The Gap in Law between Developmental Expectations and Educational Obligations

[أحمد أبو زنط]

The Gap in Law between Developmental Expectations and Educational Obligations

Emily Buss






The law routinely differentiates between minors and adults, and
modifies the rights and responsibilities of minors to account for their
incomplete development. It is the clear expectation of the law that
children are different from adults in important ways and that,
between minority and majority, individuals will acquire what they
previously lacked in the experience, wisdom, and capacities required
for full autonomy and culpability. But while the law is thick with
expectations that children will be transformed into fully competent
and culpable adults, it is thin in its account of how this
transformation will occur. It fails to assign responsibility for assisting
children with their transformation or to make anything hinge on
whether needed assistance is provided. This inattention creates a
legal regime that predictably underprepares individuals for the rights
and responsibilities of adult citizenship. And when the clock runs out
at the stroke of legal adulthood, the erstwhile child is left bearing the
costs of any educational failings.
The aim of this Article is to explore the gap between
developmental expectations and educational obligations reflected in
our law. I use the term “education” broadly to describe all actions
taken to shape minors’ development toward ends society expects its
citizens to achieve. To be sure, some portion of this development
occurs without assistance as a product of genetically determined
biological processes. But much development, particularly the
development that matters to individuals’ exercise of rights and
responsibilities under law, depends on outside influences—
environmental, experiential, and instructional—which minors cannot
be expected to engender or control. Children have educational needs
whenever they are expected to develop skills, experience, wisdom, or
capacities that they cannot be expected to develop without help. It is
† Mark and Barbara Fried Professor of Law, University of Chicago Law School.
My thanks to William Buss, Laura Weinrib, and participants in the Understanding
Education in the United States: Its Legal and Social Implications Symposium held at the
University of Chicago Law School on June 17 and 18, 2011, for helpful comments, and to
Aaron Benson, Michael Haeberle, and Matthew Porter for their excellent research assistance.
The Arnold and Frieda Shure Research Fund provided support for this research.
60 The University of Chicago Law Review [79:59
my contention, here, that every instance in which the law treats
children differently from adults raises questions about how children
are expected to change and who is responsible for that change. For
the most part, however, these questions go unanswered.1
In Part I, I consider two cases, Graham v Florida2 and the
Yearning for Zion Protective Services Cases3 (“the YFZ Cases”),
which, in very different legal contexts, illustrate the gap between
developmental expectations and educational obligations present in
our law. In Graham, the implicit expectation detached from
educational accountability concerns children’s development into
fully culpable actors. In the YFZ Cases, the implicit expectation
detached from educational accountability concerns children’s
development into fully autonomous sexual beings. In Part II, I
consider the extent to which the law imposes educational obligations
on parents and the state, and the limits of those obligations. In
particular, I highlight our failure to take educational responsibility
for some aspects of development singled out as especially important
in law. I then go on, in Part III, to explore how we might improve
our accountability for children’s development in law. In Part IV, I
briefly consider the proposal’s limitations and conclude.
I. ILLUSTRATING THE GAP
A. How Do Young Offenders Become Fully Culpable?
In Graham v Florida, the Supreme Court held that adolescent
offenders are categorically less culpable than adult offenders and
1 Many scholars have taken as their subject the education required to prepare children
for citizenship. See, for example, John Dewey, Democracy and Education: An Introduction to
the Philosophy of Education 41–53 (Macmillan 1916); Amy Gutmann, Democratic Education 19–22
(Princeton 1987). For recent examples in legal scholarship, see Vivian E. Hamilton, Immature
Citizens and the State, 2010 BYU L Rev 1055, 1119–42; Anne C. Dailey, Developing Citizens,
91 Iowa L Rev 431, 432–36 (2006). Here, I come at this same issue from another direction. I
suggest that the very design of our legal regime—our two-tiered structure that routinely treats
children differently from adults—depends for its coherence on some account of what we
expect to change and how that change will occur.
2 130 S Ct 2011 (2010).
3 The disposition of this large collection of related cases is set out in a number of
sources, including In re Texas Department of Family and Protective Services, 255 SW3d 613,
613–15 (Tex 2008); Order Vacating Temporary Managing Conservatorship and Additional
Temporary Orders, In the Interest of Minor Children from the YFZ Ranch, Cause Nos 2779–2902,
2905, 2908, *1 (Tex 51st Judicial Dist June 2, 2008) (“Order Vacating Conservatorship”),
online at http://www.dfps.state.tx.us/documents/about/pdf/2008-06-02_Court Order.pdf
(visited Oct 18, 2011); Texas Department of Family and Protective Service, Eldorado
Investigation 6–16 (Dec 22, 2008), online at http://www.dfps.state.tx.us/documents/about/pdf
/2008-12-22_Eldorado.pdf (visited Oct 18, 2011) (recounting the entire course of proceedings
from the initial investigation through the final resolution of the cases).
2012] Developmental Expectations and Educational Obligations 61

