This review has been accessed  times since January 1, 2005
Dwyer, James G. (1998). Religious Schools v. Children's
Rights. Ithaca: Cornell University Press
$29.95
Pp. xii + 204 ISBN 0-8014-3426-2.
Reviewed by John F. Covaleskie
Northern Michigan University
Taken all in all, James Dwyer's
Religious Schools v
Children's Rights is probably not the worst book I have ever
read. It is, however, a very bad book. Beginning with
philosophically incoherent conceptions of childhood, First
Amendment rights, autonomy, and citizenship, Dwyer winds up
arguing for government regulation of religious education. In
reaching his conclusions, he bases part of his argument in an odd
version of Rawlsian liberalism.
First of all, as to rights, Dwyer sees rights as
disconnected from all the contingent realities of social life:
our First Amendment rights (hereinafter, simply "rights"), he
argues, are properly to be understood as unrelated to civic
responsibilities or the exercise of personal autonomy. Given
this release from reality, he can argue that children come fully
invested with First Amendment rights, and that for the state to
allow parents to choose certain kinds of religious schools for
their children's education is a violation of the child's rights.
The proscribed religions, predictably enough, are those with
strong communal and traditional strands—Roman Catholicism and
Protestant Fundamentalism are his primary targets, but he also
includes the Amish, Hasidic Jews, and Islam as examples of
religious communities that should be denied full freedom of
practice. His position is that as long as the adults in the
community can worship as they please, their freedom is not
abridged. Freedom of practice does not include, on Dwyer's
reading, the right to rear children within the community. To the
contrary, to allow this would be to violate the children's
presumed rights of autonomous self-determination.
This presumes a notion of
autonomy that is fundamentally
incoherent. On the one hand, for children to hold such rights in
fact would require an autonomy that children do not have. For
autonomy requires precisely the sense of future that no child
has. Dwyer attempts to evade that reality by claiming that what
he is really protecting is the child's future autonomy;
children reared within conservative and traditional religious
communities are unable as adults to exercise their freedom of
choice, stunted as they are by virtue of their childhood
experience. In reality, what he is protecting, of course, is
only his preferred version of the good life, one in which
individuality is more important than community. He is certainly
entitled to prefer this image of a good society over competing
ones, but that does not mean that he can enforce its
instantiation with the power of the state.
Making sense of this
argument requires a sense of childhood
that presumes that full rights are invested in the child as a
full member of the civil society, which, of course they are not.
Hence: "I have assumed ... that children are persons and that in
a moral sense they are equal persons - that is, that they should
receive equal consideration in decisions about basic principles
governing society and in legislative judgments that affect their
lives" (p. 121). However, we have ample evidence that this is
not the case. It is not just that children's First Amendment
rights that are attenuated; the nature of childhood is to be
dependent on parents and other adults in many ways, from the
clothes they wear to the food they eat to the time they go to
bed. Only in the face of clear and immanent danger is the state
empowered to interpose itself between the parent and the child.
And, to give Dwyer his due, he does try to establish that this is
the case, arguing that religiously conservative schools cause
just the sort of damage that would allow—
indeed, require—state intervention.
Religious Schools v
Children's Rights offers the
argument that religious schools should not be allowed to exist
unless the doctrines they teach have first been approved by
government religious censors. Dwyer does not put it quite that
way, but that is the force of his proposal. More precisely, he
argues that parents should not be allowed to send their children
to religious schools whose doctrinal teaching is significantly
different from the Rawlsian liberalism which he prefers. Note
that this position differs markedly from one that separates
active government support for religious schools from permissive
endorsement of them. The former position—that religious
schools ought not to receive government funding through vouchers
—is one for which I and many other less radical liberals than
Dwyer can find reason to support. Dwyer's position, by contrast,
is that religious schools should not be allowed to exist.
