Thursday, June 29, 2017
Last month, the U.N. Committee on the Rights of the Child met with a U.S. government delegation as part of its formal review of the United States under two of the optional protocols to the Convention on the Rights of the Child. The United States ratified the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict in 2002, and this represented a combined third and fourth review of the U.S. government practices. The Committee has now released its Concluding Observations with respect to the U.S. efforts under the Optional Protocol on the Sale of Children.
While acknowledging a number of important legislative developments in the United States since the last review – such as the Justice for Victims of Trafficking Act (JVTA) and the Preventing Sex Trafficking and Strengthening Families Act – the Committee also addressed a number of critical shortcomings. What is notable (and troubling) is that many of the Committee’s recommendations highlighted issues in the U.S. response that the Committee previously addressed in 2008 and 2013. These findings should be a reminder to policy makers and anti-trafficking advocates that although significant efforts are underway, the U.S. response still has a long way to go.
Highlights of the Committee recommendations are below:
- Insufficient data collection and evidence-based research. The Committee reiterated concerns over the “lack of progress on establishing an effective national data collection system on the sale of children, child prostitution and child pornography” and the “insufficient research and evidence-based policy and programme analysis centred on children and the root causes of the crimes affecting them.” Simply put, without good evidence, it’s highly unlikely that the U.S. can develop a truly effective response.
- Lack of evaluation of training programs. The Committee praised the U.S. government’s report that it provides training on trafficking and other issues covered by the Optional Protocol “to all persons and institutions that come into contact with children” (NGOs working on these issues will be surprised by this claim by the U.S. government). However, the Committee notes the importance of evaluating the effectiveness and impact of that training. Evaluation of laws, policies, and programs continues to be insufficient, leaving it unclear whether the U.S. is doing something or doing something effective.
- Unbalanced efforts in addressing sex trafficking and labor trafficking. The Committee restated its finding that across many areas the U.S. government’s emphasis on sex trafficking persists. There still are higher legal burdens for establishing trafficking of children for forced labor than for sexual exploitation, and research remains “overwhelmingly focused on trafficking for sexual exploitation” with relatively little on labor trafficking. All children deserve protection from exploitation.
- Lack of primary prevention focus and efforts. The Committee again noted that the U.S. response typically takes place after some harm has occurred and urged the U.S. government to focus also on primary and secondary prevention. Prevention must be the ultimate goal, and general awareness campaigns are not sufficient. The U.S. government must address the root causes of vulnerability and of the demand for goods and services provided by exploited children, if we are to make meaningful progress in preventing harm to children.
- Finally, the Committee also acknowledged the recent surge in the number of unaccompanied refugee and migrant children, and it urged the U.S. government to take concerted efforts to ensure the protection of these children.
The entire Concluding Observations are worth a close reading. Addressing the above recommendations and other recommendations in the Concluding Observations will take significant effort and resources to address. However, they offer a roadmap to preventing harm to children and ensuring the rights of all children. Both of those aims seem worth the effort and resources.
Sunday, April 9, 2017
How distressing to learn that a school child who takes food in the cafeteria line then has the food taken away because the child has insufficient funds to pay. That is policy in many schools across the nation.
New Mexico recently passed a law outlawing "lunch shaming". The shame is in the need to pass a law to stop the practice. But there are many reports of humiliating children who cannot afford to buy food. The New York Times reports the following incidents:
- One child who could not afford to pay the full cost of lunch, had "I need lunch money" stamped on one arm.
- Others are forced to clean the cafeteria in front of their peers.
- Some school policies instruct workers to remove the food from the child and throw the food into the trash.
This leaves us to wonder what sort of environment leads adults to punish and humiliate students because of their inability to meet a fundamental human need. Perhaps those whose needs were not met as children? Those so desperate for work that they will participate in inhumane practices? While it is easy to be angry with those doing the shaming, the remedy can only be continued advocacy to meet the basic human needs of all.
Tuesday, December 20, 2016
On December 5, 2016, California state senator Dr. Richard Pan introduced the Bill of Rights for Children and Youth in California. The bill will consider aims create a “comprehensive framework” for addressing rights and needs of children.
If approved by the Legislature, the Bill of Rights for Children and Youth in California would achieve two important aims. First, it would provide recognition of California children’s basic human rights, including “the right to parents, guardians, or caregivers who act in their best interest,” “the right to live in a safe and healthy environment,” “the right to appropriate, quality education,” and “the right to appropriate, quality health care.” These are foundational rights that would help ensure that every child in California can develop to his or her fullest potential.
Second, the Bill of Rights would provide a roadmap for action. The Legislature would be required by January 1, 2022 to develop evidence-based policy solutions to secure the rights of all children across the state, determine the resources needed to achieve this framework, and identify and obtain such resources.
Of course, there will be challenges on the road to achieving these goals, particularly in an era of limited budgets, but the Bill of Rights builds in a five-year period to develop appropriate solutions (even though many children really cannot wait until 2022 to access quality education or a safe environment).
No doubt there will be some who resist the first part of the Bill of Rights—the recognition of children’s rights, or human rights more broadly (see, e.g., the recently adopted Mountain View Human Rights City resolution). So let’s be clear on what it means to resist the idea that children have rights.
