Pluralism: A principle for children's rights

Harvard Civil Rights-Civil Liberties Law Review

Volumn 42, Issue 2, 2007, Pages 317-372

  Lau, Holning ^a,b,c,d  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b HOFSTRA UNIVERSITY   (United States)

^c UNIVERSITY OF CHICAGO   (United States)

^d UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548644897     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (401)

1. ERIK H. ERIKSON, YOUNG MAN LUTHER: A STUDY IN PSYCHOANALYSIS AND HISTORY 70 (1958).
2. See Nathan Glazer, Is Assimilation Dead?, 530 ANNALS AM. ACAD. POL. & SOC. SCI. 122, 123 (1993) (describing the growing consensus among scholars that "assimilation . . . is somewhat disreputable, opposed to the reality of both individual and group difference and to the claims that such differences should be recognized and celebrated").
3. Drawing from psychological literature, I define identity as the sense of self that individuals develop by committing to values and goals associated with particular social categories. Identity must be developed. Thus, for example, an individual of Chinese American ancestry does not develop a Chinese American identity unless she adopts values and goals associated with the Chinese American community. Others may label her as Chinese American based on her genes, but she does not possess a Chinese American identity in the psychological sense if she feels no allegiance to Chinese American values and goals.
4. See, e.g., Martha Nussbaum, A New Type of Discrimination: The Prohibition Era, NEW REPUBLIC, Mar. 20, 2006, at 22: [A demand] for assimilation to majority norms . . . is profoundly unfair, burdening minorities in ways that majorities are not burdened. Moreover, the demand is fraught with psychological danger. How can a person really have equality when she has to push some of her most deeply rooted commitments under the rug, treating them as something shameful and socially inappropriate?
5. Throughout this Article, I focus on the harmful effects of demands to assimilate and not on assimilation itself, which may be uncoerced. For examples of legal scholarship on these demands, see Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards. Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541, 2562-65 (1994) (discussing cosls associated with gender-based assimilation);
6. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1279-93 (2000) (discussing costs associated with race-based assimilation) [hereinafter Carbado & Gulati. Working Identity].
7. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 27, 184-96 (2006). Borrowing from sociologist Erving Goffman, Yoshino uses the term "covering" to refer to the "ton[ing] down" of particular identity trails to fit into the mainstream. Id. at ix.
8. See ERIK H. ERIKSON, CHILDHOOD AND SOCIETY (1950);
9. ERIK H. ERIKSON, IDENTITY AND THE LIFE CYCLE (W. W. Norton & Co. 1980) (1959) [hereinafter ERIKSON, LIFE CYCLE];
10. ERIK H. ERIKSON, IDENTITY, YOUTH, AND CRISIS (1968) [hereinafter ERIKSON, YOUTH AND CRISIS];
11. ERIK H. ERIKSON, YOUTH: CHANGE AND CHALLENGE (1963);
12. see also Glazer, supra note 2, at 124-25 (acknowledging that the concept of identity was introduced by Erikson through his works on children); Ruben G. Rumbaut, The Crucible Within: Ethnic Identity, Self-Esteem, and Segmented Assimilation Among Children of Immigrants, 28 INT'L MIGRATION REV. 748, 753 (1994) (same).
13. See YOSHINO, supra note 5, at 69-70 (criticizing the federal government's "Don't Ask, Don't Tell" policy for requiring gay service members to hide their sexual orientation); id. at 93-101 (criticizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), in which the court upheld the government's withdrawal of an employment offer from a lesbian because she flaunted her same-sex relationship).
14. This question is inspired by the pending case of C.N. v. Wolf, in which a high school disciplined a lesbian student for being affectionate with her girlfriend and outed the student to her parents, oven though the school allegedly never punished opposite-sex couples tor similar conduct. 410 F. Supp. 2d 894 (C.D. Cal. 2005) (granting in part and denying in part defendants' motion to dismiss); see also Seema Mehta, Lesbian Student Files Discrimination Lawsuit, L.A. TIMES, Sept. 8, 2005, at B3.
15. See Kenneth L. Karst, Law, Cultural Conflict, and the Socialization of Children, 91 CAL. L. REV. 967 (2003);
16. Hillary Rodham, Children Under the Law, 43 HARV. EDUC. REV. 487, 490 (1973).
17. See Nussbaum, supra note 4, at 26.
18. As discussed infra in Part I, the suppression of identity generates particular psychological burdens.
19. In 2004, France banned the wearing of "ostentatious" religious symbols, including headscarves, in public schools. See Law No. 2004-22 of Mar. 15, 2004, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 17, 2004, p. 5190.
20. For commentary on the law's psychological impact on Muslim girls, see Adrien Katherine Wing & Monica Nigh Smith, Critical Race Feminism Lifts the Veil?: Muslim Women, France, and the Headscarf Ban, 39 U.C. DAVIS L. REV. 743, 777-83 (2006). Recall that the term "identity" refers to the sense of self that individuals develop by committing to values and goals associated with particular social categories. Accordingly, I use the term "identity trait" as a shorthand (that is not part of psychology jargon) to refer to traits that have special value or represent particular goals to people within an identity group. Headscarves may seem like ordinary pieces of clothing to many people; however, they are an identity trait for Muslims who place special value on headscarves.
21. In this Article, I focus on minority social groups based on race, ethnicity, religion, political opinion, disability, sexual orientation, and gender identity. Traditionally, prejudice has been based on these statuses, rendering them particularly relevant to a person's self-awareness. Although trait suppression manifests differently across these statuses, a common denominator is that coerced suppression of these statuses burdens children psychologically. For a discussion addressing the question of slippery slopes, see infra text accompanying notes 137-141. For example, can shy students constitute a minority social group and, therefore, oppose all public speaking assignments? I answer in the negative and explain that such slippery-slope concerns are unwarranted.
22. [O]rdinary discourse differentiates people according to social groups such as women and men, age groups, racial and ethnic groups, religious groups, and so on. Social groups of this sort are not simply collections of people, for they are more fundamentally intertwined with the identities of the people described as belonging to them. IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 42-43 (1990):
23. R. Tropp & Stephen C. Wright, Ingroup Identification as the Inclusion of In Self, 27 PERSONALITY & SOC. PSYCHOL. BULL. 585, 585-86 (2001) (surveying psychological literature that acknowledges thai "the self is construed in relation lo one's group memberships"). Group status is particularly relevant to individuals' sense of self when the group is an oppressed minority group. See Harper v. Poway Unified Sch. Dist., 445 F.3d. 1166, 1183 n.28 (9th Cir. 2006): There is, of course, a difference between a historically oppressed minority group lhat has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority.
24. See also Margaret E. Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Stories, 15 CHICANO-LATINO L. REV. 1, 13-15 (1994) (arguing that the suppression of minority traits is a particularly harmful form of conformity);
25. Russell K. Robinson, Uncovering Covering, 101 Nw. U. L. REV. (forthcoming 2007) (on file with author) (same).
26. I do not suggest that the law should prevent all psychological burdens on children. For example, even though a child may experience stress from having a favorite television show canceled, I do not argue that the law should intervene. Accepting respected commentators' existing arguments that the law should prevent the particular psychological harms of assimilation demands, this Article simply contends that those commentators' main points are especially pressing for children; the Article does not make broad arguments about general psychological burdens.
27. Although commentators often write about specific forms of pluralism (e.g., political pluralism, cultural pluralism, religious pluralism), I use the term pluralism to refer to the making of space for difference within identity categories generally.
28. The pluralism principle builds on Emily Buss's developmentalist approach to children's rights, which asserts that in deciding what autonomy rights to extend to children, the government should consider the developmental benefits and harms of such extensions. See Emily Buss, Allocating Developmental Control Among Parent, Child, and the State, 2004 U. CHI. LEGAL F. 27, 35 [hereinafter Buss, Allocating Developmental Control].
29. In Part II.B, infra, I define cognizable harms to include only a narrow range of consequences. Indeed, harms cognizable under the pluralism principle are not synonymous with harms in common parlance. This prong is partly inspired by John Stuart Mill's time-honored harm principle. See JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS (John Gray ed., 1998). The pluralism principle clearly differs from Mill's harm principle because Mill explicitly excluded children from his principle's coverage. See id. at 14. Also, whereas Mill only was concerned with harms to others, the pluralism principle is concerned with children's harms to themselves as well.
30. See JOEL FEINBERG, HARM TO SELF: THE MORAL LIMITS OF THE CRIMINAL LAW 69, 325-33 (1984).
31. Note that my current project focuses on children's constitutional rights. Thus, it only addresses children's claims against the state. It does not address children's claims against their parents, nor does it cover parents' claims against the state. I do address, however, how parental interests might influence children's claims against the state. See infra Part II.C.2.i.