His argument proceeds along
two tracks: First he argues that
conservative religious traditions are harmful to children;
second, he argues that children's rights preclude parents from
choosing the sort of religious upbringing their children should
have. He is primarily opposed to Christian Fundamentalists and
the most conservative versions of Catholicism (though he is a bit
more tolerant of Jesuits), but he also attacks Hasidic Jews and
Islam in passing.
To those of us who find
Dwyer's thesis troubling, he
explains that our problem is that we have an unduly adult-
centered view of rights, assuming that parents' religious freedom
as protected by the First Amendment includes the right to raise
their children within their religious community. Arguing from a
radical liberal perspective, Dwyer claims that, even for
children, membership in community should be voluntary, and that
the state has not only the right but the obligation to intervene
when parents act in violation of that right. He attempts to
ground this argument in a Rawlsian version of liberal democracy.
In laying out his basic
premises, he argues that state
intervention in religious education should take place to protect
the child from harm. But he never establishes either the nature
of the harm or the threshold necessary to trigger state
intervention. The forms of the harm seem to lie in the fact that
conservative religious groups are likely to have doctrines that
Dwyer sees as narrow-minded and intolerant (a criticism that
reeks of irony, coming from a man seeking to shut down the
schools of major religious denominations).
He also claims that the
conservative religious traditions
offend liberal orthodoxy by teaching the subordination of women.
Forget for a moment that this is hardly the way that these
groups— indeed it is not the way that women in these groups—
would put it. Their views on these matters do not need to be
taken seriously, as they are, ex hypothesi, unworthy of
attention since they are not free, having been brainwashed by
fundamentalist religious teachings. Such schools are also guilty
of imposing excessive physical and intellectual restraint on
children in the course of their education. I should emphasize
again that Dwyer's argument is not just that these problems
should prevent us from funding religious schools through
vouchers; his argument is the more sweeping one that parents
should not be allowed to send their children to schools whose
religious teachings and pedagogical techniques do not gain state
certification. He leaves unclear whether children should be
protected from such schools only if they protest being sent
there, or if the schools of non-state-certified religions should
be banned outright.
On the face of things, Dwyer
comes nowhere close to
establishing the necessary prima facie case that such
schools are comparatively harmful to children. The work
of the American Association of University Women has shown the
persistent negative effects of public schools on girls. Kozol's
work has shown that public schools in many poverty areas are
truly terrible places to be. One wonders what Dwyer's reaction
would be if his "reasoning" were applied in such conditions:
Since inner city public schools are such demonstrably terrible
places that large numbers of non-Catholic parents send their
children to Catholic schools, the harm being done to children
left in the public schools would justify the state requiring all
parents to send their children to the Catholic schools.
Further, the large number of
adults raised in such
traditions who choose to live in them, as well as the large
number of citizens who enter them as adults, provides strong
prima facie evidence contrary to Dwyer's thesis: while
these traditions do foster a different set of virtues and social
attitudes from Rawlsian liberalism, adults of both genders find
such lifestyles rich and worthy. The argument that they are
harmful to the individuals who are members is simply and totally
unsustainable, and, in Dwyer's rendering, is not seriously
developed beyond assertion and anecdote. What these religious
communities threaten is not the well-being of the individuals who
are members, but the maximally independent lifestyle preferred by
Dwyer. But that sort of preference is just what our
Constitutional system is designed to prevent, which is why Dwyer
tries, unsuccessfully, to show that the system he does not prefer
is i>harmful.
His next move is to root his
argument in what he claims is a
Rawlsian position that children's right to religious liberty
supercedes their parents' right to guide their religious
education. This is necessary, since for his project to succeed,
he must turn the First Amendment on its head, reading it to
authorize government restrictions on religious education. There
are two barriers to surmount in making this argument, and Dwyer
clears neither of them. The first is that Rawls'ss view of
society, while defensible and reasonable, is one among many
different views of the good life, and one that has been brought
into serious question by people such as Sandel. That is, the
defense of Rawlsian liberalism from the Original Position is
itself a contestable view of the good life, and as such is not
entitled to support of the neutral state. Liberal
neutrality requires that the state does in fact remain neutral
between defensible versions of the good life, which is just what
Dwyer does not want it to. While it may well be the case that
the state must act from a stance of liberal neutrality (as it
must certainly act from some stance), it hardly follows that the
state is thereby empowered to shut down privately supported
schools that are based in a different stance.
