The Gap in Law between Developmental Expectations and Educational Obligations

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 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.