32. See MARTIN GUGGENHEIM, WHAT'S WRONG WITH CHILDREN'S RIGHTS 12 (2005) ("[T]he children's rights movement has been a confused and often ridiculed one . . . . Nearly forty years after the movement began, it has made very little progress developing a cogent conceptual position.");
33. NANCY E. WALKER, CHILDREN'S RIGHTS IN THE UNITED STATES 10 (1999) ("[C]ourts have answered [the question of children's rights] in inconsistent ways. Certain pronouncements make the rights of children explicit, but other U.S. Supreme Court opinions reflect a paternalistic view.");
34. Martha Minow, What Ever Happened to Children's Rights?, 80 MINN. L. REV. 267-77 (1995) ("The Court's ambivalence swings between two starkly contrasting alternatives. One would extend adult rights to children; the other would treat children in important ways as subject to different authorities.") [hereinafter Minow, Children's Rights]; Rodham, supra note 9, at 487 ("The phrase 'children's rights' is a slogan in search of definition.");
35. Lee E. Teitelbaum, Children's Rights and the Problem of Equal Respect, 27 HOFSTRA L. REV. 799, 799 (1999) ("Few areas present more difficult problems than does the definition of the rights of children.").
36. Sexual orientation issues make for an illustrative case study because gays and lesbians are subject to a uniquely wide variety of assimilation demands. See Kenji Yoshino, Covering, 111 YALE L.J. 769, 772 (2002).
37. Lower courts have issued disparate interpretations of the Supreme Court's case law on student expression. One court has held that bringing a same-sex partner to a high school prom is protected speech. See Fricke v. Lynch, 491 F. Supp. 381 (D.R.I. 1980). Other courts maintain that school officials have broad discretion to censor student expression. See, e.g., Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 471 (6th Cir. 2000) (holding that school officials may prohibit a student from wearing a T-shirt with "illustrations of [the musician] Marilyn Manson largely unadorned by text" because Manson "promotes disruptive and demoralizing values").
38. Compare Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1171 (9th Cir. 2006) (holding that a public school did not violate the First Amendment by prohibiting a student from wearing a T-shirt that condemned homosexuality), with Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965 (S.D. Ohio 2005) (reaching the opposite conclusion in a case with nearly identical facts), and Hansen v. Ann Arbor Pub. Sch., 293 F. Supp. 2d 780 (E.D. Mich. 2003) (holding that a public school violated the First and Fourteenth Amendments by refusing to allow individuals who would condemn homosexuality from participating in a panel discussion). Some courts have held that schools' antiharassment policies violate the First Amendment. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001); Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass. 1993).
39. A student is asserting this controversial privacy claim in the pending case of C.N. v. Wolf. See Mehta, supra note 8.
40. These groups are not mutually exclusive, of course.
41. See infra Part I.B.1.
42. I use the term "adolescents" to refer to a subset of "children," as opposed to an entirely distinct category, because the law has traditionally done so. For example, in Bellotti v. Baird, the Court addressed the rights of pregnant teenagers, yet referred to those teenagers' rights as "children's rights." See, e.g., 443 U.S. 622, 634 (1979). Similarly, the international human rights community treats adolescents as a subset of children. See United Nations Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 28 I.L.M. 1448 ("For the purpose of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.")
43. But see Elizabeth S. Scott, The Legal Construction of Adolescence, 29 HOFSTRA L. REV. 549 (2000) (arguing for recognition of adolescence as a distinct legal category).
44. See infra notes 75, 78-83 and accompanying text.
45. The term "melting pot" derives from the play The Melting-Pot by Israel Zangwill, first performed in 1908. See ISRAEL ZANGWILL, THE MELTING-POT (1909). Kenji Yoshino asserts that criticisms against the melting pot grew out of the civil rights movement of the 1960s. See YOSHINO, supra note 5, at xi.
46. Camille Gear Rich believes that it was not until the 1990s that most Americans abandoned the melting pot ideal. See Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1234 (2004). Even today, however, some political figures, such as Pat Buchanan, openly idealize the melting pot despite the criticism against it.
47. See, e.g., PATRICK J. BUCHANAN, STATE OF EMERGENCY: THE THIRD WORLD INVASION AND CONQUEST OF AMERICA (2006).
48. For background on the melting pot, see Peter H. Schuck, The Perceived Values of Diversity, Then and Now, 22 CARDOZO L. REV. 1915, 1927-28 (2001).
49. Id.
50. The AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000) defines assimilation as "[t]he process whereby a minority group gradually adopts the customs and attitudes of the prevailing culture." Kenji Yoshino describes three forms of assimilation: conversion (i.e., abandoning traits), passing (i.e., hiding traits), and covering (i.e., downplaying traits). See YOSHINO, supra note 5, at 17-18.
51. Mainstreaming of minority culture does occur to some degree. Cf. HOWARD WINANT, RACIAL CONDITIONS 26 (2002) (discussing the influence that blacks have had on mainstream American music).
52. In Part I.A.3, infra, I recognize that pressuring people to relinquish personal traits they value is not troubling under exceptional circumstances, for example, when exercising a behavioral trait harms others.
53. See John Rhee, Theories of Citizenship and Their Role in the Bilingual Education Debate, 33 COLUM. J.L. & SOC. PROBS. 33, 37 n.20 (1999); Rich, supra note 29, at 1234.
54. See YOSHINO, supra note 5, at 132-36.
55. See Rogers v. American Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981) (upholding an employer's restriction on braided hairstyles against a Title VII challenge, even though an employee argued that her hairstyle was an expression of black identity). According to Paulette M. Caldwell: [B]lack women who are permitted to break through the barrier of racial exclusion into "visible" jobs involving public contact are likely to be those who possess physical characteristics close to those of women of the dominant racial group . . . . Rather than focusing on the black woman herself, the impetus to exclude is transferred to the black woman's hair. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 391 (1991).
56. See Caldwell, supra note 37, at 391.
57. See YOSHINO, supra note 5, at 169-70.
58. See id. at 142-66, 177.
59. See id. at 93-101.
60. See infra notes 84-86 and accompanying text.
61. See infra notes 84-86 and accompanying text. While an individual subjected to assimilation demands bears a psychological burden, she might also "export" some of that burden to her family. See Zachary Kramer, After Work: Family Harms in Employment Discrimination Law, 95 CAL. L. REV. (forthcoming 2007).
62. See Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701 (2001) [hereinafter Carbado & Gulati, Fifth Black Woman];
63. Carbado & Gulati, Working Identity, supra note 4, at 1279-93.
64. Economists Marianne Bertrand and Sendhil Mullainathan found that having a name associated with African American culture, such as "Lakisha" or "Jamal," significantly reduces one's likelihood of receiving a job interview. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination (Nat'l Bureau of Econ. Research, Working Paper No. 9873, 2003), available at http://www.nber.org/papers/w9873.
65. Some parts of this example are borrowed from Carbado and Gulati's "fifth black woman" hypothetical. See Carbado & Gulati, Fifth Black Woman, supra note 44, at 710-21.
66. See supra notes 36-38 and accompanying text (discussing assimilation demands that derive from white supremacy).
67. See Carbado & Gulati, Working Identity, supra note 4, at 1277 (describing assimilation processes as "self-negating" and "self-denying");
68. Martha Chamallas, Structuralist and Cultural Domination Theories Meet Title VII: Some Contemporary Influences, 92 MICH. L. REV. 2370, 2408 (1994) ("To be forced to suppress one's cultural identity . . . is insulting and demeaning."); Montoya, supra note 14, at 13 ("[Wearing] masks of acculturation can be experienced as self-hate.").
69. See Rich, supra note 29, at 1137 ("[I]t has long been established that Title VII does not prohibit discrimination based on 'voluntary' or 'performed' aspects of racial or ethnic identity.").
70. Even by betraying her sense of self, Lakisha suffers an economic burden. Commentators have noted that repackaging oneself requires time, effort, and significant cash expenditures. See Carbado & Gulati, Working Identity, supra note 4, at 1279 & n.43.
71. See, e.g., Juan F. Perea, Ethnicity and Prejudice: Reevaluating "National Origin" Discrimination Under Title VII, 35 WM. & MARY L. REV. 805, 809 (1994) (proposing an expansion of Title VII to protect expressions of ethnicity).
72. See, e.g., Caldwell, supra note 37, at 385-90 (arguing for an interpretation of Title VII that protects expressions of racial identity); Rich, supra note 29, at 1202-12 (arguing for an interpretation of Title VII that protects performances of racial and ethnic identities through behavioral traits).
73. See, e.g., YOSHINO, supra note 5, at 178 (proposing that parties who make assimila-tion demands and parties who are burdened by demands should have "reason-forcing conversations" to discuss whether the demands are justifiable).
74. One could certainly argue that one is impolite and that impoliteness informs one's sense of self. However, self-concept is not synonymous with identity. Identity is the part of one's self-concept that is developed by committing to particular values and goals associated with social categories. Suppression of one's identity generates unique harms. See infra note 95 and accompanying text.
75. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding mandatory participation in the Pledge of Allegiance in schools unconstitutional). For a discussion of Barnette, see infra notes 182-187 and accompanying text.
76. Cf. Nancy S. Kim, Blameworthiness, Intent, and Cultural Dissonance: The Unequal Treatment of Cultural Defense Defendants, 17 U. FLA. J.L. & PUB. POL'Y 199 (2006) (noting that cultural defenses to violent crimes are largely unsuccessful).
77. In previous writing, I have supported the idea that, under some limited circumstances, groups should have the right to demand conformity among their members, even if conformity contravenes public policy goals. See Holning Lau, Transcending the Individualist Paradigm in Sexual Orientation Antidiscrimination Law, 94 CAL. L. REV. 1271, 1319 (2006); see also Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (holding that the Boy Scouts of America can require its members to adopt heterosexual norms because the organization's freedom of expressive association trumps an antidiscrimination law proscribing sexual orientation discrimination).
78. American law has traditionally shielded the "private sphere" of the family from government intervention, save for exceptional circumstances. A discussion regarding the regulation of parents' assimilation demands requires a lengthy consideration of the pros and cons of this protection. For background and related criticisms, see Martha Albertson Fineman, What Place for Family Privacy?, 67 GEO. WASH. L. REV. 1207 (1999);
79. Frances Olsen, Constitutional Law: Feminist Critiques of the Public/Private Distinction, 10 CONST. COMMENT. 319 (1993).
80. See infra notes 75, 78-83 and accompanying text.
81. RICHARD S. LAZARUS & SUSAN FOLKMAN, STRESS, APPRAISAL, AND COPING 141 (1984);
82. see also Bruce E. Compas, et al., Coping with Stress During Childhood and Adolescence: Problems, Progress, and Potential in Theory and Research, 127 PSYCHOL. BULL. 87, 88 (2001) (describing Lazarus and Folkman's definition as the "most widely cited" in research on children's coping).
83. Some psychologists distinguish voluntary efforts from involuntary efforts, such as crying, and exclude involuntary efforts from their definition of coping. See Compas et al., supra note 60, at 91.
84. Id. at 89.
85. Dianna T. Kenny, Psychological Foundations of Stress and Coping: A Developmental Perspective, in STRESS AND HEALTH: RESEARCH AND CLINICAL APPLICATIONS 88-89 (Dianna T. Kenny et al. eds., 2000).
86. Id.
87. See Compas et al., supra note 60, at 91 ("Coping and other stress responses can be expected to follow a predictable developmental course."); Kenny, supra note 63, at 82 ("Changes in the ability to cope are linked to major maturational changes throughout the lifespan."); Christopher J. Recklitis & Gil G. Noam, Clinical and Developmental Perspectives on Adolescent Coping, 30 CHILD PSYCHOL. & HUM. DEV. 87, 97 (1999) (studying adolescent psychiatric patients and confirming "the developmental nature of coping behaviors").
88. See Compas et al., supra note 60, at 91.
89. Id. at 90.
90. Id. at 91.
91. Id.
92. Id.
93. See LAZARUS & FOLKMAN, supra note 60 (describing in detail typologies of coping techniques).
94. See Jeannie S. Kidwell et al., Adolescent Identity Exploration: A Test of Erikson's Theory of Transitional Crisis, 30 ADOLESCENCE 785, 789 (1995); Recklitis & Noam, supra note 65, at 93-96.
95. See Kenny, supra note 63, at 82; Recklitis & Noam, supra note 65, at 97.
96. See infra Part I.B.2. Some minority youth might experience identity confusion because of their minority status even in the absence of demands to assimilate. In these situations, assimilation demands might exacerbate any preexisting identity confusion.
97. See Elizabeth Douvan, Erik Erikson: Critical Times, Critical Theory, 28 CHILD PSYCHOL. & HUM. DEV. 15, 18 (1997).
98. See generally id.
99. See Roper v. Simmons, 543 U.S. 551, 570 (2005) (citing ERIKSON, YOUTH AND CRISIS, supra note 6, in a juvenile death penalty case);
100. Thompson v. Oklahoma, 487 U.S. 815, 835 n.43 (1988) (citing ERIK H. ERIKSON, CHILDHOOD AND SOCIETY 261-63 (1985)
101. and ERIKSON, YOUTH AND CRISIS, supra note 6, at 128-35 in a juvenile death penalty case);
102. United States v. Vuitch, 402 U.S. 62, 78 n.1 (1971) (Douglas, J., dissenting) (citing Erik H. Erikson, quoted in GROUP FOR THE ADVANCEMENT OF SOCIETY, COMM. ON PSYCHIATRY & LAW, THE RIGHT TO ABORTION: A PSYCHIATRIC VIEW 219 (1969), in an abortion case).
103. Erikson referred to these challenges as "normative crises," i.e., "normal phase[s] of increased conflict." ERIKSON, LIFE CYCLE, supra note 6, at 125.
104. Id. at 51-57.
105. Id. at 94-100; ERIKSON, YOUTH AND CRISIS, supra note 6, at 128-34.
106. See ERIKSON, YOUTH AND CRISIS, supra note 6, at 91-96.
107. See id. at 91.
108. See ERIKSON, LIFE CYCLE, supra note 6, at 131-46.
109. Id. at 94.
110. See id. at 127; see also Jenny Makros & Marita P. McCabe, Relationships Between Identity and Self-Representations During Adolescence, 30 J. YOUTH & ADOLESCENCE 623, 625 (2001) ("According to Erikson, the more developed one's sense of identity is, the more congruency (or less discrepancy) there should be among one's various self beliefs.");
111. Serena J. Patterson et al., The Inner Space and Beyond: Women and Identity, in ADOLESCENT IDENTITY FORMATION 9 (Gerald R. Adams et al. eds., 1992) (summarizing Erikson's definition of identity).
112. See ERIKSON, LIFE CYCLE, supra note 6, at 120. Following Erikson, E. Tory Higgins elaborated on the psychological harms of incongruence between an individual's inner sense of self and her outward representations of self; Higgins also provided empirical evidence to support his theory.
113. See E. Tory Higgins, Self-Discrepancy: A Theory Relating Self and Affect, 94 PSYCHOL. REV. 319 (1987).
114. See James E. Marcia, Development and Validation of Ego Identity Status, 3 J. PERSONALITY & SOC. PSYCHOL. 551 (1966);
115. James E. Marcia, Identity in Adolescence, in HANDBOOK OF ADOLESCENT PSYCHOLOGY 159 (Joseph Adelson ed., 1980); see also Makros & McCabe, supra note 85, at 624-25 (describing Marcia's operationalization of Erikson's theory as "the most widely respected and researched" and noting that more than three hundred studies have incorporated Marcia's four statuses); Patterson et al., supra note 85, at 10-12 (summarizing the previous works of Marcia, one of the authors of the piece).
116. Patterson et al., supra note 85, at 9.
117. Id.
118. Id.
119. Id.
120. Id.
121. Id.
122. See Marcia, Identity in Adolescence, supra note 87, at 159-60.
123. Erikson's and Marcia's research focused on particular social categories: gender, religion, political ideology, and occupational choice. See Marcia, Development and Validation, supra note 87 (summarizing Erikson's and Marcia's work). Subsequent researchers extended Erikson's and Marcia's theories to other social categories.
124. See Vivienne Cass, Homosexual Identity: A Concept in Need of Definition, 9 J. HOMOSEXUALITY 105, 111 (1984).
125. See Johanna E. Bond, International Intersectionality: A Theoretical and Pragmatic Exploration of Women's Human Rights, 52 EMORY L.J. 71, 102-04 (2003).
126. Whether an individual's sexual orientation is a product of nature or nurture is still unclear to scientists; however, mounting evidence suggests that sexual orientation can be related to genetics. See Brian Mustanski et al., Genomewide Scan of Male Homosexuality, 116 HUM. GENETICS 272 (2005).
127. See EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY 287-301 (1994) (providing empirical data on the percentages of individuals who experience homosexual attraction, who have engaged in homosexual behavior, and who self-identify as homosexual or bisexual).
128. See Mary Jane Rotheram-Borus & Kris A. Langabeer, Developmental Trajectories of Gay, Lesbian, and Bisexual Youth, in LESBIAN, GAY, AND BISEXUAL IDENTITIES AND YOUTH 97, 99-101 (Anthony R. D'Augelli & Charlotte J. Patterson eds., 2001) (concluding that development of sexual identity and ethnic identity conform to Erikson's and Marcia's theories).
129. See supra notes 84-87 and accompanying text.
130. See Rotheram-Borus & Langabeer, supra note 99, at 101.
131. See Michael Radkowsky & Lawrence Siegel, The Gay Adolescent: Stressors, Adaptations, and Psychosocial Interventions, 17 CLINICAL PSYCHOL. REV. 191, 191 (1997) ("Social stigmatization hinders the ability of gay adolescents to achieve the tasks of adolescence. Because their sexual identity is denigrated by society, these youth have difficulty forming a positive identity.").
