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«CHILDREN’S ASSOCIATIONAL RIGHTS? WHY LESS IS MORE Emily Buss THE LAW SCHOOL THE UNIVERSITY OF CHICAGO March 2003 This paper can be downloaded ...»

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CHICAGO

PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 41

CHILDREN’S ASSOCIATIONAL RIGHTS?

WHY LESS IS MORE

Emily Buss

THE LAW SCHOOL

THE UNIVERSITY OF CHICAGO

March 2003

This paper can be downloaded without charge at http://www.law.uchicago.edu/academics/publiclaw/index.html

and at The Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract_id=389457 Children’s Associational Rights?

Why Less Is More Emily Buss* While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving established familial or family-like bonds … it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” (Stevens, J., dissenting, in Troxel v. Granville)1 I note that respondent is asserting only, on her own behalf, a substantive due process right to direct the upbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights of association or free exercise. I therefore do not have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.” (Scalia, J., dissenting, in Troxel v. Granville)2 In Troxel v. Granville, two Justices suggested that taking account of children’s own associational rights might affect their analysis of a grandparent’s visitation claim.

But this same accounting appears to lead them in opposite directions. For Justice Stevens, a child’s associational rights would bolster the grandparent’s visitation claim, for Justice Scalia, these rights could undercut that claim. This divergence would be unremarkable if children’s own views and actions drove the exercise of their associational rights. But both Justices assumed that a child would require some adult surrogate to press her claim.

Stevens fixed on the grandparent as the child’s rights-claiming surrogate, and Scalia fixed on the parent. The difference in outcomes they project from the exercise of children’s associational rights runs no deeper than the difference in the adult they each chose to press the claim.

The justices’ early reach toward the recognition of children’s associational rights has been greeted with enthusiasm by many concerned that the law affords inadequate * Professor of Law, University of Chicago Law School.

530 U.S. 57, 88 (2000).

Id. at 93 n. 2.

protection to the important relationships children form with non-parental adults.3 But the justices’ words, when juxtaposed to one another’s, should serve as a warning: Where the nature of the child’s rights asserted is so contingent on the choices made by adults, we should be slow to assume that children gain anything of value in ascribing the rights to them.

In this paper, I will consider the value, to children, of affording them associational rights. The paper rests on two rights-favoring assumptions: First, it assumes that fostering and preserving children’s relationships with non-parents will often be in the children’s interest. Second, it assumes that our legal scheme should be structured to favor children’s interests over others’, when these interests conflict. Despite these assumptions, I conclude, however, that in most circumstances we should not attempt to protect children’s relational interests by affording them associational rights. In my view, these rights are likely to do children more harm than good.

My opposition to children’s associational rights is not conceptual, but pragmatic.

As long as children depend upon adults to identify and assert their rights, we should have no confidence that affording children rights will translate into greater deference to children’s needs. Indeed, rights or no rights, the quality of decision making for children will only be as good as the adults that control it. I see no reason to expect the group of adults that collect around children’s rights claims to do a better job than parents of identifying and acting on their children’s interests. Moreover, the process of group decision making necessarily entailed in enforcing claims will surely do some harm.

Finally, and most tentatively, I fear that calling things “rights,” where the rights holder has so little command over their exercise, may do a kind of harm of its own.

Many pieces of this argument repeat arguments I have made in other papers criticizing grandparent visitation laws and other legal provisions that establish the right of non-parents to seek custodial fragments from a court.4 The new point of these old arguments, here, is that vesting associational rights in the children themselves has no effect on the analysis whatsoever. The second point this paper aims to make is that See, e.g., David Meyer, The Modest Promise of Children’s Relationship Rights, Forthcoming, Wm. & Mary Bill of Rights J. (2003).

Emily Buss, “Parental” Rights, 88 Va. L. Rev. 635 (2002); Buss, Adrift in the Middle: Parental Rights After Troxel v. Granville 2000 Supreme Ct. Rev. 279.





claiming to afford children rights, when they have so little control over their exercise, is problematic in its own right.

