Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" ||
Electronic Research Collections Index ||
U.S. REPORT UNDER THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS
Article 24 - Protection of Children
Children in the United States are entitled to
constitutional and statutory protections against
discrimination which are described elsewhere in this
report. As described in connection with Article 2,
the Fifth and Fourteenth Amendments to the
Constitution, together with numerous federal and
state statutes, ensure that all U.S. citizens are
protected against discrimination on the basis of
race, color, sex, language, political or other
opinion, national, ethnic or social origin,
property, disability, birth or other status. In the
context of equal protection doctrine generally, U.S.
law provides special measures of protection aimed at
preventing discrimination against children.
Education. Principles of nondiscrimination have
been enforced with special vigor in the field of
education. It is notable that the seminal Supreme
Court decision on equal protection in the United
States, Brown v. Board of Education, 347 U.S. 483
(1954), concerned the education rights of children.
In that case, the Supreme Court ruled that racial
segregation in public school education was
unconstitutional under the Equal Protection Clause
of the Fourteenth Amendment. Title VI of the Civil
Rights Act of 1964 prohibits discrimination on the
basis of race, color, or national origin in programs
and activities receiving federal financial
assistance. 42 U.S.C. 2000d. In the years since
Brown, courts and legislators have articulated a
host of other educational protections for children.
For example, it is now illegal for schools to
discriminate against children on the basis of their
status as illegal aliens, Plyer v. Doe, 457 U.S. 202
(1982); on the basis of sex, Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681 et
seq.; on the basis of language status, Lau v.
Nichols, 414 U.S. 563 (1974); on the basis of
disability, Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794, Individuals with Disabilities
Act, 20 U.S.C. 1400 et seq., and the Americans
with Disabilities Act; or on the basis of
homelessness, McKinney Homeless Assistance Act, Pub.
L. No. 100-77 (1987), 101 Stat. 482, as amended, 42
Children Born Outside of Marriage. The U.S. Supreme
Court has adopted a standard of heightened scrutiny
in reviewing instances of discrimination against
children born outside of marriage. In the important
area of child support, the Court has held that a
state's failure to accord full support rights to
such children constitutes a violation of equal
protection. Gomez v. Perez, 409 U.S. 535 (1978).
More recently, the Court has held that a six-year
limit on paternity and support actions denied
illegitimate children equal protection. Clark v.
Jeter, 486 U.S. 456 (1988). Particularly in the
areas of inheritance and Social Security benefits,
however, the Court has upheld the state's interest
in facilitating property succession and
administering the Social Security program despite
unequal treatment of illegitimates. See Lalli v.
Lalli, 439 U.S. 259 (1978) (upholding a statute
restricting inheritance by illegitimates from
father's estate to instances where a court of
competent jurisdiction, during the father's
lifetime, had entered an order declaring paternity);
Mathews v. Lucas, 427 U.S. 495 (1976) (upholding
Social Security benefits awarded only where
illegitimate child met one of "presumptions" of
dependence on deceased parent or where child was
living with or being supported by parent at parent's
death). Noncitizen Children. Similarly, the
Supreme Court has applied heightened scrutiny in
adjudicating the equal protection rights of alien
children. The Court has held, for example, that
alien children have a constitutional right to public
school education in the United States, whether or
not they are legally documented aliens. Plyer v.
Doe, 457 U.S. 202 (1982). The Court has also found
that aliens have a right to equal access to
educational assistance benefits. Nyquist v.
Mauclet, 432 U.S. 1 (1977).
Disabled Children. Disabled children in the United
States are protected against discrimination by the
Americans with Disabilities Act of 1990, which
expanded the guarantees of the Civil Rights Act of
1964 to millions of persons with physical and mental
handicaps. In particular, disabled children benefit
from entitlements to access to public
accommodations, including recreational facilities,
restaurants, retail facilities and transportation.
As noted above, children with disabilities are fully
guaranteed the right to equal educational
opportunities in the United States. See 20 U.S.C.
