Tuesday, February 22, 2011
Shulman: "Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child"
Jeffrey Shulman (Georgetown Univ. Law Center) has posted "Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child" on SSRN. Here is the abstract:
At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation's history - and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear - is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the "empire of the father." If by "fundamental" we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. This is the subject of Chapter 1.
Chapter 2 reconsiders the Supreme Court's seminal cases establishing a parent's right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child's education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. In this chapter, I also examine how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes.
Chapter 3 suggests that courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program - whether the program is imposed by the parent or by the state - that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person's education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of "protection," ensuring that children receive a truly public education.
Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority - and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under "a perpetual childhood of prescription," they must be exposed to the dust and heat of the race - intellectually, morally, spiritually. A public education is the engine by which children are exposed to "the great sphere" that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.
In Chapter IV, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).
Judicial non-intervention amounts to little more than a way of not dealing with such cases - or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny.
Finally, Chapter 5 looks at how courts respond to claims of psychologically injurious religious indoctrination.