Document Type

Article

Publication Date

2020

Abstract

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them.

This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights.

Among the most critical of those positive rights is the right to developmental equality: the right of every child to maximize their developmental potential. Equality of development is a universal right of every child based on the principles of equality, equity and dignity at the core of our equal protection jurisprudence. To make this claim, the Article unearths existing hierarchies and identifies the parameters of children’s equality that is constitutionally meaningful. It then grounds a proposal for children’s constitutional rights, including a positive right to developmental equality, in existing constitutional doctrine.

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