The foundational principle of human rights is that rights are inherent. The Universal Declaration of Human Rights declares that “[a]ll human beings are born free and equal in dignity and rights” (Article 1). Long before that, the U.S. Declaration of Independence proclaimed that “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” In other words, if you are human, you have rights. If you resist the idea that children have rights, you are saying that rights are not inherent, but that they are granted to you by the government only when you reach adulthood.
Perhaps you accept that rights are inherent and thus that children have rights, but you have reservations about the Bill of Rights’ roadmap for action. If your concern is that ensuring health care or safe environments for children is “socialist,” you are overlooking two points (beyond the fact that the U.S. will not become a socialist country): (1) recognizing children have a right to necessary medical care does not mean the government has to be the provider; and (2) if you have time to argue over whether socialism could ever gain traction in the U.S. instead of having to focus on figuring out how to ensure there is food on the table for your children, you are in a privileged position, and not every family or child is.
Second, if your concern is it will cost too much to ensure “quality education” for every child, what you are really saying is that you don’t think it’s a priority. Anyone who has ever worked with a budget, whether it is for an appropriations bill or a grocery list, knows that you must make tough choices. But if you don’t support the idea that every child should have access to quality health care and education, you are saying that our children’s development matters less than every other line item we choose to fund. Surely the future of our children—and thus this country—matters more than that.
I, for one, applaud the California legislature for taking this on, for daring to envision a world in which every child has the care and support needed to develop to his or her fullest potential.
Monday, October 31, 2016
“Can’t we just let kids enjoy Halloween?” Inevitably that’s the response I receive this time of year when I mention the ongoing exploitation of children in the chocolate industry. The answer to that question, by the way, is yes. Yes, children should be allowed to enjoy Halloween, but the evidence on cocoa production is that our enjoyment of chocolate comes at the expense of children in Ghana, Cote d’Ivoire, and other countries.
Enjoying Halloween and supporting efforts to end child labor are not mutually exclusive. Don’t take my word for it. Click here to read what one thoughtful 10-year-old student in New Mexico wrote about the issue (and a list of Fair Trade chocolate brands can be found here).
Thursday, October 6, 2016
Next week is Yom Kippur (Sundown, October 11 to Sundown, October 12), the Day of Atonement on the Jewish calendar. As tradition has it, atoning on Yom Kippur will address only sins against God. For transgressions against other individuals, Jews are obligated to seek forgiveness from and reconciliation with those people first. Yom Kippur also marks the end of the High Holidays, and thus offers the prospects of a fresh start and an opportunity to do better than we did the year before.
While I’m well aware that President Obama is not Jewish (or Muslim—are people still really talking about that?), I’d like to invite him to participate, at least in spirit. And I think the timing is appropriate, because Yom Kippur falls approximately 100 days from the end of the Obama Presidency—leaving one final window of opportunity for the president while still in the Oval Office.
On his inauguration in 2009, newly-elected President Obama boldly proclaimed that “[a]s for our common defense, we reject as false the choice between our safety and our ideals.” Human rights advocates hailed his election and speech as the dawn of a new, promising era of progress on human rights. The past eight years haven’t necessarily lived up to expectations.
So, with little more than 100 days left in the Obama Presidency, I have two hopes. First is that he is reflecting on shortcomings (e.g., no human rights treaty was ratified while he was in office; even President George W. Bush managed to achieve ratification of two human rights treaties). Second is that he will use these final 100 days to do better. Yes, I know he faces significant opposition in the Senate (the Senate’s failure to approve the Convention on the Rights of Persons with Disabilities was deeply disappointing). But at the risk of sounding naïve, if you aren’t willing to try to advance the ball on human rights when holding arguably the most powerful position in the world, when is the right time?
The “To Do List” for human rights is lengthy. But here are three options for President Obama that can be done within 100 days:
- End the federal government practice of confining migrant children in detention centers. No six-year-old who has fled violence in search of safety should be “welcomed” by being incarcerated. A recent essay by Wendy Cervantes at First Focus sheds light on this practice.
- Ban child labor in tobacco production. The adverse health consequences of tobacco use are well known. Less well-known is the harm inflicted on those who work in tobacco fields, particularly children. In August 2016, 110 organizations called on President Obama to protect children from “acute nicotine poisoning and other health and safety hazards faced by children working in US tobacco fields.” (click here for the letter to President Obama from the Child Labor Coalition and other organizations).
- 3. Send the Convention on the Rights of the Child (CRC) to the Senate. The U.S. is now the only country in the world that has not ratified the CRC. This is the closest any human rights treaty has come to universal acceptance. Since the U.S. signed the treaty in 1995, no President has taken further action. No one can prevent President Obama from forwarding the treaty to the Senate for its advice and consent. Are there sufficient votes in the Senate now for ratification? Probably not. Might some Senators object? Probably. But it’s President Obama’s decision, and sending the treaty to the Senate would be a step forward.
These three opportunities all have two important things in common: First, President Obama has the power to act on all of these. Second, all three steps would help move the United States in direction of ensuring the rights and well-being of children. It’s time for action.
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Thursday, June 30, 2016
Even amidst the barbeques, beach trips, and sales during 4th of July weekend, most Americans are quick to declare proudly that July 4th is about our independence, our freedom. However we choose to celebrate/observe the holiday, I think we ought to spend some time asking, independent or free to do what, to be what.
To be clear, though history matters, I am not suggesting we ask what the signatories to the Declaration of Independence wanted, because we know that they permitted, and in some cases embraced, certain ideas we now reject (read: slavery, no voting rights for women, etc.). Independence means we can choose what type of society we want to create.