therefore could not, under the Eighth Amendment, be sentenced to
life without parole for nonhomicide offenses.4 Echoing its analysis in
Roper v Simmons,5 which invalidated the imposition of the death
penalty for offenses committed by minors, the Court identified a
number of psychosocial distinctions between adolescents and adults
that render adolescents less culpable: “[C]ompared to adults,” the
Court found, adolescents “lack [ ] maturity,” have an “underdeveloped
sense of responsibility,” and “are more vulnerable or susceptible to
negative influences and outside pressures, including peer pressure.”6
The Court noted that these behavioral findings were supported by
recent “brain science” that showed that adolescent brains are less
developed in areas believed responsible for behavioral control.7 The
Court also emphasized that adolescents’ characters are less fixed.
Adolescents, the Court explained, are “more capable of change than
are adults,” and therefore juvenile offending is “less likely to be
evidence of ‘irretrievably depraved character.’”8
In Graham, the Court grounded its description of adolescent
differences, and the potential for change, in social science and
neuroscience.9 Here, I take no position on whether this grounding is
appropriate. Rather, I take the Court’s reasoning at face value and
consider its implications. If culpability is reduced by psychosocial
impairments, as understood by developmental science, what does
that developmental science tell us about how those impairments can
be addressed? Graham is particularly fruitful for this inquiry because
the interdisciplinary team of scholars, Laurence Steinberg and
Elizabeth Scott, who appear to have had the most influence with the
Court in its analysis of adolescents’ immaturity, have also
considered, at some length, what is required to transform adolescent
offenders into productive, nonoffending adults.10
4 130 S Ct at 2034.
5 543 US 551 (2005).
6 Graham, 130 S Ct at 2026, quoting Roper, 543 US at 569–70.
7 Graham, 130 S Ct at 2026.
8 Id, quoting Roper, 543 US at 570.
9 130 US at 2026–27.
10 Laurence Steinberg, a developmental psychologist, and Elizabeth Scott, a law
professor, have joined forces on a number of articles and most recently a book, Elizabeth S.
Scott and Laurence Steinberg, Rethinking Juvenile Justice (Harvard 2008). In Roper, the Court
expressly relied upon one of their articles, Laurence Steinberg and Elizabeth S. Scott, Less
Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and
the Juvenile Death Penalty, 58 Am Psych 1009 (2003). Roper, 543 US at 569. And the Court’s
list of “three general differences” between juveniles and adults in Roper and Graham tracks
Steinberg and Scott’s analysis. Compare Roper, 543 US at 569–70 (stating that the “[t]hree
general differences” between juveniles and adults are (1) a “lack of maturity and an
underdeveloped sense of responsibility,” (2) a heightened susceptibility to “negative influences
and outside pressures,” and (3) a “not as well formed” character); Graham, 130 S Ct at 2038,
62 The University of Chicago Law Review [79:59
In their comprehensive review of the developmental and
neuroscientific literature, Scott and Steinberg conclude that while
some change between adolescence and young adulthood is
biologically determined, much of the expected development requires
assistance.11 Brain science, and related accounts of hormonal changes,
suggest that adolescents are inherently different from adults in ways
likely to affect their exercise of judgment and impulse control.12 And
while the brain can be expected to mature as a simple product of
physiological maturation, even those most organic of transformations
can be affected by environment and experience.13
Moreover, brain development alone will not produce social and
behavioral maturation. Scott and Steinberg emphasize the important
role played by “social context” in determining the direction and pace
of offenders’ change.14 In particular, Scott and Steinberg single out
three “crucial” conditions broadly and consistently found in the
scientific literature to encourage the development of psychosocial
maturity.15 First is the presence of an adult, whether parent, teacher,
or coach, who is involved and invested in the young person’s life and
who is able effectively to monitor, support, and supervise the
adolescent. Second is engagement with prosocial peers, and third is
participation in activities that encourage the adolescent to “develop
and practice autonomous decision-making and critical thinking.”16
The process of aging may universally be a process of fixing
character, behavior, and identity, but what gets fixed will be
significantly affected by what, if any, schooling, social supports, and
opportunities are provided. These factors are surely more in the
control of family, communities, and government than of the
(admittedly immature) adolescents themselves. But under our
current legal regime, once they are adults, offenders bear full
responsibility for subsequent offenses, whether or not that assistance
with Steinberg and Scott, 58 Am Psych at 1011, 1012, 1014–15 (cited in note 10) (discussing
juveniles’ “psychosocial immaturity,” “susceptibility to peer influence,” and
“unformed . . . character[]” as mitigating culpability).
11 See Scott and Steinberg, Rethinking Juvenile Justice at 56–57 (cited in note 10).
12 See id at 44–49 (summarizing current scientific understanding of brain and related
hormonal development in adolescents).
13 See, for example, B.J. Casey, et al, Imaging the Developing Brain: What Have We
Learned about Cognitive Development?, 9 Trends Cog Sci 104, 108 (2005) (drawing the
connection between life experience and brain development); Daniel P. Keating, Cognitive and
Brain Development, in Richard M. Lerner and Laurence Steinberg, eds, Handbook of
Adolescent Psychology 75 (Wiley 2d ed 2004) (noting that there is “neural evidence that the
adolescent brain is primed for a critical period during which environments and activities will
shape function, especially prefrontal functions”).
14 See Scott and Steinberg, Rethinking Juvenile Justice at 55–56 (cited in note 10).
15 Id at 56–57.
16 Id.
2012] Developmental Expectations and Educational Obligations 63

was provided. More coherent would be a scheme that imposed
obligations and consequences for failing to meet those obligations on
those in a position to provide the needed assistance or that
discounted adult culpability assessments to reflect educational
deprivation.
B. How Do Potential Child Abuse Victims Become Freely
Consenting Adults?
The second case I offer as an example is, more accurately, a
large set of cases in which the Texas Department of Family and
Protective Services (DFPS) removed, and subsequently returned,
over four hundred children living in a secluded Fundamentalist
Church of Jesus Christ of Latter-Day Saints (FLDS) community at
the Yearning for Zion Ranch near Eldorado, Texas. While the
various courts that addressed the YFZ Cases did not, like Graham,
expressly take up the developmental differences between children
and adults, their dispositions were, like Graham’s, grounded on agebased
legal distinctions that anticipated children’s later maturation.
Whereas in the context of Graham that maturation was expected to
render individuals fully culpable, in this context, the maturation was
expected to render them fully competent to exercise sexual
autonomy.
In the YFZ Cases, the core child protection concern was that
pubescent girls were marrying and having sex with designated older
men because they were told by their parents and church leaders that
it was their religious duty to do so. This sex qualified as sexual abuse
by virtue of the girls’ age, alone.17 The Texas Supreme Court
ultimately concluded that the original removal of the children did
not satisfy Texas’s statutory requirements.18 But the holding in no
way questioned the legitimacy of the Texas law that defined adult
men’s sex with minors as sex abuse. The Supreme Court encouraged
the trial judge to consider what ongoing supervision and conditions
17 See Tex Fam Code Ann § 261.001(E), which defines child abuse to include
sexual conduct harmful to a child’s mental, emotional, or physical welfare, including
conduct that constitutes the offense of continuous sexual abuse of young child or children
under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code,
sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under
Section 22.021, Penal Code.
Tex Penal Code Ann §§ 21.02, 21.11, 22.011, 22.021 (defining the scope of sexual offenses
identified in the Family Code).
18 See In re Texas Department of Family and Protective Services, 255 SW3d 613, 615 (Tex
2008) (“On the record before us, removal of the children was not warranted.”).
64 The University of Chicago Law Review [79:59
should be imposed on family members to ensure that girls did not
have sex with adult men on their return.19
On remand, the trial court imposed conditions on the return of
the children, including a requirement that their parents cooperate
with DFPS’s ongoing child abuse investigations. DFPS, in turn,
required mothers to sign “safety plans” for all girls ages ten through
seventeen, agreeing that the mothers would not allow their
daughters to marry or have any contact with men who had been
involved as participants or facilitators of underage marriages.20 The
order returning the children, with conditions, coincided (not
coincidentally) with the announcement, by the YFZ community’s
religious leader, Willie Jessop, that “[i]n the future, the church
commits that it will not preside over any marriage of any woman
under the age of legal consent in the jurisdiction in which the
marriage takes place.”21 With the exception of the cases involving a
few families who refused to sign the safety plans, all the cases were
soon “non-suited.” The trial court understood its role to be the
protection of children from sexual abuse, and, once the available
evidence suggested that sex with “underage” girls was no longer
occurring,22 it terminated its involvement.
Based on the information available about life within the YFZ
community, we have every reason to expect that, absent some
intervention from outside, the influences on these girls would remain
constant, and that, when they came “of age,” they would agree to sex
with the same men for precisely the same reasons as they (or their
cohort) had previously done at fifteen.23 But the legal response to this
19 See id (“[T]he Family Code gives the [trial] court broad authority to protect children
short of separating them from their parents and placing them in foster care. The court may
make and modify temporary orders ‘for the safety and welfare of the child.’”).
20 Order Vacating Conservatorship at *3–5 (cited in note 3); Eldorado Investigation
at 11–13 (cited in note 3) (recounting requirement that parents sign safety plans).
21 Richard Stewart and Dale Lezon, Return to Eldorado; Sect Pledges to Change as Its
Families Reunite; FLDS Promises to Stop Marrying Underage Girls, Houston Chron A1 (June
3, 2008).
22 I note that the record is not clear whether the relevant line for the FLDS community
or the state of Texas was eighteen, seventeen, or sixteen. The FLDS statement ambiguously
commits not to preside over the marriage of “any woman under the age of legal consent in the
jurisdiction in which the marriage takes place.” Id. In Texas, the legal age of consent is
seventeen, see Tex Penal Code Ann § 21.11(a), unless a girl is officially married, which she can
do with her parents’ permission at sixteen if the man she marries is not already married to
someone else. See Tex Fam Code Ann §§ 2.101–2.102. The DFPS’s report limits those reported
as sexually abused to those fifteen and under but describes safety plans developed for all girls
between the ages of ten and seventeen. See Eldorado Investigation at 5, 14 (cited in note 3).
The analysis is the same at whatever age the law draws the line between childhood and
adulthood for these purposes.
23 This is a consistent picture derived from both neutral journalistic accounts and critical
accounts of life within the FLDS community. Marriages were understood to be divinely
2012] Developmental Expectations and Educational Obligations 65

