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210 Cards in this Set

  • Front
  • Back
Rational Relation
rational means to a legitimate government interest. Need nexus.
Intermediate Scrutiny
important government interests furthered by substantially related means.
Strict Scrutiny
Aries when fundamental constitutional liberty at risk, and suspect classification. Compelling gov. interest, narrowly tailored, least restrictive means.
Political Problems for Children
1) Not organized - can't organize themselves
2) profit interest groups lobby the most and compete with children's needs
3) system tends to focus on short term goals (child have long term goals
4) campaign finance - organized profit stake groups prevail, short-term limits intensify effects
Barriers to access in courts
1) Limited access to counsel
2) no remedy (need statutory private remedy, or attorney's fees)
3) standing (children can't bring a suit on their own - considered incompetent)
4) class action is the best way to get into court
Constitutional Principles
1) Has to be government action
2) Equal protection - look for suspect class
3) Substantive Due Process - look for fundamental liberty interest
4) Facial Due Process
5) Federal Statutory intent
6) State Statutory intent
Campaign Contributors Issues
1) organized groups, such as large corps, unions and trade associations
2) interest focus on: maintaing existing capitol investments; financial stake of contributors; immediate economic consequences; immediate economic consequences
Campaign Regulation Problems
Amount limitations per election per candidate are evaded by independent expenditures, soft money (contributions to national and state political parties); Public identification of contributors evaded by contributions just before or after the vote.
Three ways for a child to get into court
1) parent or guardian brings suit on child's behalf, 2) child is brought into case by another party, 3) class action
Solutions to Campaign Regulation Problems
2002 Bipartisan Campaign Reform Act
1) prohibits unions and corporations from making contributions for candidates through party giving
2) unions or corporations cannot fund ads for federal office candidates within 60 days of general election or 30 days of primary election

AND

1) Clean money campaign reform
2) matching funds for small amounts
3) refundable tax credits for contributions to candidates who have agreed to spending limits
4) a system called patriot dollars - vouchers
5) Subsidized or free required time from the media for campaign messages
6) Local charters like in San Fran, Santa Monica and Pasadena
Problems with the 2002 Bipartisan Campaign Reform Act
1) Independent expenditures by political action committees (PAC) remain lawful
2) corporations and unions can fund ads outside the 60/30 day limit
3) Does not apply to IRS §527 organizations
4) Does not apply to state and local office
5) Raises the limit on hard money contributions
Variables Affecting Lobbying Power - Children Represent weak end of all variables
1) Horizontal organization trend - organizing with others in similar positions through associations and pear groups.
2) Passive system: Legislature acts on interests of those that lobby, Judiciary acts only on what is brought before them and executive is dominated by the industry they are regulating and industries tend to be more organized and able to lobby for changes that suit them.
3) Focus on immediate concern
4) Ex parte contacts - lobbyists consists primarily of private conversations where other part is not able to offer the opposing view (but court allows both sides to present their views)
Problems Facing Children in Court
1) Access to courts hindered by fact that children can't hire council, children' can't have access to courts to appoint a GAL
2) Standing: children can't litigate for property, liberty and interest at stake (incompetency)
3) GAL: appointed by court with discretion to appoint at all; doesn't need to be an attorney; conflicts of interest arise
Other Barriers for Children
1) gaining access to court to enable appointment of GAL
2) anti-solicitation inhibit attorney initiated contact
3) lack of sophisticated/contacts
4) Confidentiality of court proceedings
5) Lack of financial resources
6) Limitation of legal authority to speak to a child without parental consent
Legal Aid Restrictions
1) No class action suits if entity is getting federal money (especially a problem for kids who are receiving medicaid and welfare)
2) No communication about legal rights by phone, mail by legal aid
3) No federal money to collect atty fees
4) Entity assisted may not challenge constitution of 1996 PRA
Adoption Assistance and Child Welfare Act
Required states to use reasonable efforts 1) to avoid removing children from their homes, 2) to reunite families when children had been removed because of abuse or neglect, 3) when reunification failed, to terminate parental rights and place the children in permanent homes.
Child Care And Development Fund (CCDF)
a program authorized by the PRA to assist low-income families, families receiving temporary public assistance, and those transitioning from public assistance in obtaining child care so they can work or attend training/education.
Education for All Handicapped Children Act
IDEA's predecessor statute
Early Preventative Screening, Diagnosis and Treatment (EPSDT)
Medicaid's comprehensive and preventive child health program for individuals under the age of 21.
Individuals with Disabilities Education Act (IDEA)
A federal statute that governs the public education of children with physical or mental handicaps and attempts to ensure that these children receive a free public education that meets their unique needs.

Added fed. funds; parents more involved in placement; if child in reg. schools then teacher must be on IEP team; disabled children must be allowed to participate in district-wide assessments; IEPs must outline how a disability affects a students performance in the general education curriculum, include goals and short term objectives and identify the support needed to participate in general education; atty fees are eliminated for IEP meeting; atty fees for mediation prior to filing of a due process action are prohibited; awarded fees will be reduced if atty fails to provide the district with info included in the notice provisions of IDEA; parents are require to notify school districts of the consents in detail before filing a due process action in order to receive later atty fees.
IEP
Individualized Education Plan which describes the special education program and/or services required by a particular student
PRA
Personal responsibility and work opportunity reconciliation act of 1996 - overhauled the welfare system. the act did away with Aid to families with dependent children (AFDC) in favor of temporary assistance to Needy Families (TANF)
TANF
temporary assistance to needy families - a combined state and federal program that provides limited financial assistance to families in need. This program replaced Aid to Families with Dependent Children (AFDC). TANF differs from AFDC because families are limited to no more than sixty months of assistance and states have more control over eligibility requirements.
Uniform Parentage Act (UPA)
Presumed father status exists if you are married to the mother 300 days prior to childbirth, or if you hold yourself out to be the father.
WIC
Special supplemental food program for women, infants, and children, a program an administered by the US Dept. of Agriculture food and nutrition service, providing supplemental foods, nutrition, and access to health services to low income women, infants and young children.
Adoption Assistance and Child Welfare Act
Aid to familes and dependent children, the federally-funded, and state-administered welfare program that provided financial assistance to needy families with dependent children. AFDC has been replaced by TANF.
Legal Services Corp v. Valequez - ban on using LSC funds to challenge welfare system violates 1A
Restrictions on use of LSC funds to challenge the welfare system violates the 1st amendment. Prohibits the lawyers speech and expression of certain legal issues and the clients who rely on LSC often have no alternate route though which to litigate the issue.

Scalia Dissent: the limitation defines the scope of a federal subsidy program, and it does not directly regulate speech.
Ways to make the affect of your cases be as broad as possible
1) Stare decisis
2) Class action lawsuits
Marisol v. Guilliani
P claimed D failed to operate child welfare in accordance with federal and state laws. Held rule 23 gives liberal construction and certification allowed where the challenge involves a unitary course of conduct by a single system, even if the individual violations may vary.
Costano v. American Tobacco
Class may be decertified because federal district court failed to consider how variations in state law would affect predominance and superiority.
Public Parens Patriae
Similar to class action suit, action is brought by the attorney general, district attorney or authorized public counsel in parens patriae for citizens within their district.
Private Attorney General
some states allow their citizens to serve as a private atty general and bring actions on behalf of the general public in equity (but will might yield ill-gotten gains and restitution); are not subject to the same requirements as regular class actions - don't have to have commonality. Not necessary to obtain a child plaintiff. Focused on market place practices - usually seek any unjust enrichment which is put in a fund which can allow for atty fees to prevailing plaintiffs on atty gen fee ward basis or on a common fund fee sharing theory.
Committee on Children's Television v. General Foods - win for children
Class action brought by private atty gen charging defendant with fraudulent and misleading and deceptive advertising in marketing of sugared breakfast cereals. Held that there was a cause of action under competition law and false advertising, and that they could amend complaint in relation to fraud.
Mandamus
Action in equity when a public official violates a duty to act or not to act. Action which violates stautory intent or a failure to act notwithstanding a statutory duty to do so, is such an abuse. Good alternative to class actions, because u dont need to satisfy the reqs or be granted cert. But still challenging because grants a lot of discretion to officials - so abuse or violation must be clear. Best brought where easily ascertainable breach or violation. Can't be used against private officials or entities. Sometimes courts will say there is not a remedy for the provision because too broadly written - the more specific the better
Fee Shifting Statutes
the responsibility to pay atty fees is statutorily or otherwise transferred from the prevailing plaintiff or class to the defendant:
1) PRA
2) 42 USC 1983 (civil rights)
3) Lodestar Method - primary way to calculate fees under fee shifting statute. (calculate my multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate - court can add or subtract based on factors)
Aleyska Pipeline Service Co v. Wilderness Society
court held that private AG fee rule is limited so there must be specific fee shifting statute in relation to the cause of action at hand in order to recover the private AG fee. Not allowed in federal court.
Lealoa v. Beneficial California
judge ordered attorneys fees based solely on the hours counsel had expended. Court of appeal held the attorney fee award could be enhanced based on the % of the benefit, even though no conventional common fund.
Attorney's fees in federal court
available in 3 cases:
1) diversity cases, where state cause of action are pled
2) specific statute litigated authorizes or mandates fees
3) common fund is created to allow fee sharing
Private Attorney General Fees
Some states allow what are termed private atty general fees where an attorney prevails in a public interest action. May be available for public interest cases in equity that end up benefiting more people than expected, fees come from losing party separate and in addition to any restitution or damages. Atty fees may be awarded a market rates and the court can enhance with multipliers based on difficulty of the case and other enumerated factor. US Supreme Court requires plaintiffs to rely on specific attorney fee recovery provisions in federal statutes.
Sanctions as a means to paying fees
Often consist of payment of other side’s atty fees for violation of certain court rules like bringing an unnecessary or vindictive suit or imposing silly expense on opposing side.
Fee Sharing Approach - Common Fund Doctrine
occurs when a settlement or adjudication results in the establishment of a separate or so-called common fund for the benefit of the class; the expense is borne by the beneficiaries. The money comes from the proceeds that are given to the victims represented by counsel. % fees have traditionally been allowed in such common fund cases, but lodestar methodology may also be used. Allowed in federal court.
Private Attorney General Fees in State Court
some states allow the successful attorney who represents an interest substantially beyond the pecuniary stake of his own client to collect fees;
Constitutional Government Protection
children are not considered a “suspect classification” thus discrimination against them is not given the “strict scrutiny” or “heightened scrutiny” tests, the state need only show a rational connection between legitimate state interest and the practice in question
Franklin v. Gwinnet County Schools
ii. Found that an implied right of action under Title IX of the Education Amendments of 1972 allowed for monetary damages. Where legal rights have been invaded and a federal statute provides for a general right to sue, federal courts may use any available remedy.
Ways to use 42 USC 1983 to compel state compliance with federal standards
1) state action is unconstitutional
2) federal statute entitled to supremacy is violated
3) federal precondition for federal funding is violated
Ex Parte Young
Where state officials act in violation of the constitution or where federal statutes are entitled to supremacy, state actors are liable.
Suter v. Artist M - pro state/anti-child
Reasonable efforts clause of AACWA, which created federal reimbursement program for expenses incurred by States in administering foster care and adoption services, did not create a right, privilege of immunity enforceable under § 1983. Act didn't suppy guidance as to how to measure reasonable efforts.
Federal court can encroach on State when
1) supremacy
2) federal money is given limits or dictates what the unit assisted can do
3) limits specifications on what can be done with federal money.
Public Budget Challenges - need to go back to book
1) Inflation - need to adjust for inflation (normally just compares amounts to prior years budgets.
2) Block grants are supplanting entitlements
3) tax expenditures -
3) lobbying
4) expenditures and suspence files
Liberals
Supports state intervention to provide birth control, opposes state intervention to discourage unwed births except in teens
Neconservatives
Favor policies requiring women giving birth and eligible for welfare to work, limit lifetime cash safety net assistance to 60 months, deny further assistance to second children born to a woman receiving assistance.
Judicial Conservatives
Focus on the political process leading to reproductive policies (deference to legislature), oppose judicial line-drawing due to unelected status of judges and because courts provide a poor forum for political debate.
Administrative Procedure Acts (APA’s)
govern how agencies adopt rules and generally require a public process, including notice, opportunity for public comment, and public vote
Sunshine Statutes
require multimember boards and commissions to conduct business in open meetings with advance agenda notice
Griswold v. CT - ban on contraceptives violates zone of privacy
Appellants are Griswold, ED of Planned Parenthood, and Buxton, a licensed physician who was giving advice and contraception to women against CT law that prohibited any person from using contraceptive. Statute banning contraceptives violates the zone of privacy under the constitution.
Children v. Elderly
1) Medicaid, Medicare and Social Security for elderly consumes 35% of federal budget, while TANF and other major programs consume only 1.5%
2) Children lack assured medical coverage of Medicare, and 1/5 lack private or public health insurance
3) Older generations got education through GI bill, current student face rising tuition costs and unprecedented debt
4) Seniors likely to have already bought a house at low market value and locked into low market property tax rates, whereas younger generations face super high property costs.
Three Categories of Tax Subsidies
1) Refundable tax credit: benefits the wealthy (can take ur tax credit to below zero)
2) Non-refundable tax credit: Does not benefit those who do not pay taxes, but equally credits all taxpayers who pay taxes above the level of the credit (just takes ur taxes owed to zero, doesn't give u more than that back)
3) Deduction from taxable income: rewards direct proportion to the tax bracket of the taxpayer and is most disadvantageous to the poor.
Safety Nets
1) AFDC (replaced by TANF)
2) PRA/TANF
3) Food Stamps
4) special meals programs
5) WIC
6) Employment Development for Parents
7) Headstart
8) Medicaid/S-chip
Townsend v. Swank - IL law limiting eligibility when 18-20 yr olds are in college, conflicts with the eligibility standards of fed statute and violates the supremacy clause.
Under s 402(a)(10) of the Social Security Act, a state participating plan under the AFDC program must provide that aid to families with dependent children shall be furnished with reasonable promptness to 'all eligible' individuals. Since s 406(a)(2)(B) of the Act makes dependent 18--20-year-olds eligible for benefits whether attending a college or university or a vocational or technical training course, and Congress has authorized no limitation of eligibility standards within the age group, the Illinois program conflicts with that federal statutory provision and violates the Supremacy Clause
Judicial Conservatives
1) Focus on the political process leading to reproductive policies
2) Oppose judicial line-drawing due to the unelected status of judges and because courts provide a poor forum for political debate
Roe v. Wade
Right to privacy gives right to abortion. Right to privacy until third trimester.
Planned Parenthood v. Casey
upheld Roe, but brought it way back - allowed informed consent, parental consent, 2 hour waiting period, reporting requirements of clinis - created undue burden test.
Federal law can encroach on state law when
1) straight supremacy
2) the fact that federl money is given limits or dictates what the unit assisted can do
3) limits/specifications on what can be done with federal money
Child Rights Violations under 1983 can be brought when:
1) state action is unconstitutional
2) Federal Statute entitled to supremacy is violated
3) Federal precondition for federal funding is violated
Suter v. Artist M. -reasonable efforts clause of Adoption act did not create an enforceable right
Facts: Respondents brought suit against petitioners claiming that they failed to make reasonable efforts to prevent the removal of children from their homes and facilitate reunification where removal occurred, seeking declaratory injunctive relief.

Held/Rule: Reasonable efforts" clause of Adoption Assistance and Child Welfare Act, which created federal reimbursement program for expenses incurred by States in administering foster care and adoption services, did not create right, privilege, or immunity enforceable under § 1983
1983 3 pronged test - thiboutot?
1.If statute was intended to benefit plaintiff, it creates an enforceable right, unless:
2.The provision reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government, or
3.The plaintiff’s interest is too vague or amorphous
Causes of Child Poverty
Unemployment; low min wage; increased births to unwed mothers; low rate of child support collection; tax policies; cuts in safety net programs; high real estate; decline in blue collar compensation and job opp; disinvestment in trade schools, community colleges and university, combined with tuition rise; lack of medical coverage; isolation of poor neighborhoods
Child Poverty Correlates With
Low birth weights; under-nutrition; low IQ; low height; educational achievement; economic opp
Food insecurity
limited or uncertain access to enough safe, nutritious food for an active and healthy life, often reduced and quality and irregular food intake.
Special Meals Programs
a. National School Lunch Program
b. School Breakfast Programs
c. Child and Adult Care Food Program
d. Special Milk Program
e. Summer Food Service
f. Commodities Aid Program
Child and Dependant Care Tax Credit
allows up to $720 in child care costs for one child, and $1440 I total; but is only available as a credit against taxes owing – thus depriving the poorest families of the benefit
Bowen v. Gilliard - deeming & taking of dad's money
Facts: Congress amended the Federal Aid for Families with Dependent Children program through § 602(a)(38) to require that the income of all family members be taken into account in determining a family's eligibility for benefits. Thus, benefits would be reduced if, for example, one child were receiving child support from a noncustodial parent

Held: Constitutional - Rationale Relation: the law had the rational purpose of cutting government spending and allowing money to be spent on the most needy families that had no outside source of income. It was logical to include one person's outside sources because an entire family would use those sources.