My wish? I want to live in and contribute to a society that elevates every child and is committed to protecting and ensuring the rights and well-being of all children. On that front, we have a long way to go, as evidenced by the newly-released State of the World's Children report, published by UNICEF. The annual report has sobering news for those who care about children around the globe. And it shows that the United States has work to do as well. Sure, the United States is performing better than many other countries, but the comparative analysis is not the full picture (after all, what parent of a sick child would willingly accept substandard health care for their child, simply because the provider said, well, in Somalia, some kids have no access to care at all). That the U.S. does better than other poorer countries is not anything to celebrate.
We shouldn’t use comparisons to make ourselves comfortable. Instead, we should see them as an indication of what’s possible. So, for example, with respect to infant and child (under-5) mortality, 43 countries with lower rates than the United States show that progress is possible. The U.S. is tied for 44th with Malaysia, Serbia Slovakia, and the United Arab Emirates. And our progress has slowed: in 1990, Cuba’s infant mortality rate was higher than the U.S. rate; they have improved and now do better than the United States.
Each year, the State of the World’s Children report centers around a theme issue; this year, it was inequity. The United States again stood out, for the wrong reasons. UNICEF reports:
- In some rich countries, children from different backgrounds face starkly unequal prospects. For babies born [in the U.S.], the odds of survival are closely linked to ethnicity: In 2013, infants born to African American parents were more than twice as likely to die as those born to white Americans.
- [D]isparities are reflected dramatically at the state level. The infant mortality rate of the state of Mississippi in 2013, for example, was double that of the state of Massachusetts.
And infant mortality is just the beginning. A child’s survival does not guarantee it will have the opportunity to develop to his or her full potential. The Declaration of Independence famously asserts that “all men are created equal.” It seems hard to believe that they intended this literally—equal only at the moment of birth, but thereafter we should be okay with significant inequity in survival rates, access to health care and education.
Of course, children are not the only area where human rights work remains. But success in ensuring children’s rights and well-being is foundational to creating a society where young people can realize their full potential and grow into adults who are empowered to realize their rights and contribute to their communities.
We’re not there yet. But as it’s been 240 years since the Declaration of Independence, it might be time to move a little faster.
Wednesday, June 1, 2016
For many, the arrival of summer conjures up memories of childhood adventures (or, for parents, images of their children playing and exploring). Play and leisure are not typically associated with human rights, but they are part of human rights law and important to children’s growth and well-being.
In fact, the “right to play” is intertwined with other important rights, as Article 31 of the Convention on the Rights of the Child states:
‘1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
- 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.’
Play, rest, leisure, and participation in family and community cultural life are all connected. This idea is not new to human rights. The Universal Declaration of Human Rights, adopted in 1948, states in Article 24 that: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” In other words, a similar concept was recognized in the foundational document of the human rights movement. Though the drafters of the Universal Declaration and the early international human rights instruments tended to have adults in mind, children are people too. The Universal Declaration applies to children fundamentally because human rights do not depend on governments granting rights; individuals have rights because they are human beings.
While rest and leisure are important in the labor rights context for adults, opportunities for leisure and play are even more critical for children. As Dr. Kenneth Ginsburg explains in an article in Pediatrics:
‘Play allows children to use their creativity while developing their imagination, dexterity, and physical, cognitive, and emotional strength. Play is important to healthy brain development. It is through play that children at a very early age engage and interact in the world around them. … Undirected play allows children to learn how to work in groups, to share, to negotiate, to resolve conflicts, and to learn self-advocacy skills…. Play is integral to the academic environment…. It has been shown to help children adjust to the school setting and even to enhance children’s learning readiness, learning behaviors, and problem-solving skills.’
In short, play contributes in a multitude of ways to the healthy development of the child and can improve a child’s capacity to realize his or her right to education.
Evidence of the importance of play and the rights to rest, leisure and play reinforce two important themes. First, all rights matter: the fulfillment of every right can contribute to the development and well-being of children. Second, there are many ways to support and help realize human rights for all: to create safe environments for children to play and explore their world is to advance human rights.
Thursday, May 19, 2016
The answer is: not yet.
SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel. While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog. While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases. As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.
The case is Vanessa G. v. Tennessee Department of Children's Services. The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii) which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]" The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective. In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.
With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed. We know what the answer would be in Massachusetts, which has already held that counsel must be competent. But this may be the time for clarity on the national level.
Tuesday, May 10, 2016
There are multiple studies revealing that a vast majority of millennial men believe that equality in domestic tasks should be the norm. But those same studies reveal that the reality of millennial lives, particularly those who are parents, do not engage in equal child care or housekeeping. Those who study this phenomenon say that millennial men revert to "traditional" roles once they become fathers. Perhaps millennial mothers might view this as a reversion to oppression, not tradition.
Fathers who take time to care for, and bond with, their new children are more likely to understand their shared parenting responsibilities in a way that other fathers can not. Researchers conclude that a major barrier to active paternal parenting is the lack of sufficient leave policies with most businesses.
The most serious barrier to co-parenting, however, is not the lack of workplace policies. Even in companies that permit parental leave for both parents, fathers in heterosexual relationships more often refuse to take advantage of the leave. Why? Because their managers are not taking parenting leave. In order to engage millennial fathers in child care, they must be relieved of their fear of being adversely judged by other men in the workplace. This can most effectively happen when male senior employees take advantage of parental leave policies or encourage other men to do so.
