Is the family at odds with equality? The legal implications of equality for children

Southern California Law Review

Volumn 82, Issue 1, 2008, Pages 1-43

  Alstott, Anne L ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 59149102078     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (153)

1. JOHN RAWLS, A THEORY OF JUSTICE 73 (1971).
2. See id. at 73-74.
3. For an overview, see, for example, the essays collected in CONSEQUENCES OF GROWING UP POOR (Greg J. Duncan & Jeanne Brooks-Gunn eds., 1997) (investigating the effects of childhood poverty on health, education, employment, and other outcomes).
4. See PLATO, THE REPUBLIC 109-10, 154-69 (G.R.F. Ferarri ed., Tom Griffith trans., Cambridge Univ. Press 2000).
5. See ALDOUS HUXLEY, BRAVE NEW WORLD 20-32 (1932).
6. Fishkin notes the analogy to Plato and to Huxley and concludes that "[ajnything short of such a large-scale alternative to the autonomous nuclear family would probably provide only an imperfect barrier between the inequalities of the parental generation and the developmental processes affecting its children." JAMES S. FISHKIN, JUSTICE, EQUAL OPPORTUNITY, AND THE FAMILY 64-65 (1983).
7. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 120-38 (1980);
8. PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL 72-82 (1995).
9. See infra text accompanying note 31.
10. See infra text accompanying notes 77-86.
11. See, e.g., JAMES G. DWYER, THE RELATIONSHIP RIGHTS OF CHILDREN 2-3, 26-40 (2006).
12. See BRUCE ACKERMAN & ANNE ALSTOTT, THE STAKEHOLDER SOCIETY (1999);
13. ANNE L. ALSTOTT, NO EXIT (2004);
14. Anne L. Alstott, Equal Opportunity and Inheritance Taxation, 121 HARV. L. REV. 469 (2007) [hereinafter Alstott, Equal Opportunity];
15. Anne L. Alstott, Work vs. Freedom: A Liberal Challenge to Employment Subsidies, 108 YALE L.J. 967 (1999).
16. See, e.g., RAWLS, supra note 1, at 250 (stating the first and second principles of justice); ACKERMAN, supra note 7, at 10-17 (outlining the principles of neutrality and equal respect).
17. See also ACKERMAN & ALSTOTT, supra note 11, at 3-5 (arguing that the liberal tradition values liberty and equality).
18. See, e.g., JEFFREY BLUSTEIN, PARENTS AND CHILDREN: THE ETHICS OF THE FAMILY 13-14 (1982) (noting that "the family as we know it is an obstacle to the complete realization of a basic principle of social justice," equality of opportunity).
19. FISHKIN, supra note 6.
20. Id. at 4-6.
21. See id. at 35-43. He concludes that "[s]o long as no one is severely harmed, intimate consensual relations [defined to include '[Relations between adults and children in a given family'] should be immune from coercive interference." Id. at 42.
22. Id. at 30-35.
23. Id. at 64.
24. Id. at 30-35. Fishkin adds that the merit principle adds a third prong to form a "trilemma." If jobs (or other social positions) were awarded without regard to merit, perhaps on a pro rata or lottery basis, children's life chances would not be influenced by family circumstances, because one's opportunities would not be afunction of one's skills or background. Id. at 19-30.
25. See ACKERMAN, supra note 7, at 150-67.
26. See FISHKIN, supra note 6, at 67-82 (concluding that "[c]onsiderable evidence has recently accumulated that, while compensatory efforts can indeed improve the developmental opportunities facing the least advantaged, any realistic efforts will not be substantial enough to alter the basic pattern of conflict in the trilemma").
27. See ANNETTE LAREAU, UNEQUAL CHILDHOODS 5-6 (2003);
28. infra text accompanying notes 23-32.
29. For a summary of empirical evidence on intergenerational mobility, see W. Steven Barnett & Clive R. Belfield, Early Childhood Development and Social Mobility, THE FUTURE OF CHILDREN, Fall 2006, at 73, 87-91;
30. Emily Beller & Michael Hout, Intergenerational Social Mobility: The United States in Comparative Perspective, THE FUTURE OF CHILDREN, Fall 2006, at 19, 23-27. Children's genetic endowments also help determine their life options; 1 do not consider that aspect of endowment in this paper. For one approach to the problem of justice in genetic endowments, see ACKERMAN, supra note 7, at 113-19.
31. SUSAN E. MAYER, WHAT MONEY CAN'T BUY: FAMILY INCOME AND CHILDREN'S LIFE CHANCES 2-3, 9-14 (1997).
32. LAREAU, UNEQUAL CHILDHOODS, supra note 22, at 5-6.
33. See also ANNETTE LAREAU, HOME ADVANTAGE 1-11 (2d ed. 2000) (documenting the different approaches to primary education taken by middle-class and working-class parents).