sex changes completely with age. Whereas girls who submit to sex
with older men to whom they feel no romantic attachment or sexual
attraction because they have been raised to believe it is their
religious duty are treated as victims and the sex treated as a crime,24
young women who submit to sex with older men to whom they feel
no romantic attachment or sexual attraction because they have been
raised to believe it is their religious duty are treated as fully
autonomous adults and their sex is protected.
While not set out in the YFZ Cases, the distinct treatment of
minors and adults who agree to engage in sex with adults has long
been justified in large part in developmental terms. As a general
matter, sex is understood to cause legally cognizable harm only when
engaged in with someone who did not consent. Where lack of
consent is proven, sex is prohibited, regardless of age.25 For minors,
however, a lack of consent is presumed, without regard to proof in
most contexts.26 This presumption covers a wide range of actual views
and levels of understanding, from complete opposition or confusion,
to the FLDS members’ devout and dutiful submission, to
enthusiastic participation in some cases of statutory rape. The
concern justifying the presumption even where teenagers manifest
some indication of consent is that minors (1) may lack the
understanding and decision-making capacity required for this
consent and (2) are vulnerable to the power differential between
adult and child that can lead a self-interested adult to manipulate the
minor’s choice.
As in Graham, the distinct treatment of children reflects an
expectation that they will grow into something different, here adults
who have the capacity to assess and act on their own interests in
matters of sex and reproduction. And as with culpability, there is a
risk that some individuals will not be given the assistance they need
to develop as the law anticipates. There is a certain irresponsibility in
granting individuals “full autonomy” at eighteen when we have done
nothing to prepare them to act autonomously. While our
commitment to individual liberty likely rules out adjusting the
ordained and communicated to FLDS members through church leaders. See Carolyn Jessop,
Escape 19, 327–32 (Broadway 2007) (criticizing the religious community for compelling girls
and young women into loveless marriages with men with high standing in the FLDS church);
Scott Anderson, The Polygamists, Natl Geo 34, 34 (Feb 2010) (describing the link between the
FLDS faith and the assignment of multiple wives to men).
24 See Tex Penal Code Ann § 21.11(d).
25 See, for example, Tex Penal Code Ann § 22.011.
26 See Davis v United States, 873 A2d 1101, 1105 (DC 2005) (describing the “longstanding
rule that a child is legally incapable of consenting to sexual conduct with an adult,” and
explaining that sexual conduct between adults and children was viewed as “inherently coercive
due to the age difference between the participants”).
66 The University of Chicago Law Review [79:59
freedoms afforded to adults to account for these developmental
failures, it does not answer the question considered here: namely,
whether the state can and should intervene to help address whatever
impairments compromise minors’ ability to act autonomously before
they are left to their own devices at adulthood.
Two sorts of legal constraints appear to have operated to
foreclose the trial court’s consideration of the girls’ interest in being
prepared to exercise procreative autonomy in adulthood, one
statutory and one constitutional. The first constraint under which the
juvenile court operated was understood to be imposed by the child
abuse laws, which defined the scope of the trial court’s jurisdiction.
The focus of the case was sexual abuse and not what we might
characterize as developmental harm.27
The second constraint that prevented the court and
administrators from giving serious consideration to the children’s
interest in preparation for autonomous action was likely
constitutional. This piece of the story requires a lot of reading
between the lines, but it is worth considering the constitutional
issues, even if they were not explicitly taken into account in the
decision of the courts and administrators. The DFPS’s original
decision to remove all children, male and female, regardless of age,
from the compound was justified as necessary to protect all children
from the short- and long-term harms that would come from their
ongoing exposure to the FLDS community’s “pervasive system of
beliefs” that encouraged girls to submit to sexual abuse and boys to
develop into perpetrators.28 This justification was criticized on
appeal, because the long-term shaping of harmful behavior and
attitudes did not create an “immediate” threat to the “physical
health and safety” of the children justifying emergency removal.29 It
was also cited by the parents’ attorneys as evidence that the DFPS
was motivated by religious animosity, rather than concern for the
27 See In re Texas, 255 SW3d at 614–15.
28 Affidavit in Support of Original Petition for Protection of a Child in an Emergency and
for Conservatorship in Suit Affecting the Parent-Child Relationship, In the Interest of a Child, *5
(Tex 51st Judicial Dist Apr 6, 2008), online at http://messengerandadvocate.files.wordpress.com
/2008/04/flds-affidavit.pdf (visited Oct 19, 2011) (stating that a “pervasive pattern and practice
of indoctrinating and grooming minor female children to accept spiritual marriages to adult
male members of the YFZ Ranch” resulted in their being sexually abused, and that the same
pattern of indoctrination and behavior resulted in boys “becoming sexual perpetrators”).
29 In re Steed, 2008 WL 2132014, *3 (Tex App):
Even if one views the FLDS belief system as creating a danger of sexual abuse by
grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual
abuse as the Department contends, there is no evidence that this danger is “immediate”
or “urgent” as contemplated by section 262.201.
2012] Developmental Expectations and Educational Obligations 67

children, which became the focus of the public outcry about the
government’s handling of the case.30
In likely response to the criticism it received on this issue, the
DFPS went out of its way in its final report about the case to explain
that “[f]or the Department of Family and Protective Services, the
Yearning for Zion case is about sexual abuse of girls and children
who were taught that underage marriages are a way of life. . . . [I]t
has never been about religion.”31 While nothing in the appellate
court’s ruling prevented the trial court or DFPS from taking the YFZ
community’s “pervasive belief system”32 into account in designing
services to protect the children from harm once they were returned
to the ranch, the constitutional delicacy of the issue likely
discouraged the court and agency from considering any move in this
direction.
Following a straightforward understanding of the relevant child
abuse laws, the trial court did not address whether it had the
authority in the context of the child protection proceedings to
interfere with the FLDS parents’ preparation of their daughters for
adult sex. The action justifying intervention was sex abuse, defined
by statute to end with childhood. But the details of the case raise
questions about the developmental expectations reflected in the
distinct treatment of girls’ and women’s sexual decisions. To the
extent it reflects an expected transformation between childhood
vulnerability and adult competence, we should ask who bears what
responsibility for ensuring that the transformation occurs.
II. WHO BEARS WHAT RESPONSIBILITY FOR
CHILDREN’S DEVELOPMENT?
The law has long recognized the responsibility of parents and
the state to “educate” children in the broad sense of preparing them
for successful life in adulthood. But when this broad responsibility is
translated into more concrete legal obligations, little attention is paid
to the developmental expectations reflected in our law. Enforceable
obligations to educate, to the extent they exist, are generally limited
30 Response to Petition for Writ of Mandamus, In re Texas Department of Family and
Protective Services, No 08-0391, *5–6 (Tex filed May 29, 2008) (available on Westlaw at
2008 WL 2307380) (arguing that DFPS’s “reliance on practices that do not involve sex abuse
constitutes direct evidence of intentional religious discrimination prohibited by [the
Constitution]” and that DFPS “is not merely alleging sex abuse or toleration of it; it is alleging
that the religious beliefs of the parents themselves are improper”). See also Brooke Adams
and Kristen Moulton, Judge Says FLDS Children Will Stay in Custody, Orders DNA Tests, Salt
Lake Trib (Apr 19, 2008), online at http://www.sltrib.com/ci_8981942 (visited Oct 19, 2011).
31 Eldorado Investigation at 5 (cited in note 3).
32 Id at 7.
68 The University of Chicago Law Review [79:59
to conventional issues of schooling, such as school attendance,
curriculum, funding, and the like. While these issues have some
bearing on the bigger question of how we prepare children for the
legal rights and responsibilities of adulthood, the lack of express
attention in law to that question is striking, in light of its apparent
importance to our legal design.
In his Commentaries on the Laws of England, William
Blackstone described parents’ duty to give children “an education
suitable to their station in life” and to prevent them from “grow[ing]
up like [ ] mere beast[s], to lead a life useless to others, and shameful
to [themselves].”33 This understanding of the parental duty of
education was imported into the common law of the United States,34
and when the United States Supreme Court interpreted the
Constitution to protect parents’ right to control the upbringing of
their children in Pierce v Society of Sisters,35 it tied that right to “the
high duty to recognize and prepare [their children] for additional
obligations.”36
The state’s responsibility for children’s successful development
is also recognized in law. As the Supreme Court explained in Prince
v Massachusetts,37
The state’s authority over children’s activities is broader than
over like actions of adults. . . . A democratic society rests, for its
continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens, with all that implies.38
This authority was grounded, the Court explained, on the
doctrine of “parens patriae,”39 literally “parent of the country,” a
doctrine that recognizes the state’s “imperative duty . . . to protect
and provide for the comfort and well-being of such of its citizens as,
by reason of infancy, . . . are unable to take care of themselves.”40
While both parent and state are obligated, by law, to prepare
33 William Blackstone, 1 Commentaries on the Laws of England 438–39, 440 (Chicago
1979) (emphasis omitted) (“The power of parents over their children is derived from the
former consideration, their duty; this authority being given them, partly to enable the parent
more effectually to perform his duty, and partly as a recompence for his care and trouble in the
faithful discharge of it.”).
34 See G.W. Field, The Legal Relations of Infants, Parent and Child, and Guardian and
Ward 57–58 (Williamson & Higbie 1888); James Kent, 2 Commentaries on American Law 195–96
(Little, Brown 8th ed 1854).
35 268 US 510 (1925).
36 Id at 535.
37 321 US 158 (1944).
38 Id at 168.
39 Id at 166.
40 County of McLean v Humphreys, 104 Ill 378, 383 (1882).
2012] Developmental Expectations and Educational Obligations 69