Males in our culture are burdened with constant judging by other males on whether or not they are "real men". A shift to a culture that permits males to be themselves is not difficult to attain. Older, accomplished men can create change quickly simply by encouraging millennial men to make room for family.
Wednesday, April 6, 2016
I recently returned from the Global Summit on Childhood in San Jose, Costa Rica, where hundreds of educators had gathered to explore innovative ways to foster child development and learning. Home to the UN-mandated University for Peace and the Inter-American Court of Human Rights, Costa Rica—which also abolished its armed forces constitutionally in 1949—was a fitting location to reflect on and exchange creative ideas about educating young people. And it provided numerous reminders of the importance of human rights education.
Though it often receives less public attention than human rights litigation and policy initiatives, human rights education has been a part of international human rights law since the adoption of the Universal Declaration of Human Rights. Article 26(2) of the Universal Declaration reads: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”
Subsequent human rights treaties—from the International Covenant on Economic, Social, and Cultural Rights to the Convention on the Rights of the Child—all mandate and reinforce the importance of education aimed at strengthening respect for human rights, tolerance, and peace.
Human rights education, however, means more than educating about human rights. The UN Declaration on Human Rights Education and Training, adopted in 2011, establishes that human rights education encompasses three critical concepts:
(a) Education about human rights, which includes providing knowledge and understanding of human rights norms and principles, the values that underpin them and the mechanisms for their protection;
(b) Education through human rights, which includes learning and teaching in a way that respects the rights of both educators and learners;
(c) Education for human rights, which includes empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others
In short, creating rights-respecting learning environments and educating individuals in ways that empower them as human rights actors are as important as transmitting knowledge of human rights norms.
It is critical that human rights education receive greater attention and be incorporated more broadly in school curricula in the United States and elsewhere. Research on human rights education demonstrates its capacity to produce numerous positive outcomes for children and adolescents, including an improved sense of self-worth, increased empathy, and a reduction in bullying and harmful behaviors in classrooms. In the end, if people are not taught about their rights and the rights of others, how will they be able to realize their own rights or effectively advocate for others?
For additional resources on human rights education, click here.
Thursday, March 24, 2016
When I arrived in North Carolina over a decade ago to teach and practice law, it was a bit of a culture shock for someone who had rarely been south of the Mason-Dixon line. In juvenile delinquency court, judges would tell tales from their own childhoods that sounded almost too clichéd to be true: mamas beating their misbehaving children with a switch that the child had to cut himself, schools located miles from home when the only option was to walk and teachers paddling students as a regular component of classroom discipline.
Because I practice in counties where the local school boards do not allow corporal punishment, I have not encountered it firsthand, but a recent report by NC Child, a nonprofit advocacy group, reminded me that there are about 15 districts (out of the state’s 115) where teachers and administrators are permitted to hit students.
The state’s laws on corporal punishment allow “reasonable force” to be used, which is defined as that which does not cause an injury requiring medical attention beyond simple first aid. This means that schools are the only place in North Carolina where an adult can strike an unrelated child and not be criminally prosecuted for assault.
Parents may opt out of the use of physical discipline on their child only by completing a form at the beginning of the school year. Otherwise, it is assumed they agree. When parents have opted out, the student may instead be suspended for offenses that would otherwise not require suspension if corporal punishment could be used.
Read more here.
According to an annual report issued this month by the N.C. Department of Public Instruction, in 2014-15 there were 147 uses of corporal punishment, a 20.5 percent increase from the 122 reported in 2013-14; 108 students received it once, while 16 received it two or more times. The majority were boys, over 60 percent were in kindergarten through fourth grade and 25 percent in grades 10-12.
Particularly troubling is that more than half were Native American, even though these children make up less than 1 percent of the state’s 1.4 million public school students. All the instances occurred in four counties, with 60 percent taking place in Robeson County, the home of the Lumbee Tribe, and 32 percent in Graham County near the Cherokee Indian reservation; 10 percent of the students were identified as disabled.
Equally concerning are the reasons cited by schools for paddling children. More than 50 percent were for “disruptive behavior,” a catch-all category that can mean almost anything; 10 percent were for leaving school grounds, and nearly 8 percent for cell phone use. Other reasons include “insubordination” and “inappropriate language.”
NC Child reports that there is no evidence that the use of corporal punishment in schools is associated with improved academic outcomes. This is backed up by decades of social science theory and research suggesting that the deliberate infliction of pain upon the body of a student is associated with increased aggressive and delinquent behavior, broken relationships between students and schools, and increased psychological and emotional problems, both in the short- and the long-term.
North Carolina is one of 19 states in which corporal punishment in schools is legal, a list that includes all of the Southern states plus several in the West. According to the U.S. Department of Education, nearly 167,000 students received physical punishment in the 2011-12 academic year, with the majority of paddling occurring in Mississippi, Texas, Alabama, Arkansas and Georgia. The data reflect that a disproportionate number of the students receiving corporal punishment across the U.S. are African-American.
As for reform, 31 states and the District of Columbia have banned corporal punishment in schools, along with many large urban school districts in states where paddling is still condoned, including Atlanta, Houston and Memphis. While Ohio and New Mexico abolished the practice several years ago, legislative attempts in Texas and Louisiana have failed.
