Section Nine: Article 2 of the Convention on the Rights of the Child and New York State Law
Section Nine: Article 2 of the Convention on the Rights of the Child and New York State Law
Clare M. Wiseman 0 1
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1 Albany Law School
are not met because undocumented children and children with
pending asylum application are not eligible for federally-funded
food stamps. Denying children a potential source of nutrition is
contrary to the principles of CRC’s Articles 2 and 6, which require
States to ensure “to the maximum extent possible the survival and
development” of “each child within their jurisdiction” without
discrimination.753 While New York cannot offer food stamps to
undocumented children and non-immigrant visa holders in violation
of federal law, the State could offer a comparable benefit under
state law. By not doing so, New York State discriminates against
children lawfully residing in the United States and those that are
undocumented or have pending asylum applications.
by Clare M. Wiseman754
1. States Parties shall respect and ensure the rights set forth in
the present Convention to each child within their jurisdiction
without discrimination of any kind, irrespective of the child’’s or
his or her parent’’s or legal guardian’’s race, colour, sex,
language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status. 2. States
Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or
punishment on the basis of the status, activities, expressed opinions, or
beliefs of the child’’s parents, legal guardians, or family
BASIC PROVISIONS OF ARTICLE 2 OF THE CONVENTION ON THE
RIGHTS OF THE CHILD
A. Paragraph 1: Fundamental Obligation of State Parties
The first paragraph of Article 2 of the CRC outlines is a the
“fundamental obligation of State Parties”756 to adhere to the rights
in relation to the rights set forthout in the remainder of the
753 CRC, supra note 2, arts. 2, 6.
754 J.D. candidate, Albany Law School of Union University; B.A., University of San
755 CRC, supra note 2, art. 2United Nations Convention on the Rights of the Child,
Nov. 20, 1989, 28 I.L.M. 1448, art. 2 [hereinafter CRC].
756 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 19.
CRC.757 The ppreamble to the CRC, states that the:
[T]he United Nations has, in the Universal Declaration of
Human Rights and in the International Covenants on Human
Rights, proclaimed and agreed that everyone is entitled to all
the rights and freedoms set forth therein, without distinction of
any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status, Recalling that, in the Universal Declaration of
Human Rights, the United Nations has proclaimed that
childhood is entitled to special care and assistance.758
The preamble thus contains the important principle that children
should be afforded the same protections against all the protection
of non-discrimination guaranteed to adults.
Article 2 of the CRC provides a non-exclusive list of forms of
discrimination that children are to be protected against,759 namely:
“race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other
status,” as well as sexual orientation, which has been read into
Article 2 provides that the rights embodied within the CRC
apply to each child within the jurisdiction.”761 This is a catchall
phrase that asserts “that all the rights in the Convention on the
Rights of the Child must apply to all children in the State,
including visitors, refugees, children of migrant workers and those in the
Article 2 also asserts that state parties must “respect and
ensure the rights set forth” in the CRC itself.763 This is a requirement
that state parties not only protect children against discrimination
in opportunity, but must protect children against disparate
outcome caused by discrimination as well.764 Thus, state parties must
enact both negative and positive laws in order to respect and
ensure the rights set forth in Article 2. A negative law deals with
equality of opportunity; it places an obligation on the state parties
to refrain from taking certain actions because of the enumerated
basis for discrimination. A positive law deals with equality of
outcome; it places an obligation on the state parties to take certain
actions with regard to preventing discrimination, otherwise known
as affirmative action. In this context, an affirmative right can
include affirmative action, which the CRC maintains is a legitimate
form of differentiation based on the enumerated classes as long as
the aim is in accordance with the purpose of the CRC.765 The CRC
takes into account that children are in “need [of] special
consideration”766 and that state parties will need to take affirmative action
to alleviate the conditions that “cause or help to perpetuate
B. Paragraph 2: Protection Against Discrimination and Punishment
Due to Parents Affiliation or Status and Mandate of “Primary
While the first paragraph of Article 2 refers to discrimination
only in relation to a child’s enjoyment of rights in the CRC,
paragraph 2 requires action against “all forms of discrimination” and is
not confined to the issues raised by the CRC.768 The second
paragraph of Article 2 provides protection from discrimination for such
things as the parent’s criminal behavior, parent’s political beliefs,
parent’s immigration or marital status or the behavior of a
The United Nations Committee on the Rights of the Child
established that a state party must give “primary consideration” to
Article 2 of the CRC when setting its budget and allocating
resources.770 A state party must protect children from “the adverse
effects of economic policies, including the reduction of budgeting
allocations in the social sector.”771 Additionally, Article 2 must
apply “equally to private institutions and individuals as well as to the
State, and this must be reflected in legislation.”772
COMPARATIVE EXAMINATION OF THE ARTICLE 2 AND NEW YORK STATE LAWS
Overview of the Comparison Between CRC and New York State Law
New York State has a comprehensive set of non-discrimination
laws and has already codified some of the most important and
fundamental principles established by Article 2 of the CRC.773 This is
exemplified by New York State’s Human Rights Law which states
that: “the state has the responsibility to act to assure that every
individual within this state is afforded an equal opportunity to enjoy a full
and productive life.”774
There seems to be a discrepancy between the Human Rights
Law—the major source of non-discrimination law in New York
State—and the interpretive policy of the Law by its enforcement
agency, the Division of Human Rights. The actual Human Rights
Law allows for the possibility of inclusion of children within its
protections775 but the Division’s policy indicates that the opposite is
true. In several interpretative policy documents, the Division states:
“[t]he Human Rights Law protects persons age 18 or older.”776 As
discussed infra, full compliance with the CRC may require
clarification that the Human Rights Law of New York State also covers
New York State protects children as a group in other areas of
law, such as education, employment and social services law.777
However, in most cases these protections do not directly protect
children as a group, but provide indirect protection since children
make up a large portion of the population to which the law applies.
Full compliance with the CRC may require clarification that these
laws directly pertain to children.