Not a taking: There was no right to welfare benefits and thus no taking. The fact that the family income may have been reduced did not mean that any individual child would suffer a reduction in money. A child had no vested protectable expectation in receiving a set amount of child support. The character of the government action, that of making a rational economic choice, worked against the finding of a taking as well.
Deeming
figuring out what the “income” is for assistance eligibility purposes
Income Disregard
first $50 of child support goes to the child rather than the state, in order to encourage child support
Saenz v. Roe - unconst to limit AFDC to amount given in state of origin and unconst to require 1 year residency
the statute impermissibly affected the rights of newly arrived citizens as to the same privileges and immunities enjoyed by other citizens of the same state. The statute discriminated against citizens new to the state, and since the right to travel embraced a citizen's right to be treated equally in his or her new state of residence, the discriminatory classification was itself a penalty
Miller v. Youakim: AFDC-FC relatives ok
Under Illinois law, foster children placed with relatives were not eligible for Aid to Families with Dependent Children-Foster Care (AFDC-FC) assistance. brought a class action under 42 U.S.C.S. § 1983 challenging appellant Director of the Department of Children and Family Services' distinction between related and unrelated foster parents as violative of the Equal Protection Clause

Held: Unconstitutional - AFDC-FC program included children who had been placed in relative homes pursuant to a court's determination of neglect. Foster Care program was designed to meet the particular needs of all eligible neglected children, whether they were placed with related or unrelated foster parents; Congress manifestly did not limit the term "foster family home" to encompass only the homes of nonrelated caretakers
Kinship Guardian Assistance Program (KinGAP)
CA adopted its own program under state only money, which focuses on making family members guardians in addition to being foster parents and allows them to collect AFDC-FC money
Beno v. Shelala - experimental work-incentive program did not consider negative affects under AFDC
California introduced an experimental work-incentive program reducing the amount of aid available to ADFC beneficiaries, which waived the federal requirement that aid levels not fall below 1988 levels. Plaintiffs challenged the Secretary of HHS granting of waiver for failing to consider required criteria.

Held: Secretary failed to consider recipients' objections 1) impact of decision to impose statewide benefits cut, 2) need for cutting benefits as work-incentive, 3) merits of imposing work-incentive cut on persons whose disabilities preclude work, 4) feasibility of excluding persons who receive federal disability benefits or have already been adjudged unable to work in context of other government programs. Case would be remanded to district court with directions to remand to Secretary for additional consideration of recipients' objections.
Brown v. Board of Education
Education is a fundamental liberty interest and segregation diminishes the effect of education
Saenz v. Roe - unconst to limit AFDC to amount given in state of origin and unconst to require 1 year residency
the statute impermissibly affected the rights of newly arrived citizens as to the same privileges and immunities enjoyed by other citizens of the same state. The statute discriminated against citizens new to the state, and since the right to travel embraced a citizen's right to be treated equally in his or her new state of residence, the discriminatory classification was itself a penalty
Miller v. Youakim: AFDC-FC relatives ok
Under Illinois law, foster children placed with relatives were not eligible for Aid to Families with Dependent Children-Foster Care (AFDC-FC) assistance. brought a class action under 42 U.S.C.S. § 1983 challenging appellant Director of the Department of Children and Family Services' distinction between related and unrelated foster parents as violative of the Equal Protection Clause

Held: Unconstitutional - AFDC-FC program included children who had been placed in relative homes pursuant to a court's determination of neglect. Foster Care program was designed to meet the particular needs of all eligible neglected children, whether they were placed with related or unrelated foster parents; Congress manifestly did not limit the term "foster family home" to encompass only the homes of nonrelated caretakers
Kinship Guardian Assistance Program (KinGAP)
CA adopted its own program under state only money, which focuses on making family members guardians in addition to being foster parents and allows them to collect AFDC-FC money
Beno v. Shelala - experimental work-incentive program did not consider negative affects under AFDC
California introduced an experimental work-incentive program reducing the amount of aid available to ADFC beneficiaries, which waived the federal requirement that aid levels not fall below 1988 levels. Plaintiffs challenged the Secretary of HHS granting of waiver for failing to consider required criteria.

Held: Secretary failed to consider recipients' objections 1) impact of decision to impose statewide benefits cut, 2) need for cutting benefits as work-incentive, 3) merits of imposing work-incentive cut on persons whose disabilities preclude work, 4) feasibility of excluding persons who receive federal disability benefits or have already been adjudged unable to work in context of other government programs. Case would be remanded to district court with directions to remand to Secretary for additional consideration of recipients' objections.
Brown v. Board of Education
Education is a fundamental liberty interest and segregation diminishes the effect of education
Lau v. Nichols - unconstitutional to not give chinese english lessons in school (done under CA statute)
i. Facts: The students, who attended schools within the school system, were of Chinese ancestry and did not speak English. Some of the students received supplemental classes in English, but over half of the students did not receive any instruction. The students initiated a class action against the school system alleging violations of the Fourteenth Amendment and § 601 of the Civil Rights Act of 1964, which prohibited discrimination based upon race, color, or national origin in any program receiving federal financial assistance.

iii. Held:
a. The school system violated CA §601: all should be getting bilingual education or extra English
b. Decision cites no constitutional concept, actually uses a CA statute which says that all students should achieve mastery in English
c. School was treating suspect class different than other class
Serano v. Priest - unconstitutional to base education on wealth of neighborhood
: Plaintiffs, public school children and parents, brought an action against defendant state and county officials, claiming the public school financing system was discriminatory and violated the constitution because it was primarily based on wealth generated from local property taxes

ii. Held: the finance system discriminated against the poor because it made the quality of a child's education a function of the wealth of his parents and neighbors.
a. strict scrutiny:
(i) the right to an education is a fundamental liberty interest
(ii) wealth is a suspect classification. (is this true?)
(iii) no compelling state interest which was furthered by the financing system.
(iv) no equal protection
Pyler v. Doe - unconstitutional to ban illegal immigrants from the school system
The Texas Legislature revised its education laws, Tex. Educ. Code Ann. § 21.031, to authorize local school districts to deny enrollment in public schools to children not legally admitted to the country. Plaintiffs, undocumented school-aged children, challenged the revision on equal protection grounds. In affirming the lower court's decision that the revision violated the Equal Protection Clause of the Fourteenth Amendment, the United States Supreme Court rejected the claim that illegal aliens were a suspect class.

The protection of the Fourteenth Amendment extended to anyone, citizen or stranger, who was subject to the laws of a state. Furthermore, denial of an education to plaintiffs posed an affront to one of the goals of the Equal Protection Clause, which was the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Applied a rational relation test: purpose of state was not to effect education but to save money, no nexus. Denying undocumented children the free public education that is provided to citizens would permanently lock them into an underclass. No SS because illegal aliens are not a suspect class
Child Labor Problems
i. May involve neglect, abuse, and exploitation
ii. May foreclose educational opportunity
iii. lack of private federal remedy places substantial burden on state enforcement of child labor violations. State “Unfair Competition Acts” may be the most potent enforcement alternative.
Fair Labor Standards Act
i. Places a ceiling on how much a child can work, and permits states to raise that ceiling – many states have done so
ii. Requires work permits for minors
iii. criminal and civil remedies available for violation to Secretary of Labor, primarily against employers
iv. provides for no private enforcement
v.. No limits for “volunteer” work
Exemptions:
a. Agricultural exemption allows children to work with little limitation
b. Children can work for the their family
vi. No limits for “volunteer” work
Goss v. Lopez - students facing suspension are entitled to due process
Ohio law provided for a free education and compulsory school attendance of youngsters. Although § 3313.66 gave certain procedural rights to those students facing expulsion, no such procedures were provided for students facing suspensions of up to 10 days in cases of misconduct. After each of them were suspended without a prior hearing, plaintiff students brought a class action seeking injunctive and declaratory relief. The district court determined that the statutory scheme violated the students' procedural due process rights and defendant school officials appealed directly to the Supreme Court.

ii. Held: students facing temporary suspension from public school were entitled to protection under the due process clause and that due process required, in connection with suspensions of up to ten days, that such a student be given notice of charges and an opportunity to present his version to authorities preferably prior to removal from school, but there were instances in which prior notice and hearing were not feasible and the immediately removed student should be given necessary notice of hearing as soon as practicable.
Higher Education Funding
1) loan interest deferral
2) low interest rates on loans
3) Gear up Grant: $120mil for colleges that partner with schools to tell poor families about financial aid and provide mentoring and other assistance to help kids enter college
4) High Quality Distance Education: expands aid to distant learners

Problems:
a. Funding increasingly offset by tuition and cost of living increases
b. lower number of slots for entering students as compared with population
Medical Care is Necessary
The common civil right requirement that parents provide necessaries require they provide medical care:
1) failure to provide care may result in termination of parental rights in dependency court
2) criminal liability for involuntary manslaughter may attach when failure results in death
3) Some allow exemption to civil neglect charges where parents are financially unable to provide medical care or other necessaries
Juvenile Dependency Court
primary mission is to ensure that children are safe from abuse and neglect. Whenever possible the Court strives to preserve and strengthen families so children can be raised safely in their own homes. When this is not possible the Court orders the provision of a nurturing temporary foster home and supervises the care. The Court's focus then shifts to ensuring that children receive a permanent home in a timely fashion, either through reunification with their rehabilitated parents or through adoption, legal guardianship or a long term foster care commitment.
PRA - Expanded Definition
is a United States federal law considered to be a fundamental shift in both the method and goal of federal cash assistance to the poor. The bill added a workforce development component to welfare legislation, encouraging employment among the poor

PRWORA instituted Temporary Assistance for Needy Families (TANF) which became effective July 1, 1997. TANF replaced Aid to Families with Dependent Children (AFDC) program which had been in effect since 1935 and also supplanted the Job Opportunities and Basic Skills Training (JOBS) program of 1988. The law was heralded as a "reassertion of America's work ethic" by the US Chamber of Commerce, largely in response to the bill's workfare component.
Religious Beliefs and Parents Obligations to Children
i. Courts have consistently ruled that religious or other constitutional rights to not exempt parents from liability for allowing a child to be harmed
ii. Some states have enacted religious exemptions to civil dependency or neglect charges and some criminal charges
iii. Constitutional religion defense rests on the premise that a child is the property of the parent
In Re Phillip B - parents have the autonomy to refuse medical treatment for heir child, right to parent is a fundamental liberty interest
Facts: state petitioned that a juvenile be declared a dependent child for the special purpose of ensuring that he receive cardiac surgery for a congenital heart defect after his parents refused to consent to the surgery. The trial court denied the petition and appellant challenged the decision

Held: parents' autonomy was consitutionally protected under 1th amendment. The right to parent is a fundamental liberty interest. SS - is a compelling interest, but state could not show by clear and convincing evidence that parent's decision is wrong (need to consider the fact he was born with down's syndrome, which made the surgery riskier)
Child Health Coverage Correlations
i. Uninsured children lack regular medical professional monitoring through development
ii. Uninsured children are less likely to have regular health exams
iii. Uninsured children are more likely to be perceived by their parents as being in poor or bad health
iv. More likely to be hospitalized for preventable conditions
v. More likely to be discharged from the hospital early after birth
vi. More likely to have increased risk of adverse outcomes after birth
Medicaid
a. the primary federal program covering health of impoverished children
b. generally requires a 50% state match
c. covers all children below the poverty line and some children at higher income levels
d. children make up 40% of Medicaid recipients, but utilize only 15.1% of funding (elderly and disabled account for 65%)
e. Early Preventative Screening, Diagnosis and Treatment (EPSDT): requires states to reach out to low income children under 21 for screening and treatment
State Child Health Insurance Program (SCHIP):
a. 2:1 federal to state match for funding
b. Covers children up to 200% of poverty level, and up to 250 for some children
c. Paperwork requirements, advance premiums and co-pay requirements create obstacles to enrollment
Other Public Insurance
iii. Child Health and Disability Preventions (CHDP): provides health screens to low income children not eligible for Medicaid
iv. Maternal and Child Health Programs: funding allocated to states to promote health care for mothers and children and provide it to those with inadequate access
v. Childhood Immunization Program: assists state and local programs to immunize children
vi. Preventative Health and Health Services Block Grants
vii. Migrant Community Health Centers Grants
Stanton v. Bond - IL is required to implement the federally mandated EPSDT program for needy children

Class Action for people under 21
Appellees, representing the class of persons under 21, challenged the failure of IL to implement a federally mandated EPSDT program for needy children under Medicaid. The district court granted P’s motion for summary judgment and enjoined the State, ordering them to establish a complying program. The State appealed, arguing that that even if the state program was noncompliant, appellees' sole remedy was reduction of federal payments.

Held: Must implement Congress' intent. The implementation of the program imposed mandatory notification of screening and substantial compliance with applicable regulations and guidelines. The court rejected appellants' contention that even if the state program was noncompliant, appellees' sole remedy was reduction of federal payments, observing that declaratory and injunctive relief at the behest of those individuals most directly affected by federal program administration was available when a state failed to develop a conforming plan within a reasonable period of time.
Okla. Chptr. of the Am. Acad. of Pediatrics v. Fogarty - found D's medical care policies were not in accordance with federal law
Facts: P’s brought action alleging that D’s policies and procedures denied eligible children of the health and medical care to which those children are entitled by federal law.

Held:
1) D’s violated the "equal access" provision of Title XIX by failing to set physician reimbursement rates at a sufficient level to attract enough providers such that health care services were available to children on Medicaid at least to the extent that those services were available to the insured population.
2) the unavailability of pediatricians for children with complex needs, together with the statistical evidence of inadequate participation, demonstrated that defendants failed to assure that payments to providers were consistent with quality of care and, thus, they violated § 1396a(a)(30)(A).
3) D’s may refuse to pay for experimental treatment desired by certain class members when their decisions are based upon reasonable concern for safety.
Sanchez v. Johnson - no unambigiously created enforceable right under the statute, did not satisfy the thiboutot test
Medicaid recipients brought suit for a violation of medicaid act against state medicaid administrators. Issues were:
1) whether developmentally disabled recipients of Medicaid funds and their service providers (plaintiffs) had a private right of action against state officials to compel the enforcement of the Medicaid Act, and 2)
2) whether the State of California had unlawfully discriminated by allegedly paying community-based service providers lower wages and benefits than it paid employees in state institutions.

Held:

1) No, Congress did not unambiguously create an individually enforceable right under § 1396a(a)(30)(A) that would be remediable under § 1983 either by the plaintiffs as recipients or providers of Medicaid services.
2) No, California was currently operating an acceptable deinstitutionalization plan, which, under existing judicial precedent (Olmstead), should not be set aside or modified by the courts
Thiboutot Test
1) congress must have intended that the provision in question benefit the plaintiff
2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence
3) the statute must unambiguously impose a binding obligation on the states
Gun Free Schools Act of 1990 (amended 1994)
a. makes it a federal crime to carry a concealed handgun or ammunition on or within 1,000 ft of a school
b. 1994 amendment requires school adopt a “zero tolerance” policy requiring a min one year expulsion for students bringing a gun to school
National Minimum Drinking Age Act 1984
withheld highway funding from states who allowed possession or purchase of alcohol by persons under 21, was successful in getting all states to raise drinking age to 21
Emergency Preparedness and Injury Control Program
conduct epidemiological investigations and control programs for prevention of unintentional injuries, exist in most states either under this term or others
State and Federal Injury Prevention Regulations
1) flammable fabric rest.
2) pool fence and alarm requirements
3) bike helmet laws
4) public playground safety standards
5) Poison Control centers
Environmental dangers that disproportionately endanger children
1) Lead
2) air pollution
3) pesticides
4) environmental tobacco smoke
5) drinking water contamination
Aqua Slide 'N' Dive Corp. v. Consumer Product Safety Com - no substantial evidence proving necessity of signs and ladder chains
Petitioner, a swimming pool slide manufacturer, challenged the legality of a safety standard for swimming pool slides adopted by respondent, the Consumer Product Safety Commission, requiring slide manufacturers to place warning signs and ladder chains on slides.

