Children’s Equality Rights: Every Child’s Right to Develop to their Full Capacity

74 Pages Posted: 19 Apr 2019 Last revised: 14 Apr 2020

See all articles by Nancy E. Dowd

Nancy E. Dowd

University of Florida Levin College of Law

Date Written: 2019


Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them.

This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights.

Among the most critical of those positive rights is the right to developmental equality: the right of every child to maximize their developmental potential. Equality of development is a universal right of every child based on the principles of equality, equity and dignity at the core of our equal protection jurisprudence. To make this claim, the Article unearths existing hierarchies and identifies the parameters of children’s equality that is constitutionally meaningful. It then grounds a proposal for children’s constitutional rights, including a positive right to developmental equality, in existing constitutional doctrine.

Suggested Citation

Dowd, Nancy Elizabeth, Children’s Equality Rights: Every Child’s Right to Develop to their Full Capacity (2019). 41 Cardozo Law Review 1367 (2020), University of Florida Levin College of Law Research Paper No. 19-34, Available at SSRN: or

Nancy Elizabeth Dowd (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0930 (Phone)
352-392-3005 (Fax)


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