132. See, e.g., Margaret Beale Spencer et al., Ethnicity, Ethnic Identity, and Competence Formation: Adolescent Transition and Cultural Transformation, 60 J. NEGRO EDUC. 366, 380 (1991) (discussing the psychological health of ethnic and racial minority youth).
133. See ERIKSON, LIFE CYCLE, supra note 6, at 120.
134. See infra notes 107-113, 119 and accompanying text.
135. See infra notes 118-119 and accompanying text.
136. See RITCH C. SAVIN-WILLIAMS, GAY AND LESBIAN YOUTH: EXPRESSIONS OF IDENTITY 182-85 (1990) ("[T]he results of the current study presented lesbian and gay adolescents as essentially psychologically and socially healthy individuals.").
137. See James Lock & Hans Steiner, Gay, Lesbian, and Bisexual Youth Risks for Emotional, Physical, and Social Problems: Results from a Community-Based Survey, 38 J. AM. ACAD. CHILD & ADOL. PSYCHOL. 297 (1999).
138. See J. Stephen McDaniel et al., The Relationship Between Sexual Orientation and Risk for Suicide: Research Findings and Future Directions for Research and Prevention, 31 SUICIDE & LIFE- THREATENING BEHAV. 84, 87-96 (2001).
139. See id. at 87 (citing Patrick J. Meehan, Attempted Suicide Among Young Adults: Progress Toward a Meaningful Estimate of Prevalence, 149 AM. J. PSYCHOL. 41 (1992)).
140. See Heidi S. Kulkin et al., Suicide Among Gay and Lesbian Adolescents and Young Adults: A Review of the Literature, 40 J. HOMOSEXUALITY 1, 2 (2000) ("Most suicide attempts by gays or lesbians take place during their youth."); McDaniel et al., supra note 109, at 88 (summarizing two studies of gay and lesbian adults who had attempted suicide, which showed that most attempts were made before age twenty-five).
141. Early studies recruited subjects from places such as gay and lesbian support groups, which could have biased the studies' findings. See McDaniel et al., supra note 109, at 87-90 (discussing the early studies' methodologies); see also Amy Lovell, Comment, "Other Students Always Used to Say, 'Look at the Dykes'": Protecting Students from Peer Sexual Orientation Harassment, 86 CAL. L. REV. 617, 624-25 (1998) (discussing the early studies' methodological flaws).
142. Four studies, published between 1998 and 1999, reported the following suicide attempt rates among gay and lesbian students: first study, 35% (high school students); second study, 35% (high school students); third study, 27.5% (high school students); and fourth study, 28%/21% (male/female, junior high and high school students). See McDaniel et al., supra note 109, at 91-95 (summarizing findings from statewide school-based studies). One should note that these newer studies still have minor methodological shortcomings. For example, school-based surveys do not account for school dropouts, who may be more likely to have attempted suicide. See id. at 95. Also, these studies vary in their definitions of suicide attempts and sexual orientation (some surveys asked students to identify their sexual orientation; others asked students whether they had ever experienced same-sex sexual contact). See id. Finally, three of the studies do not capture how attempt rates may vary by sex. See id. at 94.
143. See Margaret Rosario et al., The Coming-Out Process and Its Adaptational and Health-Related Associations Among Gay, Lesbian, and Bisexual Youths: Stipulation and Exploration of a Model, 29 AM. J. COMMUNITY PSYCHOL. 133, 153 (2001).
144. Lock & Steiner, supra note 108, at 299.
145. Id. at 302. Students' mental health was measured through their reporting of issues such as depression, suicide, stress, anxiety, family problems, self-harm, temper problems, life and social dissatisfaction, and loneliness; general health was measured through reporting on factors such as
146. Id. at 300-02.
147. See, e.g., SAVIN-WILLIAMS, supra note 107, at 128 (finding a relationship between coming out and self-esteem among gay and lesbian youth); Stephanie K. Swann & Christina A. Spivey, The Relationship Between Self-Esteem and Lesbian Identity During Adolescence, 21 CHILD & ADOLESCENT SOC. WORK J. 629, 632 (2004) (summarizing existing research showing that disclosure of sexual identity, inter alia, is "specifically relevant to lesbian adolescents' self-esteem"). Although these studies do not conclusively show that disclosure causes higher self-esteem, they warrant attention. If disclosure does not produce self-esteem, but self-esteem produces disclosure, one can hypothesize that disclosure is an important part of maintaining self-esteem. Disclosure is a sign of identity achievement because congruence between one's inner sense of self and one's outward representation of that self is necessary for identity achievement.
148. See Eunai K. Shrake & Siyon Rhee, Ethnic Identity as a Predictor of Problem Behaviors Among Korean American Adolescents, 39 ADOLESCENCE 601, 602-03 (2004) (concluding that achievement of an ethnic identity corresponds with "self-esteem and psychological well-being as measured in self-worth, sense of mastery, purpose in life, and social competence," while "feelings of role confusion and alienation resulting from ethnic identity conflicts can lead to psychological as well as behavioral problems for ethnic minority adolescents");
149. see also Joseph D. Hovey & Cheryl A. King, Acculturative Stress, Depression, and Suicidal Ideation among Immigrant and Second-Generation Latino Adolescents, 35 J. AM. ACAD. CHILD & ADOLESCENT PSYCH. 1183, 1188-90 (1990) (presenting evidence that first- and second-generation Latino adolescents in the United States are more likely to experience depression and suicidal ideation than adolescents generally, and that this likelihood correlates with the amount of acculturation stress reported by the adolescents).
150. See, e.g., Bartlett, supra note 4; Caldwell, supra note 37; Carbado & Gulati, Working Identity, supra note 4; Perea, supra note 51; Rich, supra note 29.
151. See supra note 12.
152. See New Rider v. Bd. of Educ., 480 F.2d 693 (10th Cir. 1973) (rejecting a First Amendment challenge to a school grooming code with a hair-length requirement that prohibited Pawnee students from wearing traditional Native American hairstyles).
153. Negative rights entail freedom from government interference, whereas positive rights entail government assistance in actualizing the decisions that one freely makes. On the difference between negative and positive rights, see generally ISAIAH BERLIN, TWO CONCEPTS OF LIBERTY (1958).
154. For an argument in favor of children's positive rights, see Tamar Ezer, A Positive Right to Protection for Children, 7 YALE HUM. RTS. & DEV. L.J. 1 (2004).
155. See supra note 58.
156. On the difficulty of defining and enforcing positive rights, see Frank B. Cross, The Error of Positive Rights, 48 UCLA L. REV. 857 (2001).
157. For counterarguments, see Stephen Holmes & Cass R. Sunstein, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (1999);
158. Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271 (1990). State governments already afford some positive rights to children, such as rights to education and shelter. See Teitelbaum, supra note 20, at 804-06.
159. Child liberationists argue for increasing children's autonomy rights. The original child liberationists from the 1970s compared children to other oppressed classes, such as women and racial minorities. For examples of liberationist literature, see JOHN HOLT, ESCAPE FROM CHILDHOOD (1974);
160. John Holt, Why Not a Bill of Rights for Children?, in THE CHILDREN'S RIGHTS MOVEMENT: OVERCOMING THE OPPRESSION OF YOUNG PEOPLE 319 (1977); Rodham, supra note 9. Protectionists argue not for children's autonomy rights but for welfare rights that protect children from harm, such as rights to nutrition and shelter.
161. See Bruce C. Hafen, Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their "Rights" 1976 BYU L. REV. 605, 644-50 (1976) (arguing for child protectionism and against child liberation); Teitelbaum, supra note 20, at 804-06 (discussing children's welfare rights).
162. In discussing liberty, Mill remarked: "We are not speaking of children . . . . Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury." MILL, supra note 18, at 14.
163. See, e.g., Robert Batey, The Rights of Adolescents, 23 WM. & MARY L. REV. 363, 373 (1982) (arguing that "in a situation in which the state would defer to the desires of an adult, the state can refuse to defer to the considered desires of an adolescent only upon a showing that the adolescent is not competent to make the decision"); Rodham, supra note 9, at 508 (arguing to "abolish the status of minority and to reverse its underlying presumption of children's incompetency").
164. See, e.g., Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L.J. 1, 5 (1986) (arguing that "there are [no] knowable boundaries between competence and incompetence for any given societal task" and that "[t]here are no uncontroversial principles to pinpoint the kinds of competencies crucial to accord an individual independent decision-making power and to relinquish paternalist control").
165. See Katherine Hunt Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DEPAUL L. REV. 983, 985 (1993) ("It is my contention not only that competency is unnecessary to any formulation of rights for children, but also that it is extremely confining to rights theory in ways that make it difficult to conceptualize, much less acknowledge, the rights of children and other groups.");
166. Melinda A. Roberts, Parent and Child in Conflict: Between Liberty and Responsibility, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 485, 514-15 (1996) (arguing that "children [should] have a right of liberty . . . only in those particular circumstances in which the child's choice in fact serves his or her own best interests").
