It’s Time to Do Something about America’s Failure to Recognize Children's Rights

By Leslie Bienen

By Leslie Bienen

The COVID-19 pandemic laid bare disregard for the health and well-being of children in America. From prolonged school mask mandates to school closures, to canceled activities and sports, the least at-risk group of people for a severe COVID outcome shouldered the most restrictions, and still are in many counties and cities. San Diego School District brought back mask mandates at the end of July 2022. Toddlers in New York City were required to mask until mid-June 2022. Many summer camps are, today, requiring vaccinations and boosters. Perhaps with the exception of nursing home residents, no other group of Americans lived such restricted lives in the USA as children during the pandemic. In fact, nursing homes generally have no vaccine mandates for residents, while large public-school districts like Washington, D.C., do.

This defies common sense, since children’s rates of severe illness from COVID-19 are the lowest of any age group.

How are we to make sense of it, then?

We need to look to our social and legal history to understand how these anti-child and epidemiologically logic-defying policies were promoted by health and school officials and accepted by giant swaths of this country. I have previously estimated that about half of America’s children reside in deep blue districts, because the largest school districts are in democratic cities, and even cities in red states, such as New Orleans, Austin, and Atlanta, had prolonged mask mandates and some of the longest school closures outside of the west coast and Maryland.

This lack of regard for the mental, social, and physical health of young people did not spring up overnight. Rather, it is consistent with a long-standing history of American social policies that have failed to prioritize children’s health and welfare.

How far back do the USA’s frankly anti-child policies go? I would argue they go back to the beginning of the American experiment, starting with the fact that we have a negative rights constitution rather than, as many European countries have, a positive rights constitution. Interestingly, Australia and New Zealand, which both had long and extensive lockdowns, do not have entirely positive rights constitutions either. The brilliant one-woman show by Heidi Schreck, What The Constitution Means to Me (available on Netflix) has an excellent exploration of this distinction, for those who are interested, and discusses what this means for women and children in particular.

We can understand some of our children-last perspective by looking at education laws and history in the USA.

It was not until 1918 that every state required children to go to school (Massachusetts was the first state, enacting such laws in the 1850s). Compulsory education was not widely enforced, however, until the 1930s, and, even then, was explicitly described as necessary to produce factory workers, as fewer and fewer families made their living by farming, rather than as a philosophical commitment to children’s well-being.

The US Department of Education was not founded until 1979. And today, American children still have no federally mandated right to an education. An opportunity to correct this failure was denied them in a 1973 Supreme Court decision, San Antonio Independent School District v. Rodriguez.  Rodriguez was a very interesting case, brought in Texas to challenge the fact that public schools are generally funded by property taxes, a model that bakes in enormous inequities for students in poor neighborhoods with low property values. This system is not how most western democracies fund schools. The decision was narrowly decided (5-4), with Justice Brennan writing the dissent. Had this case gone the other way, and the Supreme Court found that funding schools through property taxes did violate the 14th Amendment (the basis of the suit), I believe we would today be living in a more just country, with less significant attainment gaps between poor and richer children.

It did not go the other way, and because of this lack of federal protection, state constitutions—not the federal government--spell out to what degree the right to an education is protected in that state, leaving the USA with a patchwork of protections, or lack thereof, for children’s education. In the USA, only 22 states have the right to an education written into their constitutions. As recently as 1960, that number was two (North Carolina and Wyoming).

It is hard to say how much this matters, since all states have some requirement to provide education and/or funding for education. But during school closures, individuals in Oregon who attempted to bring law suits against the governor (who closed all Oregon schools, public and private, by executive order from March 2020 to December 2020) or against districts that remained closed for months after the governor lifted the executive order, were told these suits would go nowhere because Oregon is one of the states that does not have a right to an education in its constitution. And, indeed, they did go nowhere.

It is instructive to compare protections for children in the USA to those in Europe and Scandinavia, where most countries kept schools open nearly the entire pandemic or instituted short school closures to deal with specific COVID-19 waves, as happened in Germany, Austria, Sweden, Norway, and the UK. Similarly, most of Europe and Scandinavia did not impose mask mandates on children under 12 (the UK) or at all (Sweden, Denmark). In none of these countries are children mandated to be vaccinated to attend school, as a few districts have done in the USA.

European and Nordic countries that kept school open do enumerate the right to an education. Sweden’s constitution spells out a right to an education, and Denmark’s constitution even specifies “The Child’s Right to Psychical Integrity and Privacy” as well as protecting a child’s right to an education. Norway, the first country to require compulsory education in 1739, not only protects primary school, but guarantees a right to higher education. The list goes on. In addition, the European Union Charter Article 14 states that the right to education includes free compulsory education, so even if individual countries’ constitutions do not spell out the right to an education, by joining the EU every country must abide by the EU charter. Australia, which lies somewhere between the US and Europe and Scandinavia in terms of school closures, also spells out a right to a free education in its Human Rights Act.

