VOL. 6 NO. 10 (October, 1996) pp. 145-148.
CHILDREN IN COURT: PUBLIC POLICYMAKING AND FEDERAL COURT
DECISIONS by Susan Gluck Mezey. State University of New York
Press (1996).
Reviewed by Twila L. Perry, Professor of Law, Rutgers
University School of Law-Newark.
During the past few years, the question of what kind of
assistance the federal government should provide to families
raising children has been at the vortex of public debate. The
issue of welfare reform has appeared in newspaper headlines on
almost a daily basis. A controversy rages over the rights of
children of legal and illegal immigrants. There has been argument
across the political spectrum about the role of "family
values." Even the First Lady, Hillary Rodham Clinton, has
entered the fray. Her book, IT TAKES A VILLAGE, argues that
society has a collective responsibility to provide for children's
well-being. CHILDREN IN COURT: PUBLIC POLICYMAKING AND FEDERAL
COURT DECISIONS examines the role of the federal government, and
in particular, the role of the federal courts, in making public
policy that impacts on children's lives. Clearly, this is a
timely book.
Many cases involving the rights of children have been decided in
the federal courts in recent years. Some of these cases have
involved issues such as free speech in public schools and the
question of whether parents must be notified before a minor child
obtains an abortion. Such cases wrestle with the question of how
to balance the autonomy interests of children with the rights of
parents and the interests of the state, and they often make for
dramatic personal stories and legal controversies. CHILDREN IN
COURT does not focus on these kinds of "hot" children's
rights issues. Instead, it addresses a different and probably
even more fundamental concern: whether children will have the
minimal levels of economic and social support to enable them to
survive and participate meaningfully in the society.
The book begins with a chapter on the evolution of childrens'
constitutional rights. The author describes the leading cases,
beginning in the 1960's, through which principles such as
privacy, due process and equal protection have evolved as they
apply to children. This discussion is followed by four chapters
that address the role of the federal government and the federal
courts in several substantive areas.
The first chapter discusses AFDC (Aid to Families with Dependent
Children), the primary program which, until recently, provided
cash assistance to poor mothers and their children. The second
chapter concerns two programs: WIC (Women, Infants and Children),
a program which provides low income mothers and their children
with special vouchers for infant formulas and other specified
foods, and Head Start, an early childhood education program
designed to address the problem of educational disadvantage. The
third chapter examines the efforts of the child welfare system to
deal with the issues of child abuse and neglect; the last chapter
addresses child support enforcement. All four chapters provide a
brief history of the programs discussed, a summary of the most
important legislation and analyses of the major cases decided by
the Supreme Court and lower federal courts.
The chapter on AFDC (Aid to Families With Dependent Children)
begins with background on the origins of the program. This is
followed by a chronology of the government's efforts to impose
work requirements on aid recipients, a description of the welfare
rights movement of the 1970's and a discussion of welfare reform
litigation. Since recently enacted legislation has replaced the
AFDC program of federal assistance with block grants to the
states, much of what is described in this chapter of the book has
already been superceded. However, the analysis still provides
important background for understanding the new developments. The
chapter on WIC and Head Start emphasizes the consistent funding
difficulties that have permitted these programs to serve only
half of those meeting eligibility guidelines. The author notes
that litigation under these programs has seldom involved the
direct interests of program beneficiaries, but instead has
involved employment controversies within the government and
between the government and vendors and suppliers or grantee
agencies. Her point here is that litigation is not a very
effective tool for the poor where the main reason they have been
excluded from government programs is because of lack of funding.
The chapter on child welfare describes various federal laws
designed to improve the response to child abuse and neglect. It
describes laws designed to increase family preservation as well
as laws designed to assist in the effort to find children new
permanent homes where necessary. The author examines the
continuing funding problems that have also prevented these
efforts from achieving the maximum good. The chapter on child
support enforcement focuses on two kinds of cases: suits brought
by mothers to impose child support obligations on putative
fathers, and suits involving the attempts of women to collect
past due child support, often from ex-husbands. The author argues
that despite recent improvements, there remains a need for
greater centralization to bring consistency and uniformity to the
support enforcement system.