167. See MILL, supra note 18, at 14; Hafen supra note 127, at 650.
168. Note that the pluralism principle protects children qua children. In contrast, some commentators have argued that children should have some freedoms because they are potential adults; the idea is that giving children some autonomy prepares children for the decisions that they will face as adults. See Sharon Bishop, Children, Autonomy and the Right to Self-Determination, in WHOSE CHILD? 174 (William Aiken & Hugh LaFollette eds., 1980). I reject merely viewing children as potential adults because such a view ignores the fact that, when children are denied certain liberties, they suffer immediate harms as children.
169. See Minow, Children's Rights, supra note 20, at 296 n.160.
170. See Buss, Allocating Developmental Control, supra note 17, at 35.
171. See supra notes 87-92 and accompanying text. Because the pluralism principle protects exploration of fluid goals and values, it rejects the notion that people belong in rigid, fixed identity categories. For example, an American of Asian descent can explore and choose to adopt goals and values that she may or may not label as "Asian American." Indeed, the pluralism principle protects, for example, the individual of Asian descent who identifies, in the psychological sense, with goals and values typically associated with people of another racial phenotype. There is no correct way to be Asian American, and an individual with an Asian phenotype may identify, for example, with black identity. See Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded as" Black, and Why Title VII Should Apply Even if Lakisha and Jamal Are White, 2005 WIS. L. REV. 1283 (arguing that Title VII should prohibit discrimination against people who are not phenotypically black but identify with, or are regarded by others as, being black).
172. See supra notes 84-86 and accompanying text.
173. Compare the exercise of identity interests to the exercise of religion. Whether particular conduct constitutes an exercise of religion has often vexed courts. However, those difficult cases do not suggest that the Free Exercise Clause should be amended out of the Bill of Rights.
174. See supra note 95 and accompanying text.
175. See supra note 137 and accompanying text.
176. See supra note 103 and accompanying text.
177. See supra Part I.B (discussing harms).
178. Of course, whether colorblindness is desirable in the first place is disputed. See Charles R. Lawrence III, The Epidemiology of Color-Blindness: Learning To Think and Talk about Race, Again, 15 B.C. THIRD WORLD L.J. 1 (1995).
179. Cf. Charles Stangor et al., Categorization of Individuals on the Basis of Multiple Social Features, 62 J. PERSONALITY & SOC. PSYCHOL. 207, 208 (1992) ("[S]ocial categories are well learned . . . . [B]ecause they are [perceived to be] highly informative about underlying dispositions, social categories such as race and sex may be used so frequently in social perception that their use becomes habitual and automatic, occurring without conscious thought or effort.").
180. My argument here is normative rather than descriptive. As a descriptive matter, subjective cultural factors probably play a significant role in the promulgation of laws regulating female genital mutilation.
181. See Emily Buss, Constitutional Fidelity Through Children's Rights, 2004 SUP. CT. REV. 355, 358-59 [hereinafter Buss, Constitutional Fidelity].
182. See Buss, Allocating Developmental Control, supra note 17, at 41 ("[T]he ongoing process of identity development, which continues through adolescence, compromises the extent to which it is appropriate to bind an individual at Time 2 to the choices made by that individual, as a child, at Time 1.").
183. See MARTIN R. GARDNER & ANNE PROFFITT DUPRE, CHILDREN AND THE LAW 410-17 (2002).
184. Similarly, age-of-consent laws regulating sexual intimacy are justified even if they assimilate adolescents to majoritarian moral codes. Consent to sex has a legal nature. By consenting to the act of sexual intimacy, one essentially agrees to waive certain rights, such as the right to press charges for rape.
185. See FRANKLIN E. ZIMRING, CHANGING LEGAL WORLD OF ADOLESCENCE 65-72 (1982) (arguing that adolescence should be viewed as something like a driver's permit for adulthood, during which individuals experiment with different values); supra notes 87-93 and accompanying text.
186. The pluralism principle merely gives the government discretion to infringe upon identity interests when long-term consequences are at stake. The state is not obligated to regulate children's actions whenever those actions lead to long-term consequences. For example, lawmakers may very well determine that some actions - such as ear piercing - have relatively inconsequential long-term effects that do not warrant regulation.
187. See MILL, supra note 18, at 165 ("[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."). I discuss, in notes 131-133 and accompanying text, supra, why I reject Mill's wholesale exclusion of children. Mill argued that harm to others is the only justification for limiting adults' freedom. See MILL, supra note 18, at 165. Because I am writing about children, my claim is much more modest. The pluralism principle's first prong states that the government may limit children's freedom for socialization purposes, except when the freedom at stake implicates identity interests. Not all conduct involves identity interests. Since the state may limit a child's exercise of identity when that exercise harms the child herself, the pluralism principle protects significantly fewer freedoms than Mill's broader harm principle.
188. See H. L. A. HART, LAW, LIBERTY AND MORALITY 49-51 (1963). According to Hart, the notion that changes in morality are inherently harmful is "entitled to no more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes." Id. at 50.
189. In other words, the state may intervene when children incite other children to make binding commitments of either a legal or bodily nature, as discussed in Part II.B.1, supra. Typically, states will exercise this power in school contexts. Thus, for example, even if a student believes strongly in the legalization and consumption of certain drugs - whether for religious, cultural, or political reasons - a school may be permitted to prevent that student from openly preaching drug use to her classmates because drug use entails bodily consequences and a legal decision, i.e., to break the law. However, the school may only intervene if the student's classmates are vulnerable to peer pressure, which will depend on their maturity. As this Article goes to publication, the Supreme Court is poised to release its decision in Frederick v. Morse, a case in which a high school principal punished students for displaying a banner stating, "Bong Hits 4 Jesus." 439 F.3d 1114 (9th Cir. 2006), cert, granted, 127 S.Ct. 722 (U.S. Dec. 1, 2006). Under the pluralism principle, the principal's actions only would be justified, as a normative matter, if she could show that the banner was likely to incite drug use, and not just parody the school's position against drugs.
190. See FEINBERG, supra note 18, at 38-62, 105-06 (1984) (clarifying Mill's principle by defining harms in terms of setbacks to others' protected interests).
191. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Amish parents' free exercise right to direct children's religious upbringing outweighed state interests in mandating schooling for children until the age of sixteen); Farrington v. Tokushige, 273 U.S. 284 (1927) (invalidating state regulations of private schools because the regulations violated parents' substantive due process right to direct their children's education); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that the Due Process Clause protects parents' right to send their children to private religious schools in lieu of public schools); Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that Fourteenth Amendment Due Process Clause protects parents' right to employ a private school teacher to instruct their children in foreign languages). For a thorough criticism of these cases and the notion of parents' rights, see James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 CAL. L. REV. 1371 (1994);
192. see also Emily Buss, The Adolescent's Stake in the Allocation of Educational Control Between Parent and State, 67 U. CHI. L. REV. 1233, 1276-88 (2000) (relying on Eriksonian psychological literature to question the appropriateness of home schooling and private religious schooling for older adolescents).
193. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (explaining, in a case involving child labor laws, that parents' interest in directing children's religious upbringing is not absolute); infra note 159 and accompanying text.
194. See supra note 155.
195. In cases where a child's conduct implicates cognizable harms, the state may consider parental interests to determine whether and how to limit the child's freedom; however, the state must first show a cognizable harm independent of so-called "harm to parents." See infra Part III.B.2 (discussing deference to parents in cases such as abortion cases, which potentially involve cognizable harms because of abortion's long-term consequences).
196. See, e.g., Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003) (holding that a father did not have a constitutional right to excuse his son from mandatory sex education classes); Brown v. Hot, Sexy & Safer Prod., Inc., 68 F.3d 525 (1st Cir. 1995) (determining that parents' right to childrearing did not include the right to limit flow of information in public school); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) (rejecting parents' free exercise challenge to textbooks).
197. I am only making a normative argument at this point. The Supreme Court has yet to decide a case regarding hate speech in the school context. Lower courts have reached conflicting opinions. I evaluate these conflicting opinions in Part IV.B, infra.
198. The pluralism principle only justifies the regulation of hate speech in contexts involving child speakers and child audiences; regulating child speakers - but not adult speakers - makes sense as a legal matter because children have always possessed less freedom of expression than adults. See infra Part IV.B. Protecting child audiences makes sense because of children's particular vulnerabilities. See supra Part I.B; see also RICHARD DELGADO & JEAN STEFANCIC, UNDERSTANDING WORDS THAT WOUND 93-109 (2004) (discussing hate speech and the special case of children).
