Age Discrimination and the Personhood of Children and Youth

Age Discrimination and the Personhood of Children and Youth

Jonathan Todres*

 

A significant percentage of the population of the United States, or any other country, lives without voting rights, is prohibited from holding public office, has restricted access to employment opportunities, and is subjected to greater restrictions on their participation rights such as freedom of expression, association, and assembly.[1] Children (individuals under eighteen years of age[2]) constitute more than twenty percent of the U.S. population.[3] In other countries, they represent close to half the population.[4] If this were another group, there would likely be uproar and accusations of discrimination. But because the group is children, such differential treatment is rarely questioned.

 

The construct of a bright-line rule dividing childhood and adulthood, while advantageous for administrative reasons, fails both to recognize the full personhood of young people and account for developing nature of childhood. It also deprives communities and countries of valuable contributions from its youngest members. Moreover, it does not even accurately reflect the state of the law, as various areas of law draw the line at different ages.[5]

 

The essay questions this bright-line distinction, which has most commonly been drawn at eighteen years old. It focuses in particular on young people’s participation rights. Evolving understandings of both children’s rights and child and adolescent development necessitate a rethinking of the legal regulation of childhood and emerging adulthood.[6]

 

The Legal Regulation of Children and Adolescents

 

The legal regulation of childhood is an inconsistent blend of rules and standards. Legal scholars have long debated the relative merits of framing legal mandates as rules versus standards.[7] Rules—such as minimum age laws—offer greater clarity ex ante, but they can be both over- and under-inclusive.[8] In contrast, standards—which “employ more ‘evaluative’ criteria, such as reasonableness, … or use multi factor or ‘totality of the circumstances’ tests that do not specify the weight to be given to individual factors”[9]—offer greater flexibility but less ex ante certainty.

 

The law in the United States tends to rely heavily on rules with respect to rights and opportunities for young people but often turns to standards when imposing responsibility on children.[10] That is, for voting rights and economic opportunities (e.g., work, entering into contracts), the law relies on minimum age rules that exclude young people regardless of their individual capacity. However, when it comes to punishment of young people, the law often relies on standards to evaluate individuals to determine whether they are mature enough to be held accountable for their actions.[11]

 

From a human rights perspective, a default stance that categorically denies participation rights and other rights but allows flexibility to hold individuals accountable for missteps is inherently problematic. Each side of this equation merits further examination, but I focus the remainder of this essay on the use of rules to categorically deny young people’s participation rights.[12] Every rule has a justification—that is, a “purpose or goal that the rule is thought to advance”[13]—and the anti-discrimination framework of human rights offers a vehicle for reexamining justifications for rules that deny young people their participation rights.

 

Justifications for Differential Treatment

 

Under international law, differential treatment must advance a legitimate aim and be proportionate.[14] As the European Court of Human Rights has held, “the principle of equality of treatment is violated if the distinction has no objective and reasonable justification … and there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.”[15] With respect to young people, the state has two important functions: protecting young people from harm and supporting their healthy development. Differential treatment of young people has long been justified by the need to protect children. For example, child labor laws seek to protect children from work that would interfere with their education or healthy development.[16] Similarly, the law limits children’s right to enter into enforceable contracts because minors are “perceived as having far less capability to engage in fair exchange over the long term.”[17] Both of these constraints are justified as protective measures, even though they limit young people’s autonomy and could adversely affect the economic well-being of the child and their family.

 

But while the state has a legitimate interest in protecting children from harm,[18] the legal regulation of childhood extends well beyond protective measures. On many issues—particularly ones implicating children’s agency—the law opts for rules that treat children as lacking capacity, as “becomings” not “beings.”[19]  Such restrictions do not appear to serve either the purpose of protecting children from harm or ensuring their healthy development. Instead, minimum age rules on young people’s agency—e.g., voting and holding public office—are typically not justified on protective or supportive grounds. Rather, young people are denied access to these spaces because they are deemed incompetent or lacking maturity.