Held: no substantial evidence (test) to demonstrate the reasonable necessity of warning signs on the slides or the ability of the ladder chain to avert the serious danger of drowning that placing slides in deeper water would create
Anheuser-Busch v. Schmoke - ban of outdoor advertising of alcohol is rational related to city's interest in promoting welfare and temperance of minors
Ban on outdoor advertising of alcohol - ordinance was constitutional, the ban of outdoor advertising of alcoholic beverages in limited areas directly and materially advanced the city's interest in promoting the welfare and temperance of minors.
a. SS analysis
(i) Advertising is speech – fundamental liberty interest
(ii) Ban is narrowly tailored

Rationale: Children deserve special consideration in the first amendment balance because of their inability to independently assess and analyze the information presented to them.
Lorillard Tobacco Co. v. Reilly - cig ad regulation must be narrowly tailored due to free speech.
Mass. Attorney General imposed restriction on cigarette ads, including bans on ads around schools and ads under 5 ft. Cigarette companies argue that it violates first amendment rights to free speech

Most restrictions struck down - no connection between state interest and regulation, so not narrowly tailored
1) regulations preempted by Federal Cigarette Labeling and Advertising Act (FCLAA)
2) regulations prohibiting advertising within 1,000 feet of school or playground violated First Amendment
3) regulations prohibiting ads lower than 5 feet within 1,000 feet of school or playground violated First Amendment
4) regulations requiring products to be placed behind counters did not violate First Amendment, as those regulations were narrowly tailored to prevent access to tobacco products by minors.

Generally: Impediments created by the state must demonstrably and materially advance a compelling state interest (not merely rationally relate to such), and state must have considered other alternatives
Fetal Drug Injury/FAS
causes central nervous system dysfunction, delayed motor development, mild to severe mental retardation, learning disabilities, and speech, language, swallowing and hearing development problems
Lead contamination/Environmental Injury
causes serious brain damage, decreased intelligences and impaired neurobehavioral development; exposure is more common among poor and urban children and those living in older housing
Public Programs Generally Provide Attention to What 3 Categories
1) developmental disabilities
2) mental health problems
3) learning disabilities
Barriers to Class Actions for Children
All forms require a class rep who adequately reps the class, must be questions of fact and law common to all members, must be an adequate number of class members that would make individual suits impractical and the class must be certified. Under 23b3 - questions of fact and law must predominate, must be manageable and superior to alternative remedies.
Problems with Guardian Ad Litem
In court's discretion; not usually used for family court disputes involving custody, probate courts involving inheritance and other proceedings; may or may not be an attorney; may not have child's best interests at heart
statutory Attorney's fees common in:
1) environmental law
2) sunshine statutes
3) taxpayer waste actions
4) antitrust
5) civil rights cases
Enforcement of Federal Standards Through Funding Cut-Off
Public interest counsel wil bring suit against state or local officials for failure to meet federal standards - the remedy sought is the termination of federal assistance to the state. Kind of a game of "chicken" - they don't want redress, just hope that the state complies so their funding isn't cut.
Sovereign Immunity Bar
States try to avoid jurisdiction by the courts in enforcing federal law in cases of supremacy and federal preconditions for funding, invoking the 11th amendment raising "state sovereign immunity" but cases like Ex Parte Young have held that where state officials act in violation of the constitution, or where federal statutes have supremacy, they do not have such protection.
Problems within the executive branch and protecting children
1) many regulatory agencies are literally governed by persons currently in the trade or profession their agency regulates
2) Job interchange between executive agencies and private industry is common, even prevalent, at both the state and federal levels
3) Those with vested profit/stake in agency policies engage in extensive socialization with agency officials, including banquets, conferences, trips and entertainment
4) exparte contacts
5) external information and advocacy on pending issues is dominated by profit/stake interests and many agencies lack ind. proff. staffs capable of advancing internal agendas on behalf of diffuse and long terms interests.
System of Care Approach
a bottom up approach that allocates a sum of money to be spent on or in behalf of a child and allows the guardian to select applicable programs and services for the child. Advantages: greater efficacy, enhanced consumer control, lower cost
Sulliven v. Zebley - regulations were inconsistent with the statutory standard of "comparable severity" and exceeded his statutory authority
Class action challenging regulations for determining whether child is disabled for purposes of receipt of supplemental security income benefits. There is a statute that states that there must be comparable severity for children. There is a regulation that says child must suffer from a listed disability and a combination of disabilities does not count for severity

Held: regulations were inconsistent with the statutory standard of "comparable severity" and exceeded his statutory authority
Federal Supplemental Security Income/State Supplementary Program (SSI/SSP)
provides cash grants to aged, blind, or disabled person including children; only 5-10% of recipients are children, most goes to elderly
Wash State DSHS v. Guardianship Estate of Danny Keffeler - State's use of SS benefit for reimbursement of initial expenditures does not violate a provision of social security act
Facts: The Commissioner of Social Security appointed the Department to serve as the representative payee for foster care children receiving Social Security benefits. The Department used Social Security benefits to reimburse itself for the costs of foster care. Class action was brought alleging that DSHS violated SSA by using funds owed to foster care children for reimbursement.

State's use of SS benefit for reimbursement of initial expenditures does not violate a provision of social security act protecting benefits from "execution, levy, attachment, garnishment, or other legal process" : The Department's effort to become a representative payee and its use of Social Security benefits did not amount to employing an “execution, levy, attachment, garnishment, or other legal process” within the meaning of § 407(a). Further, the practice was consistent with the regulations definition of “current maintenance” as “costs incurred for food and the like.”
Oberti v. Board of Education of The Borough of Clementon School District - mainstreaming is preferred and state must show why they are not mainstreaming
Oberti suffered from Downs syndrome. P’s, student and parents, agreed to an individualized education plan (IEP) which they found unsatisfactory, but under which D’s were to explore mainstreaming possibilities and future placement in a regular classroom. When this did not occur, P’s went through the administrative process and then brought an action in district court challenging the administrative findings

Held: mainstreaming is to be preferred and state must show why they are not mainstreaming
(i) under IDEA, school is prohibited from placing child with disabilities outside regular classroom if educating child in regular classroom, with supplementary aids and support services, can be achieved satisfactorily
(ii) burden of proving compliance with mainstreaming requirement is borne by school
(iii) school district failed to meet its burden of proving that child could not be educated satisfactorily in regular classroom with supplementary aids and services, despite behavior problems in developmental kindergarten.
Florence School Dist. Four v. Carter - state should have to reimburse for tuition when IEP was inadequate
Facts: Parents said public school IEP was inadequate and sent child to private school, then sought reimbursement.

Held: state should have to reimburse for tuition, statute say free and appropriate education
Cedar Rapids Cmty. Sch. Dist. v. Garret F. - ventilator services are required, medical service exclusion doesn't apply
Student who was paralyzed from the neck down and depended on a ventilator for life support. Student’s mother asked district to pay for the ventilator services that respondent needed to attend school.

Held:
(i) under IDEA district must provide continuous one-on-one nursing services for respondent student.
(ii) The medical services exclusion did not apply because the services that respondent needed did not require a doctor.
Schaffer v. Weast - burden of persuasion in ALJ hearings is on the party coming forward with the claim
The parents initiated a due process hearing challenging an IEP and seeking compensation for the cost of a private school. ALJ held that the parents bore the burden of persuasion and ruled in favor of the school district.

Held:
(i) The burden is on the party coming forward with the claim
(ii) The minor, as represented by his parents, bore the burden of persuasion at the administrative hearing challenging the IEP because the minor was the party seeking relief.
Child Care - Demand is Increased Due to
a. increase in unwed births and divorce rate
b. higher real estate costs requiring more than one parent to work
c. growth in employment for mothers
d. New Demand from federal welfare reform requiring employment
Types of Child Care
a. Full Day (Infant and Toddler)
(i) Center, school, or family (licensed)
(ii) Most federal money is focused on preschool for 4 year olds
b. Part-time Care (age 5 to 14):
(i) Center, school, family (licensed)
Major Federal Statutes for Child Care
1) PRA provisions and Child Care Development Block Grant
2) Federal Head Start
3) Other Federal Programs
4) Tax Subsidies
Problems with Child Care for Working Poor
1) little child care subsidy for working poor
2) very few tax credits are refundable - if refundable then you can get more money back, if nonrefundable reduces your tax credit to zero.
3) TANF - 5 year limit; 1/2 the number of people receiving TANF than 1996; limited child care once you get a job; people not on welfare don't get child care money and put behind those that are unemployed.
Miller v. Carlson - federal statute trumps state rule and AFDC recipients can get childcare even if non-approved job training or education
AFDC recipients filed a complaint for declaratory and injunctive relief, contending that the agencies violated their rights under the Act by limiting the guarantee of child care exclusively to AFDC recipients enrolled in the state sponsored employment and training program known as Greater Avenues to Independence (GAIN).