1400 et seq. (Individuals with Disabilities
Education Act, IDEA). Also, disabled children are
protected by Section 504 of the Rehabilitation Act
of 1973, which prohibits discrimination in
federally-funded programs on the basis of disability
or perceived disability.
II. Primary Responsibility.
Parental Responsibility. Parents bear the primary
responsibility for the protection and upbringing of
children in the United States. As noted above in
connection with Article 23, U.S. courts have long
recognized the rights of parents to raise their
children free from government intervention: "The
history and culture of Western civilization reflect
a strong tradition of parental concern for the
upbringing of their children. The primary role of
the parents in the upbringing of their children is
now established beyond debate as an enduring
American tradition." Wisconsin v. Yoder, 406 U.S.
205, 232 (1972). Under U.S. law, parents have both
the right and the duty to prepare their children for
adulthood: "The child is not the mere creature of
the State; those who nurture him and direct his
destiny have the right, coupled with the high duty,
to recognize and prepare him for additional
obligations." Pierce v. Society of Sisters, 268
U.S. 510, 535 (1925).
Child Custody. As discussed under Article 23, all
states adhere to the "best interests of the child"
doctrine in determining the custody of children
between biological parents. As a Kansas court
indicated, "Without question, the paramount concern
of courts in child custody proceedings is the
welfare of the child . . . . [W]hen a controversy
arises as to the custody of a minor child, the
primary question to be determined by the court is
what is for the best interest of the child."
Chapsky v. Wood, 26 Kan. 650 (1881). Since then,
the "best interests" doctrine has been articulated
in the statutes or case law of all the states and in
the Uniform Child Custody Jurisdiction Act.
Adoption. Adoption is a legal process which
establishes a parent-child relationship between
individuals who are not each other's biological
parent or child. In the United States, adoptions
are regulated primarily by state law. Although the
states have yet to adopt uniform guidelines for
adoptions, there are certain characteristics common
to all state adoption laws. First, adoption is
permitted only after a court has been satisfied that
the biological parents have given voluntary and
informed consent, or that there are other
appropriate grounds for waiver of such consent.
Second, before an adoption is approved, a court must
find that the child is being placed with suitable
adoptive parents and that the proposed adoptive
relationship is in the best interests of the child.
Third, adoption in the United States is not a
bargained-for exchange. Although parents may pay
agencies and other professionals for certain
adoption-related expenses, they are prohibited from
"purchasing" children for adoption. Finally,
adoption constitutes a permanent substitute for the
prior legal relationship between the child and his
or her biological parents. The federal government
plays a limited role in providing financial support
for families of adopted children. For example,
under the Adoption Assistance and Child Welfare Act,
42 U.S.C. 670 et seq., the government provides
reimbursements to states for financial and other
assistance given to families adopting children with
At present, a Uniform Adoption Act is being drafted
which would establish common guidelines for handling
adoptions among the various states. In addition,
the U.S. Government has participated in the effort
by the Hague Conference on Private International Law
to develop an international covenant on inter-
country adoptions and is actively considering prompt
III. Oversight and Support of the Primary Care-giver
Parental Role. As discussed above, states require
parents to provide support for their minor children
to the extent of their financial abilities. In
setting out the requirements for child support,
states are prohibited from discriminating against
children on the basis of their sex, legitimacy, or
adoptive status. The only exception to this rule is
in the area of inheritance by children born out of
wedlock, as discussed above.
Failure of parents to provide adequate support to
children within their care can lead to civil abuse
or neglect proceedings and removal of the child from
parental care. Mechanisms for enforcement of child
support obligations by noncustodial parents in case
of divorce are discussed under Article 23.
Financial Support Programs. The federal government
administers a number of social programs designed to
provide financial support for children whose parents
cannot afford to bear the full burden of child
support. Aid for Families with Dependent Children
(AFDC), 42 U.S.C. 601 et seq., is the principal
support program for poor families. Poor families
with children are also eligible for the Earned
Income Credit (EIC), 26 U.S.C. 32, a federal tax
credit which offsets social security taxes and
supplements wages for poor families with children.
