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Emory Law News Center

Faculty and Scholarship

The evolution of children's rights in the United States

Deciding the constitutionality of the Affordable Care Act was one of the biggest questions considered by the US Supreme Court in a decade. Did the legislation fall under Congress’s power to tax, or to regulate commerce? How would states pay for it? And how would it affect health care and insurance corporations?

Emory Law Professor Barbara Bennett Woodhouse, however, viewed the issue through a different lens: How would it harm children, especially the estimated eight million who had no health insurance? Through the Child Rights Project, which Woodhouse directs, Emory Law students wrote an amicus brief.

“The challenges to the Affordable Care Act had garnered great attention, but few had focused on the implications for children,” Woodhouse says. “Our position was that striking down the Affordable Care Act would be a major setback to children’s access to affordable, quality care.”

The Child Rights Project focuses on Supreme Court cases with child law issues. Other project briefs have challenged how the Defense of Marriage Act affects children of gay and lesbian parents and a closely watched adoption case that turned on the Indian Child Welfare Act. Prior to arriving at Emory, Woodhouse also submitted an important challenge to imposing the death penalty upon juveniles.

“It’s a great experience for students who can really get their teeth into something and feel like what they’re doing is part of the real world and has an impact,” Woodhouse says. “I also feel that it’s a very effective way of getting the voices of children in front of decision makers.”

In her own writing, Woodhouse’s research, listening skills, and eye for detail flood the page.

In Hidden in Plain Sight: The Tragedy of Children’s Rights from Ben Franklin to Lionel Tate (Princeton University Press, 2008), she often introduces a critical issue with a quote from a child that puts a broken system into high relief.

Woodhouse’s path to legal scholarship was unusual.

“I had been a nursery school teacher, I had been a foster parent, and I was an adoptive parent — so I found the law having to do with families and children particularly attractive,” Woodhouse says.

At 35, she was the oldest student in her class at Columbia University School of Law and was in her second year when Columbia offered its first child advocacy clinic, which solidified her interest in child law. After graduation, Woodhouse clerked for US Supreme Court Justice Sandra Day O’Connor.

She joined Emory Law in 2009 as L.Q.C. Lamar Chair in Law after co-founding the University of Pennsylvania’s Center for Children’s Policy Practice and Research and founding the Levin College of Law’s Center on Children and Families at the University of Florida.

Much of Woodhouse’s comparative study involves Italy and the US. She’s fluent in Italian and earned her diploma superiore from the Università per Stranieri di Perugia. She finds the Italian system more sympathetic and effective for children who come under the courts’ care, either through abuse by others or their own criminal behavior.

In America when she tells people her area is children’s rights, “Many will respond, ‘Oh like children divorcing their parents?’” she says. “Because we do not have the structure and framework of the UN Convention on the Rights of the Child, we tend to trivialize and marginalize children’s rights. Actually, there is a large and growing body of domestic and international law devoted to children’s rights.” (The United States and Somalia are the only two UN member countries that haven’t ratified the original Convention.)

“Up until 2005, we were among the very few countries putting juveniles to death for crimes that were committed before they were 18,” she says. Roper v. Simmons changed that, and Graham v. Florida ended the practice of juveniles receiving life sentences without parole.

Also, US states’ treatment of minors varies widely. In Georgia, lawmakers recently came close to privatizing the state’s foster care system, some-thing Woodhouse characterizes as “a race to the bottom.” Beyond the emphasis on cost cutting, “it undermines the sense of moral and social commitment — a real investment in all of our children.

The contrast in Italy is almost a small-town approach where communities take responsibility for minors in the legal system. There’s an assumption that if a child acts criminally, there’s likely an internal cause, she says. “There is a legal provision placing the burden on the state to show that the juvenile’s behavior was not the result of immaturity or poor childhood environment,” she says. No matter what, a child’s education doesn’t stop or suffer and there is an emphasis on reentering society.

The research is crystal clear that putting kids in jail does not prevent crime; in fact it leads to more crime,” Woodhouse says. “And we know this just as well as the Italians.” Yet, the US system emphasizes the punitive nature of justice even when children are victims. Often when a child is harmed, more funds go toward incarceration for the violator than therapy for the child.

Woodhouse’s current work builds on Urie Brofenbrenner’s ecological systems theory as it pertains to child development.

“It’s a way to see children in the context of their families, their communities, and larger structures like the economy or health care system,” she says. “You have the child in the center, and they inhabit families, neighborhoods, schools, peer groups, and religious communities — all of which affect them.

“These systems can either enhance their capacity for growth or be very detrimental,” she continues, “in the same way that creatures can thrive or be endangered because of changes to the ecology.”