children for a successful, productive adulthood, that obligation does
not translate into the assignment of any more specific responsibility
for achieving the developmental progress anticipated in law. Indeed,
as both Pierce and Prince illustrate, these broad obligations are
generally articulated as justifications for granting authority rather
than for enforcing duties.
To the extent any concrete and enforceable obligations to
educate are imposed on parents or the state, these obligations are
more narrowly focused on the conventional business of schools.
Even within this narrower focus, educational obligations are thin,
and only weakly enforced. While compulsory attendance laws
require parents to send their children to school, the requirement
commonly ends at age sixteen or seventeen—short of high school
graduation, and well short of the education generally required for
conventional adult success in our society.41 And even those school
attendance requirements are readily waived where parents choose to
teach their children at home. For home-schooled children, state
oversight of that home education is generally minimal, and
decreasing.42
For states, too, enforceable obligations are minimal and schoolfocused.
State constitutions are the primary source of states’
affirmative educational obligations, and efforts to enforce these
obligations have focused on the equality and adequacy of school
funding.43 The success of these efforts has been mixed. While there
are some important examples of states in which educational
obligations have been enforced through a combination of courtordered
reforms and court-compelled legislative deliberation and
41 National Center for School Engagement, Compulsory Attendance Laws Listed by State
(2003), online at http://www.schoolengagement.org/TruancypreventionRegistry/Admin/Resources
/Resources/15.pdf (visited Oct 19, 2011). One prominent measure of conventional adult success
is earning ability, which is significantly lower for those whose education stops at high school or
before. See, for example, Bureau of Labor Statistics, Usual Weekly Earnings of Wage and
Salary Workers Fourth Quarter 2011 table 1 (Jan 24, 2012), online at http://www.bls.gov/news.release
/pdf/wkyeng.pdf (visited Feb 3, 2012) (reporting a median weekly income of $459 for those
without a high school diploma, compared with $636 for high school graduates (no college) and
$1,152 for those holding at least a bachelor’s degree).
42 See Kimberly A. Yuracko, Education off the Grid: Constitutional Constraints on
Homeschooling, 96 Cal L Rev 123, 128–30 (2008) (noting that, in response to political and legal
pressure, home-schooling regulations have become increasingly lenient, with only half the
states requiring any specific curriculum or test of educational achievement of home-schooled
students and ten states not even requiring homeschooling parents to notify the state of their
intention to homeschool).
43 See Scott R. Bauries, Is There an Elephant in the Room? Judicial Review of
Educational Adequacy and the Separation of Powers in State Constitutions, 61 Ala L Rev 701,
705 (2010) (describing the evolution of school finance litigation from an inequality to an
absolute inadequacy theory).
70 The University of Chicago Law Review [79:59
action,44 other states have found the affirmative educational
obligations set out in their constitutions nonjusticiable.45 And while
those nonjusticiability findings are based on separation of powers
principles and the superior competence of legislatures to set
educational policy, they contemplate no alternative, legislative
mechanism of enforcement for the state’s educational obligations,
other than citizens’ expected interest in their achievement.46 For the
most part, like parents’ educational obligation, the state’s
constitutional obligation to provide each child with an education is
articulated in broad terms, but translates into a small, weakly
enforceable duty.
The more serious limitation to state’s and parents’ educational
obligations is the lack of connection between those obligations and
the developmental expectations manifest in law. To the extent
parents and state have any enforceable obligation to educate their
children, that obligation is defined in narrow terms of academic
achievement that are insufficient to prepare them for those adult
rights and responsibilities they will be expected to undertake at
eighteen. The difference, according to the Court in Graham,
between a psychosocially immature sixteen- or seventeen-year-old
who cannot be held fully culpable for his crimes, and a mature
eighteen-year-old who can be so held, is impulse control, maturity of
judgment, and independence of decision making and action,47 but
neither state nor parent has a legally enforceable obligation to
provide the assistance required to enable this prosocial maturation to
occur. And the difference between an immature fifteen-year-old,
who cannot determine for herself whether she wants to have churchmandated
sex with men, and a mature eighteen-year-old who can so
choose, is presumably some difference in life experience, selfunderstanding,
and capacity to think and act on her own behalf, but
neither state nor parent has any legal obligation to help a child
acquire these skills, experiences, or self-understanding.
44 See, for example, Rose v Council for Better Education, Inc, 790 SW2d 186, 212–13 (Ky
1989) (finding that children have a fundamental “right to an adequate education,” that the
Kentucky General Assembly failed to meet its constitutional mandate to provide this
education, and directing the legislature to “recreate and redesign” a system that will develop in
children seven identified capacities).
45 See, for example, Committee for Educational Rights v Edgar, 672 NE2d 1178, 1183 (Ill
1996) (finding the question of whether Illinois’s system of education meets the constitution’s
requirement of a “high quality” education nonjusticiable, and leaving the assessment to the
political process).
46 See id.
47 130 S Ct at 2026.
2012] Developmental Expectations and Educational Obligations 71

To be sure, it is within the broad vision of our expectations for
parents that they will help their children develop mature,
independent, and prosocial behavior and judgment that will prevent
them from committing crimes, but no law compels parents to do so
or imposes any consequences on them for their failures.48 And while
the state, too, undertakes efforts to develop children’s psychosocial
skills and decision-making competence, its educational successes and
failures are never accounted for in these terms. Responsibility for
developing the skills and knowledge required for autonomous
decision making is even more thinly attended to in law. Parents are,
at least in some contexts, affirmatively shielded from any obligation
to prepare their children to act autonomously, and the obligation of
the state to pick up the slack generally goes unaddressed. In any
particular context, we might determine that the problems created by
state intervention outweigh the benefits, but this conclusion should
follow an analysis of children’s developmental needs, not preempt it.
III. EDUCATIONAL ACCOUNTABILITY IN LAW
If we are to take greater responsibility for children’s
achievement of our developmental expectations, every child-specific
legal rule should trigger some reflection. We should ask what
changes we expect children to undergo before they are subject to the
adult rules and how those changes will occur. That reflection might
occur within a single case or throughout the lawmaking process. I
will offer some illustrations of both of these possibilities after
considering some common issues.
A. Defining Developmental Expectations
If we are to do a better job of assigning educational
responsibility, we need to begin by articulating the changes we
expect minors to undergo as they approach adulthood. But these
changes, anticipated obliquely in our distinct treatment of children,
defy precise definition. Graham tells us, for example, that minors are
“less” culpable because they have a “lack of” maturity and an
“underdeveloped” sense of responsibility, because they are “more
vulnerable” to negative influences including peer pressure, and
because their characters are “not as well formed.”49 But the Court
48 States sometimes impose fines and other sanctions on parents for their children’s
offenses, see, for example, Linda A. Chapin, Out of Control? The Uses and Abuses of Parental
Liability Laws to Control Juvenile Delinquency in the United States, 37 Santa Clara L Rev 621,
629–31, 639–54 (1997), but never for the offenses of adult children they could have helped to
avoid criminal behavior through better parenting.
49 130 S Ct at 2026.
72 The University of Chicago Law Review [79:59
does not match these impaired states with an account of the
comparison group. What is enough gaining of maturity, developing
of responsibility, shedding of vulnerability, and fixing of character to
qualify one for the adult rules?
Answers to these questions are necessarily elusive. The law does
not require individuals to demonstrate a specific level of maturity, or
understanding, or self-control, or decision-making capacity to qualify
them for the rights and responsibilities of adulthood, and it seems
like a very bad idea to try to move in this direction. These are not
characteristics that lend themselves to assessment and quantification.
Moreover, at least where individual freedoms are at stake, any
attempt to impose conditions on adults would be antithetical to our
liberal-democratic commitments.
But this sensible resistance to imposing developmental
conditions reveals an oddly lopsided picture: we premise children’s
special treatment on their important developmental differences from
a group whose developmental achievements are undefined. In a
sense, this one-sided comparison presents real problems for any
attempt to assign educational responsibility: How can we assign
responsibility for helping children develop into beings whose
qualities elude description? In another sense, this lopsidedness
underscores the problem I am trying to tackle: a two-tiered legal
regime premised on expected change between the two tiers demands
some account, if only an idealized one, of what we expect to change
and how that change will occur. The trick is to articulate general
aspirational qualities of adult citizenship without in any way
converting those qualities into conditions. Our legal regime should
attempt to set out these expectations precisely so that we can help
children to develop toward the adult ideal. The failure of the law to
try to get at this question, to do more to articulate what we hope
children will become, helps to keep potential educators off the hook
and limits our ambitions for our children.
B. Identifying the Mechanisms of Change
Attention to developmental endpoints, even loosely defined,
invites greater attention to the mechanisms of developmental
progress. If we expect cognitively competent decision makers, then
we should consider how we develop cognitive competence. If we
expect group identification and connection, whether within a defined
community or with all citizens of the state, then we should consider
how we facilitate the development of these connections. If we expect
psychosocial maturity of the sort anticipated in Graham, then we
should consider what adolescents need to develop impulse control
2012] Developmental Expectations and Educational Obligations 73