34. LAREAU, UNEQUAL CHILDHOODS, supra note 22, at 110-11.
35. Id. at 124-27.
36. See id. at 52-65, 241-5.
37. Id. at 32.
38. See id. at 2-3.
39. See id. at 140-46, 159-60.
40. See, e.g., id. at 208-17 (recounting a case involving a working-class child with probable learning disabilities).
41. FISHKIN, supra note 6, at 67-82.
42. Id. at 64-65.
43. On this view, resources are understood broadly to encompass one's genetic and bodily endowment, as well as the external resources available to shape one's life.
44. For instance, I understand Fishkin's analysis to invoke resource equality when it construes equal opportunity for children as "equal life chances." See FISHKIN, supra note 6, at 30-35. Some writers in this tradition describe their ideal as "equality of opportunity," though others use the term differently. Compare ACKERMAN & ALSTOTT, supra note 11, at 1-5, 31-34 (identifying resource egalitarianism with equal opportunity), with RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 86-92 (2000) (equating "equality of opportunity" with libertarianism, and rejecting it).
45. See FISHKJN, supra note 6, at 64 (concluding that "if equality of life chances is to be achieved through processes consistent with the principle of merit, then conditions for the development of talents and other qualifications must be equalized").
46. See ACKERMAN, supra note 7, at 53-59;
47. DWORKIN, supra note 36, at 66-71.
48. See ACKERMAN, supra note 7, at 120-38 (developing the concept of undominated diversity).
49. See also VAN PARIJS, supra note 7, at 72-76 (adopting and extending Ackerman's view). Cf. DWORKIN, supra note 36, at 85-92 (suggesting institutions to compensate for differentials in marketable talents). But see VAN PARIJS, supra note 7, at 68-72 (discussing deficiencies in Dworkin's view from the perspective of resource equality); Alstott, Equal Opportunity, supra note 11, at 481-82 (same).
50. See ACKERMAN, supra note 7, at 123-24.
51. See id.
52. See id.
53. RAWLS, supra note 1, at 100-04;
54. DwORKIN, supra note 36, at 85-92.
55. See ACKERMAN, supra note 7, at 120-24.
56. See id.
57. One might pursue the equality-of-what question here and ask what the right metric for equal division should be. Equal dollars per child? Equal access to nutrition, health care, and education?
58. For a discussion of the concept of simple equality, see MICHAEL WALZER, SPHERES OF JUSTICE 13-17 (1983).
59. Colin Macleod makes a similar point in an essay drawing on principles of luck egalitarianism rather than resource equality. See Colin M. Macleod, Liberal Equality and the Affective Family, in THE MORAL AND POLITICAL STATUS OF CHILDREN 212 (David Archard & Colin M. Macleod eds., 2002).
60. ALSTOTT, NO EXIT, supra note 11, at 49-72.
61. The law in some states requires parents to provide life-saving medical care even when doing so runs counter to their religious beliefs. See Walker v. Superior Court, 763 P. 2d 852 (Cal. 1988) (upholding prosecution of Christian Science mother for daughter's death of meningitis when mother only provided treatment by prayer rather than medical care). But see Hermanson v. State, 604 So. 2d 775 (Fla. 1992) (overturning convictions of Christian Science parents for daughter's death from complications related to diabetes for providing only spiritual treatment).
62. For example, David Archard has argued that a "liberal state must be reproduced and this requires that it ensure its future citizens at least have the minimal capacities necessary to function as participating citizens." David Archard, Children, Multiculturalism, and Education, in THE MORAL AND POLITICAL STATUS OF CHILDREN, supra note 48, at 142, 153. Ackerman's dialogic conception of liberal justice, which emphasizes each person's actual capacity to defend his or her way of life in the public forum, leads him to identify communication and language development as important developmental goals. See ACKERMAN, supra note 7, at 143-46.
63. Both RAWLS, supra note 1, and DWORKIN, supra note 36, devote very little attention to the child-rearing family. But see RAWLS, supra note 1, at 462-67 (considering the parent-child relationship as the source for certain moral understandings).
64. For an account of continuity of care, see JOSEPH GOLDSTEIN, ANNA FREUD & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD 31-39 (new ed. 1979).
65. See RAWLS, supra note 1, at 462-67.
66. See Eamonn Callan, Autonomy, Child-Rearing, and Good Lives, in THE MORAL AND POLITICAL STATUS OF CHILDREN, supra note 48, at 118, 133-36.
