Dwyer, James G. (1998). Religious Schools v. Children's Rights. Reviewed by Jeanne Marie Morefield

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.