Article 2 of the CRC emphasizes the importance of providing
not only protections for equal opportunity but adequate measures to
ensure against disparate outcomes as well.778 New York State has
en773 CRC, supra note 2, art. 2
774 N.Y. EXEC. LAW § 290(3) (McKinney 2005) (emphasis added).
775 Id. §§ 290–301 (providing a specific reference to age-based anti-discrimination
protections only in relation to credit: “[t]he provisions of this section, as they relate to
age, shall not apply to persons under the age of eighteen years.”).
776 N. Y. STATE DIV. OF HUMAN RIGHTS, AGE DISCRIMINATION, available at http://
www.dhr.state.ny.us/publications_other_publications.html (follow “Other
Publications, Age Discrimination” hyperlink) (last visited Mar. 23, 2010); see also N. Y. STATE
DIV. OF HUMAN RIGHTS, ANNUAL REPORT: FISCAL YEAR 2005-2006 16 (2006).
777 See N.Y. LAB. LAW §§ 130–145 (McKinney 2002); N.Y. EDUC. LAW §§ 3201–3234
(McKinney 2000); N.Y. SOC. SERV. LAW §§ 371–458 (McKinney 2003).
778 CRC, supra note 2, art. 2(1).
acted some significant affirmative non-discrimination measures,
especially regarding minorities and women in the specific areas of
employment.779 However, due to the definition of those qualified
for the affirmative non-discrimination measures, these measures do
not include the “child” because children are excluded from the
types of employment addressed by these laws.
Article 2 of the CRC emphasizes the importance of economic
resources being allocated towards the implementation of
non-discrimination legislation.780 The New York State Division of Human
Rights has suffered under a heavy backlog of cases due to the lack
of budgetary coordination781 and ineffective implementation of
New York State Constitution
The CRC requires that “where there is a Constitution, its
provisions must be consistent with the Convention.”783 The Bill of
Rights in the New York State Constitution makes specific
guarantees of equal protection under the law including that:
[n]o person shall, because of race, color, creed or religion, be
subjected to any discrimination in his or her civil rights by any
other person or by any firm, corporation, or institution, or by
the state or any agency or subdivision of the state.784
The New York State Constitution is supplemented by the Human
Rights Law, which protects against discrimination on the basis of
race, creed, color, national origin, sex, marital status, sexual
orientation or disability, as such terms are defined under the Human
Human Rights Law
The Human Rights Law forms a comprehensive set of
nondiscrimination laws, but does not appear to include protection of
children as a group based on their status as such. There is a
discrepancy between the Human Rights Law and the policy of the
Division of Human Rights with regard to anti-discrimination
protections afforded to children. The Human Rights Law does not
contain a specific age requirement in order for a person to fall
within the protections of the Human Rights Law,786 thus it is
possible to read the law as guaranteeing children protection on their
own merit. However, as a matter of interpretive policy, the Division
of Human Rights has stated that the “Human Rights Law protects
persons age 18 or older.”787
Although it is possible to read the Human Rights Law as
including children on their own merit, this reading is unlikely. The
Human Rights Law makes specific protections for “familial status”;
which is defined as a person who is pregnant, has a child or in the
process of acquiring legal custody of a minor child, or a child
under eighteen who is residing with a parent or legal guardian.788
Defining familial status in this way implies that children are only
protected under the Human Rights Law through the protection of
their parents or legal guardians and that children do not have
nondiscrimination protections unto themselves. The CRC requires that
state parties make specific non-discrimination protection for
children.789 In order for New York State to fully comply with the CRC,
it would need to clarify its policy position as to the
non-discriminain section 240.25 of the penal law, in the exercise thereof, by any other
person or by any firm, corporation or institution, or by the state or any
agency or subdivision of the state.).
See also N.Y. EXEC. LAW § 292 (McKinney 2005).
786 Id. § 292 (providing definitions for many key terms of the Human Rights Law
but failing to provide a definition of the term “age”); see also id. § 296-a(12) (defining
“age” as 18 years or older but only in regard to § 296-a of the Human Rights Law,
which provides non-discrimination protections in credit transactions).
787 NEW YORK STATE DIVISION OF HUMAN RIGHTS ANNUAL REPORT: FISCAL YEAR
20052006 16; see also AGE DISCRIMINATION, NEW YORK STATE DIVISION OF HUMAN RIGHTS,
available at http://www.dhr.state.ny.us/publications_other_publications.html (last
visited Apr. 14, 2009).
788 N.Y. EXEC. L. § 292 (26) (McKinney 2005).
789 CRC, supra note 2, Preamble; see also UNICEF IMPLEMENTATION HANDBOOK,
supra note 89, at 20 (providing an extract from United Nations Committee on the
Rights of the Child Guidelines for Reports to be submitted by State Parties under the
Convention); Reports should indicate whether the principle of non-discrimination is
included as a binding principle in the Constitution or in domestic legislation
specifically for children. UNICEF IMPLEMENTATION HANDBOOK, supra note 13, at 20.
tion protection of children under the Human Rights Law and in all
areas of non-discrimination.
Although the Human Rights Law has not provided children as
a group with guaranteed non-discrimination protections, but
providing protection to children through their parents, the Human
Rights Law has provided for many of the non-discrimination
requirements established by Article 2 of the CRC. The Human Rights
Law outlines remedies for the violation of any of the provisions
contained within the Human Rights Laws, including awards of
damages.790 The United Nations Committee has stipulated the
need to provide challenges to discrimination within the judicial
system.791 The United Nations Committee has also suggested that
state parties take measures to study discrimination and develop
comprehensive anti-discrimination strategies, such an “information
and awareness campaigns to challenge discriminatory attitudes and
practices.”792 The Human Rights Law accomplishes these
suggestions by requiring that the Division on Human Rights “shall
formulate policies to effectuate the purposes of this article and may make
recommendations to agencies and officers of the state or local
subdivisions of government in aid of such policies and purposes.”793
The Human Rights Law also empowers the advisory councils of the
Division of Human Rights to study the problems of discrimination
based on age, race, creed, color, national origin, sexual
orientation, military status, sex, disability or marital status and make
recommendations to advance the Division’s policies and
D. Specific Areas of Non-Discrimination Law
New York State has enacted non-discrimination laws in areas
that are particularly important to children, such as in education,
employment and social services.795
The CRC explicitly guarantees all children the right to an
education under Article 28.796 Similarly, the New York State
Constitu790 N.Y. EXEC. LAW. § 297 (McKinney 2005).