In addition, the Family Support Act of 1988, Pub. L.
No. 100-485, 102 Stat. 2343 (1988), provides federal
support for state job training programs for families
receiving AFDC payments.
Children in the United States also benefit from more
general social insurance programs. Each child of a
retired, disabled or deceased insured wage earner is
entitled to receive social security benefits through
the age of 18 (or 19 if the child is still enrolled
full-time in secondary school). As of 1987, 2.6
million minor children were direct beneficiaries of
social security, and millions more were indirect
beneficiaries through their parents or guardians.
In addition, children in the United States benefit
from other social insurance programs such as
unemployment insurance and workers compensation.
Foster Care. The foster care system in the United
States provides care and financial assistance for
children whose parents are either unable or
unwilling to care for them. The system is
administered by state and local child welfare
agencies. Most foster children are placed in
individual foster homes or in group homes where they
are cared for by foster parents or group home staff.
When homes are unavailable, children may be placed
in institutions; however, the use of institutional
child care is limited under both federal and state
law. See, e.g., West's Calif. Welf. & Instit. Code
206, 207.1, 361.2; 42 U.S.C. 672(c)(2).
Many children in the United States are brought into
the foster care system through involuntary removal
from their parents by child protective services
workers. Others are placed there voluntarily by
parents who need assistance in child care. Those
children who are permanently separated from their
parents are cared for through adoption,
guardianship, or long-term foster care. In such
cases, both federal and states laws encourage the
placement of children in permanent homes as soon as
Foster care is funded primarily by the states
through direct grants to care-givers. The federal
government provides additional funding through the
Adoption Assistance and Child Welfare Act, 42 U.S.C.
670 et seq. As a prerequisite to funding, the
Act sets out minimum requirements for state foster
care agencies. These include case plans, regular
case reviews, minimum standards for foster homes,
mandated reporting of abuse by out-of-home care-
givers, and procedural protections for parent-child
visitation and changes in placement.
Child Abuse. The federal government and the states
have devoted considerable resources to combatting
the problem of child abuse in the United States.
Each state now has a reporting statute which
requires professionals working with children, such
as teachers and doctors, to report evidence of child
abuse and neglect to designated law enforcement or
child protection authorities. Most statutes impose
a minor criminal penalty for failure to report.
Upon receiving an abuse report, a state enforcement
agency is required to investigate to determine
whether there is a basis for the report. In extreme
cases, U.S. law permits state authorities to take
abused children into emergency protective custody.
Every state has a juvenile or family court with
jurisdiction over child abuse cases. Proceedings
are commenced by a state agency filing a petition
alleging that a child has been abused and is in need
of protection. Upon an affirmative determination of
abuse or neglect, the court has a range of available
remedies, including protective orders, supervision
of parents, awarding temporary custody to foster
parents or the state, requiring medical or
psychiatric treatment for either the parents or the
child, and in extreme cases, termination of parental
IV. Other Special Measures of Protection for
Minority. The common law in the United States
traditionally imposed both privileges and
disabilities on persons under age. The purpose was
to protect the child at a time when he or she lacked
the capacity to exercise good judgment. This
purpose underlies most of the legal privileges and
disabilities imposed on minors, such as the
privilege to disaffirm contracts or the disability
to consume alcohol. Until the 1970 s, the legal age
of majority in the United States for most purposes
was 21. Since then, all but five states have
reduced the age to 18. Many of those states which
have reduced the age of majority still maintain
restrictions, such as prohibitions on purchasing
liquor, on persons up to the age of 21. The Twenty-
Sixth Amendment to the Constitution now ensures that
all persons 18 years of age have the right to vote
in the United States.