199. See infra note 262 and accompanying text (on privacy); infra notes 249-250 accompanying text (on physical safety).
200. This definition of hate speech draws from Canadian jurisprudence. See R. v. Keegstra, [1990] 3 S.C.R. 697, 777 (Can.) ("[H]atred[,] . . . if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.").
201. Hate speech can be distinguished from assimilation pressures that merely encourage people to change. For example, when a school encourages students to be patriotic by conducting flag salutes, it still respects unpatriotic students who choose not to participate in the salute. See infra notes 182-187 and accompanying text. In contrast, hate speech is by definition a denial of respect.
202. For an online vendor selling T-shirts with this slogan, see Café Press, http://www.cafe press.com/religion_01 (last visited Mar. 9, 2007).
203. For a photograph of children wearing T-shirts stating "GOD HATES FAGS.COM," see Vox Hunt: Sign O' The Times GOD HATES FAGS!, http://dancingbear.vox.com/library/ post/vox-hunt-sign-o-the-times-god-hates- fags.html (last visited Mar. 9, 2007).
204. See, e.g., Andersen v. King, 138 P.3d 963, 980-81 (Wash. 2006) (disagreeing with plaintiffs that Washington's same-sex marriage ban was motivated only by antigay animus); Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (reaching the same conclusion regarding New York's same-sex marriage ban).
205. I borrow the term "special rights" from Buss, who has written extensively on how Bellotti v. Baird, 443 U.S. 622 (1979), suggests that children have not only equal constitutional rights but special constitutional rights. See Buss, Allocating Developmental Control, supra note 17, at 47; Buss, Constitutional Fidelity, supra note 145, at 356.
206. See, e.g., Van Orden v. Perry, 545 U.S. 677, 710 (2005) (acknowledging a neutrality principle in Establishment Clause cases); Ewing v. California, 538 U.S. 11, 20 (2003) (describing the proportionality principle of the Eighth Amendment).
207. See, e.g., United States v. Booker, 543 U.S. 220, 286 (2005) (Stevens, J., dissenting in part) (invoking the principle of constitutional avoidance in a question of procedural due process); Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944) (applying the principle of constitutional avoidance to a question about the Commerce Clause).
208. See, e.g., Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 CAL. L. REV. 673 (2002) (discussing equality as a principle in Establishment Clause cases);
209. Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103 (2004) (discussing equality as a principle in substantive due process cases).
210. Similarly, when Ken Karst wrote his seminal essay on intimate association, he argued that the freedom of intimate association is an organizing principle that should guide decisionmaking in the areas of substantive due process, the First Amendment, and equal protection. See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624 (1980).
211. Constitutional principles often emerge - like the common law does - through a pattern among cases, rather than manifesting in a specific opinion. See Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1899 (2004) (comparing the Court's reasoning in Lawrence to deriving a regression line from a scatter diagram of previous substantive due process cases).
212. Although there are many free exercise cases that involve children, I only address W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). I do not devote more attention to free exercise cases because the Court generally assumes that children and adults have equal rights to free exercise. See Note, Children as Believers: Minors' Free Exercise Rights and the Psychology of Religious Development, 115 HARV. L. REV. 2205, 2209 (2002).
213. 387 U.S. 1, 13 (1967).
214. 443 U.S. 622, 634 (1979) (upholding an abortion law's parental notification requirement because it included a satisfactory judicial bypass mechanism).
215. See supra note 20 (listing criticisms of children's rights jurisprudence).
216. See infra Part III.B.1 (discussing cases in which the state failed to identify cognizable harms).
217. In Bellotti, the Court recognized that it only concerns itself with the maturity factor when children are demanding rights to make "choices with potentially serious consequences," "choices that could be detrimental to them," or choices that "present[] a danger against which they should be guarded." 443 U.S. at 635-36. The Court was less clear on when the deference-to-parent factor comes into play, but it did state that "[u]nder the Constitution, the State can 'properly conclude that parents . . . who have [the] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.'" Id. at 639 (quoting Ginsberg v. New York, 390 U.S. 629, 639 (1968)). That statement implies that the state may defer to parents when children's well-being is at risk. When children are not vulnerable to cognizable harms, their well-being is not at risk.
218. See infra Part III.A.1.
219. See infra Parts III.A.2-3.
220. 319 U.S. 624 (1943).
221. See id. at 630-31 ("The State . . . coerce[s school] attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.").
222. Id. at 625-30.
223. See id. at 634-36 (noting that students' "religious views" as well as "matters of opinion and political attitude" were implicated).
224. See id. at 642.
225. Id.
226. Id. at 640.
227. Id.
228. 393 U.S. 503 (1969).
229. 457 U.S. 853 (1982).
230. 431 U.S. 678 (1977).
231. 393 U.S. at 514. Tinker is the first case in the Court's trilogy on student speech. The second case in the trilogy is Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), which specifically governs low-value speech, such as obscene and indecent speech, and is discussed in Part III.B.1.b, infra. The third case, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), governs school-sponsored speech, such as school-run newspapers, and is discussed in notes 262-265 and accompanying text, infra.
232. See Tinker, 393 U.S. at 510-11.
233. See id. at 509.
234. See id. at 508-09, 514.
235. The school board claimed that the books were "anti-American" and "offensive to . . . Americans in general." 457 U.S. at 873 (quoting Pico v. Bd. of Educ., Island Trees Union Free Sch. Dist., 474 F. Supp. 387, 390 (E.D.N.Y. 1979)).
236. Id. at 857 (quoting Pico v. Bd. of Educ., Island Trees Union Free Sch. Dist., 474 F. Supp. 387, 390 (E.D.N.Y. 1979)).
237. See id. at 864.
238. Id. at 872 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
239. See id. at 857.
240. Carey v. Population Servs. Int'L, 431 U.S. 678, 681-82 (1977).
241. Id. at 692.
242. See Karst, supra note 172, at 628 (discussing the relationship between intimate associations and personal identities).
243. In discussing the risks of sexual activity among youth, the Court noted numerous physical and psychological harms but did not raise any social or moral concerns. See, e.g., Carey, 431 U.S. at 696 n.21 ("[T]eenage motherhood involves a host of problems, including adverse physical and psychological effects upon the minor and her baby." (internal quotation marks and brackets omitted)).
244. See id. at 696.
245. See id. at 697.
246. See id. at 696 n.21 (noting pregnancy's "physical and psychological effects upon the minor and her baby").
247. 478 U.S. 675 (1986).
248. Id. at 686 (plurality opinion).
249. Id. at 677-78.
250. See, e.g., Hosty v. Carter, 412 F.3d 731, 739 (7th Cir. 2005) (noting that Supreme Court case law on student speech has become "difficult to understand and apply"); Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 474 (6th Cir. 2001) (Gilman, J., dissenting) (stating that the majority interpreted Fraser and Hazelwood School Bd. v. Kuhlmeier, 484 U.S. 260 (1988), as "essentially overruling Tinker"); Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 737 (7th Cir. 1994) (asserting that Fraser "cast some doubt" on Tinker); David L. Hudson & John E. Ferguson, A First Amendment Focus: The Courts' Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights, 36 J. MARSHALL L. REV. 181, 183 (2002) (noting that some courts have relied on Fraser to prohibit not just vulgar and lewd speech but also ideas that school boards find offensive).
251. 220 F.3d 465 (6th Cir. 2000).
252. Id. at 465.
253. Id. at 469, 71. The T-shirt criticizing Christianity featured a "three-headed Jesus," the words "See No Truth. Hear No Truth. Speak No Truth." on the front and the word "BELIEVE" with "LIE" highlighted on the back. Id. at 469.
254. Id. at 470.
255. Id. at 471.
256. See Jeff Q. Bostic et al., From Alice Cooper to Marilyn Manson: The Significance of Adolescent Antiheroes, 27 ACAD. PSYCH. 54 (2003);
257. Judith A. Peraino, Listening to the Sirens: Music as Queer Ethical Practice, 9 GLQ: J. LESBIAN & GAY STUD. 433 (2003).
258. See Peraino, supra note 218.
259. See id. at 469.
260. See supra Part II.B.2.
261. See id.
262. Boroff, 220 F.3d at 471.
263. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words.").
264. See Fraser, 478 U.S. at 689 (Brennan, J., concurring) ("There is no suggestion that school officials attempted to regulate [Fraser's] speech because they disagreed with the views he sought to express."); Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1193 (9th Cir. 2006) (Kozinski, J., dissenting) ("'[P]lainly offensive' under Fraser is determined by the language used, not the idea conveyed."); East High Gay/Straight Alliance v. Bd. of Educ. of Salt Lake City Sch. Dist., 81 F. Supp. 2d 1166, 1193 (D. Utah 1999) ("Fraser speaks to the form and manner of student speech, not its substance. It addresses the mode of expression, not its content or viewpoint.").
265. See Fraser, 478 U.S. at 687 (Brennan, J., concurring) (summarizing the Court's description of the speech in question).
266. See FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978).
267. See Miller v. California, 413 U.S. 15, 24 (1973); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 265 (2002); Reno v. ACLU, 521 U.S. 844, 865 (1997); Pacifica Found., 438 U.S. at 745-47.
268. Fraser, 478 U.S. at 685 (quoting Chaplinsky, 315 U.S. at 572).
269. See supra Part I.B.
270. "'Self-realization' theories of the First Amendment stress the relationship between free expression and personal fulfillment . . . [which includes] developing a self-identity." DANIEL A. FARBER, THE FIRST AMENDMENT 3-4 (2d ed. 2003). However, self-realization theories of free speech have never been absolute. Id. at 4.
271. See supra Part I.B.
272. One might argue that requiring students to use "standard" English in assignments is an assimilation demand on, for example, Ebonics speakers. Drawing from the writings of Lisa Delpit, I believe that requiring students to learn standard English is not a coercive assimilation demand, as long as teachers do not denigrate Ebonics as inherently "wrong" or "deficient." Teachers can simultaneously affirm the cultural worth of Ebonics and require students to learn standard English because of its practical value. See Lisa Delpit, What Should Teachers Do About Ebonics?, in TONGUE TIED: THE LIVES OF MULTILINGUAL CHILDREN IN PUBLIC EDUCATION (Otto Santa Ana ed., 2004)).
273. Bellotti v. Baird, 443 U.S. 622, 634 (1979).
274. Id. at 625-26.
275. Id. at 643-44.
276. Id. at 640.
277. Id. at 640-42 (noting abortion's long-term consequences, medical nature, and legal implications).
278. See supra Part III.B.1 (discussing cases in which the Court stated that cultural and moral norms alone are not sufficient reasons to reduce children's constitutional rights). In particular, recall that in Carey v. Populations Servs. Int'l, the Court stated that moral reasons were not enough to justify a New York law that limited the sale of contraceptives to minors. See 431 U.S. 678, 719 (1977).
279. Pregnant teenagers could bypass the statute's parental consent component through a judicial hearing in which they proved themselves to be mature or proved that an abortion was in their best interest, regardless of their maturity. Bellotti, 443 U.S. at 643-44.
280. For a case similar to Bellotti, consider Parham v. J.R., 442 U.S. 584 (1979). In Parham, the Court upheld a statute that empowered parents to commit their children to psychiatric institutions against their children's will. Id. The Court reduced children's autonomy rights by granting power to their parents only after establishing that medical harms were central to the case. Id. at 609.
281. 515 U.S. 646 (1995).
282. Id.
283. Id. at 660-65; see also New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (noting that schools have a legitimate interest in preventing drug use).
284. See Acton, 515 U.S. at 662.
285. See id. at 661.
286. See id. at 658.
287. Id. at 659-60. The Court ultimately decided that students could give advance disclosure in a confidential manner, thus mitigating privacy concerns. Id. at 660.
288. Disclosing individuals' membership in stigmatized identity groups against their will can negatively influence those individuals' identity development. See infra Part IV.C (discussing the disclosure of individuals' sexual orientation); see also James P. Madigan, Questioning the Coercive Effect of Self-Identifying Speech, 87 IOWA L. Rev. 75 (2001).
289. See Tinker v. Des Moines, 393 U.S. 503, 508-09, 514 (1969).
290. Courts generally have stated that schools invoking the substantial disruption exception must show that there is a risk of physical disturbance, but courts have afforded schools varying degrees of discretion to forecast and define physical disturbances. See generally Royal C. Gardner, III, Case Note, Protecting a School's Interest in Value Inculcation to the Detriment of Students' Free Expression Rights: Bethel School District v. Fraser, 28 B.C. L. REV. 595, 603-05 (1987);
291. Kathleen Hart, Note, Sticks and Stones and Shotguns at Schools: The Ineffectiveness of Constitutional Antibullying Legislation as a Response to School Violence, 39 GA. L. REV. 1109, 1138 (2005).
292. Cases almost never rest on the rights-of-others exception. See infra note 277. But see Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006).
293. 484 U.S. 260 (1988).
294. Id. at 260.
295. See id. at 270-71.
296. See id.
297. See id.
298. Id. at 273.
299. See id. at 273-75.
300. The author of the article failed to interview a divorcee whom the author sharply criticized. See id. at 274-75. A professional newspaper editor and a former college journalism instructor both testified that the author's reporting did not meet journalistic standards. See id. at 275 n.8.
301. See id. at 263, 275.
302. See id. at 274.
303. See id.
304. See id. at 274-75.
305. At least one lower court has interpreted the protection of privacy as the dispositive factor in the Court's decision in Kuhlmeier. See Hansen v. Ann Arbor Pub. Sch., 293 F. Supp. 2d 780, 795 (E.D. Mich. 2003).
306. Kuhlmeier, 484 U.S. at 274-75.
307. 443 U.S. 622, 633 (1979).
308. Id. at 633-36.
309. See supra note 168.
310. 347 U.S. 483 (1954).
311. I should note that many commentators have criticized Brown's use of social science literature to discuss developmental harms for being crude and problematic. See, e.g., Garrick B. Pursley, Thinking Diversity, Rethinking Race: Toward a Transformative Concept of Diversity in Higher Education, 82 TEX. L. REV. 153, 154 n.8 (2003) (noting that this aspect of Brown "has generated an entire body of scholarship critical of such an approach"). These criticisms should not lead jurists to ignore insights from social science; rather, they should prompt greater interdisciplinary dialogue in order to improve the way jurists draw from social science.
312. See Anne C. Dailey, Developing Citizens, 91 IOWA L. REV. 431, 445-54 (2006) (supporting the Court's more recent steps to integrate psychology "into constitutional decisionmaking");
313. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CAL. L. REV. 997, 1005-08 (2006) (providing an example of an appropriate way in which the courts can utilize social science theories within their jurisprudence);
314. Michael Heise, Brown v. Board of Education, Footnote Eleven, and Multidisciplinarity, 90 CORNELL L. REV. 279, 307-18 (2005) (showing that Brown has fueled greater multidisciplinarity in court decisions and legal scholarship).
315. See Brown, 347 U.S. at 493-94.
316. Id. at 494.
317. See supra notes 47-48 and accompanying text (discussing the relationship between racial stigma and sense of self).
318. Brown, 347 U.S. at 493.
319. Id. at 494 (noting that criticisms of racial segregation "apply with added force to children in grade and high schools").
320. See Michael Heise, Litigated Learning and the Limits of Law, 57 VAND. L. REV. 2417, 2419 (2004) [hereinafter Heise, Litigated Learning] (noting that Brown did not expressly overrule Plessy v. Ferguson, 163 U.S. 537 (1896)).
321. See Lee v. Washington, 390 U.S. 333 (1968) (prison); Johnson v. Virginia, 373 U.S. 61 (1963) (courtroom); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (city park); Gayle v. Browder, 352 U.S. 903 (1956) (city bus); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf course); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beach and bathhouse); see also Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. THIRD WORLD L.J. 207, 247-48 (2006) (describing how Congress and federal courts extended desegregation to different contexts post-Brown).
322. See Heise, Litigated Learning, supra note 276.
323. 543 U.S. 551, 560 (2005).
324. Id. at 553.
325. Buss, Allocating Developmental Control, supra note 17, at 35.
326. For an argument that staying true to constitutional principles requires granting children special rights, see generally Buss, Constitutional Fidelity, supra note 145, at 355.
327. See Wyatt Buchanan, Bills Nationwide Address Gays in Schools: 19 States Have More or Fewer Rights for Students on Agenda, S.F. CHRON., Apr. 1, 2006, at B1.
328. See Michael Janofsky, Gay Rights Battlefields Spread to Public Schools, N.Y. TIMES, June 9, 2005, at A18.
329. 410 F. Supp. 2d 894 (CD. Cal. 2005).
330. For background on GSAs, see Gay Straight Alliance Network, http://www.gsanet work.org/ (last visited Sept. 14, 2006).
331. For background on expressive associations and the First Amendment's protection of expressive association, see FARBER, supra note 231, at 233-39.
332. According to the EAA, 20 U.S.C §§ 4071-4074 (2000), if a public secondary school receiving federal funds allows students to form noncurricular student groups at all, it generally must allow students to form any noncurricular group they want, and it must treat all noncurricular groups equally. The EAA makes exceptions, allowing schools to treat particular groups differently when necessary to (1) maintain order and discipline, (2) protect the well-being of students and faculty, or (3) prevent material and substantial interference with the orderly conduct of educational activity. Id. §§ 4071(c)-(f); see also Sarah Orman, Note, "Being Gay in Lubbock": The Equal Access Act in Caudillo, 17 HASTINGS WOMEN'S L.J. 227, 231 (2006) (explaining exceptional circumstances under the EAA).
333. See Orman, supra note 288. But see Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550 (N.D. Tex. 2004) (finding that the sexual content in the group's discussions and online communications threatened students' well-being and the school's order and discipline).