A variety of professional groups have advocated against the use of paddling in schools. On the national level, they include the American Academy of Pediatrics, the American Psychological Association and the American Medical Association. In my state of North Carolina, the State Board of Education, the North Carolina Association of Educators, the North Carolina PTA and virtually all other child advocacy groups and professional organizations are formally opposed to the practice.
It is time for North Carolina--and the remaining 18 states where corporal punishment in schools remains legal--to prohibit teachers and administrators from hitting students. It is a degrading practice that violates students’ physical integrity and human dignity.
A version of this essay was originally published by the News & Observer (Raleigh, N.C.)
Sunday, March 20, 2016
Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.
Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.
Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.
Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.
As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.
Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”
Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.
In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.
After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”
Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.
At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.
Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.
Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.
Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.
Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.
Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”
Editors' Note: This essay was originally published by Youth Today.
Wednesday, March 16, 2016
Editors' Note: Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch
A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9th Circuit to do the same.
The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.
Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.
Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.
Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.
Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.
Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.
There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.
Tuesday, March 1, 2016
Early childhood is widely recognized as a critical stage of development. Yet it’s also a stage during which children receive relatively little focus in the public domain. Most children’s early years are spent in the home, largely beyond the reach of law which historically has sought to retain a public/private divide. Yet waiting until children enter the public sphere (by starting school) before attending to children’s rights runs the risk of leaving millions of children at a disadvantage. This is not a call for government interference in the family, but rather a reminder of the state’s obligation to support children’s rights and well-being from birth. And advancing children’s rights means supporting parents and families, so they can provide for their children and ensure their children’s full development.
Supporting early childhood development means accounting for the interrelated and interdependent nature of rights. Not only does the realization of particular rights depend on the fulfillment of others—for example, children’s education rights depend, in part, on realization of their health rights—but the rights of certain individuals are tied to the rights of others. The rights of children and the rights of their parents are linked in this way. Many other governments have acknowledged the indivisible nature of rights and adopted holistic responses to the challenges facing families. Conditional cash transfer programs, which provide funding to families tied to conditions related to health and education, such as regular health care appointments for children and maintaining children’s enrollment in school, offer one example.
In many countries, conditional cash transfer program alleviate some of the financial pressure on low-income families to have their children work rather than attend school. By doing so, these programs help advance children’s health and education rights, while protecting kids from labor exploitation. At the same time, these payments can help bolster the family’s financial security, alleviating pressure on women in particular to pursue riskier employment, thereby supporting women’s labor rights. Brazil has arguably the most well-known program, Bolsa Família, which has provided assistance to millions of families. With women constituting over 90% of the beneficiaries, the program has also had a positive impact on children, “increas[ing] school attendance and grade progression.”
Holistic approaches to the rights of children and their families make sense. One bill recently introduced in Congress advances this approach. Earlier this month, Senator Bob Casey (D-PA), Rep, Joseph Crowley (D-NY) and Rep. Lois Frankel (D-FL) introduced the Child Care Access to Resources for Early-learning Act (Child C.A.R.E. Act) H.R. 4524/S. 2539. The legislation would help guarantee affordable, high-quality child care for working families earning up to 200 percent of the federal poverty level. Guaranteeing access to high-quality child care would simultaneously help advance children’s development while alleviating employment and other economic pressures on working parents.
With sixty-five percent of children under 6 years old living either in families with both parents working or with a single parent working, quality child care is critical both to children and their parents. This bill deserves support, as do other efforts to develop holistic programs that account for the rights of children and their families.
For more on the bill, click here.
Tuesday, January 5, 2016
Approximately one-quarter of the U.S. population is restricted from voting in elections, entering freely into contracts, and exercising control over important decisions about their own health. These denials would offend the sensibilities of almost anyone if the population in question were adults, but because they are children, little objection is voiced.
Of course, children are different. The developmental nature of childhood necessitates a more nuanced understanding of children’s rights, balancing protection and care with emerging autonomy. Thus, the liberal rights tradition built on the autonomous individual is at times an awkward fit for children’s rights, especially in the case of young children. However, the fact that children’s rights are different does not mean they are non-existent. Rights are inherent. And too many children in the U.S. experience poverty, homelessness, maltreatment, and exploitation. These rights violations demand a response.
While the United States famously continues to be the only country in the world that has not ratified the U.N. Convention on the Rights of the Child, a home-grown effort is underway: a push for a national children’s bill of rights. Last Fall, Representatives Karen Bass (D-CA), Judy Chu (D-CA) and Luis V. Gutiérrez (D-IL) a House Resolution calling for passage of a Children’s Bill of Rights. The Children’s Bill of Rights, which First Focus—a bipartisan organization that advocates on behalf of children and families—has championed, would establish that every child in the U.S. is entitled to measures that ensure their physical, social, and emotional well-being. It also would establish that children are entitled to an education that would enable them to reach their fullest potential and be prepared as adults to contribute to their families and communities.
The Children’s Bill of Rights would cement our commitment to ensure that children have what all (or nearly all) parents would wish for their children anyway: protection from harm, a relationship with caring parents, access to a safe, quality learning environment, and appropriate health care when needed. It deserves everyone’s support.
So with the New Year, perhaps our collective resolution should be to guarantee that no child is left behind—not in the political slogan-sense of the word, but rather undertaking a genuine commitment to reach every child and secure his or her rights. A national Children’s Bill of Rights would be a good start.