Ability to Contract. Minors in the United States,
while they may enter into contracts and enforce
them, also have the right to disaffirm their
contracts, and thereby avoid liability, at any time
before reaching majority or within a reasonable time
thereafter. Several states have modified this
doctrine to allow children to enter fully binding
contracts for the purchase of necessaries, which are
defined as goods and services needed for the child's
support. These include food, clothing, housing,
medical care, legal services, and in some cases an
Child Labor Laws. The federal Fair Labor Standards
Act (FLSA) establishes national minimum wage,
overtime, record-keeping and child labor standards
affecting more than 80 million full- and part-time
workers in both the public and private sectors. 29
U.S.C. 201 et seq. It applies to workers engaged
in interstate commerce, the production of goods for
interstate commerce or in activities closely related
and directly essential to such commerce. The FLSA
also applies to all employees of certain enterprises
including business enterprises with more than
$500,000 in annual volume of business.
The FLSA's child labor provisions are designed to
protect the educational opportunities of younger
minors and to prevent employment in jobs and under
conditions detrimental to the health or well-being
of all minors. These provisions include certain
restrictions on occupations and hours of work for
youth under 16 years of age in nonagricultural work.
They also restrict to nonschool hours the working
hours of children aged 12 through 14 employed in
agriculture under specific conditions. In addition,
the FLSA prohibits employment of minors under age 16
in farm occupations declared by the Secretary of
Labor to be hazardous for minors to perform;
similarly, minors under age 18 in nonagriculture
work may not be employed in occupations declared
hazardous by the Secretary. Violators may be
charged in the form of administrative civil money
penalties of up to $10,000 for each violation and,
in certain circumstances, may be subject to criminal
penalties. The Secretary of Labor may also seek
injunctions against violators in federal district
In addition to federal child labor statutes, most
states have child labor laws designed to protect
The U.S. Labor Department's Employment Standards
Administration, Wage and Hour Division (WH),
enforces the FLSA child labor provisions. In fiscal
year 1993, WH assessed employers over $8.2 million
in civil money penalty fines and found over 10,000
minors illegally employed.
Armed Conflict. Children in the United States are
not permitted to participate in armed conflict. The
only exception to this policy is for persons not
less than 17 years of age who have obtained written
parental consent. In practice, the Department of
Defense ensures that individuals under the age of 18
are not stationed in combat situations. See Regular
Army and Army Reserve Enlistment Program, Army
Regulation 601-210, Headquarters, Department of the
Army, 1 December 1988, Chapter 2.
Drugs. The abuse of narcotic and psychotropic drugs
by children is a serious problem in the United
States. The production, sale, and use of such drugs
is illegal in every state, and several states have
taken steps to target specifically the sale of drugs
to children, for example, by increasing the
penalties for drug sales in the proximity of
schools. Education is another key aspect of the war
on drug abuse by children, and most states now
require that public school students be exposed to
drug education curricula at several stages in their
education. Perhaps the weakest link in the war on
drugs is in funding for rehabilitative services. At
present, many American children who are already
addicted to drugs do not have access to meaningful
support and assistance in curing themselves of their
Sexual Exploitation of Children. U.S. federal and
state law contains comprehensive protections against
sexual exploitation of children. Most cases concern
sexual contacts or molestation, which are criminal
acts in all states. Child prostitution is also
illegal in every state, and in most states, criminal
liability extends to any person participating in or
profiting from the acts of a child prostitute.
Statutory rape laws have also been applied in the
context of child prostitution. The problem of
sexual abuse of children in the home is addressed
through state child abuse laws. In addition, the
Child Abuse Prevention and Treatment and Adoption
Reform Act of 1978, 42 U.S.C. 5101 et seq.,
requires states receiving federal funding to include
"sexual exploitation" in their definitions of
reportable child abuse. Finally, child pornography
is now illegal under both federal and state law. In
a recent decision, the Supreme Court ruled that the
government has a compelling interest in the
protection of victims of child pornography, one
which overrides the free speech interests of
pornographers. Osborne v. Ohio, 495 U.S. 103
Trafficking in Children. Trafficking in children is
illegal under the Thirteenth Amendment to the
Constitution, which prohibits all forms of slavery
and involuntary servitude, except as punishment for
crime. This constitutional prohibition is
supplemented by numerous federal and state statutes.