and good judgment and how to help them disentangle themselves
from their antisocial peers.
A consideration of developmental mechanisms would also allow
us to identify those aspects of development that are likely wholly or
partly biologically determined. Where this is believed to be the case,
there would be no educational responsibility to identify and assign,
and the law’s role could be limited to drawing the age line at roughly
the right place. But to the extent that interventions can be expected
to have developmental effects, positive or negative, it is incumbent
upon us to consider our developmental expectations in assessing
which interventions to pursue.
It is important to emphasize that in calling for a consideration of
developmental expectations and mechanisms, I in no way intend to
direct the methods used or answers reached. These answers can be as
general or specific as the relevant lawmaker deems appropriate.
They can be grounded in social science, brain science, legal
precedent, or common sense. They can remain the same over
centuries, or adapt to new-found knowledge or ways of thinking
about the world. What is important is that the analysis of
expectations, mechanisms, and responsibility is consistent with any
distinctions in treatment drawn, and the developmental justifications
that underlie those distinctions.
C. Assigning Educational Responsibility
An articulation, even a rough one, of the law’s developmental
expectations and children’s need for assistance in fulfilling these
expectations would allow the law to take better account of how
those expectations will be achieved. While the trigger for the
accounting—the distinct treatment of children—would always be
the same, how and where this accounting occurs would necessarily
vary with context. In some legal contexts, where the focus is already
on children’s education, assigning responsibility for children’s
achievement of these developmental expectations can fit within
conventional analysis. In other contexts, attention to developmental
expectations will dramatically change the analysis. In some contexts,
the distinct treatment, the developmental expectations, and the
responsibility for developmental assistance could all be considered
together. In others, each of those questions would need to be
addressed separately, in different forums and at different times.
To illustrate the range of ways in which the developmental
accounting could occur, I begin with Wisconsin v Yoder,50 the central
50 406 US 205 (1971).
74 The University of Chicago Law Review [79:59
case addressing the proper allocation of educational authority
between parent and state under the United States Constitution.
Even in this case, where the Court’s focus is on the link between
children’s education and their preparation for adult life, the
education required to prepare them to exercise the central,
anticipated rights goes unaddressed. I will then return to my two
primary case examples, the YFZ Cases and Graham, to illustrate
what taking greater account of children’s expected development
might entail.
In Yoder, the Court considered how to allocate educational
authority between a state that wanted Amish children to attend two
years of high school, and Amish parents, who wanted their children
to stay home and learn to farm.51 While the issue was not directly
before it, the Court took for granted the appropriateness of applying
special legal rules to children, whether those rules required children
(and not adults) to go to school or allowed parents to keep their
children (but only while they were minors) at home. Presumably this
child-specific deference to the educational choices of some
combination of parent and state reflects the law’s judgment that
children are not yet ready to make these educational choices for
themselves. When they reach adulthood, it is understood that they
will be expected to make their own decisions about their faith, their
education, and their associations.
Yoder failed, however, to take account of this expected change
from dependent child to autonomous adult in assessing the Amish
children’s educational needs. It confined its analysis to the
educational needs associated with the Amish children’s two potential
endpoints: life on an Amish farm and life outside the Amish
community, and considered what is required to prepare Amish
children for each of these fates.52 What the Court did not consider is
what education is required to best prepare children to choose
between these fates. Children’s development is assumed, and the
pathway of development ignored.
Had the Court considered the level of competence and
experience required to prepare children to choose their life course in
adulthood, it might have reached any number of conclusions. The
Court might have concluded that critical reasoning skills were
51 Id at 230–34.
52 Id at 222–25 (concluding that an eighth grade education, followed by farming
experience, is adequate “if the goal of education be viewed as the preparation of the child for
life in the separated agrarian community,” and going on to note that “[t]here is no specific
evidence of the loss of Amish adherents by attrition, nor is there any showing that upon
leaving the Amish community Amish children . . . would become burdens on society because of
educational shortcomings”).
2012] Developmental Expectations and Educational Obligations 75

