This review has been accessed  times since August 25, 1998
Dwyer, James G. (1998). Religious Schools v. Children's
Rights. Ithaca: Cornell University Press.
Pp. xii + 204
$29.95
ISBN 0-8014-3426-2.
Reviewed by Jeanne Marie Morefield & Paul Apostolidis
Whitman
College
August 25, 1998
Liberal political organizations
engaged in the "culture
wars" with the Christian right often describe their opponents as
"extremists." This label rings true when one reviews recent
battles over the censorship of public school curricula and
library holdings. "Extremist" seems an appropriate term to
characterize, for example, the Christian right-authored 1992
platform of the Washington State Republican Party, which
condemned the inculcation of "witchcraft" in public schools, or
the infamous ballot initiative sponsored by the Oregon Citizens
Alliance (OCA) in 1992 that denounced homosexuality as "abnormal,
wrong, unnatural and perverse" and would have forbidden Oregon
schools from offering any instruction or counseling that might in
any way "promote, encourage, or facilitate homosexuality,
pedophilia, sadism, or masochism" (Appleton and Francis 1997,
171; Diamond 1995, 297; Lunch 1997, 155). Such proposals seem
blatantly to contradict core liberal values of free thought, free
expression, and the toleration of diverse viewpoints and
lifestyles.
Sometimes, however,
liberals' enthusiasm for a more tolerant
polity can ironically work to the benefit of their opponents. As
James G. Dwyer argues in his provocative new book, Religious
Schools v. Children's Rights, Protestant-fundamentalist and
Catholic conservatives have preserved religious schools' near-total
exemption from government regulation by drawing upon a
well-intentioned but misguided tradition of a certain sort of
toleration. Through an excess of toleration for parents' desires
to pass on their religious traditions to their children, Dwyer
contends, liberals have overlooked the need to extend similar
respect to the children themselves.
Religious Schools
v. Children's Rights calls upon
legal analysis and political theory to argue for a more child-
centered approach to educational policy. The content and methods
of instruction in religious schools, Dwyer shows, sharply
circumscribe the capacities for critical thinking, the breadth of
knowledge, and the development of self-esteem for children in
these schools. But the federal and state governments presently
refuse to intervene to remedy these circumstances, as they are
statutorily obligated to do in the case of public schools, out of
regard for the supposed "right" of parents to have their children
educated within a religious context unregulated by secular
authorities. Dwyer demonstrates that the concept of "parental
rights" has no more solid grounding in legal reasoning than the
appeal to cultural tradition, and moreover lacks a philosophical
foundation in liberal political theory. Nor can arguments
premised upon minority cultures' "rights" to self-determination
and survival justify the exemption of religious schools from
government regulation. Rather, according to Dwyer, the
preservation of children's rights as individuals to equal liberty
and equal opportunity should fundamentally orient public policy
in education. Changing focus from parental rights to children's
rights would legitimize much more extensive regulation of
religious schools and transform children from the mere chattel of
their parents into true individuals in whose best interests the
state is constrained to act.
Dwyer provides an
exceptionally clear and thorough
refutation of the idea of parents' rights in prose that is at
once precise in its logic and compassionately evocative of the
scandalous predicament of children in religious schools--indeed,
of all children under the current regime of legal
precedent. He shows convincingly that the notion that any person
can have a "right" to compel another human being to think or act
in a particular way, a notion that is axiomatic for the concept
of parental rights, is literally without analogy in any other
domain of the law. And the alternative he proposes, that
parenting be conceived of as a privilege and a responsibility but
not a right, would, if reflected in public policy, doubtless
foster the development of greater individual freedom and richer
parent-child relationships, as Dwyer suggests.
The book is not
without certain problems. Dwyer's initial
demonstration that common pedagogies in religious schools demean
and oppress children, harming them in ways that are unequivocally
severe and enduring, could be more persuasive. Indeed, the
argument as a whole would be stronger if it had grappled more
directly with historical issues of several kinds. Some recent
court decisions suggest that state interventions on behalf of
children's "best interests" might have distinctly illiberal
consequences, manifesting liberalism's time-honored ambivalence
toward the family. In addition, counterintuitive symmetries
between the harmful aspects of religious education and recent
economic trends indicate that the barriers to implementing a new
regime of children's rights may be even more formidable than
Dwyer imagines. We also wish that Dwyer had given greater
consideration to the more immediate political dynamics of
organizing support for the regulation of religious schools, in
particular the need to enlist Catholic endorsement of any serious
Democratic policy initiative along these lines. Nevertheless,
these points at which the argument could stand further
development do not detract significantly from its overall
persuasiveness and timeliness.