I. The Vision for Children’s Associational Rights Before considering the implications of affording children associational rights, it is worth trying to flesh out precisely what such rights would look like.5 For adults, rights of association are classic autonomy rights. It is left up to adults to decide with whom they wish to associate and, for the most part, what the nature of those associations will be.6 Associational freedom for adults means, both, that the state cannot force them into relationships they do not desire and that the state cannot prevent them from forming relationships they wish to form. The value of the rights, for adults, is that they leave individuals free to chart their own course.

But for those pressing for associational rights for children, the focus is not for the most part on protecting children’s autonomy, but rather on meeting their needs.7 As a general matter, children’s associations are heavily controlled by some combination of their parents and the state. This structure of authority is not, itself, challenged by advocates for children’s associational rights, who share the general view that children benefit from the exercise of considerable control by responsible adults. What concerns associational rights advocates are two subsidiary issues: First, advocates are concerned about how parental identity is assigned, and, second, they are concerned that children’s additional, extra-parental relationships are afforded inadequate protection. On both of these issues, the contention is that affording children rights will help safeguard their interests at stake.

This involves a certain amount of conjecture, for those championing children’s associational rights focus more on the justification for the rights than for the details of functioning. Note to editors: this was certainly true of Meyer and Dwyer’s conference drafts. I’ll revise this text and footnote once I’ve seen their revised pieces.

Dwyer, [Part II] (demonstrating that “adults have a near absolute legal right to establish and maintain mutually voluntary relationships with other competent adults as they choose, as well as an absolute legal right unilaterally to terminate, or avoid, in the first instance, a relationship with any other person if they choose.”) But see Barbara Bennett Woodhouse, Ain’t I a Person?: Relational Rights of Children in Foster Care (accounting the story of a foster child who asserted his own associational rights).

In a previous paper, I have considered the first question—the assignment of parental identity—at some length.8 In this paper, I will focus on the second question. I will consider the extent to which we should recognize children’s associational rights to develop or maintain important relationships with non-parental adults, when these relationships are opposed by their parents. While such rights claims could be cast in autonomy terms and limited to those children in a position to initiate litigation on their own behalves, the focus of the rights advocates is much broader. Children’s associational rights, the advocates contend, should protect a child’s interests in a relationship, even where the child has neither the developmental or legal wherewithal to initiate suite.9 The call, then, is to involve courts in an assessment of the value, to children, of relationships parents threaten to deny them. Children’s associational rights would protect relationships that courts concluded were good for children, not simply those a child is seeking to maintain.

II. Which Surrogate?

While the law allows adults to identify and act on their own interests, it assumes that children need help identifying their own interests, and therefore assigns various surrogates to do so. This is so whether children are afforded rights or not. Indeed, the primary surrogates assigned by the law are the child’s parents, and this surrogacy arrangement is generally secured by affording rights to the parents, rather than the child.

While these parental rights clearly have roots in a legal system less focused on children’s interests than the one I advance,10 parents can generally be expected to do a particularly good job of identifying and protecting their children’s own interests.

Parents’ extensive knowledge about their children and their strong emotional attachment Buss, 88 Va. L. Rev., supra.

See, e.g., Dwyer (suggesting that, for children not yet capable of mature decision making, the law will best protect their associational rights by ensuring that associations serve their best interests).

Barbara Bennett Woodhouse, “Who Owns the Child?” Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev. 995 (1992).

The value to children of affording their parents wide latitude in decision making regarding their upbringing has been discussed elsewhere at some length. Buss, supra, 2000 Supreme Ct. Rev., Stephen G.

Gilles, On Educating Children: A Parentalist Manifesto, 63 U. Chi. L. Rev. 937 (1996); Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401 (1995).

to them put them in a particularly strong position to champion their children’s interests.

Moreover, parents afforded considerable freedom in their exercise of parental responsibilities are likely to enjoy their parenting responsibilities more, and invest more time and energy in the job.

Parents do not, of course, always act in their children’s interest. They sometimes make well meaning but bad judgments on their children’s behalf, and sometimes allow their own self-interests to trump the clearly divergent interests of their children. It is these departures from good parenting that inspire some to call for children’s associational rights.12 But because any such rights scheme will depend upon some other constellation of surrogates to identify and act on the child’s associational interests, we should consider the qualifications of these various alternative surrogates before concluding that parental deficiencies justify shifting decision-making authority to them.



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