67. See id.
68. See ACKERMAN, supra note 7, at 140-43.
69. See id. at 146-54.
70. See Archard, supra note 51;
71. Macleod, supra note 48.
72. See ACKERMAN, supra note 7, at 150-54.
73. See Archard, supra note 51, at 158.
74. FISHKIN, supra note 6, at 64-65. He argues that "if equality of life chances is to be achieved through processes consistent with the principle of merit, then conditions for the development of talents and other qualifications must be equalized." Id. at 64 (emphasis added). Fishkin does not endorse such endeavors, since he aims to illustrate the collision between the liberal principles of equality of life chances and family autonomy, and not to encourage the abandonment of family autonomy.
75. BLUSTEIN, supra note 13, at 213-14.
76. See, e.g., JEFFREY TRAWICK-SMITH, EARLY CHILDHOOD DEVELOPMENT 174-81 (2000) (noting some cultural differences in the reactions of parents and infants to specific situations, but suggesting that "responsiveness and warmth are important caregiving behaviors in all cultures, [although] how they are expressed varies greatly").
77. BLUSTEIN, supra note 13, at 219.
78. See ACKERMAN, supra note 7, at 140-43.
79. Other theorists also see affirmative value in exposing children to their parents' way of life. David Archard ventures a step further, positing that membership (in a cultural tradition) may be a good in the Rawlsian sense, something that ought to be fairly and universally distributed. Membership, in Archard's view, provides a child with a "firm and secure sense of her identity." Archard, supra note 51, at 158. Robert Noggle approves the family's role as providing a "default" value system for children, which a child can later choose to accept, reject, or modify. Robert Noggle, Special Agents: Children's Autonomy and Parental Authority, in THE MORAL AND POLITICAL STATUS OF CHILDREN, supra note 48, at 97, 110-15.
80. See supra text accompanying notes 23-24.
81. See supra notes 25-27 and accompanying text.
82. DALTON CONLEY, THE PECKING ORDER: A BOLD NEW LOOK AT HOW FAMILY AND SOCIETY DETERMINE WHO WE BECOME (2005).
83. See ACKERMAN & ALSTOTT, supra note 11, at 4-5;
84. Alston, Equal Opportunity, supra note 11, at 489-96.
85. For background on talent pooling, see Anthony T. Kronman, Talent Pooling, in HUMAN RIGHTS: NOMOS XXIII, at 58 (J. Roland Pennock & John W. Chapman eds., 1981), and the discussion of the talent-pooling debate in Alston, Equal Opportunity, supra note 11, at 479-85.
86. Interestingly, Fishkin's analysis adopts a version of resource equality without talent-pooling. FISHKIN, supra note 6, at 34-35. He does point out that incorporating talent pooling would make the task of equalization even more strenuous. Id. at 35.
87. See Alstott, Equal Opportunity, supra note 11, at 496-501.
88. See Hugh LaFollette, Licensing Parents, 9 PHIL. & PUB. AFF. 182 (1980) (advocating the licensing of parents).
89. See also DWYER, supra note 10, at 254-58 (outlining legal rules that would screen for parental incompetence).
90. See ALSTOTT, NO EXIT, supra note 11, at 117-37.
91. Wisconsin v. Yoder, 406 U.S. 205, 207 (1972).
92. E.g., Hermanson v. State, 604 So. 2d 775 (Fla. 1992).
93. Troxel v. Granville, 530 U.S. 57, 60-61 (2000).
94. Yoder, 406 U.S. at 213-15.
95. See also Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) (upholding against a Free Exercise challenge a law denying unemployment benefits to those fired for drug use during a religious ceremony, but pointing out in dicta that the Yoder holding rested, in addition, on a substantive due process rationale).
96. Hermanson, 604 So. 2d. at 776.
97. But see Walker v. Superior Court, 763 P. 2d 852 (Cal. 1988) (rejecting a parent's Free Exercise defense to a criminal prosecution for failure to obtain medical care for a child who died).
98. Troxel, 530 U.S. at 65-67.
99. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201-02 (1989).
100. Id. 191-93, 202.
101. Id. at 213 (Blackmun, J., dissenting).
102. Id. at 201-02 (majority opinion).
103. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) (finding a right to private education). Cf. Guardianship of Phillip B., 188 Cal. Rptr. 781 (Ct. App. 1983) (awarding guardianship of child to nonparents, but warning that the rationale was the parents' "emotional abandonment" of their son with Down's Syndrome, not their institutionalization of him).
104. See supra Parts III-IV.
105. The harm principle is associated with John Stuart Mill and has been elaborated by others. For a brief explanation, see David Brink, Mill's Moral and Political Philosophy, STAN. ENCYCLOPEDIA PHIL., Fall 2008, htrp://plato.stanford.edu/archives/fall2008/entries/ mill-moral-political.