Dwyer's original
contribution in Religious Schools v.
Children's Rights is to formulate a consistently and
rigorously liberal perspective on children's education in
general, and in particular on education in religious schools.
Thus the first chapter draws upon the empirical research of
others to establish that religious schools harm children
intellectually, socially, and emotionally. The practices to
which Dwyer points are disturbing and provide initially
compelling grounds for taking up the issue of government
regulation, which is the main focus of the subsequent chapters.
Intellectually, Dwyer argues (mincing no words), students in
religious schools suffer "educational deprivation." (p. 27).
Fundamentalist children, in particular, may complete their
educational journeys without ever gaining exposure to writings
and ideas conflicting with fundamentalist dogma, including "basic
and accepted concepts, issues and knowledge" needed to succeed in
higher education. (p. 31). Moreover, fundamentalist schooling
fosters intolerance toward others who are culturally different
and therefore impedes children's capacities to develop mutually
respectful and satisfying social relationships. Whereas it is
common to assume that intolerance is a bad thing for the person
not being tolerated, Dwyer here rather ingeniously points out
that learning to be intolerant itself amounts to being harmed.
The socially detrimental consequences of fundamentalist education
are especially severe for girls, who not only are told directly
that obedience to God demands their submission to men but also
experience exclusion from school activities such as certain
sports and student government. Catholic schools, too, receive
chastisement from Dwyer's pen. Here, however, the damage to
children appears to be of a more subtle, psychological character.
Many children in these schools (though especially girls) fail to
develop proper self-esteem due to a variety of factors ranging
from the inculcation of a sense of deep personal sinfulness, to
the inordinate degree of deference to (and even fear of)
authority demanded, to the stifling of sexual expression. Of
course, those who matriculate in fundamentalist institutions
hardly escape these influences.
Dwyer thus provides
ample empirical grounds to warrant an
investigation of the liberal principles upon which government
regulation of religious schools might conceivably be based.
However, Dwyer tends to evoke a caricature of the destructive
environments in fundamentalist and Catholic schools, which at
once undermines and is superfluous to his argument. As Dwyer
himself acknowledges, empirical research on religious schools is
limited in quantity, prone to major gaps, and dated; and more
research along these lines is greatly needed. Above all, there
are no usable data on Catholic schools for the period after the
early 1980s, so the descriptions of everyday life for Catholic
school children are often twenty years old or more. In addition,
Dwyer himself recognizes throughout the book that Catholic
schools already come much closer to complying with mainstream
educational standards than fundamentalist schools. This suggests
that perhaps the institutional focus for the theoretical
discussion to follow should be on fundamentalist schools
(including schools run by Catholic fundamentalists) rather than
all religious schools. Dwyer's overextended criticism of
religious schooling, additionally, is bound to alienate readers
who do not already share the author's commitment to liberalism.
Still, Dwyer conducts a thorough and systematic appraisal of the
information that exists, and what he finds is of the utmost
importance to his argument. Dwyer also allows that the
atmosphere in religious schools might not be quite so toxic as
most of the chapter implies: he concludes by arguing, correctly,
that just one instance of harm should suffice to put the issue of
state regulation onto the table.
This issue has been
assiduously kept off the table, as Dwyer
shows in the second chapter, because federal and state courts
have repeatedly failed to give any consideration to children's
rights in cases concerning religious education. Rather, in a
series of decisions constituting an enduring body of precedent,
the courts have codified the notion of parental rights and used
it to justify the exemption of religious schools from regulation.