The Mann Act, for example, prohibits trafficking in
individuals for purposes of prostitution and imposes
heightened penalties in the case of children. See
18 U.S.C. 2421 et seq.
All children in the United States are entitled,
through the laws of each state, to universal,
public, free primary and secondary school education.
Each state has a compulsory education statute
requiring children between certain ages (typically
six through 16 years old) to attend primary and
secondary school. In addition, the constitutions of
all 50 states contain provisions supportive of
education. See, e.g., N.Y. Const. Art XI 1.
Although the federal Constitution does not expressly
provide for a right to education, the U.S. Supreme
Court has suggested that children have an implied
right to "some identifiable quantum of education"
sufficient to provide the "basic minimum skills"
needed to enjoy the freedom of speech and to
participate in the political process. San Antonio
Independent School District v. Rodriguez, 411 U.S.
1, 36 (1973). The Headstart program, 42 U.S.C.
9801 et seq., provides special pre-school education
programs for qualifying children. The Individuals
with Disabilities Education Act, 20 U.S.C. 1400
et seq. guarantees a free appropriate public
education for children with disabilities.
VI. Health Care
The federal government administers a number of
health care programs which are designed to ensure
that all children in the U.S. receive adequate care,
free of charge if necessary.
The primary financing mechanism for publicly-funded
health care in the United States is the Medicaid
insurance program, 42 U.S.C. 1396 et seq.
Operated by the states under broad federal
guidelines, Medicaid covers most, but not all, low-
income pregnant women, children, and caretaker
relatives of children. Medicaid has been a vehicle
for improving prenatal care and reducing infant
mortality. In addition, under the preventive
component of Medicaid -- the Early and Periodic
Screening Diagnosis and Treatment (EPSDT) program --
federal law requires the states to provide a package
of preventive, screening, diagnostic and follow-up
services to children. The federal government has
set a target whereby eight out of ten eligible
children must receive medical screening by 1995. As
of 1990, however, only about one half of poor
children older than six received any Medicaid
services at all.
There are three principal programs for delivery of
public medical services in the United States. The
Title V Maternal and Child Health Block Grant
program makes federal funds available to states to
"provide and assure mothers and children (in
particular those with low income or with limited
availability of health services) access to quality
maternal and child health services." Most states
combine these federal grants with state revenue
funds to deliver services at the local level.
Although it has suffered from funding constraints,
Title V represents a commitment on the part of the
United States to provide primary health care to all
American children free of charge if necessary.
The second initiative is the Community and Migrant
Health Center program, which finances community
health centers in medically underserved communities.
Over 2,000 health care sites, run by approximately
600 public and private nonprofit entities, provide
comprehensive primary care to the target population
in all states except Wyoming and in Puerto Rico and
the District of Columbia. Of the more than five
million patients served each year, two-thirds are
women of childbearing age and children.
The third principal program is the National Health
Service Corps, which sends individual physicians to
areas in need of better health care, primarily inner
cities and rural areas.
Another federal health care program is the Title X
Family Planning program. Finally, one program that
contributes significantly to the well-being of women
and children is the Supplemental Food Program for
Women Infants and Children (WIC), 42 U.S.C. 1786.
This latter program provides nutritious foods,
nutrition education, and semiannual physical exams
to low-income, high-risk women and children under 5
years of age.
Immunization. One of the most important health
services provided for children in the United States
is immunization. Approximately one-half of
childhood vaccines administered in the U.S. are
financed through the private sector. The other half
are financed through a combination of state funds
and federal funds which are paid through the
Childhood Immunization Program at the Centers for
Disease Control. In spite of these funding efforts,
however, there is need for improvement in the United
States, as hundreds of thousands of American
children still do not have adequate immunization.
At present, largely as a result of inadequate health
care delivery, only about one-half of preschool-age
children in the inner city are fully immunized. In
1993, Congress enacted a new childhood immunization
program under Medicaid (Pub. L. No. 103-66, 107
Stat. 312, 13631).
Services for Disabled Children. Many of the
publicly-funded health care programs described above
provide special services for disabled children. For
example, current law now requires that a minimum of
30 percent of federal Title V funds be used for
children with special health needs. With funding
from Title V, states administer programs for
Children with Special Health Care Needs, which in
recent years have broadened in scope to encompass,
among others, children with AIDS or HIV infection,
mental retardation and speech-lung-hearing
Disabled children also benefit from the 1989
Amendments to the Medicaid EPSDT program. With full
implementation of the Amendments, these children
will be entitled to a full range of rehabilitation
services including physical, occupational and speech
Under the Supplemental Security Income (SSI)
program, low income individuals who are blind or
disabled are provided with cash income payments from
the federal government. Children are eligible if
they are disabled and if their family income and
resources falls below a certain level. As of the
end of 1993, approximately 750,000 children, most
with severe disabilities, receive SSI monthly cash
In the area of education, the Individuals with
Disabilities Education Act was promulgated to assist
families in securing free and appropriate public
education for disabled children. The Act also
requires that the government provide disabled
children with so-called "related services," which
include education-related therapies and health
services. These services are provided free of
charge. As of 1990, approximately four million
children received services from this program.
Disabled children also benefit from the
nondiscrimination provisions of Section 504 of the
Rehabilitation Act of 1973 and from the Americans
with Disabilities Act of 1990, discussed under
VII. Registration and Identity
The United States does not have a system of national
identification cards or registration. Rather, birth
registration has traditionally been a state and
local function in the United States. Every state
requires the registration of every child born in the
state. See e.g., Cal. [Health & Safety] Code
10100 (1987) ("Each live birth shall be registered
within 10 days following the date of the event.");
Ariz. Rev. Stat. Ann. 36-322; Ill. Stats. ch. 111
1/2, para. 73-12 (Vital Records Act). Birth
certificates may be obtained as proof of citizenship
A number of courts have considered the issue of
naming children. They have found that "parents have
a common law right to give their child any name they
wish, and that the Fourteenth Amendment protects
this right from arbitrary state action." Jech v.
Burch, 466 F. Supp. 714, 719 (D. Haw. 1979). Courts
have rejected state arguments for statutes limiting
acceptable names for children, finding that
administrative convenience is not a sufficient state
interest to impair the right to name one's child.
See Jech, 466 F. Supp. at 720; O'Brien v. Tilson,
No. 79-463-CIV-5 (E.D.N.C. Oct. 2, 1981) (memorandum
finding that N.C.G.S. 130-50(e) violated the
plaintiff's constitutional rights); Sydney v.
Pingree, No. 8208291-CIV-JAG (S.D. Fla. Dec. 17,
1982) (order granting plaintiff's motion for summary
Acquisition of U.S. citizenship is governed by the
U.S. Constitution and by federal statute. The
Fourteenth Amendment of the Constitution provides
that "[a]ll persons born in the United States and
subject to the jurisdiction thereof, are citizens of
the United States" regardless of the nationality of
their parents. The Immigration and Nationality Act
further provides that a child born abroad to a U.S.
citizen parent (or parents) shall acquire U.S.
citizenship at birth provided the U.S. citizen
parent (or parents) complied with specified
requirements for residency or physical presence in
the U.S. prior to the child's birth. 8 U.S.C.
1401. (Previous versions of this statute required
that, in order to retain U.S. citizenship, the child
reside or be physically present in the U.S. for a
certain period of time before a certain age.) The
Immigration and Nationality Act also permits and
establishes requirements and procedures for
acquisition of U.S. citizenship by naturalization.
8 U.S.C. 1421 et seq.
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