Originally posted in Concurring Opinions where Professor Dowd was  to be a guest blogger for the month of May. Read the original post here

We live in a time where we can accurately predict the risks and opportunities for many children.  As surely as if we marked them at birth (or even before), we can identify who will likely succeed and who will likely fail by adulthood.  Race and gender, alone and in combination, generate clear odds.  Disparate risk generates a hierarchy of children, and we know who will be at the bottom.  Children’s inequalities are linked to developmental supports for some children, coupled with not only the lack of support for others, but also the presence of barriers and challenges, designed for children to fail, not to succeed.

Children’s inequalities, by race and gender, are particularly evident in the life course of Black boys.  Their patterns from birth to 18 are an example of similar patterns for other children at the bottom.  I do not mean to suggest here a hierarchy of inequalities, but rather to use their life course to adulthood as an example of the marked outcomes for certain children.  At birth, a Black baby boy has more than a one in three risk of being born into poverty.  He has a one in two risk of never graduating from high school.  And he has a one in three risk of being incarcerated in his lifetime, in the juvenile justice system or the adult criminal justice system.  His risk of incarceration doubles if he is born at the lower end of the socio-economic scale.  While he may transcend these risks, the trajectory funnels him toward failure and subordination, to the low end of what is a hierarchy of opportunity for kids.

These disparate negative risks to development are linked to systems that fail him:  systems that do little to support, and much to undermine, his growth to his full potential.  These are systems constructed and perpetuated by the state, at federal, state, and local levels, by the choice of policies despite the evidence of disparate, unequal outcomes along known, identifiable identity lines. Those systems include the poverty system (the clutch of policies that perpetuate poverty, and income inequality by race, rather than provide pathways out of poverty); the education system (highly segregated by race, disparate in resources and outcomes school-to-school, and especially negative in outcomes for Black boys), and the juvenile justice system (a largely boys’ system designed to punish and disadvantage for life rather than rehabilitate; and a sharply disparate system in every negative way for boys of color, particularly Black boys).  In combination, these systems and others directly impact the lives of Black boys, their families, and their communities in negative ways that replicate inequality.  The pattern is not merely one of insufficiency or inadequacy, but of barriers and harms.

The inequalities of Black boys are not unique.  There are other children who are predictably at the bottom, that we expect to be there.  And unequal hierarchies are not unique to American children.  In many countries, data reveal which children are marked for failure.  So, for example, in all countries in Europe in which they are present, Roma children are disproportionately poor, minimally educated, and jobless; the most unequal are Roma girls.  Muslim children similarly are targeted in many European countries, as are migrant and refugee children.

How can we address these inequalities, and those of other identifiable groups of children who reach adulthood lacking in opportunity due to failed outcomes and barriers placed in their way?   I propose that we have to think about these blatant inequalities differently, in order to craft meaningful change, by embracing a model I call “Developmental Equality.”

Developmental Equality is an attempt to meld developmental insights, knowledge, and frameworks with meaningful, real equality grounded in constitutional, human rights, and moral principles.  It rests on the core proposition that every child has a right to develop to their full potential.  Given children’s dependency, and their developmental needs, that potential requires affirmative support.  Inequalities violate children’s developmental rights as well as their equality (as children as well as their ultimate equality as adults).  Developmental equality, then, would be used to dismantle and reshape systems that harm some children into systems that help and support all children.  It would also generate affirmative responsibilities by the state to fulfill its obligations to concretely support and insure the equal positive right of all children to develop to their full potential.

Key to this model is an understanding of existing developmental needs.  Essential to this analysis is a developmental perspective that is race and gender informed (along with other identity characteristics that trigger systemic undermining of identifiable groups of children).  As long as children’s inequalities persist along race and gender lines, we must sustain our focus on race and gender.  In order to do that, we must use a race and gender informed lens.

Typically, developmental perspectives in law incorporate either linear and/or ecological approaches.  The linear approach identifies stages of development.  After all, infants are different than teenagers. Kids are a work-in-progress, and we have to consider their needs at different stages.  It means they are variable in their capacities, and therefore has justified the position that children cannot by definition have full constitutional rights.   It does not mean, however, that they have no rights.  A linear perspective can also be nuanced.  So for example developmental maturity can be sufficient to give older youth the right to make reproductive decisions, while also insufficient to justify full criminal responsibility or the harshest penalties in the juvenile justice system.  The linear approach would suggest that developmental support would require different things at different stages of development.

An ecological approach to development would have us focus on the contexts in which children develop, the overlapping spheres that affect their lives.  This is similar to how we view the natural world, as affected not only by local environmental factors, but also global ones and thus a range of policies and interactions that protect or harm the environment.  So too with children, not only is their development affected by their immediate family, neighborhood and schools, but also larger systems and policies that affect those immediate factors (housing, employment, etc), as well as the macro system of ideas that determines policies and systems (such as private versus social responsibility for children, or ideologies of bias).  When the intersecting ecologies that affect children function well, it supports them; when various levels or systems clash or are dysfunctional, kids, or at least some kids, suffer.  The ecological perspective suggests we need to look at children’s development in context, and the context made up of multiple levels.  This broadens the view beyond a narrow family-only perspective.

Neither the linear nor ecological approaches, however, alone or in combination, is sufficient in the face of children’s inequalities.  We need to take this a step further given the disparate outcomes and hierarchies of children by race and gender (and other factors).  A developmental lens to hold systems accountable that does not keep race and gender central may reinforce privilege and hierarchy, rather than dismantle it.  A neutral child as our focus misses the reality of life for children of color.  It renders invisible the world faced by Black boys from birth to 18.  It directs our attention away from the very systems that construct their fate, turning us instead to look at individual factors, or family factors, to explain differential, unequal, outcomes.

Two researchers whose work richly describes the skewed frameworks within which children at the bottom develop are Margaret Beale Spencer and Cynthia Garcia Coll.  Their perspectives remind us of the distinctive and exacerbated risks faced by children of color that all too often translate into developmental failure or worse.  Using their insights, melded with equality principles, requires us to stay focused on differential outcomes until we can eliminate the structural causes.  This is the heart of developmental equality.  Incorporated into a developmental framework that demands developmental equality as a matter of right for children, it keeps the focus on systems that serve children and asks whether they equally support all children toward reaching their full developmental potential.

Viewed from a developmental equality frame, the existing poverty system would fail.  Similarly, the lack of early childhood supports to insure children’s equal development from birth to 3, and onward until they begin school, would trigger the obligation to provide such supports (such as high quality childcare, income and other supports for low income families, and universal pre-K).  The education system also would fail.  Developmental equality would require that school outcomes not be race and gender identified or differentiated, or neighborhood/zip code defined in a way that correlates with segregated housing patterns.  School would not be permitted to be a pipeline to prison; it would serve its proper purpose, to be a foundation for learning and a gateway to work for all children.  Finally, policing and the juvenile justice system as they currently function also would fail.  Developmental equality would require the end of racial and ethnic disparities, as well as a systems grounded in outcomes to foster child well-being and community safety, replacing mass incarceration with incarceration as a last resort.

Developmental equality as a model simply claims the right of each child to have the social support to grow into their best selves.  Surely that should not be controversial.

For an extended discussion of developmental equality, see Dowd, Nancy E., Black Boys Matter: Developmental Equality (2016). 45 Hofstra L. Rev. (2016 Forthcoming). Available at SSRN: http://ssrn.com/abstract=2757143

Nancy Dowd

Nancy Dowd’s research focuses on social justice issues connected to family law, juvenile law, constitutional law, race and gender analysis, and social change theories. She is currently engaged in research about a developmental model of equality, using the life course of African American boys from birth to age 18. Her recent books are Justice for Kids (NYU Press 2011), which identifies better solutions for kids than the current juvenile justice system, and A New Juvenile Justice System (NYU Press 2015), which articulates the vision of a new youth justice system focused on child well being and public safety. Her other recent book is The Man Question: Male Privilege and Subordination (2010), on masculinities theories as a means to expand gender analysis and also incorporate other hierarchies that affect gender, particularly race and class.

Dowd served as the Director of the Center on Children and Families until 2015, and in that role focused on issues of juvenile justice, social justice, non-traditional families, gay and lesbian rights, and collaboration with the Center for the Study of Race and Race Relations on issues of race and families. CCF also established the Intimate Partner Violence Assistance Clinic led by Professor Teresa Drake, a groundbreaking collaboration between law and medicine. She teaches family law and constitutional law.

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