Bandman, Bertram - A Friendly Critique of a Child's Right to an Open Future

01/29/2010

Philosophy of Education 2001, Suzanne Rice ed.

This article explores two different kinds of legal rights against the backdrop of the supreme court decision Wisconsin v Yoder, a case about a child's rights to modern education rather than an Amish one. Wisconsin v Yoder involves the case of Barbara, who is taken out of modern-day schools by her parents for 9th and 10th grade, where they intend she will attend an Amish agricultural and vocational school instead. The minority opinion led by Douglas would have enjoined this, arguing that a child denied the opportunity of a modern education would be denied the opportunity to become an engineer or doctor, to enter "into the new and amazing world of diversity that we have today" (pg438). The majority was delivered by White, who downplayed the 2 years of schooling as relatively minor and evidently believed that the survival of the Amish sect trumped the child's rights to an open future. (CROF)

The article considers Joel Feinberg's position on this matter in his "A Child's Right To An Open Future" paper. Author believes that Feinberg has a poor conception of rights, which befuddles his idea of CROF. Author reviews Feinberg's idea of "rights-in-trust": "these are autonomy rights in escrow, which are saved for children when the reach adulthood." (pg439) The metaphor that Feinberg uses is of a trustee, protecting a child's rights but also safeguarding the child from herself in some cases. Author believes there is at least two more conceptions of 'rights-in-trust':
1) Rights-in-trust are autonomy rights that children will eventually exercise but can be violated in advance of becoming adults. Once violated, some options for the child will be closed off, but that is ok as long the child can still fulfill her future interests [with the options still available?]. (pg440)
2) Rights-in-trust are autonomy rights, but really they become the right 'to develop with freedom, care, nurture and enlightenment' (pg441). So instead of being a trustee, the parent would act as a guardian.

Author distinguishes between a trustee and a guardian in the amount of discretion that is allowed. Both act for the sake of the child, but a trustee is allowed much greater discretion and influence, while a guardian is limited to protecting the rights of the child without 'taking liberties' (pg441) Author believes that Feinberg is confused about which metaphor he wants to have, and this is part of the reason why he paradoxically sides with White against the child in Wisconsin v Yoder.

Author tries to explain what is going on here as a confusion between rights construed solely as proprietary, liberty interests (typically against outside interference) and a richer set of rights that involve a person's rational self-interests. The traditional concept of rights involves a sort-of property whereby any outside influence is unacceptable-- therefore someone with a right toward X is under no obligation to refrain to do X, even if X can be a bad thing for others. (pg441-2) Usually included in this concept is the caveat that if you do not exercise your rights, 'too bad for you'.(pg442) Author wants to show that this is a poor conception of rights for children, since children may lack the capacity or ability to exercise their rights (e.g. CROF). Author suggests an alternate way to look at (some) rights is as interest-based rather than will-based. The liberty-exercise conception is will-based. A nurture and care conception would be interest-based, justified if a person would (counterfactually) agree with a decision made for them if they had the proper knowledge or experience. This interest-based approach toward a child's rights-in-trust might not be the same as Feinberg's CROF, but instead a Child's Right to Develop (CRD).