Dwyer appropriately focuses on the US Supreme Court's 1972
decision in Wisconsin v. Yoder, although he reviews an
impressive variety of judicial decisions. Yoder affirmed
the right of Amish parents to prevent their children from
attending school after the age of 16. In Yoder, the Court
ruled that the free exercise of religious faith, protected by the
First Amendment, includes the right to control other individuals
in ways that affect their temporal (rather than just spiritual)
well-being, if those individuals are one's children. The only
competing principle offered by the Justices to this parental
right was the interest of the state and society as a whole in
ensuring that children grow up capable of fulfilling the legally
required duties of citizenship. Children's rights and the best
interests of children had no part in the judicial reasoning in
Yoder, or in related cases that set the stage for or subsequently
qualified the Yoder decision.
What has been missing
from the reasoning of the courts,
according to Dwyer, is nothing less than respect for children as
morally equal persons. Here we reach the theoretical core of
Dwyer's argument. Dwyer points out that "[o]utside the context
of child rearing, the law and public morality categorically
reject the notion that any individual is ever entitled to
control the life of another person, free from outside
interference, no matter how intimate the relationship between
them" (p. 63). On what moral-philosophical grounds, then, could
this manifest anomaly be justified? This part of Religious
Schools v. Children's Rights truly excels in its judicious,
systematic consideration and refutation of the possible routes to
legitimize the notion of parental rights. Neither children's
interests, nor parents' interests, nor the interests of society,
Dwyer argues, can provide adequate foundations for ascribing to
parents the "right" to exercise arbitrary control over their
children's lives. Here Dwyer shows that, for several reasons,
the seemingly liberal hope that granting this right to parents
will foster cultural diversity is misplaced and likely to
generate perverse effects. Cultural pluralism, Dwyer
persuasively argues, only yields diversity and democracy when the
clash of conflicting ideas is allowed--not when unfashionable
ideas are kept on life support, as it were, safely sequestered
from confrontation with the mainstream. Recourses to a notion of
a minority community's "right" to self-determination, as Dwyer
demonstrates through critiques of Kukathas and Kymlicka, offer no
more promising grounds than does the idea of parents' rights for
those who would defend religious schools' exemptions. The
problem with all of these approaches is that they support
instrumental attitudes toward children on the part of the state,
parents, and minority communities alike, and fail to display
proper respect for children as individuals.
Even if children
are being harmed in religious schools,
however, and even if no supposed rights of parents, the state, or
minority communities can justify this mistreatment, is the state
responsible for the harm these children suffer? Additionally, is
the state responsible for intervening to prevent such harm?
Dwyer answers "yes" to both of these questions, rooting his
argument in the principle of equal treatment under the law, more
precisely, the duty of the state to "treat similarly situated
people similarly" (p. 123). Children in religious schools and
those in public schools are indeed "similarly situated" inasmuch
as both groups have need of a high-quality education and
protection from harmful treatment by their educators. Of course,
Dwyer acknowledges (deftly averting libertarian criticisms of the
Hayekian variety), precisely equal treatment of all individuals
under the law is a panacea unrealizable and probably undesirable
in practice. But when the state treats "similarly situated"
individuals differently, it must be subject to "heightened
scrutiny." That is, it must justify its actions according to
"exceedingly persuasive" reasons, balancing competing interests
impartially though in a way that reflects strenuous efforts to
consider the interests of groups whose demands are usually
subordinated within or excluded from the public policy calculus.
Dwyer shows that the exemption of religious schools from
government regulation resoundingly fails this test. The state's
actual motive for this policy--supporting parents' interests in
religious freedom--simply dismisses out of hand the interests
of their children. Meanwhile, other hypothetical justifications
such as the preservation of family ties and children's religious
liberty interests turn out to lack the empirical and logical
mettle to satisfy the standards of "heightened scrutiny." In
sum, the state indeed bears responsibility for religious schools'
deprivation of "the most basic right of children in these
schools--the right to formal equality," and is obligated to correct
this situation. (p. 147)
The final stage of
Dwyer's argument specifies the
educational practices that are detrimental to children's equality
and that provide substantive grounds for state intervention.
Dwyer borrows his theoretical framework for determining when the
state ought to intervene to preserve equality from John Rawls.
From the standpoint of the "original position," or a perspective
ignorant of one's actual interests, the values of equal liberty
and equal opportunity would lead any rational person to endorse
the regulation of religious schools to prevent practices that
infringe upon these values. Here Dwyer reiterates the catalogue
of harms developed in the first chapter and finds that each would
trigger regulatory action on the basis of the Rawlsian approach.
Might this not effectively mean the abolition of any
distinctively religious form of education? "No," answers Dwyer;
it would simply eliminate those aspects of religious education
that "systematically violate the rights of children," and this
should be "cause for celebration." (p. 180). Likewise, Dwyer
dismisses as a shibboleth the fear that an overly intrusive state
would trample upon religious liberties if any regulation were
permitted. For free exercise rights are simply not at stake
here--only the rights of children to have their temporal interests
secured by the state.
It should be clear
to the reader by now that we find much to
recommend in Religious Schools v. Children's Rights.
Nevertheless, this compact book would be even better if it had
devoted more consideration to the politics of instituting the
kinds of reforms Dwyer desires. Admittedly, such matters could
legitimately be said to lie outside the purview of Dwyer's task,
and would not necessarily impact the substance of Dwyer's
theoretical argument. But Dwyer is candid about his desire for
actual and far-reaching changes in policy, changes that
necessitate thinking about political strategy in light of the
historical conditions in which liberalism has imperfectly shaped
the actions of the state. Dwyer himself initiates an exploration
of historical liberalism by analyzing the trajectory of
court decisions concerning religious schools' exemption from
regulation. Expanding the scope of this inquiry to encompass
additional institutions of the state, civil society, and the
family would enrich this analysis and clarify the political
conditions of possibility for legal recognition of children's
rights.
Although he does not
address the issue in detail, Dwyer
gives the impression that were the state to be motivated by a
concern for the best interests of children, it would always
produce policies consistent with liberal values. Recent court
decisions, however, have indicated that policies enacted in the
name of children's best interests may not only controvert
liberalism but even reflect precisely those fundamentalist values
Dwyer thinks would be rendered powerless by a new emphasis on
children's rights. In the as yet unchallenged 1995 ruling in
Bottoms v. Bottoms, for instance, the Virginia Supreme
Court denied a lesbian mother custody of her son for the sole
reason that exposure to the mother's sexuality was supposedly at
odds with the child's best interest. Justice A. Christian
Compton expressed the slim majority's definition of this "best
interest" when he argued that "living daily under conditions
stemming from active lesbianism practiced in the home may impose
a burden on a child by reason of the 'social condemnation'
attached to such an arrangement" (Reske, 1995, p. 28). Here, a
government action based on children's rights is no more in
harmony with a liberal valuation of tolerance than one based on
parents' rights. Clearly, then, granting precedence to
children's rights offers no quick fix to liberalism's
contradictions.
Beyond this, however,
it is important to ask: why is a
professed concern with the individual rights of children linked
specifically, in Bottoms, to discrimination against sexual
minorities? The answer isn't simply the intolerance of some
individuals within a generally liberal society (including a
number of well-placed judges) who collectively generate a time-
lag on the consistent application of liberal principles. Rather,
it has to do with liberalism's enduring ambivalence toward the
family. Historically, liberal states have had to deal with the
problem of explaining how and why certain people belong to the
national community while others are excluded from it. They have
conventionally solved this problem through appeals to an organic
and transcendent ideal of the nuclear, heterosexual family, which
encapsulates the identity of the nation. (The United States is
no exception to this rule. The Gulf War was fought by American
families, as the military maneuvers of men in the desert
were symbolically linked to the yellow ribbons proudly displayed
by their wives, mothers, and daughters. Welfare reforms were
enacted in 1996 for the sake of the traditional family's
preservation and supposed self-sufficiency, according to federal
officials.) This nation-making ideal of the family at once
supplements and contradicts the liberal realm of law, with its
respect for equality and individual rights. The point here is
that implementing Dwyer's reforms would require more than making
liberalism true to itself. It would also mean confronting the
broader historical circumstances that produce inconsistencies and
gaps within liberal theory and practice, particularly as these
concern the family.
There is another
important sense in which efforts to bring
about a sea change in the status of children's rights within
legal reasoning and public policy may face more profound and
obdurate barriers than Dwyer imagines. Dwyer has a good deal at
stake in the proposition that fundamentalist schools prepare
children badly for successful and satisfying lives in the
mainstream of American society. But he overlooks many of the
ways that such schooling actually, disturbingly, prepares
students quite effectively for certain roles in the American
mainstream that are functionally essential given current trends
in the political economy. Since the 1970s the area of highest
job growth has been in the service sector, where working
conditions commonly include low wages, few if any benefits, a
lack of employment security, and the suppression of union
activity. Most service jobs thus can hardly be said to place a
premium on creativity, independent thinking, and high self-
esteem, especially on the part of women who disproportionately
occupy these positions and for whom Dwyer considers religious
education to be the most detrimental. The implication, again, is
that the roots nourishing current policies regarding religious
schools may run more deeply and may be more intricately entwined
with basic structures of American society than Religious
Schools v. Children's Rights leads us to assume.
In terms of more
immediate political considerations, Dwyer
could have said more about how a viable coalition might be built
behind the reforms he advocates. In this regard, it is
singularly unfortunate that Dwyer lumps together Catholics and
fundamentalists since such reforms could only conceivably succeed
under the leadership of the Democratic party, for which Catholic
support in Congress and at the polls is usually critical. Once
more, it strikes us that the most appropriate targets for Dwyer's
criticisms are not so much religious schools in general as
fundamentalist schools specifically. This is so both because of
the significant empirical differences between conditions in
Catholic and fundamentalist schools, and because of the realities
of national policy-making. To be sure, Dwyer addresses the need
to develop effective political coalitions when he justly calls
civil liberties' and women's advocacy groups to task for ignoring
the plight of children in religious schools. This is a promising
beginning to an analysis of the interest group and party dynamics
behind the present policy regime, but it is still only a
beginning. Further research should pursue these matters more
extensively.
The surpassing merit
of Religious Schools v. Children's
Rights remains its careful and sure navigation of the complex
issues involved in debunking the notion of parents' rights and
establishing a coherent and defensible concept of children's
rights. Dwyer also challenges us to promote the rights of
children in a host of policy areas beyond the realm of education,
in an era when those rights are being increasingly denigrated.
Arguably, respect for children's rights to equal liberty and
equal opportunity would have resulted in different outcomes in
the recent debates over federal and state welfare policy, and
would significantly alter the fate of Medicaid, Social Security,
and other social programs for which major revisions are currently
under consideration. In addition, taking Dwyer's recommendations
regarding the educational rights of children seriously seems the
very least society can do at a time when the cries have
multiplied for the trial and punishment of children as adults.
We thus join Dwyer in eager anticipation of the day when "the
legal foundation"--and, we would add, the ideological, economic,
and political foundations--"on which the institution of
religious schooling in its present form now rests will begin to
crumble" (p. 182).
References
Appleton, Andrew M. and Daniel Francis. (1997). Washington:
Mobilizing for Victory. In God at the Grass Roots 1996: The
Christian Right in the American Elections, Mark J. Rozell and
Clyde Wilcox (Eds.). Lanham, MD: Rowman & Littlefield. Pp. 169-
85.
Diamond, Sara. (1995). Roads to Dominion: Right-Wing
Movements and Political Power in the United States. New York:
Guilford Press.
Lunch, William M. (1997). Oregon: The Flood Tide Recedes. In
God at the Grass Roots 1996: The Christian Right in the
American Elections, Mark J. Rozell and Clyde Wilcox (Eds.).
Lanham, MD: Rowman & Littlefield. Pp. 153-68.
Reske, Henry J. (1995). Lesbianism at Center of Custody
Dispute: Va. Supreme Court denies mom's petition to raise her son
in gay environment. ABA Journal, 81 (July), 28.
About the Reviewers
Jeanne Marie Morefield is a doctoral candidate in the Department
of Government at Cornell University and a research associate in
the Department of Politics at Whitman College in Walla Walla,
Washington. She is writing a dissertation on liberalism, the
family, and the intellectual foundations of international
relations theory. Paul Apostolidis teaches political theory and
U.S. politics at Whitman College and is the author of Stations of
the Cross: Adorno and the Negative Dialectics of Christian Right
Radio, forthcoming from Duke University Press. His research
examines the politics of Christian right popular culture in light
of critical theory. He and Jeanne Marie Morefield are the
parents of a one year-old daughter, Anna, whom they plan to send
to public school.
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