334. See Buchanan, supra note 283.
335. Id.
336. For background on the Georgia law, see Merritt Melancon, Schools: Parents Not Keeping Kids Out of Activities, ATHENS BANNER-HERALD, Aug. 28, 2006, at 1.
337. See id.
338. See id.
339. See supra note 87 and accompanying text.
340. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988).
341. For a discussion of Fraser, see supra Part III.B.1.b.
342. Students who join student organizations are "speaking" in the sense that they are expressing themselves through association. See FARBER, supra note 231, at 233-39.
343. See Buchanan, supra note 283.
344. See Bellotti v. Baird, 443 U.S. 622, 634 (1979).
345. See supra notes 176-177 and accompanying text.
346. See supra Part II.C.2.a.
347. See FARBER, supra note 231, at 107-17.
348. Hate speech in school denigrates other students as being inferior, which compromises those students' identity development. For a more detailed theory of the cognizable harms created by hate speech, see supra Part III.B.2.
349. Outside the context of hate speech, the Court already has given the government discretion to shield children from other forms of speech, even when the speaker is an adult. See FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978) (rejecting a First Amendment challenge to the FCC's programming schedule, even though it relegated certain programs to late nights because the FCC deemed the programs' content unsuitable for children).
350. 445 F.3d 1166, 1171 (2006).
351. See id. at 1178.
352. Id. at 1171.
353. Id.
354. Id.
355. Id. at 1178. The Eleventh Circuit has taken another approach to preventing hate speech. It has held that a school banning hate speech, in the form of the confederate flag, did not violate the First Amendment because Fraser permits schools to regulate civility in schools broadly. See Denno v. Sch. Bd. Volusia County, Fla., 218 F.3d 1267, 1275 (11th Cir. 2000). However, combating hate speech through Fraser is problematic because it stretches the reasoning in Fraser too far. See supra notes 213-222 and accompanying text.
356. 383 F. Supp. 2d 965 (S.D. Ohio 2005).
357. Id. at 967.
358. See id. at 974. The court also held that the student's T-shirt did not cause substantial disruption under Tinker and was not impermissible under Fraser. See id. at 971, 973.
359. 293 F. Supp. 2d 780, 792-803 (E.D. Mich. 2003).
360. Id. at 793.
361. Id. at 796.
362. Id. at 802.
363. See id.
364. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) (noting that "the precise scope of Tinker's 'interference with the rights of others' language is unclear"); Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 974 (S.D. Ohio 2005) ("[T]he [c]ourt is not aware of a single decision that has focused on [the rights-of-others exception] in Tinker as the sole basis for upholding a school's regulation of student speech."); Cindy Lavorato & John Saunders, Public High School Students, T-Shirts, and Free Speech: Untangling the Knots, 209 EDUC. LAW REP. 1, 9 (2006) (noting that the rights-of-others exception in Tinker "has been analyzed very little").
365. See supra Part III.B.1.
366. See supra Part I.
367. Above, I defined hate speech as statements sending the message that others "are to be despised and denied respect because of their identity." See supra notes 163-164 and accompanying text.
368. See Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006).
369. Id.
370. See New Jersey v. T.L.O., 469 U.S. 325, 741 (1985).
371. See supra notes 249-250 and accompanying text.
372. See Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 974 (S.D. Ohio 2005) ("[T]here is no evidence that [Nixon's] silent, passive expression of opinion interfered with the work of Sheridan Middle School or collided with the rights of other students to be let alone."); Hansen v. Ann Arbor Pub. Sch., 293 F. Supp. 2d 780, 802 (E.D. Mich. 2003) ("Defendants fail to show why gays would be threatened or be made less 'safe' by allowing the expression of . . . [a] viewpoint [condemning homosexuality].").
373. A student in Harper similarly argued that only physical assault can infringe other students' right to be secure and let alone. See Harper, 445 F.3d at 1177. This narrow reading of the rights-of-others exception is problematic not only because psychological attacks produce deep wounds, but also because it would be redundant with Tinker's other exception; physical assaults would almost always amount to "substantial disruptions" of school procedures.
374. See C.N. v. Wolf, 410 F. Supp. 2d 894 (CD. Cal. 2005) (granting in part and denying in part defendants' motion to dismiss); see also Mehta, supra note 8. As this Article goes to publication, the decision in this case is pending.
375. See C.N., 410 F. Supp. 2d at 896.
376. See id.
377. 517 U.S. 620, 632 (1996).
378. See YOSHINO, supra note 5, at 69-79 (discussing similar scenarios in the employment context and concluding that pressure to conform to heterosexual norms derives from animus toward gays and lesbians).
379. A well-known equal protection case on sexual orientation-based bullying in schools offers little guidance because the school in that case did not allege that it had a legitimate state interest in discriminating on the basis of sexual orientation; it simply claimed that it did not discriminate in the first place. See Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996).
380. See supra Part III.B
381. See supra Part III.B.1.
382. See supra Part III.B.1.
383. Indeed, the principal in C.N. v. Wolf has focused on disputing the facts of the case instead of making this rather weak legal argument. See Kelley-Anne Suarez, Passions Fill O.C. Court in Trial Over Student Rights, L.A. TIMES, Dec. 13, 2006, at 1.
384. See Sterling v. Borough of Minersville, 232 F.3d 190, 192 (3d Cir. 2000) (holding that police officers violated a seventeen-year-old's right to privacy by threatening to disclose his sexual orientation to his parents - a threat which precipitated the boy's suicide); see also Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998) (noting that public disclosure of information regarding sexuality compromises one's privacy interests); Eastwood v. Dep't of Corr., 846 F.2d 627, 631 (10th Cir. 1988) (noting that the right to privacy "is implicated when an individual is forced to disclose information regarding personal sexual matters").
385. See Sterling, 232 F.3d at 192-93.
386. Whalen v. Roe, 429 U.S. 589, 599 (1997); see also In re Crawford, 194 F.3d 954, 958-59 (9th Cir. 1999); Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983); Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978).
387. U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 770 (1989) (internal quotation marks omitted) (quoting Justice William Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?, Nelson Timothy Stephens Lectures at the University of Kansas Law School (Sept. 26-27, 1974)).
388. Although the Supreme Court has never applied the "reasonable expectation of privacy" test - which originated in Fourth Amendment jurisprudence - to informational privacy cases, numerous circuit courts have done so. See, e.g., Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990) ("Personal, private information in which an individual has a reasonable expectation of confidentiality is protected by one's constitutional right to privacy."); Kimberlin v. U.S. Dep't of Justice, 788 F.2d 434, 438 (7th Cir. 1986) ("Whether or not Kimberlin has a privacy interest in the information . . . depends upon whether he has a reasonable expectation of privacy in the information.").
389. See Tamar Lewin, Openly Gay Student's Lawsuit Over Privacy Will Proceed, N.Y. TIMES, Dec. 2, 2005, at A21; cf. Katz v. United States, 389 U.S. 347, 351 (1967) (opining in a Fourth Amendment case that "[w]hat a person knowingly exposes to the public" is no longer subject to constitutionally based privacy protections).
390. See supra note 281 and accompanying text.
391. See supra note 281 and accompanying text.
392. See Neil M. Richards, The Information Privacy Law Project, 94 GEO. L.J. 1087, 1095-120 (2006);
393. Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477 (2006).
394. Solove, supra note 348, at 532.
395. Cf. James J. Tomkovicz, Beyond Secrecy for Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province, 36 HASTINGS L.J. 645, 698-704 (1985) (proposing a similar Fourth Amendment test, under which privacy rights are protected on the basis of "needs" instead of "expectations").
396. See supra note 340.
397. See SAVIN-WILLIAMS, supra note 107; see also Todd Brower, Of Courts and Closets: A Doctrinal and Empirical Analysis of Lesbian and Gay Identity in Courts, 38 SAN DIEGO L. REV. 565, 567-68 (2001).
398. See Roper v. Simmons, 543 U.S. 551 (2005).
399. Attorneys for Charlene Nguon made this point during oral arguments. See Suarez, supra note 339. Certainly, parents may be curious as to whom their child was kissing. They should be encouraged to discuss those details with their child. Consider this analogy: if a parent knows that her daughter chronicles her romantic life in a key-lock diary that she keeps in her school locker, the parent should not be able to demand that the school confiscate the diary, break the lock, and disclose her daughter's secrets. Schools should not be allowed to serve as an instrument used by parents to learn about their children's secrets, unless the child is at risk of cognizable harm.
400. See New Rider v. Bd. of Educ., 480 F.2d 693 (10th Cir. 1973) (rejecting a First Amendment challenge to a school grooming code with a hair-length requirement that prohibited Pawnee students from wearing traditional Native American hairstyles).
401. See, e.g., Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 971 (S.D. Ohio 2005) (holding that a school violated a student's First Amendment rights by prohibiting the student from wearing to school a T-shirt that denigrated homosexuality and Islam).