But, and perhaps more damaging
to Dwyer's case, is the fact
that his reading of Rawls is seriously distorted, or at the
least, very idiosyncratic. Dwyer's argument from Rawls is this:
since, in the Original Position, we would know that we were
destined to be children, we would opt for those social
arrangements that would maximize the freedom that we would have
as children. But that claim is itself parasitic on two
notions: (1) that children's claims to religious liberty
supersede parents' rights to guide the moral and religious
development of their children, and (2) that, as adults, children
raised in religious communities would agree that their upbringing
was harmful to them. Since the first part of the argument
depends on our accepting the Rawlsian claims, it constitutes a
short and vicious circle. The second part is never addressed.
What Dwyer's argument in favor of children's rights presumes as a
hidden and undefended premise is that children are competent to
make good choices about their future lives. This is not so is
obvious to anyone who spends much time around children, though it
is probably unprovable to anyone who does not already know it.
The notion of children's
rights is dependent to some extent
on the notion that children are able to make choices about their
future. But that is precisely what they, because of their age
and lack of experience, are unable to do. A child may clearly
prefer to spend Sunday morning in bed, or to not go to religious
ceremonies in school, or to attend a school with more lax
discipline than the sort provided in the religious school to
which Dwyer objects. The critical question is whether it is in
the child's long-term interests to have those wishes realized.
And this is the issue Dwyer seeks to finesse by his assertion
that such schools are harmful to children. But, as pointed out
above, by failing in any sort of comparative analysis, this
argument amounts to little more than a statement of Dwyer's
preferences, which he wants to enact into law. It would be
interesting to ask adults reared within different traditions how
they feel about the aftermath of their upbringing. As it is, the
anecdotes that Dwyer offers about harm could easily be matched by
harm done to students in public schools (see, for example,
Kozol's Savage Inequalities or Orenstein's
SchoolGirls). The harm done by the schools described by
Kozol does not justify requiring all parents to enroll their
children in the nearest Catholic school, though many inner city
parents, many of them non-Catholic, have done exactly that.
Further, the theoretical base
of Dwyer's argument is, at
best, shaky. To base his argument in Rawls is to seriously
distort Rawls, even if one accepts Rawls theses in general. Let
me briefly examine the consequences of this. First of all, there
are many strong and solid critiques of Rawls, which fall into two
categories. First, his theory can be seen as an incoherent
Platonism, making logically unsustainable leaps from hypotheses
about entities very unlike us to conclusions about how we ought
to live our lives. Second, the fact that reasonable people
dissent so strongly from Rawls points out that Rawls'ss view of a
good social life is convincing just to the extent that one
previously agrees with Rawls. This makes it one version of a
good life, not the one that government has the right to impose on
all.
But more to the point, there
is good reason to doubt Dwyer's
reading of Rawls. To the extent that one accepts Rawls'ss
account of things, his power comes from the premise that there
really is no need to "vote" in the Original Position. All
entities would feel the same on the issues susceptible to
settlement behind the veil of ignorance—any one entity would
echo the decisions of any other entity. But Dwyer makes clear
that is not the case here: we would, he tells us, choose to limit
parental authority in the Original Position because we know that
we will all be children at one point in our lives. However,
unless he can first establish his thesis that adults reared in
these traditions will, with good reason and unarguably,
agree that their upbringing was harmful, then Dwyer might just as
cogently argue that entities in the Original Position who know
that they will begin life as children will favor the government
protecting them from being made to eat their spinach or go to bed
at a parentally dictated time. That is, we might well agree that
children would prefer not to grow up under the constraints of
traditional religious observation and education. It does not
follow that the adults those children become will join in the
assent. In fact, the empirical evidence is quite the contrary
and suggests that Rawls'ss analysis from the Original Position
would quite strongly go in the direction opposite to Dwyer's.
Finally, of course, it should be the case that, if Rawlsian
liberalism were found to support such egregious interference by
the state in the private life of the family, the proper response
would not be to activate such intrusions; it would be to add that
fact to the reasons to reject Rawlsian liberalism.
The bottom line for
Dwyer is this: it is not the pedagogy of
these schools to which he ultimately objects, but their religious
beliefs and teachings. With the exception of religious dogma,
there are public schools whose climate is very much like the
religious schools Dwyer attacks. Indeed, many inner city
academies and charter schools are consciously attempting to
recreate the climate to be found in traditional Catholic schools.
It is the religion itself against which Dwyer wants to enlist
the power of the state.
There are more failings
of logic, evidence, and fact than
can possibly be covered in a review shorter than the book itself.
Finally, however, the book collapses under the sheer incoherence
of the central notion, viz., that children are the sort of fully
autonomous people who are capable of deep integrity. This is the
lynchpin of his argument: that children should be able to make
their own decisions about the religious tradition (if any) within
which they will be raised. In order to make this point, he
argues from what he calls the " ... one fixed point -- the
principle that no one is entitled to control the life of another
person and that rights protect only self-determination and
individual integrity" (p. 151). But he seems not even to be
aware of the extent to which this argument undercuts his overall
project. For this "fixed point" is precisely that the sorts of
rights of self-determination are to be exercised within the
context of "individual integrity." And it is exactly the sort of
personal integrity— wholeness— that children lack. It is
important to recall throughout this book that we are in fact
talking of children. The real question before the reader of this
argument is simple: is the parent or the state to be the one to
decide within which religious tradition a child should be reared.
And it is well to recall that
Dwyer's is not the reasonable
position that the education provided by the state should be
neutral on the question of religious truth. Instead, he wishes
to see the parents denied the right to choose the tradition
within which the child is to be reared. Indeed, he denies that
parents have any rights at all in any areas affecting their
children's upbringing: "It is the state that confers on parents
the rights to control certain child-rearing matters, to the
exclusion of all other persons, private or public, who might wish
to exercise such control" (45). This is a breathtaking claim
from someone who is approaching the question from a contractarian
position, which is usually aimed at limiting state power, not
interposing it between parent and child in the absence of any
demonstrable harm (a characterization to which Dwyer would
object).
Seeking to establish an
argument from analogy, he discusses
the right of the state to intervene in medical situations where
children's lives are in imminent and immediate danger of death.
"It is a mistake ... to understand these situations as asking who
is in a better position to know what is best for the child; the
question is whether the parents' religious beliefs should
override secular beliefs about what is best for children" (p.
60). His analogy is that, just as the state has the power to
require parents to allow medical treatment in certain
circumstances (narrowly defined), so too the state has the power
to forbid those same parents to rear their children within
certain religious traditions.
His point here is actually
fairly subtle: the cases
affirming the child's right to medical care, even against the
opposition of the parents, are not cases that purport to rule on
the truth of the religious claims of, for example, Christian
Scientists. Rather, the state rules merely that it is concerned
with the physical, not the spiritual, welfare of the child.
However cleverly argued, this is an analogy that will not bear
much examination. The parents' position in such cases is
twofold: (1) medical treatment will endanger the child's soul and
(2) the immortal soul is more important than the mortal body,
which will eventually die in any event. The decision of the
court is based on the fact that, in the face of the evidence that
the court will consider, the parents are incorrect in at least
one of their propositions. Though Dwyer tries to reorient our
attention, the courts are, in these cases most certainly ruling
on the truth of the parents' religious beliefs, and ruling that
they are false. It is indeed the state's authority to rule on
religious truth, which Dwyer argues needs to be expanded so that
it governs not only medical treatment in situations where death
is imminent but also governs the totality of the child's
education.
