Why Justice Requires Educational Opportunity And Freedom

Each week we feature an article from Capital Commentary, a weekly current affairs publication by the Center for Public Justice.

Fascinated and appalled, like millions of my fellow citizens, I have been following the 2016 election news daily.  Now and then, however, I have to remind myself that when it comes to education policies-- those policies that will shape the long-term nature of our society and affect us all-- state-level elections are likely to have the most significant impact and consequences. This is apart, of course, from the very important matter of appointments to the Supreme Court, which will be determined by elections to the presidency and to the Senate. 

While I cannot comment on how the 2016 election will affect education policies in the fifty states, much less in some 15,000 local school districts, my association over the decades with the Center for Public Justice has taught me to look to the underlying structures that define what is really at stake in decisions about public policy. 

Principled Distinctiveness and Education

The platform adopted by the Democratic Party in July 2016 is a useful starting point. It states, “We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate” (page 19).  It would be useful, I think, to unpack this statement, focusing on “religious freedom,” “pluralism,” and “misuse of religion to discriminate,” especially as these terms apply to state and local policy decisions about K-12 education. I’ll take them in reverse order.

The misuse of anything is not a good idea, and this is particularly the case with a social and psychological phenomenon as powerful as religion. What is implicit in this political platform, however, is that any discrimination would represent a misuse of religion, and surely that cannot be true. After all, the first of the Ten Commandments calls for Israel to discriminate against the worship of other gods, and this is a constant theme thereafter. “Choose, then, who you will serve!” Joshua challenges. Judgment and choice are major themes in Jesus’s teaching.

“Discriminating” simply means choosing between alternatives on the basis of some criterion. Of course, there is pretty general agreement (at least in theory) that such criteria should not include race or sex or other characteristics irrelevant to a particular choice, but surely we think it a virtue to discriminate on the basis of character or of achievement. Most, if not all, religious traditions call upon their adherents to make choices based on various distinctions. These choices are not mere preferences but rest upon an understanding of divine will and thus of ultimate reality, of differences that “go all the way down.”

This brings us to “pluralism.” As used in the Democratic platform, the term seems to be synonymous with “diversity,” the sociological fact that people differ in an infinite number of ways within our society, and the progressive conviction that all these differences deserve respect. “Pluralism” is a word much used by CPJ, and I learned from CPJ’s founder and former president Jim Skillen not to confuse it with mere human differences and preferences.

Pluralism is a way of thinking about society as made up of associations and institutions and based on differences of purpose or of conviction that “go all the way down,” and can function in cooperation only on the basis of structural arrangements that allow each to flourish freely in its own distinctive sphere.

But, as Steven Smith has pointed out recently, this principled distinctiveness can conflict with the value of non-judgmentalism held deeply by those who shape contemporary culture.

Traditional faiths typically teach that some people’s deeply held beliefs are true while others are false. Often they will teach that some people are saved and others are not, and that some ways of living are acceptable to God while others are abhorrent. In these ways, traditional religion in its very essence will often be a scandal and an offense against the whole ethos of contemporary liberal egalitarianism, with its commitment to “equal respect” for all persons and all ways of life or conceptions of “the good.”[1] 

The prevailing “flight from judgment,” though enshrining tolerance above all other virtues (indeed, uncomfortable with the very word “virtue”), is fiercely intolerant toward norms of behavior that are based on religious tradition and conviction. 

Religious freedom, from this perspective, is not simply the right to hold private opinions or to worship with fellow believers, but also to act or refrain from acting on the basis of such norms. In the sphere of education, parents and students chiefly possess this right.  When parents entrust their children to a school, they should be able to trust that the adults in the school form a coherent team with a shared understanding of how the life of the school as well as the instruction provided will prepare those children for a life consistent with the deepest convictions of the parents.

As Stephen Carter has written,

The religious freedom of the family to make religious decisions, including decisions on behalf of the children, is a freedom older than the Constitution, older than the earliest version of the social contract, and a freedom, therefore, with which the secular sovereign cannot interfere. So if a religious community chooses to continue its narrative through its children, that is not the business of any outsiders.[2]

James Madison, similarly, wrote in 1785 that the duty each of us owes to the Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”[3] The idea fashionable at present, that rights of conscience should be subordinate to sexual and other expressive rights, would abandon one of the proudest achievements of American history.

Advancing Educational Freedom

What does all this mean for how we approach the elections this November? At the state level, it should lead us to support candidates who are in favor of a pluralistic education system, one in which educators and others have the freedom to create schools with distinctive and well-articulated missions, whether religious, philosophical, or pedagogical.  Two policy elements are at play in this. 

The first is directly related to structural pluralism. We should support state-level measures that make it possible for parents to choose the schools that their children will attend, without suffering a severe financial penalty if their choice is for a school with a religious character. For many families, the options of moving to a community with effective schools or paying private school tuition are completely out of reach. In the short range, this would mean such measures as tuition vouchers or tax credit scholarship programs of the sort that have been adopted in a number of states. Since most states now have well-established charter school programs, it would be important to lift the restriction preventing charter schools from having a religious character.

Such policy initiatives to promote educational freedom must confront the difficulties posed by state-level “Blaine amendments” adopted in a wave of anti-Catholic sentiment in the nineteenth century and continuing to bedevil efforts to ensure equal treatment of families motivated by their faith. This has led to a number of legal battles in recent years (I’ve served in four of them as expert witness) about the blatant discrimination evident in the adoption of these legal restrictions. While there have been victories for educational freedom in state courts, ultimately this issue must be resolved by the US Supreme Court, a reminder that even education reform depends to some extent on the national elections.

This is a matter, we should be clear, of fundamental justice. The United States is almost unique among Western democracies in making the right for families to send their children to schools that correspond with their convictions dependent on the economic situation of those families. This is contrary to the Universal Declaration of Human Rights (1948), which states that "parents have a prior right to choose the kind of education that shall be given to their children" (article 26, 3). According to the International Covenant on Economic, Social and Cultural Rights (1966),

The States Parties to the present Covenant undertake to have respect for the liberty of parents . . . to choose for their children schools, other than those established by public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions (article 13,3). 

This is indeed the settled practice in all the countries of Western Europe (though only partially so in Italy), as it is in Australia, Alberta, Ontario (at least for Catholics) and elsewhere.[4] It’s high time that the United States showed equal respect for the concerns as well as the rights of parents, especially those with modest resources, and that must start at the state level.

The other policy goal at both the state and local level should be to challenge over-regulation of schools that prevents educators from creating distinctive educational programs and school cultures, and thereby also prevents families from choosing distinctive schools. This is not exclusively an issue for schools with a religious character – educators in district and charter public schools also deserve the opportunity to realize a well-articulated mission – though the events of the past several years suggest that the distinctiveness of faith-based schools is particularly subject to negative scrutiny.

Certainly, this is not to challenge appropriate oversight to ensure the health and safety of children, nor yet the authority of state and local education officials to set clear objectives for the outcomes of academic instruction and hold school staff accountable for achieving those outcomes. It is in the interest of society as a whole that every young person develops an array of academic competencies, and it is a matter of simple justice not to let any of them fail to achieve what is necessary for a successful life through neglect or incompetence on the part of the educators to whom they are entrusted. Unfortunately, of course, we are far from ensuring such outcomes through our system of public education, and there is considerable evidence that Catholic schools, in particular, are doing a better job for many at-risk students. That does not absolve state and local public officials of ultimate responsibility – responsibility, however, not to provide all schools, but to oversee the adequacy of instruction.

What state and local government should not be overseeing, however, is the formation of character and the development of deep convictions about the goals of a life well lived. That should be the responsibility of parents and the educators to whom they entrust their children. Whether parents choose a school with a materialistic ethos or one informed by religious faith is no business of the state.

Discussions about the November elections tend to focus almost exclusively on the presidential candidates and a few contests for Congress, but we should keep in mind that the crucial decisions about educational freedom, the rights of families, and how the rising generation is prepared for the challenges our country will face are made primarily at the state and local levels.  Christians need to engage effectively and on a principled, not simply reactive, basis with the forums in which these decisions are made.

- Charles L. Glenn is Professor emeritus of Educational Leadership and Policy Studies, Boston University

                                                                   

References:

  • Carter, Stephen L. 1998. The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty. Cambridge: Harvard University Press.

  • Glenn, Charles L. and Jan De Groof. 2012. Balancing Freedom, Autonomy, and Accountability in Education, volumes I - IV, Nijmegen:  Wolf Legal Publishing.
  • Madison, James. 1999. “Memorial and Remonstrance Against Religious Assessments [1785].” In James Madison: Writings.  New York: The Library of America.
  • Smith, Steven D. 2014. The Rise and Decline of American Religious Freedom. Cambridge: Harvard University Press.   
  • Turley, Jonathan. 2008. “An Unholy Union: Same-Sex Marriage and the Use of Governmental Programs to Penalize Religious Groups with Unpopular Practices.” In Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Douglas Laycock, Anthony R. Picarello, Jr. and Robin Fretwell Wilson (Eds.) Lanham, MD: The Becket Fund for Religious Liberty and Rowman and Littlefield. Pp. 59-76