The author concludes that in the decades since the creaton of
AFDC in 1935, the federal government has been responsible for
society taking an increased interest in children and it has
provided more resources to enhance children's lives and
opportunities. She also concludes, however, that in recent years,
there has been a decrease in federal responsibility, and that
there is now a danger that important progress will be undone.
The author describes those areas in which the court has been
willing to expand childrens' rights and those areas where it has
not been willing to do so. She concludes, for example, that while
the courts have been sympathetic to the demands of children for
increased independence from parental and state authority, they
have been less receptive to claims seeking to impose affirmative
obligations on states to protect children from physical harm. She
also concludes that while the courts have been supportive of
claims seeking child support enforcement and claims seeking equal
protection for non-marital children, they have not been very
supportive of claims which would require the court to order a
greater distribution of wealth in the society. Thus, for example,
the federal courts have generally declined to order changes in
state policies involving taxation and spending which determine
the ways in which educational systems are funded.
This last point, that the courts have refused to compel a greater
distribution of wealth in the society, is a recurring theme
throughout the book. Indeed, it is the most provocative thesis in
a book that is very effective from the standpoint of being
descriptive and analytical but which does not really break new
ground in terms of advancing new specific ideas or theories. It
could be argued, for example, that the book would have been
enriched by a more indepth discussion of the court's refusal to
compel a greater distribution of wealth. Thus, the author might
have deepened her critique of some of Supreme Court's recent
decisions by using cases in the chapter on children's
constitutional rights to argue for a state obligation to
guarantee a minimum level of well-being to all children. On the
other hand, this book covers a wide range of issues, and its
major strength is that each area addressed is covered clearly and
concisely. Confronting the larger and deeper issues in more depth
is probably a task for a different kind of book. This author's
project is a more limited one and she carries it out effectively.
This is not a book for the reader who wishes to explore the
arguments on both sides of current debates about the relationship
between the government and the family. This author does not
evaluate arguments in favor of the kind of welfare legislation
that has recently been enacted, nor does she explore the possible
merits of arguments that the states can do a better job than the
federal government in administering social welfare programs. The
author's stance is essentially that of an advocate and her
position that not enough is being done at the federal level for
children is clear. This is also not a book for those seeking a
discussion of children's rights at an abstract or theoretical
level. While the book effectively covers the applicable legal
doctrines that form the basis for arguments about the rights of
children, it does not incorporate discussions of sociological
theory or legal philosophy.
The overall tone of the book is somewhat pessimistic. The author
ultimately concludes that, at least for the forseeable future,
litigation is likely to be a limited tool for advancing
children's interests in the social welfare arena. She does not
devote much effort to exploring possible alternative approaches.
Admittedly, the current political climate in which criticism has
been redirected from the conditions that create poverty to poor
families themselves is discouraging. Still, suggestions of
possible future directions might have been helpful to those who
will continue their efforts on behalf of children despite the
author's rather bleak prognosis.
A book which analyzes federal social programs must include a
substantial amount of detailed description of lengthy and complex
federal statutes. This can present an author with a daunting task
in terms of maintaining reader interest. This author does a good
job of meeting that challenge. She writes clearly and concisely,
and effectively integrates descriptions of the statutes with
discussions of relevant cases. Statements from interviews with
lawyers and other advocates from groups such as the Children's
Defense Fund and the Children's Rights Project of the American
Civil Liberties Union commenting on recent judicial trends also
help to enliven what could otherwise have been a very dry
discussion.
One likely audience for this book would be students. The book
would be an excellent text in courses on Children and the Law,
public policy, or social welfare policy in an undergraduate,
graduate or professional school context. Researchers seeking an
introduction to the programs described in the book would also
find the book extremely helpful. Scholars who already have an
indepth knowledge of these programs may not find that the book
substantially increases their knowledge or understanding, but
might still find it useful as a reference to obtain a quick
historical background and analysis of the programs discussed. The
footnotes and the bibliography provide a valuable resource for
those who wish to do further research.