Legal Docket: Protecting homeschooling rights


MEGAN BASHAM, HOST: It’s Monday the 30th of July, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Megan Basham.

NICK EICHER, HOST: And I’m Nick Eicher. 

Well, Mary’s enjoying the last day of her family vacation. So on today’s Legal Docket, we step back in time and hear about a historic ruling that continues to affect religious liberty today.

It’s a key case on compulsory public education.

BASHAM: Specifically, this case dealt with the question of whether a family’s religious liberty includes the education of their children. Or does the state’s interest in educated citizens outweigh the freedom of parents to educate children according to their faith?

That question came before the U.S. Supreme Court in December 1971. And parents have used the ruling ever since as the basis for opting out of traditional public or private schools.

EICHER: The question is just as pressing now as it was then, especially amid recent efforts to curtail homeschooling freedom. Just this year, state lawmakers in California and Hawaii proposed more government oversight for home educators.

The bill in Hawaii would have required parents to submit to background checks before getting “permission” to homeschool. California lawmakers wanted regulators to inspect every home in which parents teach their children. Both bills died in committee after strong opposition from local homeschoolers.

BASHAM: Now for some background facts on the 45-year-old case we will tell you about today.

It starts in Wisconsin, with three Amish students from different families. They all stopped attending school after grade eight. One family was the Yoder family, hence the case name, Yoder versus Wisconsin.

The Amish families explained to authorities that they considered further institutionalized schooling contrary to their religious beliefs. That conflicted with state law that said all children must attend public school until age 16.

EICHER: The state found the Amish families guilty of breaking that law and ordered them to pay fines.

Although reluctant to use the court system, the Yoders and the other two families felt they had no choice but to appeal.

The state Supreme Court handed them a victory, but the state of Wisconsin appealed to the Supreme Court of the United States.

The case is decades old, and the audio you’ll hear isn’t quite up to today’s standards. So do listen carefully.

WORLD Radio legal-affairs correspondent Mary Reichard prepared this report.

MARY REICHARD, REPORTER: The parents of more than a million and a half children in the United States teach them at home. Meaning that homeschooled kids make up more than three percent of the school population today. Another 5 million attend private school. That’s 10 percent.

So, if you concede the government has an interest in making sure school-age children receive an education, even a compelling interest, the weightiest standard our legal system recognizes. Then you have to answer a second question: Is the public school system the only means for carrying out that compelling interest?

Taking into account the high levels of educational achievement reached by this 13-to-14 percent slice, the answer would seem obviously no.

But threats to educational alternatives have come, and threats will continue to come.

Let’s listen now to the arguments in a landmark Supreme Court case from 1971 that set out some of the parameters of compulsory-education laws. The first voice you’ll hear is that of Justice William Brennan. He’s questioning a lawyer named John Calhoun representing the state of Wisconsin. Calhoun argued against the Amish parents who wanted to direct the education of their children.

BRENNAN: We are concerned with whether Amish parents can be compelled under threat of the criminal punishment?

CALHOUN: Well, first we are concerned about the rights of the child to an education.

Calhoun argued that the state made available alternatives such as vocational schools and that those should suffice to suit the Amish.  Those with an agricultural bent, for example.

Calhoun argued a larger point as well. Listen:

CALHOUN: This is a positive force that we are dealing with for the benefit of society and it is the legislature that is to determine in its own area of protection of the liberties of this country.

The chief justice at the time was Warren Burger. Here he is discussing some of  the practicalities:

BURGER: If the Amish could show, they have not done so in this case I take it, but if they could show that their own training in agriculture brought their children of age 16 to the same point or higher point of achievement as compared to those who went to the vocational schools to learn about agriculture, would you be here then?

The Wisconsin lawyer Calhoun conceded that the Amish students satisfied state standards. But he said it’s the legislature, not parents, who should decide the education of children.

Further, what to believe is personal. How to act upon beliefs: that’s not personal.

Calhoun argued that should be within the state’s discretion as well.