791 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 22.
792 Id. at 25
793 N.Y. EXEC. LAW L. § 294 (McKinney 2005).
794 Id. § 295(8).
795 See N.Y EDUC. LAW. § 3202 (McKinney 2006); N.Y. LAB. LAW L. §§ 130–134
(McKinney 2006); N.Y. SOC. SERV. LAW L. § 131 (McKinney 2006).
796 CRC, supra note 2, art. 28(a).
tion has taken an affirmative position on the education of children
within its jurisdiction by requiring the legislature to “provide for
the maintenance and support of a system of free common schools,
wherein all the children of this state may be educated.”797 New
York State has expanded its constitutional guarantees by enacting
the Education Law, which provides that attendance at public
schools must be available free of charge to children between the
ages of five and twenty-one798 and stipulates that the:
American ideal of equality of opportunity requires that students,
otherwise qualified, be admitted to educational institutions and
be given access to all educational programs and course operated
or provided by such institutions without regards to race, color,
sex, religion, creed, marital status, age, sexual orientation . . . or
It provides an exception for religious or denominational
educational institutions to admit students “exclusively or primarily”
based on their religion800 and an exception for independent
institutions that are established to provide education exclusively to one
sex to admit students of only that sex.801 The last provision is
notable in that New York’s allowance of separate schools for boys and
girls is typical of Article 2’s special focus on protecting the rights of
girl children against discrimination and encouragement of positive
The Education Law includes specific provisions relating to the
education of homeless children,803 Native American children,804
girl children,805 disabled children806 and children without
families.807 It protects the religious beliefs of children808 and provides
797 N.Y. CONST. art. 11 § 1.
798 N.Y EDUC. LAW L. § 3202 (McKinney 2006).
799 Id. § 313(3) (b).
800 Id. §§ 313(3)(a), 3201.
801 Id. § 313(3)(a).
802 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 27–30.
803 N.Y. EDUC. LAW. § 3209 (McKinney 2006).
804 Id. §§ 111, 4101–4119.
805 Id. § 3201-a.
806 Id. §§ 4201–4213 (codifying New York’s Special Schools and Instruction laws);
id. §§ 4401–4410-b (containing New York’s legal protections for children with
807 Id. § 3202(4) (providing that: “(a). . . cost of instruction of pupils placed in
family homes at board by a social services district or a state department or agency shall
be borne by the school district in which each such pupil resided at the time the social
services district or state department or agency assumed responsibility for the
placement, support and maintenance of such pupil. . . (b) Children cared for in free family
homes and children cared for in family homes at board, when such family homes are
actual and only residence of such children and children are not supported and
mainhealth and welfare services to children.809 The United States
Supreme Court has obliged states to provide free education to all
children within the state, including undocumented immigrants.810
Under Article 32, the CRC provides the right of children to be
protected from economic exploitation and from performance of
work that would be hazardous or interfere with education or
harmful to health or development.811 Generally, New York State laws
that address the employment of children bar children from
employment until the age of fourteen and regulate the type of
employment a child under the age of eighteen can engage in.812
These laws make specific provisions for the employment of
disabled children813 and provide limitations on the amount of hours a
child can work.814 These labor laws provide a positive
discrimination against children based on their age in order to protect them
from being exploited.
When a child is permitted to work, the general
non-discrimination laws that exist for workers in New York State do not
necessarily apply equally to the child as to his or her adult counterparts.815
The Human Rights Law protection of non-discrimination in
employment only protect those 18 years or older816 while other
employment non-discrimination laws seemingly do protect child
employees by defining employee as a “laborer working for another
for hire”817 or “any person employed for hire by an employer in
New York statutes that provide non-discrimination protections
in the workplace include laws that protect against discrimination
because of disabilities,819 sex-based wage discrimination,820
guaranteeing privacy regarding the religion or religious affiliation of a
person seeking employment821 and non-discrimination in state
3. Social Services
The CRC requires that state parties provide social insurance to
children823 and furnish parents with appropriate assistance to
facilitate the parent’s child rearing responsibilities.824 The New York
State Constitution requires that the “aid, care and support of the
needy are public concerns and shall be provided by the state”825
and the Social Service Law makes it the:
[D]uty of social services officials, insofar as funds are available
for that purpose, to provide adequately for those unable to
maintain themselves. . . They shall, whenever possible,
administer such care, treatment and service as may restore such persons
to a condition of self-support or self-care, and shall further give
such service to those liable to become destitute as may prevent
the necessity of their becoming public charges.826
The Social Service Law provides for the provision of such
services as food, shelter, temporary financial assistance, medical care,
counseling, and other services to low-income and homeless
individuals and families.827 It provides these services to “[a]ny person”
who resides in New York State for one year,828 but qualifies the
residency requirement by stating that “no person except a citizen
or an alien who has been duly naturalized as a citizen shall be
eligible for additional state payments for aged, blind and disabled
persons, family assistance, safety net assistance, services funded under
title XX of the federal social security act, or medical assistance.”829
It provides services to any eligible child830 and specifically
pro819 N.Y. CIV. RIGHTS LAW, § 40-c (McKinney 2006); N.Y. CIV. SERV. LAW, §§ 55, 55-a,
55-b, 55-c (McKinney 2006).
820 N.Y. LAB. LAW,, supra note 75, § 194.
821 N.Y. CIV. RIGHTS LAW, § 40-a (McKinney 2006).
822 N.Y. LAB. LAW, supra note 75, §§ 220-e, 239.
823 CRC, supra note 2, art. 26.
824 Id. art. 18(
825 N.Y. CONST. art. 17 § 1.
826 N.Y. SOC. SERV. LAW. § 131(1) (McKinney 2006).
827 See generally, N.Y. State Office of Temporary and Disabled Assistance, available at
www.otda.state.ny.us/main/programs.asp (last visited March 23, 2010).
828 N.Y. SOC. SERV. LAW, supra note 90, § 117(1).
829 Id. § 122(1) (providing exceptions to the citizen or naturalized alien
830 Id. § 2511.
vides services to runaway831 and homeless children,832 Native
American children,833 those involved in adoption proceedings,834
pregnant adolescents,835 illegitimate children,836 foster children837
and protection of the religious faith of children in custody of the
E. Particularly Disadvantaged and Vulnerable Groups
The United Nations Committee has expressed that state
parties “need to identify the most vulnerable and disadvantaged
children in a State”839 jurisdiction so as to address the needs of those
children with regard to discrimination.840 New York has directly
and indirectly addressed such needs by passing into law a number
of provisions affecting children who are especially vulnerable to
Alien and Refugees
The CRC has expressed its concerns over alien and refugee
children directly in Article 2 but also in the UN Committee
reports;841 it has “emphasized among general concerns about
discrimination that, for example, children of migrant workers,
nonnationals, undocumented immigrant children and children of
minorities or indigenous communities must enjoy the rights
guaranteed by the Convention without discrimination.”842
New York State’s general non-discrimination legislation
includes nationality, in its protected categories of
non-discrimination.843 Most of the specific provisions that regard non-U.S.
831 Id. §§ 44(3), 460-g, 462(
), 462-a(1), 462-b(1) (creating runaway programs in
832 Id. §§ 17(f) (providing for the education of homeless children), 62(6)
(providing for the transportation of homeless children to places of education).
833 Id. §§ 39, 473, 153.
834 Id. §§ 372-d-g, 540-458 (creating economic subsidies for adoptive children).
835 Id. § 409-i–409-n; see also id. §§ 465–465-e (codifying the Adolescent Pregnancy
Prevention and Services Act).
836 Id. §§ 132-a, 384-c.
837 Id. §§ 383-c (providing for guardianship of children in foster care); 393–393-b
(providing regulations for the quality of foster care provided to children in foster care
838 Id. § 373.
839 UNICEF IMPLEMENTATION HANDBOOK, supra note 89.
841 CRC supra note 2, art. 2(1); see also UNICEF IMPLEMENTATION HANDBOOK , supra
note 89, at 26-27.
842 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 27.
843 See N.Y. LAB. LAW §§ 130–145 (McKinney 2002); N.Y. EDUC. LAW §§ 3201–3234
(McKinney 2000); N.Y. SOC. SERV. LAW §§ 371–458 (McKinney 2003).
nationals protect persons with legal alien status, but there are
important provisions regarding undocumented immigrants.844
The United States Supreme Court has inadvertently adopted
the CRC protection of all children from discrimination in
education, including immigrants regardless of their legal status,845 by
holding that the right to free public education extends beyond
those children who are United States citizens.846 In Plyler v. Doe,847
the Court held that children illegally in the United States have the
same rights to a free public school education as American citizens
and legal aliens.848 New York State Education Law makes no
specific mention of educating all children within its borders regardless
of their status as legal residents within the state. However, New
York State does require that the Commissioner of Education
compile a “complete list giving the names, ages and destination within
the state of all alien children of school age and such other facts as
will tend to identify them,” in order to comply with the compulsory
Persons with refugee status, legal permanent resident aliens
and undocumented immigrants may be eligible to receive financial
aid for higher education.850 Students who do not have legal
immigrant status can receive financial aid for higher education if they
file an affidavit with the institution of higher education, stating that
they have or will file an application to legalize his or her immigrant
status and have either attended an approved New York State high
school or general equivalency program, have received a diploma
from such a school or program and have applied to an institute of
higher education within five years of receiving such a diploma.851
Generally, to receive public assistance for aged, blind and
disabled persons, family assistance, safety net assistance, and services
funded under Title XX of the Federal Social Security Act, or
medical assistance a person must be a citizen or a naturalized alien,
unless a person is exempt in the U.S. due to immigration status
because they are asylees, Amerasians, Cuban/Haitian, conditional
entrants, victims of trafficking, and those who have Temporary
Protected Status, lawful permanent residents, domestic violence
845 Plyler v. Doe, 457 U.S. 202 (1982).
849 N.Y. EDUC. L. § 305(9) (McKinney 2006).
850 Id. §§ 661, 355.
851 Id. § 355.
tims of U.S. citizens or lawful permanent residents, immigrants
given a suspension of deportation or cancellation of removal,
registry immigrants, individuals paroled into the United States, Native
Americans born in Canada, immigrants from territories with
special relationships with the United States, on active duty or veterans
and immediate family.852 Undocumented immigrants and
non-immigrants (those with student, medical, business or tourist status)
are only eligible for social services, in cases of emergencies,853 and
public assistance, but ineligible for aid to dependent children,
home relief or medical assistance because he or she is an
undocumented immigrant will be immediately referred to the United
States immigration and naturalization service.854 There is a special
provision for undocumented immigrants who arrived in New York
State as a result of human trafficking,855 which include such
services as “case management, emergency temporary housing, health
care, mental health counseling, drug addiction screening and
treatment, language interpretation and translation services,
English language instruction, job training and placement assistance,
post-employment services for job retention, and services to assist
the individual and any of his or her family members to establish a
permanent residence in New York state or the United States.”856
While social service workers are required to report the
undocumented immigrant status of aliens, health care workers are
not allowed to report a person’s undocumented immigrant status
to authorities when a person is seeking medical assistance857 and
hospital workers are required to provide language assistance to
persons who are unable to understand English free of charge.858
Landlords are prohibited from making threats to tenants that they
852 N.Y. SOC. SERV. LAW, supra note 826, § 122.
854 Id. § 131-k; see also id. § 122(
) (“Each social services district shall report to the
department, in accordance with regulations of the department, the name and address
and other identifying information known to it with respect to any alien known to be
unlawfully in the United States.”).
855 Id. §§ 483-aa–ee.
856 Id. § 483-bb(b).
857 THE NEW YORK IMMIGRATION COALITION, Policy Update: Federal Government Affirms
Undocumented Immigrants’ Right to Emergency Medical Care, (May 16, 2005), http://www.
thenyic.org/images/uploads/NYIC_Section1011_051605.pdf; see also THE NEW YORK
IMMIGRATION COALITION, Access to Health Care for Uninsured Immigrants, available at
http://www.thenyic.org/templates/documentFinder.asp?did=168 (last visited March
858 PUB. HEALTH LAW § 2303-s (McKinney 2006); see also A. 05301, Gen. Assem.,
Reg. Sess. (N.Y. 2007) NEW YORK STATE ASSEMBLY, 2007-2008 Regular Sessions, Bill
Number A05301, February 13, 2007, available at http://assembly.state.ny.us/leg/?bn=
A05301&sh=t (last visited March 23, 2010).
will report their immigrant status to the authorities if the tenant
complains or requests improvements or repairs, with the threat of
money damages to the landlord if he or she violates the
The major issue concerning the undocumented status of
aliens in New York State is that, even when laws provide protection
against discrimination due to such undocumented status, the
person’s status as undocumented can and often is reported to
authorities.860 This occurs in public education and social services.861 Even
when it is prohibited to disclose or makes threats of disclosing the
undocumented status of an alien there is a danger of being
“turned in” indirectly.862 The threat of deportation has the effect
of denying undocumented immigrants protections against
discrimination because they will not report discrimination to authorities if
they think they will be deported.863
2. Native American Children
The CRC has made specific mention of special need to protect
the right of indigenous people to enjoy their culture864 and the
importance of the right of education, including that of cultural
The education of Native American children in New York is
codified under the Education Law in a section entitled Indian
Schools.866 The education of Native American children residing on
reservations is under the direction of the New York State
Department of Education.867 The Education Commissioner is required to
attempt to secure the cooperation of the Indian tribes in the
education of Indian children and, in pursuit of such cooperation, must
[invite] them to assist either by appropriating their public
moneys to this object, or by setting apart lands and erecting suitable
buildings, or by furnishing labor or materials for such buildings,
or in any other way which he or they may suggest as most
effec859 REAL PROP. LAW. § 235-d (McKinney 2006); see also THE NEW YORK IMMIGRATION
COALITION, “Immigrant Housing Concerns Fact Sheet, available at http://www.
thenyic.org/templates/documentFinder.asp?did=723 (last visited March 23, 2010).
860 THE NEW YORK IMMIGRATION COALITION, supra note 857.
861 See THE NEW YORK IMMIGRATION COALITION, http://www.thenyic.org/issue.asp?
cid=75 (last visited March 23, 2010).
864 CRC, supra note 2, art. 30.
865 Id. art. 28(c).
866 N.Y. EDUC. LAW §§ 111, 4101–4119 (McKinney 2006).
867 Id. § 111.
tual for the promotion of this object.868
The Department is not required to maintain schools on Indian
reservations but can choose to do so or to contract the education of
such children out to any school district.869 The State takes
responsibility for the cost of educating Native American children attending
public school on or off a reservation.870 School attendance is
mandatory for Native American children between the ages of six
and sixteen871 and parents are required to ensure that their
children attend school872 on threat of penalty if they do not.873 The
State also provides special financial aid to Native American
children attending schools of higher education.874
The United Nations Committee has classified homeless
children as “being among the most disadvantaged and vulnerable
children”875 and has found that “strict compliance with the provisions
of the Convention on the Rights of the Child would constitute a
significant step towards solving the problems” in connection with
The New York State Department of Social Welfare, in
coordination with the Department of Education, is required “to ensure
coordination and access to education for homeless children. . . and
monitor compliance of local social services districts with such
plan.”877 The agency must provide indigent children with the
necessities required to enable the child to attend school, such as
clothing, shoes, books, food and transportation.878 A homeless
child879 is entitled to free public school education,880 including
free transportation,881 free disability education882 and the right to
choose the district in which he or she will attend school.883 These
special provisions for homeless children with regard to education
fall in line with Article 2 of the CRC’s protections against
discrimination based on status,884 especially considering the extra emphasis
the United Nations Committee has placed on the protection of
The Executive Law has made special provisions to protect
runaway and homeless children by enacting the Runaway Homeless
Youth Act.886 The Act is a conscious effort by New York State to
provide equal opportunity to homeless and runaway children and
to protect against discrimination based on their status as such.887
The Act defines a runaway youth as a minor less than eighteen
years of age, who is absent from his or her legal residence without
consent888 and as a homeless youth under twenty-one years of age,
who is without a place of shelter and in need of services.889 The Act
provides for a determination of the cause and reasons for running
away or homelessness and explanations of the youth’s legal rights
and options, as well as assistance to youths and their families,
including food, shelter, clothing, medical care, education and
Another specific provision for homeless children is the
Employment Training program, which provides employment training
to disadvantaged children between the ages of fourteen and
twenty-one whether they are in or out of school.891 It also provides
that out of school youth programs employment training will be
made available to disadvantaged children.892
4. Adopted Children
Article 21 of the CRC protects the system of adoption within
state party’s jurisdiction893 and Article 2 of the CRC protects
against discrimination based on status such as adoption894 or
discrimination within the adoption system.895 New York State provides
subsidies—to be paid to the person to whom the child has been
placed896—for adoptive children to “promote permanency of
family status through adoption for children who might not otherwise
derive the benefits of that status.”897 By providing for these
subsidies, the State has attempted:
