Taking Children’s Interests Seriously

by Martha Albertson Fineman

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This is a chapter from What Is Right For Children: The Competing Paradigms of Religion and Human Rights, M.A. Fineman and K. Worthington Eds. (Ashgate 2009). It explores the implications of the fact that schools have become one of the battlegrounds in American culture wars and parental rights are entangled with religious freedom. Children’s independent interest in education and the obligations the state has to children as individuals are overwhelmed in discussions focused on validating parental rights over their children. Religious beliefs are often offered as justification for removing children from secular public schools, allowing parents to place them in private religious academies or home schooling situations. Any policy pertaining to the education of children should require a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. This chapter concludes that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children.

Taking Children’s Interests Seriously
Martha Albertson Fineman

The importance of religion in American culture has been increasingly recognized in recent years. From the rise of the evangelical vote in American politics to the emphasis placed on exporting religious ideology overseas, religion occupies a privileged seat in American culture. However, the rise of the religious paradigm in global politics has not detracted from the importance placed on religion within the family. Schools have become the battleground where culture wars over the appropriate role of religion are currently being waged (Carter, 2001). Indeed, religion figures prominently into ongoing debates over the education of children, from parental choice in private schools to parental rights to home school their children. Parents often cite religious beliefs as a justification for removing their children from secular public schools. However, the growth of the religious model of education necessarily involves trades offs and jeopardizes other competing models, including an education policy that places the child’s interests at the forefront.

Any policy pertaining to the education of children requires a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. Perhaps it is evidence of our inability to rise above binary thinking, but what tends to happen in balancing discussions is a kind of either/or thinking, with the child as a “prize” rhetorically shuttled back and forth between the competing rights holders—the parents and the rival state. The independent interests of the child, if recognized at all, are submerged as we slip into a consideration of the competing claims of authority over children made on behalf of parent and state.

It is not surprising that the child tends to disappear as an independent focus in the discussions about rights and authority. The very existence of the child presents a dilemma for the liberal theorist concerned with the individual and preserving autonomy and choice. The child is clearly an individual, but one who is not fully actualized or capable of autonomous decision making. Children are dependent in many ways—economically, emotionally, and often, physically. We are uncomfortable with the idea of children, even adolescents, exercising unsupervised “choice,” and we structure legal and social relationships so that someone is empowered to act for them and in their interest.

In our system, the family (headed by the parent) is the social institution to which children with their dependency are referred. The family is designated as “private” and thus distinguished from the public and political realms, which are appropriately subjected to policy making in the liberal tradition. Secured within the private family, the dependent child becomes the primary responsibility of the parent. This conceptualization renders most considerations of the child independent of the family (parent) inappropriate because they are potentially adversarial. In most cases, the family is presumed to function appropriately, and the child, invisible within the private sphere, can conveniently be ignored in fashioning public policy.

Of course, the child does not always remain subsumed within the family and is occasionally separated out as the state seeks to supplement or displace the parents as decision maker. This occurs when the child is the object of specific public policy, such as education. But the dependency and lack of autonomy inherent in the status of child seem to mandate that the real terms of debate are when the rights of the “natural” custodian (the parent) are trumped by the residual parens patriate power of the state. Despite the well-documented possibilities of harm to children, we are still suspicious of the state as protector of children against parents.

The reduction of the balancing to a consideration only of the parents and the state is evident in the area of education. This is an area in which the state has well-established interests and has long been active. In fact, the state mandates that parents educate their children. Three objectives are typically articulated in justification of compulsory education. Each of these objectives ostensibly emphasizes different interests.

The first objective has a public aspect, and the interests of the state are dominant. If we argue that compulsory education is necessary to produce an informed and disciplined citizenry able to create and maintain necessary social institutions, we emphasize the interests of the state. By contrast, the second emphasis is on social or parental interests and the objective of education is cast as teaching children responsibility with regard to the family, the community, and civic institutions.

If we concentrate on a third objective, however—the “self-actualization” possibilities provided by education—the child’s interest should be moved to the foreground. Education from this perspective has the potential to position the child in opposition to both parent and state. The parents’ dilemma is that educational opportunities often produce paths for advancement and mobility out of the family circumstances (providing escape from the family’s class, neighborhood, etc.) and thus ways for the child to assert her or his individuality. From the state’s viewpoint, education for self-actualization is often geared more toward developing personal critical capacity than toward securing social conformity and obedience. This potential tension may interfere with both parental and state advocacy of the child’s self-actualization interest in education.

Indeed, the objectives of education are often at odds with each other. Choosing from among them can lead us to different conclusions about how we should allocate control or authority over decision making. Many parental rights theorists will concede the mandatory nature of education, including the necessity of government standards regulating the substance and content of that education, while maintaining that decision making should be resolved in favor of parental discretion (see Galston, 2003). In fact, current laws tend to favor parental discretion in several facets of educational policy making. In this regard, some parents attempt to opt their children out of certain public school classes. While some might find a parent’s choice to excuse a child from sex education to be appropriate, is it equally appropriate to allow a parent to excuse a child from science class because the curriculum teaches the theory of evolution and the big bang theory?

Fineman, Martha Albertson, Taking Children’s Interests Seriously. WHAT IS RIGHT FOR CHILDREN: THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS, M.A. Fineman and K. Worthington, eds., Ashgate, 2009; Emory Public Law Research Paper No. 09-75. Available at SSRN: https://ssrn.com/abstract=1516652

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