Held: federal statute trumps the state rule; court interpreted the congressional intent to be broad, and not to be limited by the state; AFDC recipients can get children even if in non-approved job training or education
Child Welfare System and Abuse
1) interest in family preservation
2) mandated reporting
3) removal: must make reasonable efforts not to remove the child from the home (funding dependent on compliance with this)
4) Reunification: must also make reasonable efforts to reunify the family if the child is removed
Dependency Court Steps
1) Removal
2) detention hearing
3) Readiness Hearing
4) jurisdiction/Disposition hearing - juris: whether court takes JD over child and becomes formally their guardian; dispo: where the child will be while case is heard
5) Review hearing - after 6 months question of reunification
6) Permanent Placement Hearing - determines whether should be termination of parental rights (TPR) and placement elsewhere
Funding in Child Abuse
IV B: social workers

IV E: goes into foster care to care for kids

CAPTA: prevention of child abuse
Problems in Child Abuse Situations
i. Drift: when kids are moved from home to home (can be moved up to 10-12 times), detachment syndrome occurs
ii. Group Homes/Emancipation: Studies show that kids from group homes fare the worst upon emancipation
iii. Undersupply of family foster care providers: they don’t have effective lobbyists to get money for them
iv. Bias re family preservation: IVE can’t be spent until child is removed – now being relieved with waiver
A. Mandated Reporting Statute
certain categories of people who are required to report child abuse cases to CPS hotline, and are entitled to full immunity, criminal offense if not reported, supersedes other privileges
i. Physicians, counselors, teachers
ii. Problem: Concern about kids 0-4 because they are not seen as often by these professionals as older, school-age kids
People v. Strizenger - communications b/w psychotherapist and D were privileged
Child molestation - goes to therapist. Held that Communications b/w psychotherapist and D were privileged, and because therapist had already disclosed communications with stepdaughter regarding the same conduct, they were privileged under the Child Abuse Reporting Act.
Lassiter v. Dep't of Social Services - parent does have right to counsel in TPR hearing, but not here (having atty wouldn't have helped)
parent does have right to counsel in TPR hearing, but not here (having atty wouldn't have helped)

Good for future parents
Kenny A v. Sonny Purdue - children have a right to counsel in TRP hearing
class action was brought on behalf of foster children in two counties for failure to provide adequate and effective legal representation in deprivation and termination-of-parental-rights (TPR) proceedings in violation of their due process rights under the GA €.

Held: a. Foster children have a right to due process in deprivation and TPR proceedings under the Due Process Clause of the GA €, because they had a fundamental liberty interest at stake.
Santosky v. Kramer - clear and convincing standard necessary in TPR proceedings
After incidents reflecting parental neglect, children were removed from the home and parental rights were later terminated. Parents challenged the preponderance of the evidence standard.

Held: clear and convincing standard was necessary to protect petitioners' due process rights, because a fundamental liberty interest was at stake (right to parent) and the governmental interest favoring the preponderance standard was slight
Smith v. OFFER - held no liberty interest in family with foster families
The foster parents alleged on behalf of a class of themselves and children for whom they had provided homes that when a child had lived in a foster home for a year or more, a family was created, and that that family had a "liberty interest" in its survival protected by the 14th amendment and that the procedures governing the removal of foster children from foster homes failed to protect the interest.

Held: The procedures provided by the state for removal of foster children from foster homes were adequate to protect whatever liberty interests the foster parents may have had – procedural due process not needed. The Court applied a three-factor test, which evaluated 1) private interest, 2) risk of erroneous deprivation, and 3) governmental interest. Because foster families were provided with a more elaborate trial-type hearing than those required in the context of other administrative determinations and that the procedure was constitutionally sufficient.
Drummond v. Fulton County DFCS - parents who wanted to adopt black child, no EP or DP violation
P’s were a white couple who acted as foster parents for a mixed child. P’s tried to permanently adopt the child, but were prevented from doing so because of their race. Child was placed with a black family. P’s sought injunctive relief, alleging violation for equal protection and due process rights.

a) Equal Protection: Plaintiffs were not denied equal protection because race could be considered a factor in the decision as long as it was not the sole, determinative factor.
b) Due Process: P’s did not have a protectable liberty or property interest in the relationship b/c their only obligation was to provide for the safekeeping of the child – and state adoption law was designed to prevent development of a “psychological parent” relationship on the party of foster parents
c) the child had no protected liberty interest in a "stable environment."
Pew Commission Recommendations
1) financial
2) Federal assistance to states in paying for foster care for all children;
3) Improvement to child and family service Reviews
4) strengthen courts: children and parents need direct voice in court; more court involvement; standards of practice
Fellmeth Recommendations for Child Abuse Overhaul
1) prevention through higher % of intended births
2) family foster care supply and quality enhancement
3) revision of confidentiality for dependency court and foster care regulation
4) Combat parental drug abuse
5) state assistance to foster children
Traditional Test for Competency to Testify
1) adequate intelligence to make the testimony of value
2) an understanding of the duty to tell the truh
Common Law Test for Competency to Testify
Presumption of competency at 14, and of incompetency before 14, some states draw the line at 10. Federal Rule 10: presumption that every person is competent.
Child Suggestibility
the degree to which children’s encoding, storage, retrieval may be influenced by external factors (interviewing techniques)
i. Repeated questions
ii. Explicit vilification/criticism of defendant
iii. Tone of voice
iv. Mild threats
v. Praise, bribes, rewards
vi. Peer pressure
vii. Once tainted, distortion of memory is irremediable
viii. Communications between children and children/parents can influence their stories (recovered memory)
NJ v. Michaels - pretrial hearing required to determine the admissibility of testimony
pre-trial hearing required where kid testimony may have been tested. Required:
a) Preliminary showing by the defense that the testimony is tainted, which then shifts the burden to the state to show by clear and convincing evidence that the testimony of the child is not tainted
b) Totality of the circumstances are looked at to see if the testimony is tainted, which, if found, results in a preliminary hearing before a child can testify
c) to re-prosecute, state must prove by clear and convincing evidence that the testimony elicited nevertheless retained a sufficient degree of reliability to warrant admission
Maryland v. Craig - closed circuit tv allowed for testimony (no face to face confrontation necessary where a need to protect child from trauma is necessary.
The state’s interest in protecting the child from the trauma and getting to the truth justifies impeding D’s right to confront her accuser face-to-face; closed circuit tv is the least restrictive alternative and narrowly tailored because the court first has to find it necessary

Scalia: constitutional right to confront your accuser
White v. Illinois - no need to exclude evidence where child was unavailable and bunch of other people testified for her

No longer good law after crawford
Facts: D was convicted of the aggravated sexual assault of a child. The child told the same story to mother, babysitter, a police officer, and a doctor and nurse, who then all testified regarding the child's description of the assault under spontaneous declarations and medical examination hearsay exceptions