Wednesday, December 2, 2015
In mid-November, an 8-year-old boy in Birmingham, Alabama, was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that late on October 10, the girl’s mother and a friend had left six children, none older than 8, at the home unsupervised. They believe that the boy had “recklessly” and “viciously” beaten the toddler when she would not stop crying. The case will be heard in Jefferson County Family Court and can result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s 26-year-old mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can only be transferred from family court to adult criminal court when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
The jurisdictional limits in North Carolina, where I teach and practice, are similar: the minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability, and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18% were dismissed at intake and an additional 27% were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55%, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases that were dismissed or handled informally in 2013 were even lower than the national average – only 38.5% of the 158, 973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers, and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income-level of a youth’s family have found that nearly 80% of those in juvenile court were on public assistance or had annual incomes of less than $30,000.
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is rooted in the early history of the juvenile court when the focus was on the needs of destitute youth. The founders of the juvenile court were part of a nineteenth century movement that helped elevate the status of children from that of property to a dependent class in need of protection by the state.
In 1825, reformers established the New York House of Refuge, which provided food, shelter, and education to homeless and impoverished youth, many of whom were children of recent immigrants. They made few distinctions between children who were paupers and those who committed crimes and viewed poverty and crime to be virtually synonymous. As legal historian Sanford Fox wrote in 1970, “Unattended pauperism was thought to ripen into criminality, and uncontrolled criminality—particularly vagrancy, beggary and minor thefts—swelled the ranks of paupers who had to be supported in public institutions.” The reformers of this era conceived of both of these conditions in moral terms. Philanthropists as well as public officials believed that immorality caused poverty and that the poor, by virtue of their socioeconomic status, posed a threat to lawful society.
Needs-based delinquency continues to be perpetuated through the structure and culture of the modern juvenile court, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. In all of these forums, typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
The insidious phenomenon is further sustained via juvenile code provisions and court practices as well as the individual perceptions and biases of system actors. For instance, the legislation that governs juvenile court practice in each state commonly contains provisions that explicitly call for consideration of a child’s needs and the family’s socioeconomic status. Also, court policies give decision-makers wide discretion to consider these factors at critical stages of the case.
As a result, there are two explicit tracks that exist in the juvenile justice system: one for middle- and upper-class families who are able to secure private services for their children, such as mental health counseling and drug or alcohol treatment, and the other for low-income (often minority and single-parent) families who can most readily access these resources through a court order following a juvenile delinquency adjudication.
In this way, at each stage of the process, the court gives as much or more weight to the perceived “needs” of the child than to the strength of the evidence against her or to the propriety and rationality of pursuing a criminal prosecution, as in the case of a 8-year-old boy charged with murder.
This phenomenon is particularly troubling given research indicating that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign—even when the disposition is arguably beneficial. Potential negative consequences of juvenile delinquency adjudications implicate such areas as housing, education, immigration, and employment as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process.
This concern over stigma draws on sociological literature on labeling theory, the concept that attaching a label to a behavior creates further “deviance.” Once the label of juvenile delinquent is formally imposed, it is readily accepted by both the child and the community, and the child is defined and perceived by others through the lens of this label. Community members, police officers, teachers, and potential employers then interact with and judge the child according to that description.
With the increasing awareness of the income gap and how it affects the most vulnerable among us—poor children and their families—we know that children who grow up in poverty are likely to remain poor. We know that language deficits exist in poorer homes and that gaps in school achievement between higher-income and lower-income students have become chasms. We know that poverty impacts the physical health of children—from obesity and diabetes to asthma and heart disease. We know that toxic stress can develop in young children, caused by exposed to stress hormones, such as cortisol and norepinephrine. We know that this level of stress may actually reset neurological and hormonal systems, permanently impacting children’s brains and even their genes.
We also know that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of assault. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence. And we know that the number of cases that are referred to the juvenile court system approximates the same percentage of youth who have been found to grow out of delinquent behavior through typical adolescent development without any court intervention.
Yet, we continue to use the juvenile court system as the primary safety net for poor children and their families. We allow those children with the most needs—emotional, physical, and behavioral—to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.
The 8-year-old boy in Birmingham, Alabama, may sound familiar to you. He may remind you of a friend’s child or a young neighbor. He may even resemble your own son or your younger self. Imagine if he were from a family of means with two college-educated parents who were both gainfully employed. Imagine he had access to therapists and tutors. Picture him living in a well-tended home in a suburban neighborhood. Would this have made a difference to the Jefferson County district attorney’s office? To the Birmingham Police?
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.
Thursday, November 19, 2015
November 20th is Universal Children's Day. The U.N. established Universal Children's Day in 1954 to create a day of “activity devoted to the promotion of the ideals and objectives of the [U.N.] Charter and the welfare of children of the world.” Worthwhile goals, but as there are now more than 125 international observance days, it is fair to ask whether Universal Children’s Day makes a difference.
Universal Children’s Day presents an opportunity to reflect on both progress made and work still to be done. Since the adoption of the U.N. Convention on the Rights of the Child—the most comprehensive treaty on children’s rights and well-being—on November 20, 1989, significant progress has been made on behalf of tens of millions of children around the world. Yet much more work remains. The data on infant and child mortality rates reflects this: globally, the number of deaths of children under five declined from 12.7 million in 1990 to less than 6 million in 2015. That’s vital progress, as many children now realize their most precious right—to life and survival. Yet more than five million young children still die each year, largely due to preventable causes.