 

Not only does the law deny individuals under 18 years of age the right to vote—that is, to have a say in who represents them—but young people must wait even longer to be eligible to hold public office. The U.S. Constitution requires that individuals be at least 25 years old to serve in the House of Representatives and at least 30 years old to serve in the Senate.[20] In The Federalist, No. 62, James Madison offered a justification for a higher minimum age of Senators by saying that serving in the Senate necessarily required a “greater extent of information and stability of character.”[21] Said another way, the founders believed that elected government leaders should have experience and maturity.

 

Age, however, is a poor proxy for experience. A sixteen- or seventeen-year-old may in fact have more relevant lived experience with respect to particular social issues than a twenty-five-year-old or thirty-year-old. To take just one example, children today are the only ones alive who know what it is like to go to school during a global pandemic.[22] That lived experience imbues them with experience and insights that many adults will not have when evaluating education policy options.

 

Moreover, in recent years, individuals in the United States have been elected to office with little to no relevant policymaking experience. Indeed, their campaigns often tout their lack of political experience as one of their primary strengths.[24] Conversely, many young people serve in Youth Councils and Congresses and arguably have a greater understanding of the legislative process than many adults.[25]

 

Beyond questions about whether the state advances a legitimate aim by categorically excluding young people from the political arena, under human rights law differential treatment must be proportionate to be sustained. Unlike standards, rules are blunter instruments that make proportionality harder to achieve. Categorical denials of individual rights—such as barring under-twenty-five-year-olds from holding office or under-eighteens from voting—should be considered inherently suspect. Can we say categorically that twenty-two-year-olds are more akin to twelve-year-olds than they are to thirty-year-olds when it comes to serving in public office? Are sixteen-year-olds more akin to six-year-olds than twenty-six-year-olds in terms of capacity to chose which candidates for office to support? Although age may be a better proxy for maturity than it is for experience, it is still imperfect. Minimum age rules are inevitably overinclusive in that they deny participation rights to many young people who are fully capable of responsibly exercising those rights. Moreover, such categorical denial of civil and political rights seems to ignore what development science has shown: First, with respect to some tasks, adolescents’ capacity is not significantly less than that of adults.[26] And, second, lumping all young people into a single category of “children” fails to account for the dramatic differences in capacities across the span of childhood.

 

The Impact of Categorical Exclusions of Young People

 

In recent years, we have seen young people come to the forefront of human rights and social justice movements. At age seventeen, Malala Yousafzai became the first child to receive the Nobel Peace Prize for her work on girls’ education. Greta Thunberg has become as global leader on climate change mitigation. And many other young people have assumed leadership roles on issues including gun violence, immigration, racial justice, climate change, and other pressing challenges.[27] These actions have been significant, yet most of them occur outside of, and often in spite of, the state.[28] Categorical exclusions of young people have left them few official pathways to contribute to and shape the direction of their communities and nations.

 

Overall, this default rule of disqualification of young people conflicts with the notion that rights are inherent. If rights are inherent to all human beings, they exist from birth. Children’s rights law, for example, holds that every child “capable of forming a view” has the right to express that view on matters affecting the child.[29] Not accepting that children have rights equates to saying rights are not inherent but are granted by governments when individuals reach adulthood. Dependent on government largesse is precisely what rights are not in theory and should never be in practice.

 

This does not mean all minimum age rules are invalid. However, it does mean that the default position must be recognition that individuals are rights holders and, therefore, any differential treatment must reflect a more nuanced understanding of children’s capacities than categorial exclusions do.

 

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* Jonathan Todres is a Distinguished University Professor & Professor of Law, Georgia State University College of Law. Thank you to Nirej Sekhon for his feedback on a draft of this essay and to Cody A. Choi for his valuable research assistance.

[1] See Jonathan Todres, Charlene Choi, & Joseph Wright, A Rights-based Assessment of Youth Participation in the United States, 95 Temple L. Rev. __ (forthcoming Spring 2023).