As it stands now, the social
fact is that all of us stand
either within or without some religious tradition when making the
decision about how, as adults, to lead our spiritual lives.
Dwyer's project is to make sure that all of us in the future
stand outside of those traditions of which he disapproves.
And we must be clear here: he and those who share his views are
to be the ultimate judges of what is acceptable. No one who has
chosen to live within the constraints of religious tradition and
community can be trusted to offer testimony on the value of such
a life and choice: by choosing to live within a proscribed
tradition, one proves (on Dwyer's view) one's inability to make
reasoned choices. It is from such people that Dwyer wishes to
protect children. But this is incoherent and self-contradictory
liberalism, if we take it seriously. For a society to put
Dwyer's proposal into practice would be to abandon liberal choice
totally: Given an upbringing in Dwyer's "liberal" state, one
would already hold as unarguable a notion of "truth" that would
preclude making such a choice. The child would grow up even less
free than one reared in the most conservative religious tradition
is now, for, if Dwyer were to have his way, there would be no
contending visions of the good life left.
But common sense suggests
that Dwyer gives at once too much
credit to children's ability for free choice and too little to
the general resilience of the human spirit. On the one hand, he
wants to give children, as children, a sort of autonomy they
neither can nor should in fact have. At the same time, however,
he seriously underestimates the ability of adults to make choices
that transcend their upbringing. By some reports, the majority
of cradle Catholics reject their religious upbringing at some
point in their lives, suggesting that there is the ability to do
so. On the other hand, the majority of them return to the
practice of their childhood faith, presumably in a more mature
and developed way—the ways of the adult having put aside the
ways of childhood. In a more secular vein, how else can one
explain the fact that the Eisenhower generation of conformity and
obedience was also the Woodstock generation of sex, drugs, and
rock and roll? For better or worse, it is the fate of the young
to call the wisdom of their elders into question. Especially in
a society so filled with competing voices, to think that the
state must shut down schools with religious doctrines inimical to
Dwyer's form of radical liberalism is to be not even wrong; it is
to have lost touch with both common sense and civility.
To summarize, Dwyer begins
with the stereotype of the
traditionally religious as mouth-breathing, knuckle dragging,
child-abusing, joyless troglodytes. He simply ignores the fact
that many such people live fully human lives, filled with the
sort of joy, beauty, and value that makes any life rich. He
justifies ignoring the complexity of their lives on the grounds
that religious conservatives are mouth-breathing,
knuckle-dragging, child-abusing, joyless troglodytes, and their
testimony is therefore untrustworthy. From there he creates the
fiction of children as autonomous citizens with full
Constitutional protections, not from the government but from
their parents. This enables him to twist the First Amendment,
designed to keep the government out of the lives of citizens,
into a tool to prevent parents from guiding the moral and
religious development of their children.
What Dwyer must finally
ignore is the fact that a child
reared as a Rawlsian liberal will have as much difficulty in
entering an Amish community as a child reared as a good Amish
child will have in leaving that same community. Neither is free;
each is a product of a cultural
tradition, between which the state is currently, and properly,
neutral.
In short, Religious Schools
v Children's Rights is a
very bad book, one whose main virtue is that it reminds us of the
real value of the First Amendment: it protects religious practice
and other forms of speech and social life from fanatics who have
found the truth and want to impose it on the rest of us. The
book also serves as an important reminder that liberalism can
itself be illiberal—a threat to true freedom.
About the Reviewer
John F. Covaleskie
John F. Covaleskie is an Associate Professor of Education at
Northern Michigan University, Marquette, MI 49855. He holds a
Ph.D. in Philosophy of Education from Syracuse University. His
research interests include alternative education, the social
purposes of education, and moral
education/character formation. He is on the editorial board of
the
Education Policy Analysis Archives.
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