Excerpted From: Charisa Smith, When COVID Capitalism Silences Children, 71 University of Kansas Law Review 553 (May, 2023) (170 Footnotes) (Full Document)


CharisaKiyôSmithThis Article scrutinizes the impact of COVID Capitalist policies in the U.S. through the unique lens of youth and family empowerment, illuminating both the interconnectedness of family members--contrary to the damaging, prevailing legal framework--and the need to re-focus public policy priorities. In fact, COVID Capitalism silences children by simultaneously imperiling their socioeconomic wellbeing, repressing their civic engagement, and diminishing their future prospects. The term “COVID Capitalism” is utilized by a variety of scholars, advocates and policy-makers to “designate[] the ways capitalism and the novel coronavirus alter and amplify one another.” While the term has no uniform definition or application, most who employ the term recognize that COVID exacerbates existing oppression and inequality (both amplifying and re-fueling existing capitalist structures); that COVID has led to profits, bailouts, and deregulation which spread the damage of unfettered capitalism (especially through subsidies and exorbitant incentives for pharmaceuticals); and that capitalist extraction and urbanization increase exposure to new viruses. COVID Capitalism also denotes the brutal nature of prioritization in capitalist states (governments), wherein profit-making takes priority over life-making endeavors like hospital funding and expansion, food distribution, and wage compensation from state funds –––– even amidst a public health crisis where questions of economy and social welfare are thrust together in an unprecedented way. One of the most obvious examples of prioritizing profit-making over life-making is state, local, and federal governments' penchant for restarting “business as usual” as soon as possible despite high infection rates or other disconcerting public health situations. COVID Capitalism has also normalized supply chain breakdowns and price gouging, along with magnified “vulture capitalism”--a phenomenon where predatory investors, often coined “distressed debt specialists,” take advantage of bankruptcy laws to restructure or acquire imperiled companies while stripping employees of benefits or offloading them to the state, then flip their corporate acquisition at a profit. Indeed, if the essential feature of capitalism is the profit motive, and private actors own and control property in accordance with self-interests, then a pandemic jeopardizes capitalism's dependence upon a healthy, able-bodied workforce just as failures to bolster a tattered social safety net assail capitalism's overall sustainability.

Some experts also discuss the degree to which COVID Capitalism is borne from the longstanding U.S. system of racial capitalism, which historically oppresses marginalized children while also centering ableism. According to Black feminist sociologist Whitney N. Laster Pirtle, “[r]acism and capitalism mutually construct harmful social conditions that fundamentally shape COVID-19 disease inequities” to ultimately exacerbate poor health outcomes; multiple risk factors for low-income communities, people of color, and women; shape access to resources; and replicate historical patterns of inequities within pandemics. According to Pirtle, interventions should thus “address social inequality to achieve health equity.” Even commentators who refuse to condemn racial capitalism concede the “lesson of Covid capitalism” is that “the free market alone comes up short in solving enormous problems,” and “the government” must therefore “guide the economy and act as the ultimate absorber of risk.”

Part II of this Article describes the legal and sociocultural landscape upon which COVID Capitalism has appeared, explaining the child-parent-state constitutional framework and its damaging focus on contested rights and children's immaturity. The empathy gap is also briefly discussed as essential context. Part III then delineates the various ways that COVID Capitalism harms and silences children, in terms of the precarity that children and families have been thrust into, as well as state efforts to diminish the social safety net and repress free expression and civic engagement. Part III concludes by briefly highlighting the resilience and remarkable impact of contemporary youth activists who nevertheless reject status quo systems and frameworks in the COVID era. Part IV then recommends a way forward through several paths that are briefly described, yet worthy of increasing attention: (1) rejection and reversal of COVID Capitalist policy priorities; (2) divestment from harmful systems (including the family policing system and prison industrial complex) and direct reinvestment in children and families; (3) the reorienting of status quo approaches to youth towards an empowerment and capacity-building paradigm, including specific advances like increased youth development programming, youth voting, and intergenerationally collaborative activism; and (4) expansion of the few successful yet short-lived economic interventions that brought families true support during the pandemic.

A. Terminology and Parameters

A thorough discussion of the pitfalls of the family policing system (also called the family regulation system or the child welfare system) and the carceral system are beyond the scope of this article, and yet this work is part of a broad interdisciplinary, intercultural effort to demand abolition of these oppressive systems in favor of re-investment in communities and community empowerment. Herein, the terms child, youth, minor, young person, and juvenile will be used interchangeably to describe individuals under age eighteen, as eighteen is the most commonly utilized, presumptive age of majority in the U.S. Indeed, states and the federal government place a plethora of limitations on individuals below age eighteen, including (and not limited to) exclusion from voting; curtailed speech, privacy, and association rights; school attendance requirements; restricted access to alcohol, tobacco, and firearms; and restriction from signing contracts or accessing funds. This paper acknowledges ongoing scholarship and precedent regarding youth rights and human development, while past work of this author directly addresses such issues. Although this work aspires to elevate and support youth empowerment, it is inherently imperfect for a lack of direct youth input in the writing, and with an admission that the author's own perspective is not that of a member of the centered population (youth). Future scholarship, advocacy, and collaboration on this topic can and should more directly involve youth, while also employing diverse modes of communication that reach a much wider audience.

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Although the medical and public health impacts of the COVID-19 pandemic have now waned, states continue resorting to COVID Capitalist measures that endanger and repress children at a crucial time in their lives. Yet, myriad opportunities for transformation exist--both the transformation of prevailing legal frameworks and that of material conditions for children and families. This work recommends several promising pathways to change while arguing that empowered children themselves hold the key to toppling racial capitalism and increased sociopolitical repression. Future research should strive to elevate the voices of marginalized youth and families themselves, while recognizing both the necessity and inherent shortcomings of legal problem-solving.

Charisa Smith is an Associate Professor at the City University of New York (CUNY) School of Law and has a J.D. from Yale Law School, an A.B. from Harvard & Radcliffe Colleges, and an LL.M. from the University of Wisconsin School of Law.