The attorney for the families suggested the state was pursuing, in his words, a reprehensible motive. Listen to William Ball, representing the three Amish families convicted and fined for not sending their children to school:

BALL: So there is strong evidence that the purpose of this prosecution was not to further the compelling interest of the state in education, rather a reprehensible objective under the facts of this case to force the Amish into school only for the purpose of qualifying for augmented state aid.  

Ball argued that Wisconsin showed no compelling state interest in forcing its notion of schooling upon the Amish.

Furthermore, he said the state failed to meet its evidentiary burden to justify taking away the families’ First Amendment right to freedom of religion. To abridge a freedom guaranteed under the Bill of Rights, the courts require a balancing test: the state has to prove that its interest overrides that of the citizen. Ball said Wisconsin did not even bother to make that case.

Next, audio of William Ball making the point that education of children is all-inclusive, and it’s not confined to what happens inside school walls:

BALL: We are talking about a whole complex of religious interests, religious interests and rights in education and worship and parental nurture, an individual religious choice in vocation, in communal association with respect to teaching and learning with respect to privacy as we have tried to spell out in our brief and indeed we are talking about as will appear the continued existence of the Amish faith community in the United States.

When the Supreme Court was hearing this case in 1971, Ball explained, the Amish were in about 15 states, and their number was close to 50,000:

BALL: They believe that education’s aim should be the life of goodness, not the life of the intellect. The making of a good man, not the making of a good American life. They believe that this life of goodness rejects the world of technical cunning and instead embraces wisdom.

So long as Amish school-children learned the basics, Ball explained, that was enough:

BALL: The Amish do not want their children and they do not want themselves to be exposed to the spirit of luxury, ostentation, of strife, consumerism, competition, speed, violence, and other such elements, as are commonly found in our American life. Therefore education for them embraces a rejection of the higher learning and a positive emphasis upon learning of the agriculture life. 

Ball then answered the state’s best argument that uneducated people are a drain on society:

BALL: The Amish definitely provide for their children of high school age what could be called an education. I would be inclined to say that they do a better job at this than most of the rest of us do.

We asked what kind of people these are and we put the Sheriff of Green County on the stand, we asked him question after question after question about those crimes of violence which most typical typically committed by young people today; arson, looting, rape, etcetera, etcetera, etcetera. 

The sheriff gave these people a complete bill of health. They have never been known for the commission of crime.

They are a peaceable people and an asset in our society, not in terms of gross national product or the building of missiles, but certainly in terms –- but certainly in terms of the goodness that they have afforded as an example for the rest of our society.

The Amish completely take care of themselves. They do not cast their burden on the community. 

They do not have people on relief or welfare.

They do not have their aged using public funds for the aged. 

I think that we are talking about here are really great achievers. 

In rebuttal, Calhoun for the state argued that retreat to a simpler era was the wrong way to go; that more pride in intellect is necessary to cope with societal problems. Chief Justice Warren Burger countered him:

BURGER: Well, have not some very distinguished educators been very critical of the American system because it was concentrating on courses like interpersonal relations, community relations, etcetera, which students who could not spell and read adequately and write by the time they get out of high school?

Calhoun admitted that point, but fell back on “that’s the way it’s always been” as his argument for compulsory schooling.

And he emphasized that the freedom to act is different from the freedom to believe.

In the end, the court decided six to one. Two justices didn’t participate in the case. The majority ruled that the individual’s free exercise of religion under the First Amendment outweighed the state’s interest in compelling school attendance beyond the 8th grade. Two more years of high school was not a good enough reason to violate the faith of the Amish.

The same analysis has stood the test of time. It applies to any infringement on sincere religious belief, it’s a balancing test where we ask

(1) is a First Amendment right being impinged?  

If yes, then (2) is there a compelling state interest to impinge that right?

If yes to that, then (3) is there a less restrictive way to accomplish the state’s goal than to burden first freedoms?

Today, this analysis is critically relevant: religious and conscientious objections to the redefinition of marriage, the rights of the unborn and the nurses and doctors who care for them, and the ability to live out one’s faith according to the dictates of that faith are on the front lines as much as ever.

That’s this week’s Legal Docket.


(AP Photo/Jose Luis Magana) People walk down the stairs of the Supreme Court in Washington on Tuesday, July 10, 2018. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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