Dwyer, James G. (1998). Religious Schools v. Children's Rights. Reviewed by John F. Covaleskie

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.