[2] See Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 (defining a child as any individual under 18 years of age) [hereinafter “CRC”].

[3] Stella U. Ogunwole et al., Population Under Age 18 Declined Last Decade, U.S. Census Bureau (Aug. 12, 2021), https://www.census.gov/library/stories/2021/08/united-states-adult-population-grew-faster-than-nations-total-population-from-2010-to-2020.html#:~:text=By%20comparison%2C%20the%20younger%20population,from%2074.2%20million%20in%202010 [https://perma.cc/7LET-DDEH] (approximately twenty-two percent of the US population is under 18 years of age).

[4] Canela López, The Countries with the Youngest Populations in the World, Business Insider (Sept. 6, 2019, 2:32 PM), https://www.businessinsider.com/countries-youngest-populations-most-children-2019-9 [https://perma.cc/7QBS-7F5N].

[5] For example, in the U.S., minimum ages for voting, work, and criminal responsibility vary considerably. See Jonathan Todres, Maturity, 48 Hous. L. Rev. 1107 (2012).

[6] In this essay, I use “child” as defined in the CRC (any individual under 18 years of age), and emerging adulthood to cover the span from eighteen years of age to mid-20s. Adolescence, which is often described as covering ages 10-25, spans across both categories.

[7] For a concise explanation of the “rules” versus “standards” debate, see Russell D. Covey, Rules, Standards, Sentencing, and the Nature of Law, 104 Calif. L. Rev. 447, 458-63 (2016). But see Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985) (critiquing the debate).

[8] Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-Making in Law and in Life 31-32 (1991).

[9] Covey, supra note 7, at 461.

[10] Todres, supra note 5, at 1111.

[11] In this essay, I focus on the regulation of young people’s agency. So, for example, the best interests of the child is a standard that allows decision-makers to make case-specific decisions, but it is most often used in cases, such as child custody, in which the child is primarily a passive agent subject to adult decision-making.

[12] In theory, the flexibility of a standards approach to juvenile justice could account for the developmental nature of childhood in a way that is supportive of young people’s healthy development, rather than taking a punitive approach to what is often typical adolescent behavior. See Kristin Henning, The Rage of Innocence: How America Criminalizes Black Youth 228 (2021) (“Black youth who act out as a symptom of their mental health challenges are often punished, excluded from school, or arrested.”).

[13] Covey, supra note 7, at 459.

[14] Daniel Moeckli, Equality and Non-Discrimination, in International Human Rights Law, 148, 157 (3^rd ed. 2018).

[15] Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgium Linguistics Case) (No 2) (1968) 1 EHRR 252, para 10.

[16] See Wage & Hour Div., U.S. Dep’t of Labor, Child Labor Bull. 101, Child Labor Provisions for Nonagricultural Occupations Under the Fair Labor Standards Act 1 (2010), http://www.dol.gov/whd/regs/compliance/childlabor101.pdf [https://perma.cc/47LF-ZKFE] (stating that the federal youth employment provisions “were enacted to ensure that when young people work, the work is safe and does not jeopardize their health, well-being or educational opportunities”).

[17] Michael Glassman & Donna Karno, On Establishing a Housing Right of Contract for Homeless Youth in America, 7 Seattle J. for Soc. Just. 437, 438 (2008); Todres, supra note 5, at 1125.

[18] Meredith Johnson Harbach, Childcare, Vulnerability, and Resilience, 37 Yale L. & Pol’y Rev. 459, 516 n.274 (2019) (“The notion that the state is empowered and indeed required to step in to protect children in certain circumstances has a long history in our legal tradition. Broadly speaking, the parens patriae principle recognizes that the state has a right and responsibility to protect those who cannot protect themselves.”).

[19] See Michael Freeman, Taking Children’s Human Rights Seriously, in The Oxford Handbook of Children’s Rights Law 49, 57 (Jonathan Todres & Shani M. King eds., 2020); Anne C. Dailey, Children’s Constitutional Rights, 95 Minn. L. Rev. 2099, 2104 (2011); Jens David Ohlin, Is the Concept of the Person Necessary for Human Rights?, 105 Colum. L. Rev. 209, 215 (2005) (“Depending on [] age, a child may not yet have fully developed the hallmarks of rational agency such as means-end reasoning, accepting the logical consequences of beliefs and desires, and the transitive ordering of preferences. Such capacities develop with time and it is these deeper properties, and their fluctuations, that are the source of our intuition that children are persons to some lesser degree than adults.”)

[20] Constitutional Qualifications for Senators, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Constitutional_Qualifications_Senators.htm [https://perma.cc/4CLN-5Q7A] (last visited Nov. 1, 2022).

[21] Id.  When the drafters of the Constitution decided on these requirements, they were aware that members of parliament in the U.K. at that time needed to be only 21 years old, yet they opted for a higher minimum. Id.

[22] Tammy Chang & Jonathan Todres, Listening to Young People Could Help Reduce Pandemic-related Harms to Children, The Conversation (June 2, 2022, 8:14 AM), https://theconversation.com/listening-to-young-people-could-help-reduce-pandemic-related-harms-to-children-179745 [https://perma.cc/42ZD-B66Y].

[23] Erin G. Fox, Nicole F. Kahn, and Gabrielle Battle, When Youth Are Experts in the Field, Issues in Sci. & Tech. (May 3, 2022), https://issues.org/youth-experts-bcyf-nasem-fox-kahn-battle/ [https://perma.cc/T6T2-Y28B].

[24] Britt Peterson, A Brief History of Washington Insiders Claiming to be Outsiders, Washingtonian (Apr. 8, 2016), https://www.washingtonian.com/2016/04/08/a-brief-history-of-washington-insiders-claiming-to-be-outsiders/ [https://perma.cc/QC7A-S83R].

[25] See, e.g., Thirty-Third Guam Youth Congress, https://guamyouthcongress.wixsite.com/33rdgyc [https://perma.cc/2G85-PE57]; Youth Commission, City and County of San Francisco, https://sfgov.org/youthcommission/ [https://perma.cc/WR4A-69TU]; Youth Commission, City of Baltimore, https://youth.baltimorecity.gov/about-0 [https://perma.cc/BP9A-MHTS]; Youth Council, City of Framingham MA, https://www.framinghamma.gov/2789/Youth-Council [https://perma.cc/B6U5-WKXW] .

[26] See, e.g., Megan E. Hay, Incremental Independence: Conforming the Law to the Process of Adolescence, 15 Wm. & Mary J. Women & L. 663, 679 (2009) (“Using a conservative reading of the research, the general framework presumes that by age fifteen, adolescents have the requisite cognitive maturity to understand each of these activities and articulate reasonable decisions.”); see generally Joshua A. Douglas, The Right to Vote Under Local Law, 85 Geo. Wash. L. Rev. 1039, 1061 (2017) (“Voting, after all, is a fundamental right. It provides the foundation of our democracy. Children are part of and affected by that democracy …. Allowing youth to vote is preservative of youth rights in our democracy.”).

[27] See, e.g., Sunrise Movement, https://www.sunrisemovement.org/ [https://perma.cc/JN9M-U3SD]; Fridays for Future, https://fridaysforfuture.org/ [https://perma.cc/J8V3-BBC6]; March for our Lives, https://marchforourlives.com/ [https://perma.cc/EK7T-7N27]; Youth Justice Coalition, https://youthjusticela.org/ [https://perma.cc/4CW6-ZXQK]; see also, Young Women’s Freedom Center, https://youngwomenfree.org/freedom-2030-charter/ [https://perma.cc/JEK9-MAK4]; United We Dream, https://unitedwedream.org/ [https://perma.cc/N6L5-YYZB].

[28] Indeed, young people must navigate additional restrictions on speech in schools or limitations on assembly rights imposed by status offence laws.

[29] CRC, supra note 2, art. 12. The CRC, however, did not recognize voting rights for children.