# The Supreme Court as Child Abuser **URL:** **By** Peter Breggin **Published:** July 1, 1981 --- “In a nation growing alarmed about “epidemic child abuse,” the Supreme Court of the United States has become the seat of national child abuse.” In a nation growing alarmed about “epidemic child abuse,” the Supreme Court of the United States has become the seat of national child abuse. In a string of decisions, indecisions, and refusals to review lower court decisions, the Supreme Court has consistently deprived children of their constitutional safeguards. In conflicts between parental and state authority, the Court has encouraged the state to work its will upon parent and child alike. What difference does it make anyway? How much are our everyday lives affected by the Court’s decisions on matters concerning children? If you are a child in any kind of trouble with authority, the Court’s decisions are tragically important. Because of the Supreme Court, you can be beaten with clubs by your teachers or principal, while your cries for “due process” or protection from “cruel and unusual punishment” go unheeded. Thanks to Chief Justice Burger and his associates, even your parents will have no say about whether you get manhandled in your school. Worse still, if you are a youngster in trouble with the police, you’ll get little or no protection during your interrogation, unless you have the sophistication to ask for an attorney. Ask for your probation officer or any other interested adult, and the police can turn you down. Even ask for your parents, and there’s a chance the police may not have to comply with your wishes. Worse yet, the Court not only refuses the protection of the Bill of Rights to children, it provides parents with state power to use against their children. Suppose your mother or father thinks you are “mentally ill” or retarded, and decides to commit you to a mental hospital or other state facility. Can you ask for a lawyer or some other adult advocate? Can you demand due process, including a hearing at which you are present? Not according to the Supreme Court. But childrens’ rights are important even if you aren’t a child. A society whose children are raised without respect for their rights is a society whose children will grow up without a commitment to or understanding of rights in general. At present we are “training” our children to become subservient, model “citizens” in a state which knows fewer and fewer constitutional restraints. The Supreme Court’s assault on the rights of children prepares us for future generations of adults who will have reached maturity in relative unawareness of their own rights or the rights of others within the society. ## Beating children in school Many parents may falsely assume that official childbeating is a thing of the past. Actually, it is on the upsurge. My own disillusionment began with reading Nat Hentoff’s series of stirring articles in the _Village Voice_ in 1980, in which he denounced the New York State teachers’ union for resisting legislation to outlaw corporal punishment in the schools. Dismally, Hentoff confirmed that teachers’ unions, the courts, and the legislature favor corporal punishment in New York State, despite case upon case proving that children are being grossly abused and severely injured. Any doubt I harbored about the status of beating children in the United States was finally laid to rest when I read the 1977 Supreme Court decision in _Ingraham v. Wright_. The Court not only facilitated and condoned the beating of children in public schools, it sided with the state in any conflict between parents and school officials. According to the Court, the school, not the parent, decides the appropriateness of physical punishment. Do not imagine that the Court was sustaining the practice of an occasional “lovingly delivered pat on the behind.” The two students who brought the suit which reached the Court were severely beaten, according to the Court’s own report. These boys, one an eighth-grader and one a ninth-grader, had been struck with an instrument authorized by school board regulations — a stick “measuring less than two feet long, three to four inches wide, and about one-half inch thick.” More like a club than a paddle! Routine punishment in this Florida county consisted of one to five blows to the buttocks. But one of these boys had been held over a table in the principal’s office while being administered more than twenty strokes. His crime? He had been “slow to respond to his teacher’s instructions ...” Still according to the official court report, “The paddling was so severe that he suffered a hematoma \[a mass of clotted blood\] requiring medical attention,” and an eleven-day absence from school. The other boy was paddled on the arms on two occasions for “minor infractions,” and he lost the “full use of his arm for a week...” We certainly can agree with the headnote to the opinion, which observed, “The evidence showed that the paddling of petitioners was exceptionally harsh.” The majority opinion freely admitted that beatings were frequently administered in the Dade County system without procedural safeguards: “Contrary to procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal.” A footnote to the dissenting opinion described wholesale corporal punishment administered to innocent persons: “The Court of Appeals panel . . . noted numerous instances of students punished despite claims of innocence . . . and was ‘particularly disturbed by testimony that whole classes of students were corporally punished for the misconduct of a few.’” No one knows how frequently these abuses are carried on throughout the United States. But the majority opinion believed that Dade County is not exceptional. It pointed out that only two states, Massachusetts and New Jersey, had prohibited corporal punishment in the schools while 21 others, including my own Maryland, had authorized it. In the remaining states, according to the Supreme Court, corporal punishment flourishes in many communities. As Nat Hentoff has amply documented, in New York State, which has no law on the books, corporal punishment enjoys widespread support. ## The Court’s legal arguments for beating kids By a five to four majority, Justices Burger, Powell, Blackmun, Stewart, and Rehnquist held (1) that the paddling of children in the public schools does not constitute “cruel and unusual punishment” as defined by the Eighth Amendment, and (2) that school children subject to beatings are not protected by the “due process” requirements of the Fourteenth Amendment. The legal arguments of the majority seem contrived: the “cruel and unusual punishment” provisions of the Bill of Rights are intended to protect criminals, not school children; children don’t need this constitutional protection because the schools are “open to public scrutiny and . . . supervised by the community”; and children and their parents can sue in the courts if they have been abused by their teachers. The minority opinion easily disputed these contentions. White, Brennan, Marshall, and Stevens argued that the punishment of criminals cannot be sharply distinguished from other forms of institutional punishment and that the punishments in questions were “so severe that if they were inflicted on hardened criminals for the commission of a serious crime, they might not pass constitutional muster.” They also attacked the “openness” theory of the public schools, not so much to deny it as to declare it irrelevant. According to an “openness” standard, prisoners in a minimum security prison would be denied the constitutional protections afforded prisoners in a maximum security prison, and floggings or executions held out in the “open” would not be subject to the same constitutional restraints as those carried out behind the walls of an institution. The minority also found that the availability of other legal recourses, such as suing teachers, was no justification for abrogating constitutional rights. Besides, they pointed out, no child in Florida had ever successfully sought protection through these allegedly available legal means. The minority concluded that the majority opinion would “afford the student no protection no matter how inhumane and barbaric the punishment inflicted . . .” When a punishment becomes “so severe as to be unacceptable to a civilized society,” it should not become “any more acceptable just because it is inflicted on children in public schools.” The majority’s denial of procedural safeguards, such as a prior hearing, to the students are equally contrived and easy to refute. Most ironically, in defiance of the Court’s own summary of the case, the majority of justices concluded that safeguards are not required because “the risk of error that might result in violation of a student’s rights could only be regarded as minimal, in view of the low incidence of abuse of corporal punishment by school authorities, the openness of the public schools, and the common law safeguards.” How then did the Court explain away these two severe beatings? How did it deal with evidence that entire classrooms were beaten for the transgressions of a few students? The Court simply ignored its own data. The majority opinion in _Ingraham v. White_ also offered social and political commentary. One does not have to read between the lines to find extra-legal influences on the decision; the biases were openly stated. The Court traced the history of child beating to colonial schools, not to discredit it, but to honor it. The Court admitted that corporal punishment in the criminal system can also be traced to colonial times, but that it has been abandoned. Professional opinion may now be “sharply divided” about paddling kids in school, but it is still practiced in “most parts of the country,” and “we can discern no trend toward its elimination.” In a truly conservative vein, tradition and community standards were placed above constitutional and individual rights. With a conservativism that begins to smack of totalitarianism, the Court further found that state authority in the matter of beating children in the schools now supplants parental authority: “. . . the concept of parental delegation has been replaced by the view — more consonant with compulsory education laws — that the State itself may impose such corporal punishment as is reasonably necessary ‘for the proper education of the child and for the maintenance of group discipline.’” The tradition of family authority was thus sacrificed for the more modern concept of state compulsion in education; and the existence of compulsory education _per se_ was used to justify still further encroachments on the rights of parents and children. The Court actually favored corporal punishment, and withdrew the protective umbrella of the Bill of Rights precisely because it would make it more difficult to rain down blows upon the children. Even so slight a requirement as “informal hearings” prior to the use of beatings “would significantly burden the use of corporal punishment as a disciplinary measure.” We were exhorted to consider the unhappy fate of school authorities who “may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements” of prior notice and a hearing. As a result of this impediment, “Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures — which they may view as less effective — rather than confront the possible disruption that prior notice and a hearing might entail.” No one denies that it is easier to beat children than to reason with them. It is also more “effective” to beat children than to reason with them, if one is concerned with time, efficiency, and group conformity. The same may be said of beating prisoners, mental hospital inmates, army recruits, or any other victims of total, compulsory systems. That is precisely the point of constitutional safeguards—to make it more difficult to inflict physical pain as an easy method of control in difficult disciplinary situations. The august justices of the Supreme Court missed the point entirely, and the Bill of Rights was dismissed as an encumbrance in the way of the authorities. The blatant “law and order” slant behind their reasoning was displayed in a footnote to the majority opinion which stated, “The seriousness of disciplinary problems in the Nation’s public schools has been documented in a recent congressional report.” This was the only research cited in defense of the lengthy argument about the need for discipline. Absent was any investigation into why discipline is a growing problem. The justices announced their views within a social and political vacuum wholly isolated from modern critical analyses of the failure of our schools. As if protecting their brethren from embarrassment, the dissenting opinion by the liberals utterly failed to mention the atavistic moral and social opinions of the majority, and instead focused upon more legalistic issues. More unfortunately, the dissenting opinion did not bring up the single most important issue of all — the special vulnerability of children which renders them even more susceptible to abuse at the hands of authority, and hence still more in need of constitutional protections. The “liberals” could have twisted the tail of the conservative majority for undermining the authority of the family itself by placing institutional requirements for control above the right of parents to prohibit the school from paddling or clubbing children. ## Denying Miranda to children In _Miranda v. Arizona_ the Warren Court had taken a giant step in the protection of citizens accused of a crime by the police. _Miranda_ determined that the accused individual must be read his or her rights prior to interrogation, and that the interrogation must be ended the moment the individual invoked the right to remain silent or the moment the individual asked to see an attorney. In _Fare v. Michael_ the California supreme court reversed the murder conviction of a sixteen-year-old boy on the grounds that his request to see his probation officer was an invocation of the Fifth Amendment right against self-incrimination in exactly the same manner as an adult’s request to see his attorney. But Blackmun, Burger, Stewart, White, and Rehnquist overturned the California higher court’s decision, with a partial dissent by Powell, and a full dissenting opinion by the liberal team of Marshall, Brennan, and Stevens. The youth had an extensive record of arrests and a term in a youth corrections camp when he was again arrested, this time in association with a burglary and murder. He was read his rights in the station house, after which he asked to see his probation officer. This was refused, and when reminded he could see an attorney, he protested, “How I know you guys won’t pull no police officer in and tell me he’s an attorney.” The police again refused to call the probation officer, and the boy agreed to speak without an attorney present. During the interrogation that followed, he was crying much of the time. He admitted to participating in the crime, and was subsequently convicted. The California supreme court, in overturning the conviction, cited precedents that a youth who requests to see his parents has invoked the Fifth Amendment, and its ruling extended this principle to the probation officer whom it saw as an ally similar to the parent. It found it “fatuous” to suppose that a juvenile would have the wherewithal to call a lawyer rather than a trusted adult. In a twisted legalistic argument, the Supreme Court of the United States took the position that the child or youth should not really trust the probation officer, since that officer also had duties to uphold the law. That the probation officer is not a wholly perfect ally is irrelevant; he is an adult, a person committed in part to the welfare of the youth offender, and much more to be trusted than the police who are carrying out the interrogation. As one of his functions, the probation officer could have assured this particular youth that a lawyer could be called without the police sending in one of their own men disguised as a lawyer. In reality, probation officers are often strongly identified with the welfare of youthful offenders, and do lend support to them when they are in conflict with the law or with their families. The Court let the cat out of the bag when it warned that the right to call a probation officer might open the way for a “juvenile’s request for almost anyone he considered trustworthy enough to give him reliable advice….” The Court was appalled at the thought that a youngster’s request for a reliable adult of his own acquaintance would trigger all the “rigid” requirements of _Miranda_. But this is precisely the point. A youth in the hands of the police is very vulnerable to coercion, and should be carefully protected until the arrival of an interested adult. This adult then can help to implement the youth’s rights and, especially, help to find a lawyer. The court is obviously resentful of the “rigid” requirements of _Miranda_ as established by the Warren Court. According to Burger and his colleagues, it is the “totality of circumstances” that should determine whether the individual has invoked his _Miranda_ protections. This would be a good concept if it were being used in the interest of the accused; looking at the overall situation from the viewpoint of the accused would give added protection. Consider the teenager in this case, who rejected his right to see a lawyer because he was afraid that the lawyer would turn out to be a policeman in disguise. The “totality of circumstances” clearly indicated that this youth was frightened and immature, and gave up his rights precisely because he was afraid to invoke them. But instead, by considering the totality of the situation the Burger Court’s intent was to give the police greater latitude. The new approach “refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive record…” Flying in the face of every concept of “objective justice,” the Court wanted to grant fewer protections to these “experienced” and presumably guilty youths. The idea that the boy in this case is more “experienced” and therefore more able in defending his rights is absurd. It is precisely the youngster who has been repeatedly caught within the mill of the criminal justice system who is least able to take care of himself. The dissenting opinion in this case did recognize the inherent vulnerability of the young person. It called for invoking _Miranda_ protections “whenever a juvenile requests an adult who is obligated to represent his interests.” In this case, almost any humane parole officer would have been an advantage for the accused. In most cases, the presence of even a disinterested or remotely interested outside adult would lend protection to a child undergoing an interrogation. ## Putting children away In all my experiences as a psychiatrist I have seen few more tragic situations than that of the child committed to a mental hospital or institution for the retarded. Many of these facilities are mass custodial lockups which rival concentration camps for their wretched conditions. In the worst, children will be found lying about naked amid feces and urine on bare dungeon floors while unskilled, potentially brutal aides content themselves with maintaining a semblance of order. Even in the best, the child is isolated from society, and robbed of basic amenities and dignities. Most of the time, he will be “snowed under” with a so-called major tranquilizer, a severely toxic drug which paralyzes the nervous system and performs a chemical lobotomy. If the children of our society need to be protected from anything, they need to be protected from commitment to these institutions. Not so, according to the Supreme Court. In 1979, the Court rendered two decisions which effectively stripped all constitutional safeguards from children during the commitment process. In _Parnum v. J. R._ the commitment statutes for children under 18 in Georgia were tested and found constitutional, and in _Secretary of Public Welfare v. Institutionalized Juveniles_, the commitment laws in Pennsylvania for children under age fourteen were given a similar clean bill of health. In both cases a District Court had found the statutes offensive to the due process requirements of the Fourteenth Amendment, and in both cases these libertarian advances were overturned by Burger, White, Blackmun, Powell, and Rehnquist. The main argument of the majority comes down to this: Parents, psychiatrists, and the state are well-meaning, and we shouldn’t hamper their good intentions by subjecting them to judicial scrutiny or constitutional restraints. The Court is vociferous in its defense of the good intentions of psychiatrists, and laments, “Ironically, as most states have expanded their efforts to assist the mentally ill, their actions have been subjected to increasing litigation and heightened constitutional scrutiny.” Suffering either from outrageous naivete or downright deceit, the Court declares that psychiatrists can be trusted, because it’s written into the law that their “sole concern under the statute is whether the child needs and can benefit from institutional care.” In this same vein, the Court declares that the state would have no reason to confine people who don’t deserve to be confined when it is so costly to do so: “The State obviously has a significant interest in confining the use of its costly mental health facilities to the cases of genuine need.” In effect, we are told that the state is so eager to save money that we don’t have to bother with constitutional protections. Ultimately we are told that both psychiatrists and the state can be trusted to act like a good parent. As for parents, they too can be trusted. The majority completely ignores the obvious reality that parents who would knowingly commit their children to these wretched institutions are precisely those parents we wouldn’t wish to trust with a pet dog, let alone a child. The Court actually fails to separate the child as an individual from the parent, and declares that a child committed by a parent is a “voluntary admission” because the _parent_ desires the admission. Wholly missing the point of the Bill of Rights, the Court warns that the requirement of procedural safeguards, such as a hearing at which the child is present or represented, would discourage some parents from availing themselves of commitment. The dissenting opinions in these cases are stronger than in earlier ones. Brennan, Marshall, and Stevens remind us that persons incarcerated in mental hospitals are deprived of friends and family. More important, “They are subject to intrusive treatments which, especially if unwarranted, may violate their right to bodily integrity. Such treatment modal-ities may include forced administration of psychotropic medication, aversive conditioning, convulsive therapy, and even psychosurgery.” The minority also holds that children should not be deprived of the benefits of the Constitution. “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Because “childhood is a particularly vulnerable time of life,” children need greater protections: “Indeed, it may well be argued that children are entitled to more protection than are adults. The consequences of an erroneous commitment decision are more tragic where children are involved.” The dissenting opinion also attacks the notion that the commitments of children are “voluntary” because their parents want them incarcerated. If parents want to sign themselves into mental hospitals, they are “free to become martyrs,” but they are not free to make martyrs of their children. Both the majority and minority opinions fail to call into question the fundamental concepts used to justify the commitment of children—mental illness and involuntary commitment. This is not the place to repeat the arguments made by Dr. Thomas Szasz and by myself that mental illness is a myth and that no one should be incarcerated “for his own good” in a psychiatric facility. Here my emphasis is upon children, and upon the Court’s particular lack of responsiveness to their vulnerable situation. By removing constitutional protections from the commitment of children, the Court places them in triple jeopardy at the hands of their parents, the state, and a psychiatric system that knows no ethical self-restraint. ## Trusting the state or the parents Clearly the state cannot be relied upon to act in the best interests of children, even though individual judges will on many occasions come to the rescue of abused or neglected children. Nor is it enough for parental authority to be enforced uncritically. The law too often has assumed that a child is owned by its parents, as it used to assume that a wife was owned by her husband. Now we recognize that women are entirely separate individuals with rights, but we have yet to recognize the right of self-determination for children, too. Children must gain greater control over their own destinies, and, in particular, they must become more able to contest and to overthrow abusive authority. It is true that children as a class are different from adults as a class—all children in the earliest years need supervision and care. Which brings us to a problem; who will represent the child when its parents violate its rights? If we are not to answer, “the state,” then other adults within the society must have some capacity to monitor and control what happens to children whose plight they observe. Such intervention must not take place on behalf of the state, but on behalf of the child who may not be able or mature enough to bring suit to separate itself from parents, or to gain protection from abuse or neglect within the family. One case which the Supreme Court refused to review in recent years illustrates dramatically the court system’s assumption that the child is owned by its parents. Phillip Becker, age 13, was refused life-saving cardiac surgery by his parents on the grounds that his life was not worth saving. In language that closely parallels German psychiatric justifications for the murder of mental patients and retarded persons, beginning in 1939, a pediatrician backed Phillip’s parents with the statement that Phillip is devoid of “those qualities which give human life dignity.” Phillip suffers from Down’s Syndrome, a form of mental retardation commonly called mongoloidism. And because his parents consider him a burden, he will be doomed to an early death. Despite his parents’ neglect — they rarely visit him — Phillip is thriving at present, and might continue to thrive for many more years in a relatively sheltered environment. He enjoys life, carries out routine chores, participates in a Boy Scout Troop, and is well-liked. But without cardiac surgery he will die long before his time, despite the willingness of private citizens who are not his parents to care for him, people who asked the courts to permit them to adopt him and provide him with the surgery that could save his life. We will never know why the Supreme Court refused to intervene in this case. But the outcome makes clear that, in the eyes of the court system, the _life_ of a child can be sacrificed to the idea that it belongs to his or her parents. At a minimum, it seems to me that there should be three ways in which the legal system should be changed to reflect the rights of children: children should have the right to some sort of process of “divorce” from parents with whom they have irreconcilable differences; they should be able to bring suit against parents who neglect or abuse them; they should be able to seek emancipated status at any age at which they can prove their capacity to live independently of their parents. These rights would have to be implemented, of course, by assuring that children had the full protection of the Bill of Rights, by repealing child labor laws so that minors who are capable of earning a living are legally allowed to do so, and by setting up mechanisms to allow interested adults to offer alternatives in child abuse situations. Parents, in turn, should be able to protect themselves, their privacy, and the integrity of the family by bringing countersuit, should a legal inquiry be frivolous or persecutory. Ultimately, it is societal attitudes rather than the law that will provide the important reforms. People in general must give much greater recognition to the needs of children and to their potential to determine the course of their own lives. Children must be recognized as human beings with rights. Certainly the Supreme Court, supposedly the ultimate protector of rights in our present legal system, is proving woefully inadequate for this task. ◻ Peter R. Breggin, M.D., is in the private practice of psychiatry in the Washington, DC, area, and is the author of _The Psychology of Freedom: Liberty and Love as a Way of Life_.