Emily Buss

Justice Goodwin Liu and Professor Kristine Bowman have taken two very different approaches in their essays commenting on the Restatement’s coverage of the law governing children’s education. In Some Thoughts on a Developmental Approach to a Sound Basic Education, Justice Liu focuses near exclusively on the Restatement’s articulation of the core educational standard, the “sound basic education,” and presses for an expanded application of that standard to children from birth through young adulthood. In The New Parents’ Rights Movement, Education, and Equality, Bowman addresses the entire structure of the educational provisions of the Restatement, which straddle Part 1, “Children in Families,” and Part 2, “Children in Schools,” and warns us of the fragility of the balance between these two sources of educational control in our legal system. Attending these differences in focus are important differences in tone: Justice Liu is optimistically ambitious, calling for developments in the law that extend beyond what can currently be restated. Professor Bowman is pessimistic, predicting that the recent “parents’ rights movement” threatens the stability of the restated law, to the detriment of children’s and society’s well-being. At the same time, the two pieces share important common ground. Most significantly, they share a concern about the growing polarization in our society and a belief that our system of education must play a central role in resisting this trend. In this Essay, I will first briefly set out the Restatement’s approach to education, which spans several chapters in two parts of the Restatement. Next, I will consider Professor Bowman’s essay addressing the threats she identifies and the role the Restatement can play in resisting those threats. I will then consider Justice Liu’s more optimistic anticipation of future developments in the law and the role the Restatement could play in fostering those developments. I will conclude by suggesting that avoiding Professor Bowman’s threats and achieving Justice Liu’s aspirations will largely depend on the democratic process, a process not governed by the Restatement, but perhaps subject to the influence of some of the legal principles it highlights.

Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach.