Section Nine: Article 2 of the Convention on the Rights of the Child and New York State Law

City University of New York Law Review, Dec 2017

Clare M. Wiseman

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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 0 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA 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 members.”755 I. 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 Francisco. 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. 2009] 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 2.760 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 State illegally.”762 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 discrimination.”767 B. Paragraph 2: Protection Against Discrimination and Punishment Due to Parents Affiliation or Status and Mandate of “Primary Consideration” 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 sibling.769 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 children. 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 statutory standards.782 B. 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 Rights Law.785 2009] 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 procedures.794 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 1. Education 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). 2009] 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 national origin.799 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 discrimination.802 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 handicapping conditions). 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 2. Employment 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 any employment.”818 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 contracts.822 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( 2 ). 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 requirement). 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 State.838 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 discrimination. 1. 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( 2 ), 462-a(1), 462-b(1) (creating runaway programs in New York). 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 settings). 838 Id. § 373. 839 UNICEF IMPLEMENTATION HANDBOOK, supra note 89. 840 Id. 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). 2009] 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 educational requirements.849 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 vic844 Id. 845 Plyler v. Doe, 457 U.S. 202 (1982). 846 Id. 847 Id. 848 Id. 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. 853 Id. 854 Id. § 131-k; see also id. § 122( 2 ) (“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 23, 2010). 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). 2009] 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 provision.859 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 identity.865 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). 862 Id. 863 Id. 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 3. Homeless Children 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 homeless children.876 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 homeless children.885 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 counseling.890 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 parents.903 The laws that protect the legitimacy of the child provide that if 894 Id. art. 2. 895 Id. 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. 2009] 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 insemination.906 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( 2 ) (McKinney 2009). 927 Id. §§ 7, 15( 2 ). 928 Id. § 15(3). 929 N.Y. PENAL LAW §§ 130.05, 130.25 (McKinney 2006). 930 CRC, supra note 2, at art. 2( 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 F. 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. 2009] 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 measures. 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). 951 Id. 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 dis955 Id. 956 Id. at art. 28. 957 Id. at art. 31. 958 N.Y. LAB. LAW § 42 (McKinney 2002). 959 Id. 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). 966 Id. 967 UNICEF IMPLEMENTATION HANDBOOK, supra note 89, at 25. 2009] 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 market.”970 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 968 Id. 969 N.Y. SOC. SERV. LAW § 409-i (McKinney 2003). 970 N.Y. SOC. SERV. LAW § 409-i( 2 ) (McKinney 2003). 971 Id. 972 Id. § 465-a( 2 )(a) (repealed 2008). 973 Id. 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 tions/girl.pdf. 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 obligations. 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


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Clare M. Wiseman. Section Nine: Article 2 of the Convention on the Rights of the Child and New York State Law, City University of New York Law Review, 2009,