[T]o eliminate, or at the very least substantially reduce,
unnecessary and inappropriate long-term foster care situations which
have proven financially burdensome to the state and, more
importantly, inimical to the best interests of many children who
have not been placed for adoption because of emotional or
physical handicaps, age or other factors, in accordance with
regulations of the department.898
The effects of an adoption are that the birth parents
relinquish all parental rights and responsibilities,899 the adoptive child’s
right to inherit from the birth parents is terminated900 and the
adoptive parents and the adoptive child are given all legal rights
and responsibilities of a parent/child relationship, including the
right to inherit.901
5. Illegitimate Children
The New York State laws that protect the legitimacy of
children and protect against discrimination of children based on their
illegitimate status fall in line with specific concerns that the United
Nations Committee has regarding discrimination that is written
into law, for example a child’s status legitimacy, and the need to
“challenge discrimination on a particular ground.”902
The laws that protect illegitimate children—a term which
refers to such children born out of wedlock or non-marital
children—include laws dealing with the rights and responsibilities of
the parents and the right of the child to inherit from the
The laws that protect the legitimacy of the child provide that if
894 Id. art. 2.
896 N.Y. SOC. SERV. LAW § 143(1)(a).
897 Id. § 450.
898 Id. § 450.
899 N.Y. DOM. REL. LAW § 117(1)(a) (McKinney 2006).
900 Id. § 117(1)(b).
901 Id. § 117(1)(c); N.Y. EST. POWERS & TRUSTS L. § 2-1.3 (McKinney 2006).
902 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 23.
903 N.Y. FAM. CT. ACT § 417 (McKinney 2006); N.Y. DOM. REL. LAW §§ 24, 73, 175.
the parents of a child born out of wedlock are subsequently
married, the child is subsequently considered the legitimate child of
both parents;904 divorce of a child’s parents will not affect the
legitimacy of the child;905 and a child conceived through artificial
insemination to a married women is deemed the legitimate natural
child of the husband and wife if both have given written consent to
The laws that pertain to illegitimate children protect them by
maintaining that each parent can be held liable for the support of
the child born out of wedlock, including economic support.907 If
the paternity of a child is contested, a court can order a genetic
marker or DNA test.908 If the test indicates the putative father’s
paternity then he is presumed to be the father and will be liable for
supporting the child.909 If the parents neglect or are unable to
support a child, regardless of the parents’ marital status, the
government must provide for the support of the child.910
Under the New York State Estates Powers and Trusts Law,
nonmarital children are the legitimate children of the mother for
inheritance purposes911 but not of the putative father unless certain
actions have been taken to prove paternity during the life of the
putative father.912 An agreement between the mother and putative
father for the putative father to support the non-marital child,
outside of a court order or a legal acknowledgment of paternity,
does not qualify the non-marital child to inherit from the father.913
Under the Insurance Law, no employer or health insurer can deny
enrollment of a child under his or her parent’s plan because the
child was born out of wedlock.914
6. Girl Children
The United Nations Committee has made the discrimination
of girl children a special focus of Article 2 of the CRC.915 The
United Nations Committee views girls as a special group entitled to
special protection and requires that state parties take measures to
insure that girls are not merely seen as “as daughters, sisters, wives
or mothers”916 but also that they “should fully enjoy fundamental
rights inherent to their human dignity.”917 The United Nations
Committee has stated that “[w]ithin the larger movement for the
realization of women’s rights, history had clearly shown that it was
essential to focus on the girl child in order to break down the cycle
of harmful traditions and prejudices against women.”918 To this
effect, the United Nations Committee has suggested that state parties
should give special attention to implementing measures that
provide girls with “effective access to education”919 and reform
legislation regarding minimum age of marriage for girls.920
There are several New York laws that comport with the
principles expressed in the CRC regarding girl children. The anti-sex
discrimination statement contained in the Education Law is one
example.921 This law is gender neutral and does not specifically
address girl children, but still provides a positive protection for girl
children because it requires all educational institutions to provide
equal education to both boys and girls, while also allowing an
exception for independent institutions that are established to provide
education exclusively to one sex to admit students of only that
sex.922 Another New York State law that addresses the United
Nations Committee’s special protection of girl children is the
prevention of and protection for adolescent pregnancy.923 These laws
provides that there is no minimum age of consent for medical,
dental, health or hospital services for prenatal care, to any
pregnant persons or in a “person of any age without consent of legal
guardian” when an emergency requires immediate treatment and
an attempt to get such consent would delay treatment.924
New York may fail, however, to meet the UN Committee’s
requirement to reform legislation regarding minimum age of
marriage and sexual consent for girls.925 The New York State set the
minimum age to marriage at 18.926 However, children under 18
may marry with the consent of a parent or legal guardian927 and
children under 16 may marry with the consent of a parent or other
legal guardian and a court.928 New York sets the age of sexual
consent at seventeen, except when a child under seventeen is
married.929 Because girl children are more likely to marry under the
age of eighteen than boy children, these laws have a negative
impact on girl children.
7. Laws that Protect Children from Discrimination or
Punishment Due to Parental Status
Paragraph two of Article 2 of the CRC requires that state
parties take action to protect against the punishment of children due
to the beliefs or status of their parents or legal guardians.930 In
addition to the Human Rights Law, one of the most protective
areas of New York State law requires special protection against
discrimination of children, through their parents, in the area of
insurance coverage.931 It requires that no insurance company can
refuse to issue a policy or cancel or decline to renew an existing
policy because of discrimination based on race, color, creed,
national origin, disability932 (including a past history of mental
disability933 or any type of cancer),934 sex and marital status,935 status of
926 N.Y. DOM. REL. LAW §§ 7, 15(
) (McKinney 2009).
927 Id. §§ 7, 15(
928 Id. § 15(3).
929 N.Y. PENAL LAW §§ 130.05, 130.25 (McKinney 2006).
930 CRC, supra note 2, at art. 2(
931 N.Y. INS. LAW § 2608-a (prohibiting discrimination in health insurance
enrollment against children through their parents).
932 Id. §§ 2606, 4224 (providing that no life insurance company may refuse to
insure or make “unfair discrimination between individuals of the same class and of
equal expectation of life” in amount of premiums, rate, dividends, or other benefits of
the policy or refuse to insure, continue insurance or limit the amount of an individual
solely “because of the physical or mental disability, impairment or disease, or prior
history thereof, of the insured or potential insured, except where the refusal,
limitation or rate differential is permitted by law or regulation and is based on sound
actuarial principles or is related to actual or reasonably anticipated experience.”); id.
§ 3434; 2613 (establishing that insurers cannot cancel, refusing to issue or renew a
motor vehicle insurance policy to a person with a disability, nor may an insurer refuse
to issue a “policy of life or non-canceled disability insurance, cancel or decline to
renew” because the individual has cancer if diagnosis occurred three years prior to
application “unless based on sound underwriting and actuarial principles reasonably
related to actual or anticipated loss experience.”).
933 Id. at § 2608.
934 Id. at § 2613.
935 Id. at § 2607.
the child936 or status as a victim of domestic violence.937
The laws that protect children based on the status of their
parents or guardians as women or because of family or minority
status938 provide working mothers with the right to express breast
milk939 and breast feed in public,940 prevents discrimination
against families with children in housing and mobile homes941 and
protects families from leases or lease renewals that discriminate
based on the fact that they have or will have children.942
Affirmative Provisions of the CRC and New York Laws
Article 2 of the CRC asserts that state parties must “respect and
ensure the rights set forth” in the CRC itself.943 This is a
requirement that state parties not only provide the child with protection
against discrimination in opportunity but must also protect against
disparate outcomes caused by discrimination. In its interpretation
of this requirement, the Committee stated that: “[t]he Committee
on the Rights of the Child recognizes that the reflection of the
principle of non-discrimination in the law, while fundamental to
implementation, is not itself sufficient; other strategies are needed
to implement the principle, in particular to challenge traditional
and other discriminatory attitudes and customs.”944 These other
strategies include affirmative action and ensuring that
non-discrimination laws and protections are implemented effectively by state
parties.945 In effect, Article 2 of the CRC requires a dual pronged
approach by its state parties to combat discrimination. Article 2 of
the CRC requires that state parties enact measures that address the
936 Id. at § 2608-a (“(i) the child was born out of wedlock, (ii) the child is not
claimed as a dependent on the parent’s federal income tax return, or (iii) the child
does not reside with the parent or in the insurer’s service area.”).
937 Id. at § 2612.
938 N.Y. EXEC. LAW § 312 (McKinney 2005): (8) (defining a “minority group
member” as a “United States citizen or permanent resident alien who is and can
demonstrate membership in one of the following groups: (a) Black persons having origins in
any of the Black African racial groups; (b) Hispanic persons of Mexican, Puerto
Rican, Dominican, Cuban, Central or South American of either Indian or Hispanic
origin, regardless of race; (c) Native American or Alaskan native persons having origins
in any of the original peoples of North America; (d) Asian and Pacific Islander
persons having origins in any of the Far East countries, South East Asia, the Indian
subcontinent or the Pacific Islands.”).
939 N.Y. LAB. LAW § 206-c.
940 N.Y. CIV. RIGHTS LAW §79-e.
941 N.Y. REAL PROP. LAW § 236 (McKinney 2006).
942 Id. § 237.
943 CRC, supra note 2, at art. 2(1).
944 UNICEF IMPLEMENTATION HANDBOOK, supra note 89 at 23-24.
945 Id. at 23.
source of discrimination by requiring equality of opportunity
without regard to “race, colour, sex, language, religion, political or
other opinion, national, ethnic or social origin, property, disability,
birth or other status.”946 Article 2 also requires state parties to
enact measures that address the inequalities of outcome that have
become embedded in state parties’ social structure due to historical
discrimination,947 such as the statically low number of women and
minorities employed.948 In other words, Article 2 of the CRC
encourages state parties to enact affirmative action legislation as well
as non-discrimination legislation, as one way to implement the
requirement to “ensure” non-discrimination.949
New York State Human Rights Law states that the:
[S] tate has the responsibility to act to assure that every
individual within this state is afforded an equal opportunity to enjoy a
full and productive life and that the failure to provide such
equal opportunity, whether because of discrimination,
prejudice, intolerance or inadequate education, training,
housing or health care not only threatens the rights and proper
privileges of its inhabitants but menaces the institutions and
foundation of a free democratic state.950
New York law plainly establishes that it has a responsibility to
provide equal opportunity to “every individual”951 within the state,
however it has not so plainly established its responsibility to impose
equality of outcome as required by Article 2 of the CRC.952 Even
though New York State has not taken a positive policy position on
affirmative action it has implemented significant affirmative
The most important affirmative action measure regarding
children under New York law is the employment of minors, which
discriminates against children based on their age.953 This is a
legitimate form of differentiation or affirmative action, which is in
line with the requirements of Article 32 of the CRC.954 The
provi946 CRC, supra note 2, at art. 2(1).
947 Id.; see also , UNICEF IMPLEMENTATION HANDBOOK, supra note 13, at 24. (United
Nations Children’s Fund 2002) (noting “in particular to challenge traditional and
other discriminatory attitudes and practices.”).
948 See N.Y. EXEC. LAW, art 15-a.
949 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 22-24.
950 N.Y. EXEC. LAW § 290 (McKinney 2005).
952 CRC, supra note 2, at art. 2 (stating that the state parties shall “respect and
ensure the rights” of the child “without discrimination of any kind”).