necessary and therefore a curriculum designed to develop those
skills, whether at home or school, was essential.53 Or the Court might
have decided that critical reasoning skills were necessary, but that
eight years of education, or perhaps even biological development
combined with life experience, was enough to develop these skills.54
The Court might have decided that an understanding of the broader
world with its wide array of values, experiences, and opportunities
was essential and therefore that exposure to a range of students in
high school was particularly valuable,55 or the Court might have
decided that the single most important preparation for adult decision
making on such questions was the development of deep attachments
to family and community best nurtured by parents shielded from
state intrusions. More likely, the Court would have identified the
importance of a number of these forms of preparation, and struggled
to map those developmental aims onto the competing claims of
parents and state.
As this litany of possibilities should make clear, interjecting a
consideration of our obligations to prepare children for adult
citizenship does not simplify a difficult case. Far from it. Rather, it
brings into focus what is especially hard about Yoder and what has
inspired much of the criticism of the case.56 While the Court was right
to balance children’s educational needs against other interests
protected by the Constitution and to appreciate the interrelationship
between the interests of parents and children, it was wrong to take
such a narrow view of children’s educational needs, and particularly
wrong not to consider the educational needs generated by its own (if
implicit) expectations. And while a strong commitment to parental
53 See Richard Arneson and Ian Shapiro, Democratic Autonomy and Religious Freedom:
A Critique of Wisconsin v. Yoder, in Ian Shapiro, ed, Democracy’s Place 137, 139 (Cornell
1996) (criticizing Yoder for failing to recognize the importance of “education to an age when
critical reason is developed and can be fully deployed”).
54 See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of
Religious Equality 145 (Basic Books 2008) (noting the importance of educating children to
engage in critical reasoning but concluding that education through the eighth grade is probably
sufficient to achieve that aim).
55 See Konrad v Germany, App No 35504/03, *4 (Eur Ct Hum Rts 2006) (denying
parents’ right to home school, and recognizing the state’s interest in the “education of
responsible citizens who participate in a democratic and pluralistic society” through the
“acquisition of social skills in dealing with other persons who [have] different views”).
56 Gutmann, Democratic Education at 29 (cited in note 1) (noting that the Amish parents
in Yoder present an extreme example of parents denying their children the “skills necessary for
rational deliberation”); Arneson and Shapiro, Democratic Autonomy and Religious Freedom
at 139 (cited in note 53) (“[P]arents’ claims should not displace a democratic state’s requirement
of compulsory education to an age when critical reason is developed and can be fully
deployed.”).
76 The University of Chicago Law Review [79:59
liberty might ultimately determine the outcome of the case, it should
not prevent a deep consideration of all that is at stake for the child.
The YFZ Cases are not, like Yoder, “about” education. But for
purposes of our analysis, they raise a very similar educational
question. Like Yoder, the YFZ Cases considered the appropriateness
of state intervention on behalf of children that was opposed by their
parents and believed to threaten their parents’ way of life.57 And, as
in Yoder, the courts and protective service administrators in the YFZ
Cases omitted consideration of children’s need to be prepared for
adult decision making from its assessment of children’s needs and the
state’s responsibility in meeting those needs. As noted in Part I.B., the
account taken of children’s educational needs was likely limited by
the court and administrators’ understanding of their authority under
the child abuse laws and of the strength of the FLDS parents’
constitutional rights. While these constraints might properly affect
the forum in which the girls’ need for developmental assistance was
considered, or the ultimate outcome of a balancing of relevant
interests, neither constraint should have prevented consideration of
the question altogether.
It is not clear, on the face of the statute, that child abuse could
not have been read to encompass the sort of developmental harm
analyzed here. Texas defines emotional abuse as the “mental or
emotional injury to a child that results in an observable and material
impairment in the child’s growth, development, or psychological
functioning.”58 But even if the law, as written, could not be read to
prohibit the inculcation of a belief in girls that they are required, by
God, to marry and have sex with middle-aged men for whom they
have no independent feelings of love or attraction, the court could
nevertheless have identified this potential harm, and invited the
legislature to consider the appropriateness of state intervention to
prevent or reduce it.
As in the Yoder context, taking children’s developmental needs
into account would not have made the case easier. The court would
have needed to grapple with difficult questions: What development
does the law expect of its adult procreative-rights exercisers? How
does that development occur? How effective can the state be in
facilitating that development? Moreover, the court would still need
to consider the competing claims pressed in the case, most
particularly the right of parents to control these very aspects of
57 See In re Texas Department of Family and Protective Services, 255 SW3d 613, 615 (Tex
2008).
58 Tex Fam Code Ann § 261.001(1)(A).
2012] Developmental Expectations and Educational Obligations 77

development, which they perceive as at the heart of their religious
instruction of their children.59
That being said, my criticism of the court and administrators’
failure to consider the developmental harm done to children by their
exclusive exposure to their parents’ beliefs is not about the outcome.
Rather, I find fault with the courts and administrators in the case for
failing to take up the question at all. In finding the original removal
of all the children unlawful, the Supreme Court of Texas explained
that it was “premature” to address the “important, fundamental
issues concerning parental rights and the State’s interest in
protecting children.”60 But on remand, the issue slipped through the
trial court’s fingers. A case in which removal of children was
excessive soon became a case in which any state involvement was
unjustified. In failing to consider whether any affirmative obligation
should be imposed on the state to temper the FLDS parents’ shaping
of their children’s understanding of their opportunities for sex, love,
and marriage, it left unaddressed the gap between the law’s
developmental expectations and the girls’ ability to achieve them.
These first two illustrations call on judges, already deliberating
upon children’s needs, to add to that consideration what the law
suggests they will need in order to undertake the rights and
responsibilities of adulthood. But there are many other ways we
might take these developmental expectations into account, in
addition to or in lieu of expanding the frame of a preexisting judicial
inquiry. And in some legal contexts, the assignment of educational
responsibility may need to be addressed in a separate proceeding,
whether judicial, legislative, or otherwise, from that in which the
developmental expectations are revealed.
In Graham and its predecessor, Roper, for example, the Court
engaged in an extensive analysis of adolescents’ developmental
59 These competing claims can be framed as the parents’ assertion of a right to create
adaptive preferences in their children. A great deal has been written about the concept of
adaptive preferences and the extent to which the law should or should not defer to such
preferences in ordering legal rights. Less addressed is the special question of the extent to
which we should permit parents to facilitate their children’s adaptation of their preferences, by
showing them a limited set of options and preventing them from developing the awareness and
skills required to develop other preferences. Because the parents’ interest in cultivating their
children’s adaptive preferences often flows out of the parents’ own commitment (whether
derived from adaptive preferences or not) to a set of religious beliefs that restricts options, a
state interest in avoiding the development of adaptive preferences would pull against a
conventional commitment to affording special protection to the inculcation of religious beliefs
in their children. While the stakes of intrusion are clearly high, the YFZ courts made a mistake
in rejecting any consideration of harm associated with the children’s exclusive exposure to
their parents’ pervasive system of beliefs.
60 In re Texas, 255 SW3d at 615.
78 The University of Chicago Law Review [79:59
immaturity, and particularly their immaturity of judgment and
vulnerability to negative influences, to reach the conclusion that
minors were less culpable than adults. By implication, the law
expects adults, who are fully culpable, to be more mature in their
decision making and behavior and less vulnerable to negative
influences than minors. But Graham itself is a poor vehicle for
assigning responsibility for helping minors mature, for the legal
question raised by the case is limited to the appropriateness of the
punishment in question.61 The Court could certainly speculate in
dicta about the proper locus of such responsibility for change, but
only in other legal contexts could that responsibility be fleshed out.
Particularly significant decisions such as Graham and Roper, in
which a new account of legally relevant differences between children
and adults is announced by the Supreme Court, might generate
attention to educational obligations in contexts as far-ranging as
juvenile justice policy, criminal sentencing, high school curricular
design, labor policy, and the assignment of custodial responsibilities
at divorce. With this range of contexts comes a range of legal actors
and frames within which to consider the question. In the context of
juvenile justice policy, for example, legislators might consider
reframing the declaration of purposes to be served by their state’s
juvenile justice system or using the budgeting process to alter the
programming offered to juveniles. An individual juvenile judge
might take the expectations reflected in Graham into account in
developing juveniles’ dispositions, and a county court might revise its
juvenile court rules in an effort to cultivate the kind of experience
that could help a juvenile develop the expected judgment and selfcontrol.
This is just one subset of possible responses in one of many
legal contexts potentially affected by Graham’s implicit identification
of developmental expectations. In another, the criminal sentencing
context, a judge might reduce a sentence based on a finding that an
offender was not given the needed assistance to grow out of his
antisocial behavior, or direct the provision of such assistance as part
of the offender’s sentence.
We might go further and link the law’s manifest developmental
expectations to a child’s enforceable right to assistance meeting
those expectations. Perhaps a consequence of Graham should be the
creation of a right of action to compel responsible parties to provide
assistance or to compensate an erstwhile child for their failure to do
so. Creating an enforceable right of this sort might sharpen our
assignment of responsibility, but it would bring with this clarification
61 130 S Ct at 2034.
2012] Developmental Expectations and Educational Obligations 79

all the hazards previously identified with an insistence on precision.
Alternatively, we might recognize the right to assistance meeting the
law’s developmental expectations but authorize no private
enforcement mechanism. A version of this approach has been taken
by some of our sister constitutional democracies and by a number of
our states. Under these regimes, children’s right to education is
expressly recognized in law, but the development of educational
policy is largely left to the democratic deliberative process of
legislative bodies.62 Recognizing an equivalent right to the broader
sort of education I contemplate here might well serve my aim of
fostering reflection among those who make, apply, and analyze the
law without dictating any particular approach or outcomes.
IV. DO WE WANT GREATER EDUCATIONAL
ACCOUNTABILITY IN LAW?
As my discussion itself makes clear, many limitations encumber
the assignment of greater educational accountability in law. Defining
the relevant developmental endpoints and the mechanisms for
achieving them is a necessarily elusive task. There is no agreed-upon,
testable set of experiences, skills, and behaviors that qualifies
individuals for adult treatment under law, nor should we aspire to
such a state-controlled conception of what qualifies an individual for
full citizenship. Equally elusive is any precise account of how
development is affected. The influences on development are myriad
and interrelated, and any attempt to single out some small subset of
these influences will only distort the picture. Enforcing responsibility
is also highly problematic, in part because of this necessary lack of
precision in the judgments called for and in part because of
institutional constraints. While individuals can be given legal means
to enforce their right to educational assistance from the state or
private parties, we should worry about the limits of the courts’
competence to either make broad educational policy or assess a
specific child’s educational experience.
Nor would this inquiry displace all other concerns of law,
concerns that may wash out the significance of the questions
considered here. Perhaps our interest in shielding Amish or FLDS
62 See Jeffrey Omar Usman, Good Enough for Government Work: The Interpretation of
Positive Constitutional Rights in State Constitutions, 73 Albany L Rev 1459, 1461, 1496–1505
(2010) (comparing the positive rights, including educational rights, set out in state constitutions
to those of other nations, and noting the extent of deference shown to the legislative process
under these state regimes); Eric C. Christiansen, Using Constitutional Adjudication to Remedy
Socio-economic Injustice: Comparative Lesson from South Africa, 13 UCLA J Intl L & Foreign
Aff 369, 375 (2008) (noting the rarity of judicial enforcement of socioeconomic rights).
80 The University of Chicago Law Review [79:59
communities from the destructive intrusion of compulsory high
school education or protective services intervention is so great,
whether grounded in principles of religious freedom, family privacy,
or elsewhere, that it trumps any concern we might have that we are
underpreparing Amish or FLDS children for an exercise of
autonomy. Perhaps our interest in imposing “full” punishments on
criminal offenders is so great that it renders insignificant our failure
to assist children in prosocial development or even our affirmative
contributions to their antisocial development.
But none of these limitations suggests that the inquiry should be
abandoned. Rather, they suggest that the inquiry should be framed
to reflect these limitations: The idea is not that the distinct legal
treatment of children should always be matched with a precise
account of developmental expectations and an enforceable mandate
for their accomplishment. Rather, the idea is that the distinct legal
treatment of children should always prompt an inquiry, an inquiry
into those expectations and how they might be accomplished, that
labors under all the limitations identified here.
Another potential objection goes deeper. Perhaps the analysis is
grounded on a false premise. Perhaps the law’s accommodation of
children’s immaturity should not be read to imply any expectation
that children will necessarily ever change. It may be inappropriate to
read any assumptions of maturity, of a greater-than-childlike
acquisition of skills, experiences, and judgment, into our law’s
assignment of full rights and responsibilities in adulthood. Perhaps
the law simply guards a period of developmental opportunity,
leaving to chance children’s development into something else. The
mechanisms of development may be so complicated and poorly
understood and the law’s interest in protecting individuals’ selfdetermination
so great, that at some point, fairly early in citizens’
lives, the law insists on assigning full rights and responsibilities,
without regard to these citizens’ qualifications.
There is something to this point to be sure. I have, for the most
part, read in the expectations from the different treatment of
children and the justifications offered for this different treatment. At
a minimum, I can argue that the difference in treatment raises
questions about our expectations and suggests we would do well to
reflect upon them. In the end, I am calling, primarily, for this asking
of questions, this introduction of greater reflection about the law’s
developmental expectations. In this sense, the aim is a modest one.
But in another sense, my aim is ambitious. I call for a different sort
of accounting than is generally done of the law’s distinct treatment of
children. Rather than testing the extent to which we can justify
2012] Developmental Expectations and Educational Obligations 81

treating them differently in childhood, I ask who bears responsibility
for helping them grow up.