106. ALSTOTT, NO EXIT, supra note 11, at 36-41, 56-58.
107. ACKERMAN, supra note 7, at 139.
108. Id.
109. See id. at 139, 143-46.
110. BLUSTEIN, supra note 13, at 120-36.
111. Wisconsin v. Yoder, 406 U.S. 205, 207 (1972).
112. Id. 210-11.
113. Id. at 234.
114. For additional cases establishing parental rights over children's education, see Pierce v. Society of Sisters, 268 U.S. 510 (1925) (finding a right to send children to private school), and Meyer v. Nebraska, 262 U.S. 390 (1923) (overruling conviction of teacher for instructing child in a foreign language with the parents' permission).
115. See Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) (upholding against a Free Exercise challenge a law denying unemployment benefits to those fired for drug use during a religious ceremony, but pointing out in dicta that the Yoder holding rested, in addition, on a substantive due process rationale).
116. Yoder, 406 U.S. at 232.
117. See Richard Arneson & Ian Shapiro, Democratic Autonomy and Religious Freedom: A Critique of Wisconsin v. Yoder, in DEMOCRACY'S PLACE 137, 158-59 (Ian Shapiro ed., 1996).
118. See id. at 147.
119. See Yoder, 406 U.S. at 210-11.
120. See, e.g., Arneson & Shapiro, supra note 101, at 149-52, 172-73.
121. See Yoder, 406 U.S. at 233-34.
122. See id. at 213-15;
123. Arneson & Shapiro, supra note 101, at 146-49, 152-53.
124. See Yoder, 406 U.S. at 207-09.
125. While the parents were fined only $5 each, the statute permitted the imposition of up to three-month jail sentences. Id. at 207 n. 2.
126. According to the opinion, the state rejected out of hand an offer by the Amish to negotiate an alternative arrangement. Id. at 208 n. 3.
127. Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990).
128. See Troxel v. Granville, 530 U.S. 57, 65-66 (2000).
129. Id. at 60-61.
130. Id.
131. Id.
132. Id. at 61-62.
133. Id.
134. See id. at 65-67 (noting that "[t]he liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court").
135. Id. at 67.
136. Justice Stevens suggests that the child's interests should be considered, but he seems to understand the child's right as primarily a liberty interest in associating with her grandparents; he does not explore the equality dimension of a child's developmental conditions. See id. at 88-90 (Stevens, J., dissenting).
137. See GOLDSTEIN ET AL., supra note 53, at 116-19.
138. Cf. Emily Buss, Adrift in the Middle: Parental Rights After Troxel v. Granville, 2000 SUP. CT. REV. 279, 284 (noting that a variety of child-centered theories might endorse strong parental rights on instrumental grounds, and arguing that children are best served by constitutional protections for parents). Buss contends that Troxel attempts to walk an untenable middle line, asserting protection for parental rights while inviting future legislatures to infringe those rights. Id. at 285-86.
139. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 192-93 (1989).
140. Id.
141. Id. at 193.
142. Id. at 213 (Blackmun, J., dissenting).
143. Id. at 201-02 (majority opinion).
144. Some of these issues have been discussed in legal scholarship commenting on DeShaney. See, e.g., Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271 (1990);
145. Jack M. Beerman, Essay, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 DUKE L.J. 1078;
146. Aviam Soifer, Moral Ambition, Formalism, and the "Free World" of DeShaney, 57 GEO. WASH. L. REV. 1513 (1989).
147. For another view, see Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359 (1992) (invoking the Thirteenth Amendment as grounds for ruling in favor of Joshua DeShaney).
148. VAN PARUS, supra note 7, at 72-76.
149. For a summary, see the discussion in Alstott, Equal Opportunity, supra note 11, at 479-85.
150. For an article adopting that term and criticizing efforts to compensate for differential talents, see Kronman, supra note 72.
151. For a critical discussion of Ackerman's undominated diversity idea, see MARK S. STEIN, DISTRIBUTIVE JUSTICE AND DISABILITY 158-79 (2006). For a critical discussion of Dworkin's theory, see VAN PARUS, supra note 7, at 68-72. And for a criticism of a wide spectrum of egalitarian views, see Elizabeth S. Anderson, What Is the Point of Equality? 109 ETHICS 287, 302-07 (1999).
152. For a critical discussion of self-ownership in libertarian theories, see Barbara Fried, Left-Libertarianism: A Review Essay, 34 PHIL. & PUB. AFF. 66, 67-68 (2004).
153. See the thoughtful discussion in LINDA C. MCCLAIN, THE PLACE OF FAMILIES 50-84 (2006) (recognizing the conflict between parental autonomy and the ideal of families as "seedbeds of civic virtue").