
Two 2008 federal appeals court rulings—one that may be on its way to the U.S. Supreme Court, and another that is already there—raise thorny questions of the extent to which schoolchildren enjoy the protections afforded by the Constitution to adults.
In Frazier v. Alexandre, the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to a Florida law requiring students to recite the Pledge of Allegiance unless they have previously received written permission from their parents excusing them from doing so. Yet the Supreme Court had appeared to hold in 1943, in West Virginia State Board of Educ. v. Barnette,that schoolchildren themselves have the right to decide whether to recite the Pledge, quite apart from their parents’ wishes. Accordingly, there is a reasonable prospect that the Court will grant review of the Eleventh Circuit’s decision if the plaintiff seeks it.
Meanwhile, in Redding v. Safford Unified School District,an en banc panel of the U.S. Court of Appeals for the Ninth Circuit allowed a lawsuit challenging the constitutionality of an Arizona middle school’s strip search of "a thirteen-year-old girl accused by an unreliable student informant of possessing ibuprofen in violation of school rules" to proceed to trial. The Supreme Court will hear oral argument in Safford Unified next month.
These two cases, involving alleged violations of rights under the First and Fourth Amendments, respectively, highlight a potential source of confusion in our constitutional law of children’s rights. Although it has long been accepted that children have constitutional rights, the law also acknowledges that, contrary to their sometimes creepy depiction in medieval art, children are not simply miniature adults. Rather, children differ from adults along multiple dimensions, and thus children’s constitutional rights should not simply be a "lesser" version of adults’ rights. The fact that a case involves schoolchildren thus can be a ground for granting children different rights from those we would grant to adults, but it should not automatically be a ground for granting children fewer rights than adults enjoy.
The Recent Flag Salute Case
In recent years, litigation challenging the recitation of the Pledge of Allegiance has sometimes focused on its inclusion of the words "under God." Finding a defect in the plaintiff’s standing, …