But Universal Children’s Day can be much more than a day to raise awareness. It can be a day of action, a launching point for initiatives that accelerate progress on children’s rights and wellbeing. What might that look like? I have three suggestions.
First, if you are President of the United States, send the Convention on the Rights of the Child (CRC) to the Senate for its advice and consent. The CRC is the most widely accepted human rights treaty in history. There are 196 parties to the treaty; the U.S. is the only country that hasn’t ratified it. The CRC has helped foster progress on law, policy, and programs aimed at improving children’s well-being and securing children’s rights. The U.S. signed the treaty in 1995, but it has taken no action since then (ratification is necessary to make a treaty legally binding).
Under U.S. law, treaty ratification requires to the advice and consent of two-thirds of the Senate. Speculation about the level of support in the Senate is understandable, especially after the Senate failed in 2012 to achieve two-thirds support for the Convention on the Rights of Persons with Disabilities (it fell five votes short). But such questions are also premature. The future of the CRC in the United States lies entirely in President Obama’s hands, because the Administration hasn’t even sent the CRC to the Senate for its consideration. On Universal Children’s Day, the President can move the CRC forward by sending it to the Senate.
Second, if you are the CEO of a company, figure out how your company’s expertise or skill set can advance the rights and well-being of children. When the United Arab Emirates faced a problem with trafficking of young boys to serve as camel jockeys (the boys, many as young as five or six years old, were confined in unsanitary conditions, underfed, and often suffered serious injuries in races), it was a Swiss company that helped provide part of the solution. It invented a robot jockey, eliminating the demand for trafficked boys. Of course, technological advances can’t solve everything. Many young boys in Bangladesh, Pakistan, Sudan and Yemen who might have been trafficked to the UAE remain vulnerable to other harms. But the point is not that the private sector has to do everything. Rather, it’s that innovative solutions are needed, and the private sector can make a difference. UNICEF has been building innovative partnerships to improve health, education, and social protection. Companies across all sectors can support this and other similar work. So Universal Children’s Day is an ideal day for CEOs to figure out how their company’s skillset can advance child well-being.
Third, if you are the head of a household, talk about human rights with your children. Rights are inherent. That means children, like adults, possess them. They are not left to governments to decide whether to grant them to individuals at age eighteen. Parents and caregivers are trustees of those rights as children grow and develop. The CRC recognizes the critical role of parents and families in nineteen provisions of the treaty. Children confront rights issues early – in both their day-to-day lives and in the imaginative spaces created for children, such as their favorite books. Though children, especially young ones, might not talk about rights issues using human rights language, they understand rights issues. Parents and other caregivers can play a critical role in guiding and supporting children as they explore questions about their own rights and their responsibilities to respect the rights of others. Universal Children’s Day offers a wonderful opportunity to start to engage children in a dialogue about rights and to explore ways to make their communities more child rights supportive.
In short, whatever role you play in your family, community, or country, you can use your unique position, knowledge, or skills to advance the rights and well-being of children. By doing so, Universal Children’s Day can be the start of a more supportive approach to children’s rights and child well-being.
Thursday, November 5, 2015
Recently I sat in the main office of a racially-diverse middle school in Chapel Hill, North Carolina, waiting to speak with a guidance counselor. I arrived early in the morning, and the school resource office (SRO) assigned to the school from the local police department was one of the few people already there. He amiably interacted with staff, teachers, and students, and he gave me a big smile when he walked past. By all accounts, he couldn’t be a nicer guy. Yet, he is a white man in a uniform, armed with a gun, in a school populated by eleven, twelve and thirteen-year-olds. He can make arrests, and he can refer students for criminal prosecution in juvenile delinquency court. In fact, there are armed police officers who work as SROs in all the public middle and high schools in the district in which I live.
Last week I read about the assault of a 16-year-old African-American student named Shakara by SRO Ben Fields, a white man, at Spring Valley High School in Richland County, South Carolina. I read that Shakara was allegedly being “disruptive” by failing to put away her cell phone during math class and then refusing to leave the classroom because she felt the punishment was unfair. I read that SRO Fields is known as “Officer Slam” because of his brutal treatment of Spring Valley High students. I read that Shakara was charged criminally with the misdemeanor charge of “disturbing schools,” which carries a maximum of ninety days in jail and a $1000 fine. And I read that an 18-year-old classmate, Niya Kenny, was charged as an adult with the same offense for speaking up in support of Shakara during the assault.
There are at least seven other states with “disturbing schools” laws on the books. In North Carolina, for instance, the analogous criminal offense to the one facing Shakara and Niya Kenny is disorderly conduct by disrupting students (NCGS 14-288.4(a)(6)). Yet, the statutory language in North Carolina differs from that of its southern neighbor. Under the NC statute, the state must prove beyond a reasonable doubt that a person intentionally causes a public disturbance by disrupting, disturbing, or interfering with the teaching of students at an educational institution or by engaging in conduct that disturbs the peace, order, or discipline at an educational institution or on the adjacent grounds.
