Academic journal article Harvard Law Review

Juvenile Curfews and the Major Confusion over Minor Rights

Academic journal article Harvard Law Review

Juvenile Curfews and the Major Confusion over Minor Rights

Article excerpt

In 1976, the Supreme Court denied certiorari in Bykofsky v. Borough of Middletown, (1) the federal courts' first case involving juvenile curfews. (2) In the nearly three decades since, the federal circuits have fragmented over the constitutionality of such laws. (3) Justified on the basis that keeping children off the streets prevents them from engaging in crime or being victimized, (4) juvenile curfews forbid minors (5) to be in public at night except under special circumstances. Some argue that this restriction not only denies minors the basic freedom to be out at night with parental consent, (6) but also impinges on more fundamental aspects of liberty, such as political activism (7) and community involvement. (8) Given that juvenile curfews have become pervasive in recent years (9) and that they enjoy extraordinary popularity, (10) the stakeholders in the question of curfews' constitutionality are numerous indeed.

Faced with the overwhelming political popularity of juvenile curfews, advocates of minors' rights have attacked the ordinances in court, alleging that the freedoms they restrict are constitutionally protected rights. (11) The federal circuits are inconsistent on the proper treatment of these claims: not only do they disagree on exactly what freedoms are at issue and how fundamental they are, (12) but they also have applied varying levels of scrutiny--with different results--when determining whether those freedoms are unconstitutionally burdened. (13) Because even those circuits hostile to nonemergency juvenile curfews have not rejected them as inherently unconstitutional, (14) the question presented by this fractured doctrine is not whether juvenile curfews are constitutional, but rather, what juvenile curfews are constitutional. (15) The Fifth Circuit's 1993 ruling in Qutb v. Strauss, (16) which held that Dallas's juvenile curfew ordinance survived strict scrutiny, provided a model ordinance for other communities. Recently, however, that model has been threatened, particularly by the Second Circuit's decision in Ramos v. Town of Vernon, (17) which imposed high statistical requirements for justifying curfews. (18) Because the Supreme Court has never harmonized the circuits' discordant voices, it is difficult to hear any clear legal message.

This Note seeks to sort out the contradictory and confusing curfew doctrines enunciated by the federal circuits. It also demonstrates the weaknesses of the primary criticisms of juvenile curfews, particularly the claim that curfews should be subjected to rigorous statistical analysis. Part I briefly describes both the history of juvenile curfews and the arguments traditionally raised in opposition to such ordinances. Part II looks at Supreme Court case law regarding the rights of minors, focusing on the seminal plurality opinion in Bellotti v. Baird (19) and the various ways that federal courts of appeals have understood that decision to affect equal protection analysis. Part III argues that despite the varying approaches of the circuits, the Dallas ordinance approved by the Qutb court remains a model curfew capable of surviving constitutional challenge in most circuits. Finally, Part IV considers the ways in which criticism of the statistical bases for juvenile curfews has played out in federal courts and argues that the Second Circuit's decision in Ramos is misguided.

I. THE JUVENILE CURFEW DEBATE

A. History

Juvenile curfews have deep historical roots. (20) By the end of the nineteenth century, curfews were fairly common in America--over three thousand communities had them (21)--and the arguments surrounding them had already fallen into the patterns that persist to this day. Those in favor of curfews argued that strict parenting and traditional families were in decay, particularly in cities: children were running amok, threatening social order, and failing to mature into proper citizens. (22) Those opposed to curfews replied that most juvenile crimes occurred in daylight hours, that most children were not criminals, and that many legitimate nocturnal activities were being suppressed. …

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