Held: given the evidentiary value of such statements, their reliability, and the fact that establishing a generally applicable unavailability rule would have few practical benefits; there was no reason to exclude evidence
Crawford v. Washington:
i. Confrontation right of an adult criminal defendant requires that he be able to cross examine witnesses who is available (what is available?)
ii. limited hearsay exceptions for out of court statements where the witness was available
iii. use of excited utterance exception is uncertain after this case
Globe Newspaper Co. v. Superior Court for the County of Norfolk -disclosure of rape trials where victims are minors should be on a case by case basis because of 1A
ii. Held: un€; must be on a case by case basis – cant be categorically confidential
a) Free speech = fundamental liberty interest → SS analysis
b) the mandatory closure rule was not narrowly tailored to meet the state's interests, because the circumstances of the particular case could affect the significance of the interest and the interest could be served by requiring the trial court to determine on a case-by-case basis whether closure was necessary.
Pennsylvania v. Ritchie - D's access to confidential info about rape not allowed unless court first determines material is necessary to D
iii. Held: D had no right to statutorily confidential information, unless the court first determined that it contained material, exculpatory evidence; court balances 6th Amd rights with compelling state interest in counseling
a) Court will examine first
b) In camera review
c) The right to question does not necessarily mean the right to pretrial discovery
Sanction Approaches in Juvenile Crime
A. Progressive sanctions until offenses become part of the person – doesn’t “sting”
B. “Formalism” that removes the offense from the conscience of the youth and essentially poses it as a criminal trial in which youth is conditioned to plead innocent as opposed to acceptance
Causes and Correlations in Juvenile Crime
A. Firearm availability
B. Media and Culture: exposure to violence desensitizes children and makes them more prone to physical aggressions
C. Poverty: sense of hopelessness and personal failure, geographical concentration of the poor, language barriers cause, gravitation towards those who hold power in their environment
D. Alcohol and Drugs
E. Paternal Abandonment
House of Refuge Movement:
early 19th century; the development of an underclass of poor children and the belief that poverty was cause of crime among children prompted the establishment of the first reformatories (Houses of Refuge), which were conceived as an alternative to the traditional practice of sending juvenile offenders to adult penitentiaries; not actually protective of children – corporal punishment and solitary confinement were often used
Reformatories
mid 19th century; state financed reformatories, coercive, labor intensive incarceration
Parens Patriae in Juvenile Crime
view that because the state was obligated to take care of the child and prevent them from becoming criminal – they were the “ultimate parent” – and could take custody of the child regardless of the child’s status as an offender or victim, and without due process
Child Savers
late 19th century; moral cause of “saving those less fortunate in the social order;” envisioned a juvenile court that would serve children and society by removing children from the adult criminal law process and placing them in special programs
In Re Gault - due process required for child sentencing
You cannot sentence a child without constitutional guarantees;
a) must provide:
(1) Notice: notify parents and child, give enough time to prepare for trial
(2) Counsel: must have an attorney at every step
(3) Confrontation/Self-Incrimination: A child must be told that he has the right to remain silent (*Fellmeth disagrees with this provision)
(4) Right to cross examine witnesses
(5) Right to appellate review and a transcript of proceedings

Applies in criminal cases and delinquency proceedings
New Jersey v. TLO - searches in schools should be based on reasonable suspicion
Girl with cigs, searched bag and found marijuana.

The 4th amendment applies to students; no warrant or probable cause is required, but a school official must be “reasonable” in their actions; standard is reasonable suspicion – very different from PC standard, potential for abuse
a) Outcomes in 4th amd. cases relate to the individualized suspicion – the state interest is in maintaining order in the school, thus subjecting everyone to search and ruling out the need for individualized suspicion
b) Plain sight: some of the stuff in the purse was on the top, if it in public view than its legal
c) Slow motion: try to establish foundation of one act following the other, each of which gives rise to reasonable suspicion
d) reasonable suspicion v. probable cause: suspicion is much less restrictive
e) Fellmeth: degree of intrusion should be considered instead of the other situational tests that are applied in crim pro
Vernonia School district v. Acton - rational relation applies to school searches
ii. Held: (Scalia) search is € - drugs and athletics rationally related
a) Decreased expectation of privacy
b) Relative unobtrusiveness of the search
c) Severity of the need (prevent drugs use, promote health) exceeds the severity of the search
d) Sports are voluntary activity
e) Failure of drug test only prevents participation, doesn’t yield charges. – so no need for suspicion
Board of Education of Independent School District No. 92 v. Earls - upheld drug testing of kids in extracurricular activities
ii. Held: upheld on minimal nature of the intrusions and severity of the need
US v. Frederick Doe - when no probable cause to search, evidential exclusion rule applies to juveniles
Facts: Three black kids were pulled over after making a rolling stop. Police went beyond scope of 4th amendment and searched the car, and found cocaine and guns. But had no probable cause - would normally exclude evidence illegally obtained in an adult proceeding.

Held: exclusionary rule applies to juvenile proceedings
In Re Winship - where risk of lost liberty, proof beyond a reasonable doubt is required
12 year old steals 100 dollars and is sentenced to 18 months with possible annual renewals until he is 18 in military school. Standard of proof at trial was preponderance of evidence. Q: should BRD standard be applied?

Held: Even juvenile proceedings are called “civil” proceedings, Proof Beyond a Reasonable Doubt is still required when there is a risk of lost liberty
McKeiver v. Pennsylvania - jury is not required for juvenile proceedings
: There is no constitutional right to a jury trial, because this is a civil proceeding so the rights differ. Only allowed rights before because they had to do with fairness (making sure the kid actually did it), and a jury is not necessary for these purposes.
Ropper v. Simmons - no death penalty for minors under 18
Individuals who were under 18 at time of crime, cannot get capital punishment – prohibited by the 8th and 14th amendment (8 says no cruel and unusual punishment and 14th extends to the states). Comes to decision after considering UN Convention on the Right of a child (which prohibits executing minors.

Scalia: criminal trials are already individualized – there is not need for categorical exemption, why have a bright line distinction when there are going to be exceptions
Status Offense
offenses that if committed by an adult would not be an offence, including
i. Curfew violations
ii. Running away
iii. Incorrigibility
iv. Truancy

Problem: “runaway” versus “thrown away” – some children leave because of abuse or neglect or are forced to leave by their parents, but are treated as runaways; since the const. is directed toward state action, there is no const. protection from abuse or neglect by parents
Parham v. J.R - no due process is required for civil commitment
Held: due process is not violated by these informal techniques, no formal hearing required
iv. Ratioanale
a) parents are presumed to be acting in the best interests of the child
b) these questions are medical and should be decided by a psychiatrists
c) adversary system is inappropriate because it pits the parents against the child
Federal Delinquency-Related Statutes and Programs
A. Juvenile Justice and Delinquency Prevention Act: gives a series of local/state grants
B. Violent Crime Control and Law Enforcement Act: provides $ for crime prevention
C. Federal Juvenile Accountability Incentives Block Grant: grants for prosecution enhancement programs, accountability based programs, and closer probation monitoring
D. Safe School Initiative: grants for school security measures
Child Custody in General
1) no right to council in general, civil, probate or family court
2) children generally given guardian ad litem in dependency court
3) Have to be shown to be unfit by clear and convincing evidence to have parental rights terminated
Alleged Father
Someone who may be the biological father, but paternity has not been proven
Mere Biological Father
confirmed biological father, but has not achieved “presumed” fatherhood status

Implies that biology is not enough, have to do more.
Kelsey Father
promptly attempted to assert parental rights as fully as circumstances allow
Presumed Father
fatherhood presumed if he is married to mother and 1) child is born during marriage, or within 300 days of termination of marriage, OR 2) child lives with him and holds child out as his own
De Facto Father
reasonably regarded as a father by the child based on parental performance. May turn on: the age of the child, length of time cared for, and whether the de facto parent is a foster parent through the state.

Increasing case law indicates de facto parents have rights because children have rights
Stanley v. Illinois - biological father is entitled to a hearing prior to his children being put up for adoption (marriage is too narrow)
Statute says that to be considered a father you need to be married to the natural mother. Father was not married to but lived with the mother. After the mother died, the children were taken away from the father and put up for adoption because father was not married to mother and thus had no presumed parental status

Held: The biological father is entitled to a hearing prior to his children being put up for adoption
(1) Due Process: The state is assuming that all unmarried fathers are unfit, which is violative of due process as a categorical assumption
(2) Equal Protection: affording married parents due process and unmarried parents no process violates equal protection
(3) SS analysis:
– Not narrowly tailored - separating child from a fit parent does not further the state’s interest in protecting the child and the community.
– Not the least restrictive alternative
Lehr v. Robertson - where a father makes no attempt to assert paternity in a timely manner, he loses right to due process
There is a putative father registry, where those who think they are fathers can enlist so that the child cannot be adopted without consent. L is not on the list, but has sought visitation and parental rights. He was not given notice about adoption, and argues that due process rights were violated.

Held: Where an unwed father comes forward and asserts his parental rights, his fundamental liberty interest in parenting is entitled due process protection, but where he makes no attempt to do so in a timely manner, he is entitled to no such protection (biology is not enough)
(1) Biology is only an opportunity – you have to do more
Michael H. v. Gerald D. - biological father doesn't have a liberty interest that would give way to substantive due process
Child (Victoria) was born to woman having an affair. When child was one year old, she told Michael that he was the biological father. Michael held himself out as the father, and lived with mother and child of and on. Gerald was married to mother was when child was born, played a part in raising her, had two other children mother, and wants to be the presumed father. After blood test, Michael tries to establish paternity right but CA statute prevents him because of time limit.

Held: no liberty interest, child doesn't have a liberty interest in maintaining relationship with 2 fathers; no EP violation for the child
Adoption of Kelsey S - if unwed father promptly demonstrates a committment to parental resp. then requires due process before TPR
(1) If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities…his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.
(2) Does require a showing that they consistently tried to assert parental responsibility – but trying need only be required once dad knows he’s the father
(3) When the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.
(4) Don’t qualify as a presumed father, but gets the same rights under this scheme
Troxel v. Granville - fundamental right to child rearing
statute is un€ as applied in this case, Due Process Clause of the United States Constitution did not permit a state to infringe on the fundamental right of parents to make child rearing decisions
(1) Court notes that there can be limits on parents rights
Webster v. Ryan (NY) - child has const. right to maintain contact with a de facto parent.
Held: a child has a constitutional right to maintain contact with a person with whom the child has developed a parent-like relationship. Court held mom out to be de facto parent.
(1) Children are persons under the constitution
(2) Child is entitled to freedom of association (fundamental liberty interest) and therefore due process
(3) Must balance the child’s interests with the parents interest
Child Support obligation
1) both parents statutorily required to support their child (including presumptive parents)
2) support enforced through child support order upon separation or divorce
3) support independent to visitation
4) amount set by family court based on needs of children and parents ability to pay
5) Under PRA mother's are required to make an attempt at locating father and assist state in finding him before benefits are awarded.
Emancipation
i. Requires that a child function apart form parents and have verifiable and independent means of support
ii. Some states requires parental consent
iii. Court is obligated to act in the best interests of the child in granting
County of Alameda v. Kaiser - emancipated children can still be entitled to support
emancipated children can still be entitled to support; the mother actively sought medical care for the son and was thus acting as the parent, which is enough to require support
Parker v. Stage - parents not obligated to reimburse TANF money for runaway child, when they did everything they could to get them to stay
Facts: 18 year old (minor) daughter leaves home against dad’s wishes to live with her boyfriend, and then has a baby and collects TANF State seeks reimbursement from father because he is obligated to support her until 21.

Held: Father is not obligated to pay because he did everything he could for his daughter
People v. Sorensen - a father cannot contract their way out of child support obligations
Father is sterile, mother is artificially inseminated, and mother puts father’s name is on birth certificate. They separate under an agreement that he is not obligated to support the child. Mother gets sick and state is paying welfare for the child. State seeks reimbursement. Father is being prosecuted criminally because he is not paying.

The judgment against the father is upheld, father cannot contract his way out of child support obligations
Ways For Mom to Collect Child Support
i. Mom approaches CS/DA office for assistance in collecting from father
ii. Mom goes to TANF, which requires her to inform of father so child support can be collected (after passing of PRA) to recompensate the state for assistance given.
iii. CA doesn’t do this, if cant ID father, just cuts money to the adult, not the child
Common Law Property Rights for Children
Children have the right own both personal and real property, but cannot manage it – parental authority generally includes the right to manage child’s property

Parents have the right to earnings from the unemancipated child
Levy v. Louisiana - legitimacy of birth has no relation to collecting under a wrongful death suit
Legitimacy of birth has no relation to dependency or to the wrong inflicted on the mother; no action or conduct of theirs is relevant to the harm done to their mother
a) Not a suspect class, so SS
b) Rational Relation Standard
(1) There still has to be a nexus, and there is no nexus here – the policy is to give a remedy to those who are dependant, which has no relation to marriage of parents
Mathews v. Lucas - statute requiring proof that illegit kids were receiving support at time of dad's death to recover child benefits under SSA is allowed.
statute is acceptable, because the classification justifiably designed to qualify entitlement upon the child’s dependency. Doesn’t bar recovery for illegit children, just requires a different procedure.
a) No suspect class, so the test is rational relation
Categories of Child Right of Contract
i. Void when clearly prejudicial to the child
ii. Voidable when possibly in the child’s best interest
iii. Valid when clearly in the child’s best interest
Disaffirming the Contract
i. May be done at any point during minority, or shortly after emancipation
ii. May be denied by some courts when children misrepresent their age- deceit may be a tort
Child Liability under Tort
i. Generally subject to the same liability as adults
ii. Immaturity may preclude liability for intentional torts where specific intent is required
iii. Rule of 7: some states say that children under 7 cannot be held liable for intentional torts, while children over 14 are presumed to have capacity
iv. Majority: age is just one factor
Recovery from Private Parties
i. Children may recover where injured by the tortuous acts of others
ii. Parental Immunity: limits suits against parents
a) Modern Doctrine: no longer impedes suits against parents in most states
b) Children allowed to sue insurance carriers for negligent driving by parents
Attractive Nuisance
Children can recover from someone where they should have know that a child was going to go there.
Corson v. Kosinski - where no forseeability of harm, no liability in tort for harm to child
(1) Premises: the roof was effectively separated from the rest of the building
(2) Frequency: there was no prior incidence of children on the roof, so no reason that the owner should have known that this was likely to occur
(3) Nothing about the firewall was particularly attractive to children
Tort Recovery from the State
state cannot be held liable when the child is not in their custody, but may be liable when injury suffered through the negligent acts of state officials or foster care providers – but may not apply when the parent voluntarily surrenders custody

standards of care under 1983:
a) Traditional Malpractice Standard – “departure from accepted standards of skill and judgment”
b) Strict Standard – requiring officials to manifest a deliberate indifference to a risk actually known to them
DeShauney v. Winnebago County - state has no duty to protect individuals against private harm, even if they had notice of potential harm
The state had several reports of possible child abuse on child Joshua, and took certain preventative measures, but never removed the child from the home. As a result of not being removed from the home, he was severely beaten by his father and rendered mentally retarded. The boy’s mother brings action against the state, alleging deprivation of liberty in violation of §1983.
J.C. Penny v. Casualty Insurance Co. v. MK - no recovery for intentional torts from insurance, no such thing as negligent molestation
No recovery - as a matter of law, fondling a child with sexual motivation is injurious, the nature of the crime requires intent to injure – there is no such thing as negligent or reckless molestation
Constitutional Barriers to Protection
a) Enforcement depends upon judicial action
b) Judiciary is passive and does not consider issues unless brought before it
c) € doctrines requiring justicability, standing and ripeness
d) Initial dismissal where moot, not a real case or controversy, or where a dispute is in the nature of an advisory opinion
e) Decisions that are hostile to class certification
f) Refusal to grant private attorney general fees to counsel
g) Failure to include children as a protected group for equal protection
h) State bar policies prohibiting solicitation of clients (children have no other access to counsel)
i) Minimal budgets for legal aid attorneys
j) Restrictions on legal aid representation in class actions
k) Lack of assigned counsel outside delinquency proceedings
l) Judicial adult centrism

Fellmeth's suggestions: creation of federal, state or independent agency with standing to represent children; constitutional or statutory provision that would allow attorney fees recompense for vindication of constitutional rights
Tinker v. Des Moines - children have a constitutional right to free speech
a) The armbands were speech in the symbolic sense, akin to pure speech, and are to be protected by the first amendment
b) The armbands were not disruptive
c) There is an issue of selectivity, only banning symbols of a certain viewpoint
d) Didn’t use strict scrutiny for some reason
e) Kids may have limited rights, but not free speech
Hazelwood v. Kuhlmeier - a school newspaper is not a public forum and school is allowed to exercise appropriate discretion over material
School principle screened school newspaper articles before publication, and excluded 2 articles dealing with divorce and teen pregnancy, saying that they exposed kids to issues beyond their level of maturity. The school newspaper had a policy that recognized first amendment rights said only speech that materially and substantially interferes with appropriate discipline would be prohibited.
Wisconsin v. Yoder - parents have a right to exercise religion that outweighs interest in education
Amish win, although the state has an interest in education, that interest does not outweigh the parents’ right to free exercise of religion and their fundamental right to parent
Board of Education v. Mergens - school allowed to have religious clubs under the Equal Access Act, which is not in violation of the establishment clause
The statute does not fall on its face, the students can use the school facility and the requirement of a teacher being there does not constitute sponsorship unless they are actively participating.
There is a difference between school/govt. speech endorsing a religious practice (which the Establishment Clause forbids) and private speech endorsing a religious practice (which the Free exercise Clause protects)
Zobrest v. Catalina Foothills School District - providing an interpreter under IDEA to a student in a religious school does not violate establishment clause
a) Providing an interpreter does not violate the Establishment Clause because the interpreter benefits the child not the religious school
b) It does not matter that education and the advancement of religion are intertwined at this school
Zelman v. Simmons-Harris - school district allowed to provide poor families with money to attend private school even if religious
a) following Zebrest, the primary beneficiaries are the children not the religious schools
b) where the tuition is spent rests on the decision of the parents