North Carolina cases in which the evidence was found to be insufficient to support an adjudication of juvenile delinquency for the offense include In re S.M., 190 NC App. 579 (2008), in which a female high school student laughed and ran away with a friend after an administrator asked her to stop in the school hallway; she was then chased by an SRO for 10-15 seconds before he arrested her. The NC Appeals Court found that this was an instance of “ordinary misbehavior or rule-breaking,” which did not rise to the level of criminal activity. In challenging these offenses in North Carolina courts, the defense typically focuses on the element that requires proof of intentional behavior that caused an actual public disturbance, which distinguishes ordinary misbehavior like that of Shakara’s from true instances of disturbing the peace within a school.
In contrast, the South Carolina “disturbing schools” statute is very broad, as it not only criminalizes the willful or unnecessary interference or disturbance of students or teachers but also criminalizes mere loitering on school premises and/or “act[ing] in an obnoxious manner thereon.” Candidly, I can think of dozens of examples of typical adolescent behavior on school grounds that could be deemed “obnoxious” and conceivably fall within the language of this statute. Yet, in 2006 when the statute was challenged as overbroad and vague in violation of the First Amendment, the South Carolina Supreme Court affirmedthe lower court’s decision that it was not unconstitutionally overbroad. The decision, however, was quite fact-intensive, involving a boy who had been yelling and cursing in a classroom for over two hours and then took a swing at his teacher as he was escorted down the hall, so there is likely room to bring another appeal based on different facts.
As for the cell phone video of the incident at Spring Valley High, I’ve seen similar videos in the course of representing hundreds of children charged with criminal offenses resulting from school-based “incidents” during my years teaching in the Youth Justice Clinic at UNC Law School. Even so, I wasn’t prepared for this one. The violent and vicious way in which SRO Fields slammed Shakara, still sitting in her desk, onto the classroom floor and then pulled her across the room before restraining her on the ground was horrifying. I’d be outraged to see an animal treated that way, let alone a teenager.
Yet, the SRO’s attack on Shakara is a quintessential example of the school-to-prison pipeline in action, as it illustrates perfectly what the statistics already tell us – that black students are suspended and expelled from schools three times more often than their white peers, and that for black girls, the rate is twice that amount. In fact, in South Carolina black students comprise 60% of those who are suspended from school but only 36% of the state’s student population. A federal civil rights investigation into the incident has been initiated by the Columbia FBI Field Office, the Civil Rights Division, and the U.S. Attorney’s Office for the District of South Carolina.
After more than a decade of juvenile justice advocacy, I’ve concluded that police officers have no legitimate role in our schools. The reality is that SROs are not found in most private, charter, or parochial schools, yet these educational settings manage to maintain safe learning environments for their students. SROs are not typically trained in adolescent development, in diffusing tense situations, in building rapport with students, in advising students, or in mediation, and if these are in fact the skills and qualities that are needed in a particular school setting, qualified school counselors should be hired rather than uniformed and armed police officers. Of course, if an urgent situation requires law enforcement, school administrators—like all citizens—can dial 911 or request assistance from the local police department.
Unfortunately, the school-to-prison pipeline is not unique to South Carolina or to North Carolina or to only a handful of states. There are more than 17,000 police officers assigned to schools across the United States. Data confirms that the presence of uniformed and armed law enforcement in schools has a criminogenic effect. In other words, placing armed police in schools actually increases the physical dangers to youth. Therefore, as long as SROs are in school buildings and classrooms, students—particularly youth of color—are as vulnerable as Shakara, not only to prosecution for typical adolescent misbehavior but to physical assault.
Tuesday, November 3, 2015
The U.S. government recently announced a consultation with civil society on November 12 in conjunction with its next periodic report under the Optional Protocols to the Convention on the Rights of the Child. The U.S. ratified the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict in 2002 and is preparing to submit its third report to the UN Committee on the Rights of the Child. This is an important, if often undervalued, opportunity to advance the rights and well-being of children in the United States.
I have been privileged to participate in both prior reviews of the United States under the Optional Protocol on the Sale of Children, including presenting testimony to the U.N. Committee on the Rights of the Child during its session with NGOs in advance of its meeting with the government. Those experiences show that the reporting process offers three significant opportunities for human rights advocates. First, the Committee takes seriously the views of NGOs. Often the questions, or List of Issues, that the Committee poses to a government reflects gaps highlighted by NGOs in their alternative reports or in their testimony to the Committee. Second, many of the Concluding Observations and recommendations for the government come from NGO input. Finally, the post-review process offers a critical opportunity to use the recommendations in advocacy at home. In prior reviews under the Optional Protocol on the Sale of Children, ECPAT-USA has coordinated the lead alternative report (full disclosure: I serve as child rights advisor to ECPAT-USA). Following both prior reviews, NGOs organized briefing sessions in various cities in the United States. After 2008 review of the United States, several NGO representatives (including ECPAT-USA representatives and me) spoke at congressional briefings in the Senate and House of Representatives. Subsequent advocacy spurred the introduction of a bill that became the PROTECT Our Children Act of 2008. The law addressed some of the recommendations that emerged out of the reporting process (that process is described in more detail here). While that law isn’t perfect, it shows the potential that exists in the reporting process – the process can be successfully leveraged to advance human rights.
ECPAT-USA will again be coordinating the lead alternative report under the Optional Protocol on the Sale of Children. And again, there is an opportunity to further advance law and policy aimed at securing children’s rights and well-being.
Simply put, the reporting process is a built-in monitoring and evaluation mechanism for human rights. While the substantive provisions of human rights law are essential and provide the basis for our work, the procedural benefits of human rights treaties – notably the reporting process – should not be overlooked.