953 N.Y. LAB. LAW §§ 130–133 (McKinney 2002).
954 CRC supra note 2, at art. 32.
sions of Article 32 of the CRC require that the child be “protected
from economic exploitation and from performing any work that is
likely to be hazardous or to interfere with the child’s education, or
to be harmful to the child’s health or physical, mental, spiritual,
moral or social development.”955 New York’s age-based
employment laws also comport with Article 28 of the CRC— making
education mandatory956—in that they give primacy to a child’s
education over a child’s employment and Article 31 of the CRC,
which affirms a child’s right to rest and leisure.957
Another relevant area of New York law which can be viewed as
a type of affirmative action is the Employment Training
program.958 This program provides employment training to
disadvantaged children between the ages of fourteen and twenty-one
whether they are in or out of school.959 The authorizing laws
creating the Employment Training program further provide that out of
school youth programs will give preference to homeless youths or
adolescent parents.960 In order to participate in this program,
employment and training providers must include an educational
component961 that is approved by the New York State Department of
Education.962 This is in accordance with the CRC’s aim of
providing education to all children, contained in Article 28 of the
CRC,963 as well as Article 2’s specific references to assisting
homeless and girl children.964 The Employment Training Program also
requires that an annual evaluation of the stated objectives of the
Program be submitted to the governor and legislature.965 The
report must identify the outcome of the program and the program’s
effectiveness.966 This is similar to the UN Committee’s suggestion
that state parties take measures to study discrimination against
children occurring within their territories and develop comprehensive
strategies to combat it.967 Examples of such strategies include
“information and awareness-raising campaigns. . . to challenge
956 Id. at art. 28.
957 Id. at art. 31.
958 N.Y. LAB. LAW § 42 (McKinney 2002).
960 Id. at § 42(14).
961 Id. at § 42(10).
962 Id. § 42(9).
963 CRC, supra note 2, at art. 28.
964 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 27-29; 31-32.
965 N.Y. LAB. LAW § 42(15) (McKinney 2002).
967 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 25.
criminatory attitudes and practices.”968
Another New York law that embodies the affirmative action
provisions relating to children is the Teenage Service Act.969 The
enacting legislation for this Act explained that it was created:
[due to] the rising incidence of adolescent pregnancy and
teenage parenthood. . . As a result of early pregnancy, the
attainment of needed education and job skills is often curtailed.
Coupled with the added responsibilities accompanying
parenthood, these young families are often locked into long
term public dependency. Studies have confirmed that up to
sixty percent of the current aid to families with dependent
children cases in New York State are headed by mothers who were
teenagers when they gave birth to their first child. In fact, the
predominant cause of welfare dependency in New York State
may well be due to the result of teenage pregnancy and
adolescent motherhood. The objective of this title is to increase the
potential of these youths to become financially independent by
helping the teenager to complete her education, and receive
sufficient manpower skills for participation in the labor
The Act requires that the New York Department of Social Services
provide financial support, counseling services and other support
services to strengthen the family and provide opportunities for
financial independence to teenagers and their children.971 The
Social Services Laws “stress the development and expansion”972 of
prevention programs to curtail adolescent pregnancy and “to deal
more effectively with the consequences associated with adolescent
parenting.”973 These laws are in line with Article 2 of the CRC’s
requirements that state parties take special measure to protect girls
from discrimination, as well, as take affirmative measure to protect
against disparate outcome;974 especially with regard to “problems
associated early pregnancy”.975
One of the most innovative pieces of New York law that
indirectly protects children from discrimination based on parental
status is the Displaced Homemakers Act, which provides educational
969 N.Y. SOC. SERV. LAW § 409-i (McKinney 2003).
970 N.Y. SOC. SERV. LAW § 409-i(
) (McKinney 2003).
972 Id. § 465-a(
)(a) (repealed 2008).
974 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 31.
975 Committee on the Rights of the Child, January 21, 1995, The Girl Child, ¶ 286,
available at http://www.ohchr.org/EN/HRBodies/CRC/Documents/Recommanda
training for displaced homemakers.976 A “displaced homemaker” is
defined as an individual who:
(a) has worked in the home, providing unpaid household
services for family members; (b) is not gainfully employed; (c) has
had, or would have difficulty in securing employment; and (d)
has been dependent on the income of another family member
but is no longer supported by such income, or has been
dependent on federal assistance but is no longer eligible for such
assistance, or is supported as the parent of minor children by
government assistance or spousal support.977
This is an important protection for children because it provides
their parents with a means to escape domestic violence by reducing
the parents’ concerns that escaping such a situation would be
economically impossible or impracticable. These legal protections are
in line with Article 39 of the CRC—protecting children from
abuse—as well as with Article 2 of the CRC’s non-discrimination
for parental status provisions.978
The expansive non-discrimination principles expressed in
Article 2 are found to some extent in both positive and negative laws
of New York State, many of which are innovative and provide
additional security for children—especially those in vulnerable
situations. However, explicit coverage of children under state statute
varies upon an examination of specific areas of law, such as
education, employment, and social services. Moreover, Article 2’s
concern about the multiple forms of discrimination that children in
particular face does not appear to overlap with the primary
nondiscrimination framework within New York law, the Human Rights
Law, since executive interpretation of New York’s otherwise
comprehensive Human Rights Law does not expressly contemplate
coverage of individuals under the age of 18. Should the United States
adopt the CRC, New York and other state governments subject to
CRC jurisdiction should reexamine whether their approaches are
in line with the approaches of Article 2’s non-discrimination
779 See N.Y. EXEC . LAW § 296 (McKinney 2005 ).
780 UNICEF IMPLEMENTATION HANDBOOK, supra note 89 , at 25-26.
781 COMPTROLLER ALAN G. HEVESI , A REPORT BY THE NEW YORK STATE OFFICE OF THE STATE COMPTROLLER, NEW YORK STATE DIVISION OF HUMAN RIGHTS INTERNAL CONTROLS OVER FINANCIAL OPERATIONS, 2003-S-55, OFFICE OF THE NEW YORK STATE COMPTROLLER , 17 , available at http://osc.state.ny.us/audits/allaudits/093005/03s55.pdf (last visited Apr . 14 , 2009 ).
782 N. Y. STATE DIV. OF HUMAN RIGHTS, N. Y. STATE OFFICE OF THE STATE COMPTROLLER , INTERNAL CONTROLS OVER FINANCIAL OPERATIONS: 2003-S-55 17 ( 2005 ), http:// osc.state.ny.us/audits/allaudits/093005/03s55.pdf.
783 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 23
784 N.Y. CONST. art. 1 , § 11
785 N.Y. CIV. RIGHTS LAW § 40-c ( McKinney 1992 ) (providing that: 1. All persons within the jurisdiction of this state shall be entitled to the equal protection of the laws of this state or any subdivision thereof .
2. No person shall, because of race, creed, color, national origin, sex, marital status, sexual orientation or disability, as such term is defined in section two hundred ninety-two of the executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined