| Original Full Text | Arkansas Law Review Volume 77 Number 2 Article 15 July 2024 Children at Work, Parental Rights—and Rhetoric Naomi Cahn University of Virginia School of Law Maxine Eichner University of North Carolina School of Law Mary Ziegler UC Davis School of Law Follow this and additional works at: https://scholarworks.uark.edu/alr Part of the Juvenile Law Commons, Labor and Employment Law Commons, and the Labor History Commons Recommended Citation Naomi Cahn, Maxine Eichner & Mary Ziegler, Children at Work, Parental Rights—and Rhetoric, 77 Ark. L. Rev. (2024). Available at: https://scholarworks.uark.edu/alr/vol77/iss2/15 This Article is brought to you for free and open access by the School of Law at ScholarWorks@UARK. It has been accepted for inclusion in Arkansas Law Review by an authorized editor of ScholarWorks@UARK. For more information, please contact scholar@uark.edu, uarepos@uark.edu. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM CHILDREN AT WORK, PARENTAL RIGHTS—AND RHETORIC Naomi Cahn∗ Maxine Eichner∗∗ Mary Ziegler∗∗∗ INTRODUCTION States are increasingly considering and enacting laws that reduce protections for child laborers, and the number of minors who have been employed in violation of existing child labor laws has been steadily growing.1 This rollback is occurring at a time of growing socioeconomic inequality in which child labor violations—for which migrant children are at particular risk—have increased significantly.2 Despite the erosion of protections for child labor, strong reasons grounded in children’s future economic wellbeing still support continued restrictions. This Article focuses on one rationale used in a number of states to ∗ Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ‘69 Research Professor in Democracy and Equity University of Virginia School of Law. Thanks to Annie Smith for her support, to Siarra Kaur Deol and Claudia Frykberg for research assistance, and to other participants in the 2023 Arkansas Law Review Symposium, Children at Work. ∗∗ Graham Kenan Distinguished Professor of Law, University of North Carolina School of Law. ∗∗∗ Martin Luther King Jr. Professor of Law, UC Davis School of Law. 1. Child Labor, U.S. DEP’T OF LAB., [https://perma.cc/C37H-U4TN] (last visited Feb. 11, 2024) (listing number of children hired in violation of child labor laws, fines assessed, and other information from 2013-2023); see also Terri Gerstein, Policies for States & Localities to Fight to Fight Oppressive Labor Practices, ECON. POL’Y INST. (Feb. 27, 2024); Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, ECON. POLICY INST. (Dec. 21, 2023), [https://perma.cc/Q84A-7S8J]; Jennifer Sherer & Nina Mast, Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country, ECON. POL’Y INST. (June 23, 2023), [https://perma.cc/5BUM-GTU4]. 2. See Hannah Dreier, Labor Department Denounces Surge in Exploited Migrant Children, N.Y. TIMES (July 27, 2023), [https://perma.cc/L52E-EYXV] (noting the increasing problems with child labor violations, especially with migrant children); Gerstein, supra note 1. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 258 ARKANSAS LAW REVIEW Vol. 77:2 justify the reduction of children’s labor protections: parental rights. We argue that politicians deploy the rhetoric of parental rights in today’s legislative battles over child labor protections to create political cover for reforms that benefit businesses, not children or their families. Arguments rooted in parental rights give legislators a morally plausible and politically popular rationale to roll back such protections. Such claims of parental rights have served the same purpose in other politically-controversial areas, ranging from challenges to allowing students to use their preferred names at school without disclosure to requiring parental consent for social media.3 Indeed, as we show in other work, there are deep inconsistencies in the ways that legislators mobilize the idea of protecting parental rights: When it comes to gender-affirming care, for example, some states override parental rights willingly.4 In justifying the rollback of labor restrictions on children and in other contexts, however, many of these same states use parental-rights rhetoric—thereby co-opting the underlying, constitutionally-respected concept to serve other ends.5 At the same time, this rhetoric obscures the more troubling interests and motivations truly driving these decreased protections for children and diverts attention from the likely harm this deregulation will cause. Part I demonstrates that appeals to parental rights have a long history in child labor law. Through much of the battle to regulate children’s labor, child-labor opponents insisted that regulations infringed parents’ legitimate rights over the care, custody, and control of their children. Nevertheless, over time, it became clear 3. See Mary Ziegler, Maxine Eichner & Naomi Cahn, The New Law and Politics of Parental Rights, 123 MICH. L. REV. (forthcoming 2024) (manuscript at 34-46); Andrew DeMillo, Arkansas Governor Signs Bill Requiring Parental Permission for Social Media, PBS (Apr. 12, 2023, 8:53 PM), [https://perma.cc/S4QU-VXZ6] (noting that Arkansas—one of the states that has rolled back child labor provisions—also has new legislation requiring that minors obtain parental permission before creating new social media accounts). 4. See, e.g., L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408, 413-19 (6th Cir. 2023). 5. State officials also make a related claim: that decreasing protections is valuable for children, providing them opportunities to work and develop appropriate values. See John Fliter & Betsy Wood, Why Are States Turning Back the Clock on Child Labor Laws?, ALASKA BEACON (June 28, 2023, 5:47 PM), [https://perma.cc/X8HE-GAXL] (explaining the changes Iowa Governor Kim Reynolds lauded a new child labor law that would allow youths to further their skills). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 259 that children’s wellbeing was best served by a combination of state and federal labor protections that restricted children’s work hours and conditions. Supreme Court case law in the middle of the twentieth century resolved the push and pull over decision-making regarding children’s labor.6 The result forged a balance between parents’ discretion and government’s rights that served to protect children’s best interests, a balance that largely remained in place until now.7 Part II turns to the recent attacks on child labor protections in the name of parental rights. This Part considers the political benefits to legislators in framing efforts to roll back labor protections in the name of parental rights, as well as how this rhetoric hides a range of less politically popular forces driving this rollback.8 It then demonstrates that elimination of existing labor protections for children risks both their current wellbeing and their future prospects. Doing so, we argue, withdraws the state from the critical role it has long played—and should continue to play—in protecting children from market forces. Part III concludes by considering ways to counter the new rhetoric of parental rights and its impact on child labor laws. I. REGULATING CHILDREN’S LABOR: BALANCING THE “TRIAD” OF INTERESTS When it comes to decisions regarding children’s labor, American law has long recognized the dual authority of both parents and government. The principle that parents have rights to 6. See United States v. Darby, 312 U.S. 100, 115-17 (1941) (noting that the federal government has every right to regulate goods in interstate commerce that are created in substandard working conditions, just as states have every right to regulate intrastate commerce). 7. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 169-71 (1944) (upholding Massachusetts child labor protection against claim based on infringement of parental rights). Scholars have also sought to balance these competing interests. To be sure, there have been prior efforts to change child labor laws, both relaxing and strengthening them. For a discussion of federal efforts, see CONG. RESEARCH SERV., RL31501, CHILD LABOR IN AMERICA: HISTORY, POLICY, AND LEGISLATIVE ISSUES (2013); Henry Gass, Get a Job: After 100 years, States Loosen Child Labor Laws, THE CHRISTIAN SCI. MONITOR (June 6, 2023), [https://perma.cc/D6D5-6WZD] (“For the first time in history, the United States is engaged in a nationwide discussion over relaxing rules around children’s work.”). 8. We have labelled this strategy “retrenchment by diversion.” Ziegler, Eichner & Cahn, supra note 3. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 260 ARKANSAS LAW REVIEW Vol. 77:2 make decisions for their children was recognized even before the nation’s founding, although it was not embodied in the nation’s constitutional jurisprudence until more than a century later.9 Under the common law adopted in the United States, parents (originally, fathers) were entitled to the care, custody, and control of their children.10 That parental prerogative included the right to receive their children’s earning.11 Parents could also indenture their children to learn a trade.12 This Section first surveys the history of child labor regulation before turning to contemporary federal law. A. The History of Regulation Parental prerogatives long existed in some tension with governmental responsibility for children. Even before independence, American colonies enacted versions of Elizabethan poor laws that implemented principles of parens patriae, which conceptualized the state as responsible for protecting children’s welfare.13 In that capacity, as the United States industrialized early in the nineteenth century, states began to conceptualize their role in terms of protecting children from the harshest effects of industrial labor. In 1813, Connecticut enacted legislation requiring that children who worked in factories be 9. Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-36 (1925). These cases addressed parents’ rights in dicta. On the rights of parents before the nation’s founding, see Brief of William Eskridge, et al. as Amici Curiae Supporting Appellees, Brandt v. Griffin, No. 4:21-CV-00450 JM (8th Cir. 2023). 10. See Harry L. Tindall & Elizabeth H. Edwards, The Evolution of the Legal Ramifications of Parentage: An Overview, AM. BAR ASS’N (Apr. 1, 2018), [https://perma.cc/U78K-QLEZ]. 11. Michael Schuman, History of Child Labor in the United States—Part 1: Little Children Working, U.S. BUREAU OF LAB. STAT. (Jan. 2017), [https://perma.cc/5CDH-YCZR]; 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 453 (1893); see generally VIVIANA A. ZELIZER, PRICING THE PRICELESS CHILD: THE CHANGING SOCIAL VALUE OF CHILDREN 58-60 (1994). 12. See Linda Gordon, Child Welfare: A Brief History, VCU LIBRS. SOC. WELFARE HIST. PROJECT, [https://perma.cc/TA62-Z5P5] (last visited Feb. 22, 2024); Meredith Johnson Harbach, Parens Patriae After the Pandemic, 101 N.C. L. REV. 1427, 1431-32, 1462 (2023) (discussing child welfare concepts). 13. Brief of Historians of Child Welfare as Amici Curiae Supporting Respondents at 4, Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (No. 19-123), 2020 WL 5044729 at *4. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 261 educated in reading, writing, and arithmetic.14 Over objections that such laws violated parents’ rights, by mid-century, more states passed similar laws.15 Such laws often still ensured parents significant control: In many, parental consent permitted children to work at younger ages and for longer time periods, and the statutes exempted those who helped to support disabled parents.16 The movement for regulation and child protection began to gather momentum during the Progressive Era, as industrialization proceeded at full force.17 Although regulation achieved some limited success at the state level, by 1900, almost two million children—one of every six between ten and fifteen-years-old—was employed.18 Their labor was driven by growing income inequality. As in our own era, the concentration of wealth held by the rich increased radically. In 1890, the top 12% of families held 86% of the wealth.19 The families of unskilled workers fell well behind the rest, earning much less than was needed to support a family.20 Wives’ labor inside and outside the home was 14. Michael Schuman, History of Child Labor in the United States—Part 2: The Reform Movement, U.S. BUREAU OF LAB. STAT. (Jan. 2017), [https://perma.cc/4S7L-YXZG]; see also WALTER I. TRATTNER, CRUSADE FOR THE CHILDREN 28–29 (1970).5 15. Schuman, supra note 14; see also Julie Novkov, Historicizing the Figure of the Child in Legal Discourse: The Battle over the Regulation of Child Labor, 44 AM. J. LEGAL HIST. 369, 371 (2000) (noting the efforts of progressive reformers to gain heightened regulation of child labor); Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 MICH. L. REV. 1371, 1381 (2020) (noting that the development of juvenile courts as a result of progressive reformers). 16. 14TRATTNER, supra note 14, at 31. 17. See J. Hansen, The American Era of Child Labor, VCU LIBRS. SOC. WELFARE HIST. PROJECT (2011), [https://perma.cc/KM24-3URR]. 18. Dina Mishra, Child Labor as Involuntary Servitude: The Failure of Congress to Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 RUTGERS L. REV. 59, 61 (2010). Immigrant children were particularly likely to be working, a situation that also has not changed. Indeed, “a lot of the kids we see working in exploitative situations tend to be from immigrant families.” Kaitlyn Radde, Child Labor Violations Are on the Rise as Some States Look to Loosen Their Rules, NPR (Feb. 26, 2023, 7:05 AM), [https://perma.cc/FSQ6-U7A8]; see also Lauren Magarino, States Ease Teen Employment Laws Amid Rising Child Labor Violations, SCRIPPS NEWS (Sept. 16, 2023, 5:39 PM), [https://perma.cc/V7KU-CKUX]. 19. WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 183 (1995). 20. Jeremy Atack, Fred Bateman & Robert A. Margo, Skill Intensity and Rising Wage Dispersion in Nineteenth-Century American Manufacturing, 64 J. ECON. HIST. 172, 188-89 (2004); MICHAEL B. KATZ, POVERTY AND POLICY IN AMERICAN HISTORY 10-11 (1983). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 262 ARKANSAS LAW REVIEW Vol. 77:2 not sufficient to make up this shortfall.21 The result is that older children were sent out to work for wages.22 One study of Philadelphia industrial workers in 1860 found that three-quarters of those in the lowest-paid group relied on the wages of their children.23 In a largely agrarian colonial America, parents expected children to assist with the work that defined subsistence agriculture and settlement, including farming, clearing land, and building settlements.24 Yet these children often worked within broader family networks and were being socialized and taught skills they would need in their adult lives.25 (At least for free, white children. For Black children who were enslaved, neither socialization nor skills were the sought-after or expected result of the labor they were forced to perform.)26 As industrialization took hold, the many children who worked in factories and mills at the end of the nineteenth century were being denied the schooling they needed to gain decent-paying positions when they became adults. They also worked long hours in filthy, extremely loud, and dangerous conditions.27 The great number of children who worked in cotton mills in the South, for example, generally began at age twelve (or earlier) and labored eleven to twelve hours a day, five-and-a-half days a week, including many night shifts.28 21. Michael Haines, Poverty, Economic Stress, and the Family in a Late Nineteenth Century American City: Whites in Philadelphia, 1880, in PHILADELPHIA: WORK, SPACE, FAMILY, AND GROUP EXPERIENCE IN THE NINETEENTH CENTURY 260 (Theodore Hershberg ed., 1981); STUART M. BLUMIN, THE EMERGENCE OF THE MIDDLE CLASS 188 (1989); Mary H. Blewett, Work, Gender and the Artisan Tradition in New England Shoemaking, 1780-1860, 17 J. SOC. HISTORY 221, 224-25 (1983); CHRISTINE STANSELL, CITY OF WOMEN 12-13, 111 (1987); JEANNE BOYDSTON, HOME AND WORK: HOUSEWORK, WAGES, AND THE IDEOLOGY OF LABOR IN THE EARLY REPUBLIC 27 (1990). 22. LICHT, supra note 19, at 184; STANSELL, supra note 21, at 50-53. 23. Haines, supra note 21, at 260, tbl. 6; LICHT, supra note 19, at 184. 24. TRATTNER, supra note 14, at 36. 25. We do not mean to minimize the difficult conditions under which many children worked. 26. See, e.g., Catherine E. Smith, Brown’s Children’s Rights Jurisprudence and How It Was Lost, 102 B.U. L. REV. 2297, 2320 (2022) (“In southern states, enslavers were especially vigilant about depriving enslaved children of the opportunity to read and write because it would threaten the racial caste order.”). 27. TRATTNER, supra note 14, at 81; Robert A. Margo, The Labor Force in the Nineteenth Century, in THE CAMBRIDGE ECONOMIC HISTORY OF THE UNITED STATES, VOL. II: THE LONG NINETEENTH CENTURY 212, 216 (Stanley L. Engerman & Robert E. Gallman eds., 2000). 28. TRATTNER, supra note 14, at 81. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 263 Because heat and moisture prevented the cotton from breaking, windows were kept closed and the air moist—even in extreme heat. As a result, the air was filled with dust and lint, which seeped into workers’ lungs, causing bronchitis and other respiratory diseases.29 Boys who worked in the mills had half the chance as other boys of living until age twenty; girls had even lower odds.30 The tens of thousands of children who worked in coal mining, some as young as ten or eleven, still had it worse.31 They worked underground for ten to eleven hours per shift, performing repetitive work in air laden with coal dust; often with only the light from their work helmets.32 Conditions were hazardous, and children were injured at roughly three times the rate of adult mineworkers.33 Those who avoided accidents often still became anemic, disabled, or underdeveloped, and possessed extremely limited vocabularies and cognitive skills. Describing this situation, an 1869 New York Times editorial warned readers that “a great multitude of the youth . . . are thus growing up, stunted in body, and with not even the rudiments of school training, a prey to the insatiable requirements of industry and capital.”34 Some states enacted legislation, but enforcement was inconsistent.35 In response to the failure of state regulation to rein in these situations, reformers began to organize nationally. In 1904, the National Child Labor Committee was formed, “usher[ing] in the national movement against child labor,” and proclaiming that child labor was “America’s ‘new slavery.’”36 The organization soon became so prominent that, a year after its 29. Id. 30. Id. 31. Id. at 71. 32. Id. at 72. 33. TRATTNER, supra note 14, at 72. 34. Over-Work of Children in Our Factories, N.Y. TIMES, Oct. 6, 1869, at 4. 35. See, e.g., Graham Taylor, Parental Responsibility for Child Labor, 27 ANNALS AM. ACAD. POL. & SOC. SCI. 354, 97 (1906) (discussing the pressure on immigrant parents to send their children to work and applauding the success of Illinois’s child labor enforcement through more than a thousand actions “in striking contrast with the score or more convictions reported from some other large industrial States”). 36. BETSY WOOD, UPON THE ALTAR OF WORK: CHILD LABOR AND THE RISE OF A NEW AMERICAN SECTIONALISM 71 (2020); see also Seymour Moskowitz, Dickens Redux: How American Child Labor Law Became a Con Game, 10 WHITTIER J. CHILD & FAM. ADVOC. 89, 102 (2010). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 264 ARKANSAS LAW REVIEW Vol. 77:2 formation, its leaders met with President Teddy Roosevelt, who became an honorary member.37 During the next decade, the National Child Labor Committee and its allies pushed for enactment of federal child labor legislation. The first piece of federal legislation passed was the Keating-Owen Act of 1916.38 That Act, though, was struck down as unconstitutional by the Supreme Court in Hammer v. Dagenhart on the grounds that it exceeded Congress’s power to regulate interstate commerce.39 While the plaintiffs in Hammer included a father suing in his own name,40 the case was decided before the recognition of parental rights in Meyer v. Nebraska, and neither the majority nor the four dissenters addressed parental rights to control the upbringing of their children.41 Soon after, in 1919, Congress enacted legislation under its taxing power, the Child Labor Tax Law, which was also invalidated by the Supreme Court, again without mention of parental rights.42 Despite the absence of parental rights discussions in Supreme Court jurisprudence, the rhetoric of parental rights was used to mobilize opposition to child labor regulation in this era. When Congress proposed a Child Labor Amendment to the Constitution in the mid-1920s, designed to neutralize the Supreme Court’s striking down child labor legislation, opponents 37. WOOD, supra note 36, at 78. 38. TRATTNER, supra note 14, at 87-90, 130-131. 39. Hammer v. Dagenhart, 247 U.S. 251, 276-77 (1918). The legislation prohibited products “which within thirty days before the removal of the product children under fourteen have been employed,” and also regulated the hours of work for children between the ages of fourteen to sixteen. Id. at 277 (Holmes, J., dissenting). 40. The father also brought suit on behalf of his fourteen-year-old son and another son, two years younger, both of whom worked in North Carolina cotton mills. Id. at 268. Pursuant to state law, both boys could work up to eleven hours each day, but the Keating-Owen Act prevented the younger son from working altogether, while his other brother could work eight hours per day. See Elizabeth Huey Davidson, Child-Labor Reforms in North Carolina Since 1903, 14 N.C. HISTORICAL REV. 109, 109 (1937); Keating-Owen Act of 1916, Pub. L. No. 249, 39 Stat. 675 (1916). The children’s income was likely important to the family’s sustenance. 41. See id. at 268 (The word “father” is mentioned once, in describing the plaintiff, and the word “parent” does not appear at all.); Meyer v. Nebraska, 262 U.S. 390 (1923). 42. Child Labor Tax Case, 259 U.S. 20, 20-21, 44 (1922). The Court did acknowledge that restricting child labor was of the “highest good.” Id. at 37. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 265 used parental rights justifications to defeat its passage by states.43 They presented the proposed amendment as an effort to undercut the rights of parents who “did not embrace the modern secular order.”44 The American Farm Bureau Federation, which testified in opposition to the Amendment, distributed a brochure, National Child Labor Law or Socialistic Bureaucratic Control Supplanting Parental Control of Children, Plain Politics for Parents.45 In rejecting the Amendment, the Georgia legislature stated its concern that it “would destroy parental authority and responsibility throughout America.”46 While proponents tried to reassure farmers that their children could still perform chores and help with the dishes, they were unsuccessful.47 Almost two decades later, Congress passed the Fair Labor Standards Act of 1938 (“FLSA”) which contained a broad series of labor regulations, based on its authority to regulate interstate commerce.48 The law included special protections for workers under age eighteen and barred interstate commerce in goods in which “oppressive child labor has been employed.”49 Children younger than sixteen years of age who work in a family business are excepted from these regulations.50 In introductory remarks, President Franklin D. Roosevelt referred to the need to protect 43. TRATTNER, supra note 14, at 167-78, 199-202; see also David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1476, 1505 (2001); WOOD, supra note 36, at 124, 127, 134, 140. 44. WOOD, supra note 36, at 127. 45. TRATTNER, supra note 14, at 174. It was also distributed by the American Constitutional League. Laura A. Thompson, Woman and Child Labor, MONTHLY LAB. REV., Jan. 1925, at 71, 98. 46. Edward F. Waite, The Child Labor Amendment, 9 MINN. L. REV. 179, 205 (1925). 47. Bart Dredge, David Clark’s “Campaign of Enlightenment”: Child Labor and the Farmers’ States Rights League, 1911-1940, 91 N.C. HIST. REV. 30, 49-50 (2014); Waite, supra note 46, at 195. 48. 29 U.S.C. § 212(a) (1974). The current language of the statute is little changed from the original. Compare 29 U.S.C. § 212(a), with Fair Labor Standards Act of 1938, Pub. L. No. 75-178, § 12, 52 Stat. 1060, 1067 (1938); see also Jeremy P. Felt, The Child Labor Provisions of the Fair Labor Standards Act, 11 LAB. HIST. 467, 474-75 (1970). For an almost contemporaneous description of the FLSA child labor provisions, see Katherine De Pre Lumpkin, The Child Labor Provisions of the Fair Labor Standards Act, 6 L. & CONTEMP. PROBS. 391, 392-93 (1939). 49. Fair Labor Standards Act of 1938, Pub. L. No. 75-178, § 12, 52 Stat. 1060, 1067-68 (1938). 50. See 29 U.S.C. § 213(c)(1)(B) (2018); 29 U.S.C. § 203(1) (2018) (excluding children employed by a parent in most nonhazardous occupations). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 266 ARKANSAS LAW REVIEW Vol. 77:2 those who could not protect themselves, without a reference to parental rights.51 The child labor provisions were upheld in Darby in 1941, which again, was decided as a straightforward application of the Commerce Clause to Congressional power.52 It did not explicitly discuss Congress’s ability to regulate child labor. It was not until eight years later, in 1944, that the Supreme Court directly addressed the conflicts between the government’s power to regulate child labor and parental rights in the case of Prince v. Massachusetts.53 In that case, an aunt, who was custodian of her nine-year-old niece, contested her conviction for violating a state statute prohibiting girls under eighteen from selling periodicals in the street.54 The family in question were Jehovah’s Witnesses, and asserted that they had been distributing copies of the order’s publications as part of their calling to preach the gospel.55 In resolving the claim, the Court noted the weighty interests on both sides of the equation. On the one hand were the parent’s “sacred private interests, basic in a democracy” in the “control of the child and his training”—interests that were “serious enough when only secular matters are concerned. [They] become[] the more so when an element of religious conviction enters.”56 On the other hand, stand the interests of society to protect the welfare of children, and the state’s assertion of authority to that end . . . . The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses 51. 82 CONG. REC. 3-6, (1937) (message from President Roosevelt stating the need to “[b]anish child labor and protect workers unable to protect themselves from excessively low wages and excessively long hours”). A search of the pdf for the term “parental rights” yielded nothing, nor did a search for “parent.” See Marina A. Masterson, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. PA. L. REV. 577, 607 (2021). 52. United States v. Darby, 312 U.S. 100, 109-10, 115-16 (1941). The Court had issued decisions in 1936 and 1937 concerning Congressional power over labor regulation. Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1108 (1992). 53. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 54. Id. at 159-61. 55. Id. at 159, 162. 56. Id. at 165. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 267 and given opportunities for growth into free and independent well-developed men and citizens.57 Despite the Court’s reaffirmation of precedents holding that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder,” it upheld the aunt’s conviction.58 The statute’s application to adults, the Court noted, would overstep legitimate religious liberties.59 Yet the state’s parens patriae power, the Court stated, gave it broader authority over children, particularly with respect to “matters of employment.”60 This was the case despite “the presence of the child’s guardian,” who disagreed with the state’s assertion of power.61 It justified its determination on the ground that “[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.”62 It was therefore within the state’s legitimate powers to secure young people from dangers that would prevent such growth: “Among evils most appropriate for such action are the crippling effects of child employment.”63 The majority’s opinion therefore set the basis for further use of the state’s authority to protect children, even if that required overriding parental rights.64 Justice Murphy, in dissent, took a more nuanced view, distinguishing the First Amendment freedom of religion at stake in the case from the “harms” that might result from child employment; even then, however, he recognized that the family could be regulated “in the public interest.”65 In the majority opinion, the Court sought to strike a balance between its respect for parents’ rights to make important decisions regarding their children—an interest grounded in 57. Id. 58. Prince, 321 U.S. at 166. 59. Id. 60. Id. at 168. 61. Id. at 169. 62. Id. at 168. 63. Prince, 321 U.S. at 168. 64. This was also the justification used in Skrmetti, a Sixth Circuit decision upholding gender-affirming care bans enacted in Tennessee and Kentucky. See generally L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408 (6th Cir. 2023). 65. Prince, 321 U.S. at 173-75 (Murphy, J., dissenting). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 268 ARKANSAS LAW REVIEW Vol. 77:2 respect for parental autonomy—and the state’s legitimate interests in ensuring the well-being of children.66 That balance, since 1938, has supported reasonable restrictions on child labor while giving parents more authority when children are working for family businesses. This balance also carves out special permission for parents to allow their children to work in limited circumstances. B. Current Status of Labor Protections Child labor law today involves a combination of federal, state, and local regulations. The prohibitions vary, depending on whether the work is agricultural or hazardous, whether it involves acting, and whether parents or nonparents are the employer.67 The limitations vary by the age of the child.68 The laws also limit the number of total hours a child can work, as well as the number of hours that can be worked on school days.69 Moreover, while 66. See generally Prince, 321 U.S. at 158-71. 67. 29 U.S.C. § 203(l) (2018) (defining “oppressive child labor”); 29 C.F.R. § 570.123(c) (2023); 29 C.F.R. § 570.126 (2023) (setting out parental exemptions); see, e.g., Erin E. O’Neill, Influencing the Future: Compensating Children in the Age of Social-Media Influencer Marketing, 72 STAN. L. REV. ONLINE 42, 46 (2019) (“actors and performers—including child actors and performers—are also exempt from federal child labor law regardless of their employers”); Marina A. Masterson, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. PA. L. REV. 577, 587 (2021). As these two articles show, there has been increasing attention to children working in media. See, e.g., Ana Saragoza, The Kids Are Alright? The Need for Kidfluencer Protections, 28 AM. U. J. GENDER SOC. POL’Y & L. 575, 578 (2020) (asserting that “child labor laws need to evolve to enhance protections for the earnings that children generate”); Melanie N. Fineman, Honey, I Monetized the Kids: Commercial Sharenting and Protecting the Rights of Consumers and the Internet’s Child Stars, 111 GEO. L.J. 847, 890 (2023) (arguing for additional protections). 68. Fact Sheet #40: Overview of Youth Employment (Child Labor) Provisions of the Fair Labor Standards Act (FLSA) for Agricultural Occupations, U.S. DEP’T OF LAB. (Dec. 2016), [https://perma.cc/7AY3-537L]; U.S. DEP’T OF LABOR WAGE & HOUR DIV., CHILD LABOR BULLETIN 102, at 3 (2016) [hereinafter CHILD LABOR BULLETIN 102], [https://perma.cc/PR6L-8S6H]. Even where the parents do not own or operate the farm, a child under the age of fourteen can be employed on farms with parental consent or where the parent is also employed. Id. 69. E.g., Non-Agricultural Jobs—14-15, U.S. DEP’T OF LABOR [https://perma.cc/Y5P5-PMHK] (last visited Feb. 21, 2024) (setting out hours, jobs, and pay limitations); Non-Agricultural Jobs—16-17, U.S. DEP’T OF LAB. [https://perma.cc/WN45-TD7C] (last visited Feb. 21, 2024) (allowing for unlimited hours of work in any job that has not been declared hazardous). Workers under twenty years old can be paid less than the minimum wage for the first ninety days of employment. See id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 269 the reach of the FLSA is broad, it does not cover all enterprises or types of work.70 Under federal law, those younger than eighteen are prohibited from holding sixteen types of non-agricultural jobs that involve power saws, meat-slicers, or other machines, as well as most mining jobs.71 Fourteen to fifteen-year-old children cannot work after 7:00 PM during the school year.72 Those under fourteen are permitted to work only in a few non-agricultural jobs, including babysitting, working as a performer, or working in a business owned by the minors’ parents.73 Federal law does not require that minors obtain work permits or that employers establish special breaks or meal periods, although state laws may contain more restrictions.74 Moreover, because of the historical resonance of the family farm, children can work at a younger age on farms than in nonagricultural settings.75 70. The FLSA covers “whose annual gross volume of sales made or business done is not less than $500,000,” as well as domestic workers who earn more than $1700. Handy Reference Guide to the Fair Labor Stands Act, U.S. DEP’T OF LAB. (2023), [https://perma.cc/PLZ5-6Y8N] (last visited Feb. 21, 2024); see also Kati L. Griffith, The Fair Labor Standards Act at 80: Everything Old Is New Again, 104 CORNELL L. REV. 557, 559 (2019) (noting broad coverage). 71. What Jobs Are Off-Limits for Kids?, U.S. DEP’T OF LAB. [https://perma.cc/9GUL-ENW4] (last visited Feb. 21, 2024). 72. Non-Agricultural Jobs—14-15, supra note 69. 73. Non-Agricultural Jobs—Under 14, U.S. DEP’T OF LAB. [https://perma.cc/CF95-CPA7] (last visited Feb. 21, 2024) (even if the business is parent-owned, the child cannot work in one of the seventeen hazardous occupations, manufacturing, or mining). 74. For an example of a state law, see VA. CODE ANN. § 40.1-80.1(B) (2023) (requiring break period of at least thirty minutes for a child employed longer than five continuous hours); VA. CODE ANN § 40.1-79.01 (A)(3), (B) (2023) (setting out farm exemption); VA.. CODE ANN § 40.1-88 (2023) (allowing for employment of a fourteen to sixteen-year-old child during school hours with a work-training certificate). 75. Jonathan Todres, Maturity, 48 HOUS. L. REV. 1107, 1129 (2012); see also 29 U.S.C. § 213(c)(1) (2023) (if the employment is outside of school hours, then exempting children under the age of twelve who are employed by a parent on a farm or employed on a farm with parental consent, subject to other conditions, and unconditionally exempting twelve and thirteen-year-olds from the FLSA when employed by a parent or with parental consent on a farm); 29 U.S.C. § 213(c)(1)(C) (exempting fourteen-year-olds from the FLSA when employed in agriculture, regardless of parental consent); 29 U.S.C. § 213(c)(2) (preventing agricultural employment of children under the age of sixteen in “particularly hazardous” work unless the parent is the employer and the farm is operated or owned by the parent); Harm Venhuizen, Some Lawmakers Propose Loosening Child Labor Laws to Fill Worker Shortage, PBS (May 25, 2023, 2:54 PM), [https://perma.cc/7SGL-GY49] (“Federal law allows children 12 and older to work on farms for any amount of time outside of school hours, with parental permission.”). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 270 ARKANSAS LAW REVIEW Vol. 77:2 This system of regulation still entrusts authority to parents. When the employer is a parent, the presumption is that parents will protect their children. The FLSA provides a “parental exemption” for family farms that allows a child of any age to work for their parents in any job at any time, so long as the parent owns or operates that farm.76 By contrast, those under twelve can otherwise work only on small farms that are not covered by federal minimum wage requirements.77 Similarly, when children under sixteen are working in a non-agricultural business that is owned solely by their parents (or a guardian), the FLSA provides that they can work at any time of the day for unlimited numbers of hours.78 Individual state laws also allow for parents to consent to labor that would otherwise violate state laws. For example, in Arkansas, which precludes children under the age of fourteen from being paid to work, “during school vacation, children under fourteen years may be employed by their parents or guardians in occupations owned or controlled by them.”79 The contrast between the lighter regulation applicable to children’s work under the direct supervision of their parents with regulation of children’s work in other contexts, rests on the assumption that parents supervising their children will safeguard their best interests; when others supervise children, however, the state takes responsibility for overseeing the terms of employment. II. CHANGING CHILD LABOR: PARENTAL RIGHTS RHETORIC AND ROLLBACKS Child labor protections developed in response to the recognition that, in an industrial capitalist society, protecting children’s wellbeing and their future prospects requires a system that combines parental discretion with state and federal action.80 76. CHILD LABOR BULLETIN 102, supra note 68; 29 C.F.R. § 570.126 (parental exemption generally); FLSA—Child Labor Rules Advisor, U.S. DEP’T OF LAB. [https://perma.cc/9CC4-LXW8] (last visited Feb. 21, 2024) (This regulation dates from 1951. The term “parent” includes those standing in the same position as a parent.). 77. Agricultural Jobs—Under 12, U.S. DEP’T OF LAB. [https://perma.cc/XW2D-X3VF] (last visited Feb. 21, 2024). 78. FLSA—Child Labor Rules Advisor, supra note 76. Even then, parents cannot employ their children in occupations deemed to be hazardous. 79. ARK. CODE ANN. § 11-6-104 (2023). 80. See supra Part I. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 271 This Part shows that current attempts to roll back state regulations would undermine children’s wellbeing—and that such calls in the name of parental rights often have little to do with parental autonomy, instead reflecting the ambitions of well-funded campaigns by business interests. In this Part, we show how and why calls for “parental rights” operate to cloak big-business objectives in far more politically palatable terms. When child labor proponents present their goals in the language of parental rights, they conceal their underlying objectives and undermine protections for children, all without truly advancing the rights of parents. The newly proposed legislation rolling back child-labor protections takes a number of different forms.81 In a few states, these proposals seek to lift restrictions on children performing hazardous work.82 In others, they extend work hours for minors.83 In still others, they expand the types of work that children can perform. While most seek to reform state law, that is not true of all: A bill to relax child labor restrictions on logging was introduced in the U.S. Senate, which would allow sixteen and seventeen year olds employed by their parents, or in a business owned or operated by their parents, to operate dangerous machinery.84 Some of this legislation would enact particularly extreme rollbacks of existing legal protections. For example, Iowa’s proposed law would permit fourteen year olds to work in meat coolers and industrial laundries, fifteen year olds to work on assembly lines, and sixteen and seventeen year olds to serve alcohol, among many other provisions.85 It would also allow fourteen-and-a-half year olds to work between the hours of 5:00 AM and 10:00 PM, as well as to drive up to fifty miles to and from work.86 81. See generally Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1. 82. Such legislation was introduced in Iowa and Minnesota. See S.F. 167, 90th Gen. Assemb. (Iowa 2023); S.F. 375, 93d Leg. (Minn. 2023). 83. This was true of proposed legislation in New Jersey, Ohio, South Dakota, and Wisconsin. See A4222, 2022-2023 Leg., Reg. Sess. (N.J. 2022); H.B. 1180, 98th Leg. Sess. (S.D. 2023); S.B. 332, 2021-2022 Leg. ( Wisc. 2022). 84. S. Res. 671, 118th Cong. § 1 (2023). The bill was euphemistically titled the “Future Logging Careers Act.” 85. S.F. 167, 90th Gen. Assemb. (Iowa 2023). 86. Id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 272 ARKANSAS LAW REVIEW Vol. 77:2 Parental-rights justifications for these labor-protection rollbacks have surfaced most prominently in discussions surrounding Arkansas’s H.B. 1410, formally titled the “Youth Hiring Act of 2023,” passed in March 2023 by the Arkansas State Legislature.87 The law removed the requirements that children under sixteen provide proof of age, a description of their work schedule, and parental consent to the Arkansas Department of Labor and Licensing before they could receive a work permit.88 Rebecca Burkes, a Republican who was a primary sponsor of the bill, stated that the law was intended to “limit government involvement in families’ decisions,”89 and to “restore decision-making to parents concerning their children.”90 Alexa Henning, a spokesperson for Governor Sarah Huckabee Sanders, similarly stated, “[The Governor] believes protecting kids is most important, but doing so with arbitrary burdens on parents to get permission from the government for their child to get a job is burdensome and obsolete.”91 Parental rights’ rationales have also surfaced in other rollback campaigns. When legislation was introduced in Ohio in 2023 that would allow fourteen and fifteen year olds to work until 9:00 PM with parental consent, the Ohio Restaurant Association supported the expansion on the ground that it would allow the teens to “learn, grow and earn,” and applauded the legislation for properly placing “a choice that appropriately belongs to the family.”92 Another witness argued that the parental consent 87. Sydney Kashiwagi, Arkansas Governor Signs Bill Rolling Back Child Labor Protections, CNN (Mar. 8, 2023, 5:52 PM), [https://perma.cc/5VWL-LTPW]. 88. Sydney Kashiwagi, Arkansas Governor Signs Bill Rolling Back Child Labor Protections, ABC 57 (Mar. 8, 2023, 9:42 PM), [https://perma.cc/EL93-WQCA]; Kaitlyn Radde, Arkansas Gov. Sanders Signs a Law That Makes It Easier to Employ Children, NPR (Mar. 10, 2023, 12:07 PM), [https://perma.cc/T77D-NSL6]. 89. Daniel Breen, Bill Loosening Child Labor Restrictions Approved by Arkansas Committee, UALR PUB. RADIO (Feb. 21, 2023, 2:01 PM), [https://perma.cc/ZZ59-RA5P]. 90. Tess Vrbin, Arkansas Bill to Remove Work Permit Requirement for Children Under 16 Goes to Sanders’ Desk, ARK. ADVOCATE (Mar. 2, 2023, 7:56 PM), [https://perma.cc/QHN6-8W27]; Breen, supra note 89 (quoting Burkes). The irony of eliminating parental awareness did not appear in proponents’ remarks. See Jessica Grose, The Absurd Republican Argument for Rolling Back Child Labor Laws, N.Y. TIMES (Aug. 9, 2023), [perma.cc/83NW-JX5K]. 91. Aimee Picchi, Arkansas is Rolling Back Child Labor Protections, MONEYWATCH (Mar. 8, 2023, 11:43 AM), [https://perma.cc/Z7M9-ALY3]. 92. Ohio Restaurant Association Testimony in Support of Senate Bill 30 Before the Senate Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 273 requirement protected minors sufficiently despite the weakened labor restrictions on minors,93 while a third witness applauded that it would be “parents not state regulations” that would control children’s work hours.94 Similar justifications have emerged to support the bill relaxing child labor restrictions on logging in the Senate.95 The sponsors of the legislation appealed to conventional family norms, explaining: “This legislation would allow teenage members of logging families to gain experience in the logging trade under parental supervision so they may carry on the family business.”96 The conservative advocacy organizations that support these bills also sometimes rely on parental-rights justifications. Several of the state child-labor bills were supported by a Florida-based think tank, the Foundation for Government Accountability (“FGA”).97 Nick Stehle, the communications vice president for FGA, argued that families like his want “more of the freedom that lets our children flourish.”98 Stehle also argued that loosening labor protection laws for minors would allow parents and 2023) (testimony of Tod Bowen, Managing Dir. of External Affairs & Gov’t Relations, Ohio Restaurant Ass’n). To be sure, the legislation applies only to employers not covered by the FLSA. 93. Senate Workforce and Higher Education Committee Senate Bill 30 Testimony, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Kim Barlag, President & CEO of the Pickerington Area Chamber of Commerce). 94. Testimony in Support of Senate Bill 30 Before the Senate Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Mayor Mark Mills, City of Coshocton); Proponent Testimony on Senate Bill 30 Before the Senante Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Chris Ferruso, Interim State Director NFIB) (noting that legislation protects parental prerogatives). 95. S. 671, 118th Cong. § 1 (2023). 96. Risch, King, Golden, Thompson Lead Bipartisan Future Logging Careers Act, JAMES E. RISCH, U.S. SENATOR FOR IDAHO (Mar. 7, 2023), [https://perma.cc/C4RW-WZAN]. Current child labor restrictions deem logging a “hazardous occupation,” and all those under eighteen are banned from engaging in it, regardless of other exceptions concerning parents. Fact Sheet #43: Child Labor Provisions of the Fair Labor Standards Act (FLSA) for Nonagricultural Occupations, U.S. DEP’T OF LAB. (Dec. 2016), [https://perma.cc/E4VA-KA95]. 97. Jacob Bogage & María Luisa Paúl, The Conservative Campaign to Rewrite Child Labor Laws, WASH. POST (May 1, 2023, 12:08 PM), [https://perma.cc/227M-4HAA]. 98. Nick Stehle, California Doesn’t Care About Empowering Families. My State Does, FOX NEWS (Mar. 27, 2023, 6:00 AM), [https://perma.cc/PB5X-KFJH]. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 274 ARKANSAS LAW REVIEW Vol. 77:2 teenagers to have conversations about employment in the private sphere without government interference.99 A. Beneath Parental-Rights Justifications for Child Labor Rollbacks The chief backers of these laws have not been parents, but business and special-interest groups. As a report by the Economic Policy Institute found: [T]he primary proponents of these laws are business groups and their state affiliates, particularly the National Federation of Independent Business, the Chamber of Commerce, and the National Restaurant Association. Hotel, lodging, and tourism associations, grocery industry associations, home builders, and Americans for Prosperity—a billionaire-funded right-wing dark money group—have also supported bills in various states.100 These efforts are occurring at a time of increased labor shortages and increases in employee wages.101 Indeed, they occurred as the labor market was reaching one of the tightest points that it has been since World War II.102 Put simply, the driving motivation for these laws is to ease labor shortages and reduce labor costs by hiring younger teens, who are plentiful, not already employed, and who are comparatively cheap to hire.103 99. See Id. 100. Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1 (internal citations omitted). 101. Sarah Lazare, The Conservative Astroturf Organization Rolling Back Child Labor Protections, THE AM. PROSPECT (Oct. 11, 2022), [https://perma.cc/AU2B-J498]; Venhuizen, supra note 75; Jacob Knutson, Lawmakers Target Child Labor Laws to Ease Worker Shortage, AXIOS (Mar. 14, 2023), [https://perma.cc/5LW7-MSE5]. Americans for Prosperity, a conservative-focused group that provided impetus for the tea party movement, is also a supporter. See Isaac Stanley-Becker, Longtime president of Koch-backed Americans for Prosperity is forced out, WASH. POST (Dec. 1, 2021, 9:52 PM), [https://perma.cc/324X-8DAY] (describing AFP); Henry Gass, Get a Job: After 100 years, states loosen child labor laws, CHRISTIAN SCI. MONITOR (June 6, 2023), [https://perma.cc/LP5K-8BWP]; Wisconsin Senate Approves Child Labor Reforms, NAT’L FED’N OF INDEP. BUS. (Oct. 21, 2021) [https://perma.cc/82AJ-TZBE] (supporting legislation to increase the number of hours that students could work in order to help small businesses). 102. Venhuizen, supra note 75. 103. Minors “tend to be cheaper and more docile workers.” Radde, supra note 18. Employers might have to increase wages and improve conditions to attract adult applicants. Jacob Bogage, In a Tight Labor Market, Some States Look to Another Type of Worker: Children, WASH. POST (Feb. 11, 2023, 8:00 AM), [https://perma.cc/B58A-F8Q9]; 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 275 The use of parental-rights rhetoric, we argue, is an attempt to distract from the brute, profit-driven interests that are driving this legislation in order to hire children to perform jobs cheaply by casting these issues in the more politically palatable rhetoric of parental rights. That rhetoric helps to obscure the economic motives driving this wave of legislation and to repackage the legislation in a far more attractive light, in several ways. First, presenting this legislation as enhancing parental autonomy allows parental freedom to serve as a cover for state action to benefit companies that would otherwise be far more difficult to justify. Parental rights have a long, time-honored, and constitutionally recognized tradition that sounds in terms of parents’ own vision regarding the wellbeing of their families and children.104 Deferring to parents’ alleged discretion makes legislators’ support for these bills sound far more noble than if they acknowledged they were supporting the bidding of industry groups seeking cheap labor. Second, portraying these laws as autonomy enhancing obscures the many ways that rolling back market regulations does not, in fact, lead to freedom for families or their children. The association of markets with freedom has a long history in the Anglo-American tradition. Adam Smith observed in eighteenth-century Scotland the most important effect of markets was “the liberty . . . of individuals . . . who had before lived almost in a continual state of . . . servile dependence upon their superiors.”105 Yet as philosopher Elizabeth Anderson points out, the association made far more sense in earlier economies than in our own.106 Before the rise of industrial capitalism, the independent proprietors and craftspersons associated with markets would have see also Melissa Angell, States Are Loosening Child Labor Laws. Should They?, INC. (June 6, 2023), [https://perma.cc/UUA7-2H9D] (“While giving young talent the chance to experience what it means to hold a job and earn money is important, the harsher truth is that some employers simply see minors as cheap labor.”). 104. See Ziegler, Eichner & Cahn, supra note 3, at 31-32; Naomi Cahn, The Political Language of Parental Rights: Abortion, Gender-Affirming Care, and Critical Race Theory, 53 SETON HALL L. REV. 1443, 1445 (2023); Maxine Eichner, Free-Market Family Policy and the New Parental Rights Laws, 101 N.C. L. REV. 1305, 1305 (2023). 105. See ADAM SMITH, 2 THE WEALTH OF NATIONS 107 (P.F. Collier & Son, 1902) (1776). 106. ELIZABETH ANDERSON, PRIVATE GOVERNMENT: HOW EMPLOYERS RULE OUR LIVES (AND WHY WE DON’T TALK ABOUT IT) 4 (2017). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 276 ARKANSAS LAW REVIEW Vol. 77:2 worked as their own masters, set their own hours and their own terms for labor. In today’s labor market, though, employers set the pay, hours and place of work, determine employees’ goals, set the pace of work, and then supervise employees’ performance. This makes those subject to the market today look a lot more like serfs subject to the bidding of a lord than like the market actors controlling their own destinies described by Adam Smith.107 Further the equation of the market with freedom misses the fact that few families have any other alternative way to meet basic needs than through the market. Third, packaging this legislation in terms of parental autonomy hides the considerable risks of harm to children that rolling back these labor protections would cause. This packaging suggests that the legislation will increase children’s wellbeing because decisions by parents are generally made based on love for the children at issue. Indeed, a cardinal reason that parental rights are treated with such respect in the American system is that they are believed to serve the wellbeing of children. As the Supreme Court stated in Parham v. J.R., the law’s deference to parents is premised on the view “that natural bonds of affection lead parents to act in the best interests of their children.”108 Yet there can be little doubt that rolling back the system of labor protections that has long served children’s interests would result in harm to children. B. The Post-Industrial Family109 As discussed earlier, family policies in the United States center on the presumption “that families will privately supply the 107. Id.; SMITH, supra note 105. 108. Parhham v. J.R., 442 U.S. 584, 602 (1979); see also Troxel v. Granville, 530 U.S. 57, 68 (2000) (providing special weight and deference to parents’ rights to determine their children’s interests). In fact, Huntington and Scott make the case that the U.S. system places such high priority on parental rights because doing so generally serves children’s wellbeing. Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 MICH. L. REV. 1371 (2020); see also Anne C. Dailey & Laura A. Rosenbury, The New Parental Rights, 71 DUKE L.J. 75, 78-79 (2021) (agreeing with the consensus view concerning parents). 109. Naomi Cahn & June Carbone, The Blue Family Constitution, 35 J. AM. ACAD. MATRIMONIAL L. 505, 508-09 (2023) [hereinafter The Blue Family Constitution] (discussing the development of the post-industrial family). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 277 resources, services, and conditions that family members need to thrive, largely without the assistance of government.”110 Industrial protections and educational laws developed as part of a system to safeguard children’s wellbeing and economic futures but with a commitment to protect parental rights. Our current, post-industrial economy rewards education and investment in children, and upper-middle-class families are able to set up their children to thrive.111 School attendance, and the education associated with it, is a key element in achieving success, and enriching after-school activities are part of the package.112 A high-school diploma helps; a college diploma still more.113 Education is associated with lower unemployment, higher earnings, and a lower divorce rate.114 While child labor may not increase delinquent behavior in the short term, it is correlated with higher school drop-out rates, which may have longer-term correlations with crime and lower earnings rates.115 110. Eichner, supra note 104, at 1311; see also Naomi Cahn & June Carbone, Uncoupling, 53 ARIZ. ST. L.J. 1, 11-13 (2021) (pointing to reliance on family and employers to provide resources). 111. This is the system that June Carbone and Naomi Cahn have labelled “blue families.” See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES, 1-2 (2010); The Blue Family Constitution, supra note 109. 112. The Blue Family Constitution, supra note 109, at 506-07. 113. More than 90% of the population had completed high school in 2022; the rate varies by race. Veere Korhonen, Percentage of the Population in the United States Who Have Completed High School or More From 1960-2022, STATISTA (July 21, 2023), [https://perma.cc/9J3X-NB7L]. The rate varies by race. Census Bureau Releases New Educational Attainment Data, U.S. CENSUS BUREAU (Feb. 16, 2023), [https://perma.cc/VF7W-G6PT] (finding in 2022, 75.2% of Hispanics, 90.1% of Blacks, 92.3% of Asians, and 95.2% of whites were high school graduates, while 20.9% of Hispanics, 27.6% of Blacks, 59.3% of Asians, and 41.8% of whites were college graduates). 114. See Education Pays, 2022, U.S. BUREAU OF LAB. STAT. (May 2023), [https://perma.cc/M9PW-D6RU]; Unemployment Rate in the United States from 1992-2022, by Level of Education, STATISTA (Nov. 3, 2023), [https://perma.cc/TP9W-BSK3] (Those with the highest education have the lowest unemployment rates.); Kim McErlean, The Growth of Education Differentials in Marital Dissolution in the United States, 45 DEMOGRAPHIC RSCH. 841, 846 tbl. 3 (2021) (Those with a college degree have about half the risk of divorce of those with less education over a ten year period). 115. See Robert Apel et al., Using State Child Labor Laws to Identify the Causal Effect of Youth Employment on Deviant Behavior and Academic Achievement, 24 J. QUANTITATIVE CRIMINOLOGY 337 (2008); Jeremy Staff et al., Is Adolescent Employment Still a Risk Factor for High School Dropout?, 30 J. RSCH. ON ADOLESCENCE 406 (2020) (Intensive work by teens is a risk factor for low grades and school drop-out.); Janessa M. Graves et al., Quality of Life Among Working and Non-working Adolescents, 26 QUALITY OF LIFE RSCH. 107, 108 (2017) (For younger teens and teens working long hours, work during the academic year can have a negative impact on their quality of life.). By contrast, high-quality afterschool 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 278 ARKANSAS LAW REVIEW Vol. 77:2 Our system has long combined significant parental rights with both state and federal labor law protections for children to ensure they have a chance to obtain the education necessary to safeguard their future. The current legislation unwinds this system to children’s threatened detriment. It is perhaps not surprising that the two states that have enacted changes to their child labor laws to permit children to engage in hazardous work are also the ones with the lowest rates of college graduation.116 Migrant children are especially vulnerable to child labor violations, an issue addressed more fully by others in this symposium.117 Unaccompanied minors serve as a “shadow workforce” without parents to protect them.118 The causes are numerous, but, significantly, they serve as “a pool of potential workers whom employers may exploit, knowing they have no other viable options.”119 Moreover, many work in the agricultural sector, which already has weaker protections.120 III. CHALLENGING THE ROLLBACK OF CHILD LABOR RESTRICTIONS Limitations on child labor effectuate the state’s interest in educating children, and these restrictions have become particularly significant in the post-industrial age for supporting programs are associated with improved educational and social outcomes. Supporting Student Success Through Afterschool Programs, NAT’L CONF. OF STATE LEGISLATURES (Sept. 11, 2023), [https://perma.cc/6NND-5QQH]; but see Pamela Paul, The Best Extracurricular May Be an After-School Job, N.Y. TIMES (July 30, 2022), [https://perma.cc/AQR2-F94R] (setting out valuable learning experiences from afterschool jobs). 116. College Graduation Rate by State 2024, WORLD POPULATION REV., [https://perma.cc/LS9J-MQEN] (last visited Feb. 23, 2024). Arkansas has the lowest graduation rates in the country, aside from West Virginia and Mississippi. Id. Iowa ranks in the bottom twenty. Id. New Hampshire and New Jersey, which both rank in the top ten states with highest college graduation rates, have extended the hours that minors can work, but have not changed the limitations on hazardous activities. See id.; Ariana Figueroa, Kids at Work: States Try to Ease Child Labor Laws at Behest of Industry, N.J. MONITOR (Apr. 7, 2023, 2:31 PM), [https://perma.cc/M5U6-MEXG]. 117. See, e.g., Shefali Milczarek-Desai, (Hidden) in Plain Sight: Migrant Child Labor and the New Economy of Exploitation, 77 ARK. L. REV. 345; Dreier, supra note 2. 118. Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. TIMES (Feb. 25, 2023), [https://perma.cc/CRR5-96VL]. 119. Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1. 120. Id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 279 children. Consequently, maintaining and, perhaps strengthening, these protections serve important state goals. This Part turns to suggestions on how to challenge these efforts, arguing for the need to unmask parental rights rhetoric and show that it is unrelated to the actual reasons for relaxing child labor restrictions. While opponents have already questioned the underlying rationales and shown the impact on children of these new legislative proposals, additional steps can be taken around the parental rights’ claims.121 To be sure, this is certainly a political issue at both the state and federal level. Deep-red states are not the only ones to have relaxed child labor protections: Minnesota, New Hampshire, and New Jersey have all considered or enacted relevant legislation.122 The pragmatic steps to ensure ongoing protection of child labor take the same form as other legal and public campaigns to ensure appropriate governmental support for families. A first step is simple public awareness campaigns about the importance of school, the impact of work on children’s school performance, and the real reasons for seeking relaxation of child labor standards. One of the counterarguments to the Arkansas legislation, for example, focused on the harms of rolling back child labor protections, noting that not only would the individual child be harmed, but so would their families because they had been working rather than doing homework.123 Increased public awareness might then motivate broader opposition, such as involving parents in the effort to protect children, with parents testifying in opposition to any legislative proposals. A second, and related, step might be using parental rights claims to resist, rather than reinforce, the spread of child labor. Certainly, when states remove existing parental rights, such as 121. Id. 122. Id.; see also Mary Ann Koruth, NJ Bill Would Allow Teens to Work up to 50 Hours a Week. Here’s Why Some Oppose It, NORTHJERSEY.COM (June 30, 2022, 2:05 PM), [https://perma.cc/K5JF-BX65] (Proposed legislation would create a database of minors seeking work, without parental permission needed for minors to enroll, although parents would find out if their children had signed up; this would change a system in which parents must sign the initial application form for a minor seeking a work permit.); Sophie Nieto-Munoz, Teens in N.J. Can Work Longer Summer Hours under New Law, N.J. MONITOR (July 6, 2022, 2:12 PM), [https://perma.cc/FUY3-RS7F] (reporting on enactment of legislation and its potential impact). 123. Vrbin, supra note 90. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 280 ARKANSAS LAW REVIEW Vol. 77:2 through Arkansas’s jettisoning of the requirement of a work permit, parents might consider a legal challenge. Courts will then be confronted, explicitly, with state efforts to override parental rights and must make decisions about the comparative strengths of each. The risk is that parents will lose, but parents will be defining the terms of the debate.124 Indeed, ensuring that parents are involved in, and perhaps required to consent to, their children’s labor could build in more guardrails against exploitation while also serving as legitimate recognition and protection of parental rights.125 Of course, bans on child labor do restrict parental rights, so the appeal of loosening restrictions is to permit parents to make decisions on behalf of their children. On the other hand, the current crop of laws and their appeal to parental rights does nothing to enhance parental decision making. Instead, they rationalize the harm to minors hiding the aims of those passing laws. A third step is to ensure improved enforcement of existing federal protections.126 Under principles of pre-emption, states’ efforts to expand the use of child labor can be reined in through Department of Labor enforcement, a strategy that Iowa legislators used in opposition to new state legislative efforts. Yet at the end of 2023, the Department of Labor had only roughly 60% the number of wage and hour investigators as the agency did at its peak in 1978.127 Federal legislation or regulation could also provide increased protection. 124. See, e.g., L. W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 472, 475, 513 (6th Cir. 2023) (allowing override of parental rights’ claims concerning state ban on gender-affirming care for minors); Brandt v. Rutledge, No. 4:21CV00450 JM, 2023 WL 4073727 (E.D. Ark. June 20, 2023); Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 672 (8th Cir. 2022). 125. To be sure, parental involvement presents complex issues, as shown in debates over whether schools must reveal children’s decisions to change pronouns, or whether minors can obtain abortions or confidential access to contraception without parental awareness. In these situations, as well as with child labor, parents may well have differing interests than their children. For further discussion of the subtlety of these issues, see Ira C. Lupu, The YCentennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education, 24 J. CONTEMP. LEGAL ISSUES (forthcoming 2024). 126. The Department of Labor confirmed a record number of child labor cases in 2023. Lauren Kaori Gurley, Child Labor Violations Soared in Fiscal 2023, WASH. POST (Oct. 19, 2023, 5:20 PM), [https://perma.cc/PJ5A-KBMY] (noting that the number of cases does not necessarily indicate the total number of children employed in violation of the laws). 127. See Gerstein, supra note 1, at 5. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 281 CONCLUSION The attempt to diminish child labor protections is part of broader efforts to erode labor protections and to undermine development of a welfare state. Accordingly, efforts to preserve and strengthen these protections take their place in broader reforms to the current wage labor system, including increasing the minimum wage, protecting unions, and reforming immigration.128 128. See, e.g., Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1; NAOMI CAHN, JUNE CARBONE & NANCY LEVIT, FAIR SHAKE: WOMEN AND THE FIGHT TO BUILD A JUST ECONOMY (2024) (on the need for even broader reforms). |
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