Can we blame this lack of regard for children’s welfare on America’s extreme commitment to capitalism?

Maybe.

According to the 1900 census, children then constituted 18% of the labor force. This need for children to work, because labor was very scarce in the USA, was in direct competition with their ability to go to school. This inherent conflict was not addressed until 1938, under President Franklin Delano Roosevelt, who passed the Fair Labor Standards Act which explicitly protected children’s need to have sufficient free hours in the day to go to school.  In her book From Father’s Property To Children’s Rights: A History of Child Custody, Berkeley law professor Mary Ann Mason writes:

In labor-scarce America the services or wages of a child over ten was one of the most valuable assets a man could have. Thus fathers, without dispute, had almost unlimited authority of custody and control over their natural, legitimate children, leaving almost no room for maternal authority, at least during the fathers’ lifetime. This authority was enshrined in the common law. 

As a result of children’s labor being viewed as belonging to men, in custody disputes men were virtually automatically awarded children. It wasn’t until children became a financial liability, that is when they no longer participated heavily in the work force as the industrial revolution came to an end, that mothers were more often granted custody, which was now supposedly based on the “Tender Years Doctrine”. Child support was not legally required until 1975.

Similarly, the EU has strong protections for children’s privacy online, which they made even stronger in May 2022. The USA has COPPA, the Children’s Online Privacy Protection Act, passed in 1998, which is widely viewed as a toothless failure because minor users simply enter a fake birthdate on sites and voila. The Washington Post wrote about COPPA in 2019 “Two decades after Congress tried to wall off the worst of the Internet in hopes of protecting the privacy and innocence of children, the ramparts lie in ruins.”

Whatever the complex underlying causes of our disregard for children’s rights, there are steps that both the federal government and states could take to address the problem. For example, the USA is one of two countries that has not yet ratified the 1989 UN Convention on the Rights of the Child (Somalia is the other one; the new country of South Sudan, which had been one of three laggards, managed to ratify the convention in 2015). The Convention “supports protections for children from forced labor, child marriage, deprivation of a legal identity, and grants both able-bodied and disabled children the right to health care, education, and freedom of expression.”

It is a global embarrassment that the US has not ratified this treaty, and the reasons given (mostly by Republican presidents and senators; Obama looked into submitting it to the Senate for ratification, but did not do it) are ludicrous, e.g. that ratifying the convention could threaten rights of parents to discipline their children. We are literally the only member of the UN (out of 193 countries) that has not ratified it. Some have speculated that the real reason is the convention prohibits execution or life imprisonment of people under 18. However, the Supreme Court ruled in 2005 in Roper v. Simmons that under the 8th Amendment, juveniles could not be executed, effectively ending this practice even though it is still legal in 19 US states. Although 25 states still allow life sentences without possibility of parole for minors, in practice this sentence is rarely if ever imposed. Therefore, the US should immediately ratify the Convention, which would also mean prohibiting child marriage, still allowed in 44 states in the USA.

In addition, all states should also enact a positive right to an education, and not just require states to fund public schools. While these are in some sense symbolic steps, they are not solely symbolic, and do provide some protections for children’s rights. They also send an important message that children are a special class of people that deserve protection—protection from being treated as workers, or as producers of babies or income through marriage, or as consumers to be wooed to online platforms. Along the latter lines, COPPA must be ditched and replaced with more meaningful privacy and safety regulations for children.

I also strongly believe it is time for some districts—i.e., neighboring districts with gigantic disparities in property taxes--to challenge San Antonio v. Rodriguez. The wealth and educational attainment gap has grown worse since 1973, not better. Perhaps the court that found a justification for overturning Roe can see that we could take a huge step forward in valuing children’s lives if we embraced the idea that education is such a fundamental right that it should not be funded by property taxes.

During the COVID-19 pandemic, far too many US states, governors, county health departments, and school boards, enacted policies that placed children at the bottom of the hierarchy. Sadly, on numerous levels, the laws of this country supported these backwards policies. Since children don’t vote, there may be no reckoning coming for the elected officials that supported these disastrous policies and their catastrophic consequences for children’s health, including mental health, for obesity rates, and for academic achievement.

Laws that send a strong signal that children’s happiness, education, and welfare should come first are fundamental to a healthy society and should not be controversial. Enacting a series of positive rights for children in America would be a major step in creating a more just society and might start to change cultural norms in the USA that have contributed to treating children like economic pawns, instead of recognizing their unique needs, for far too long.

Leslie Bienen is a public health expert and faculty member at the Oregon Health & Science University–Portland State University School of Public Health; She is a public intellectual on pandemic policies.