Wisconsin v. Yoder

PETITIONER:Wisconsin
RESPONDENT:Yoder
LOCATION:Wisconsin State Capitol

DOCKET NO.: 70-110
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Wisconsin Supreme Court

CITATION: 406 US 205 (1972)
ARGUED: Dec 08, 1971
DECIDED: May 15, 1972

ADVOCATES:
John W. Calhoun – Argued the cause for the petitioner
William B. Ball – Argued the cause for the respondents

Facts of the case

Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.

Question

Did Wisconsin’s requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?

Warren E. Burger:

Wisconsin against Yoder and others.

Mr. Calhoun.

John W. Calhoun:

Mr. Chief Justice and may it please the Court.

The respondents, here are members of the Old Order Amish religious sect.

They reside in Green County of Southwestern Wisconsin.

In November of 1968, when they refused to send their children beyond the eighth grade, a summon and criminal complaint was filed in the County Court of Green County.

They were tried on April 2, 1969 for violation of the Wisconsin compulsory school-attendance law.

The case was tried to the County Court of Green County and the respondents were found guilty there.

They had a trial de novo in the Circuit Court of Green County where the Court again found them guilty and imposed a minimum fine of $5.00 on each of the respondents.

They appealed to the Wisconsin Supreme Court.

The Wisconsin Supreme Court reversed and this Court granted certiorari on May 24th of this year.

Respondents object to education of the children in public, private, secular or non-secular schools beyond a certain point.

At present time, the objection is eighth grade.

The Trial Court noted the problem with the arbitrary eighth grade cutoff in its decision.

Now, worried about the decisions and opinions that were filed in this case in the courts below, the Trial Court below found that the compulsory school attendance law did interfere with the freedom of the respondents to act in support of their religious beliefs.

They also found that appreciable numbers of the Amish-reared youth do believe the faith.

Both the Trial Courts concluded after several careful consideration of the cases that the compulsory school-attendance laws in Wisconsin were a reasonable exercise of the police power of the state to educate its youth.

Potter Stewart:

The state law requires attendance of school, what, through a certain age (Voice Overlap)?

John W. Calhoun:

Yes, that is through a certain age.

Potter Stewart:

Sixteen?

John W. Calhoun:

Yes, 7 through 16.

This is pretty general throughout the rest of the state.

It is based on age but not on grade.

Warren E. Burger:

That would mean, would it not, that if you have a remarkable or unusual child who began school when he was four and whose parents wanted to take him out to pursue his own studies at a point, he would still have to go school formally until he was 16?

John W. Calhoun:

If he could show achievement equivalent to a high school education at any point, he would be excused from the compulsory school attendance law.

Warren E. Burger:

So the achievement test is interposed on the arbitrary 16, is it not?

John W. Calhoun:

Yes, there is an area of discretion there to be exercised by the State Superintendent of the Public Instruction, Your Honor and this provides for a certain unusual cases and of course there are exemptions for a health problems and handicaps and that sort of thing, but there is no problem with respect to the substantial equivalency of the education, the discretion resting with the State Superintendent of the Public Instruction.

Now, the opinions of the Wisconsin Court were three in number.

There is principal opinion which is stated on page 133 of the appendix, we view this case as involving solely a parents’ right of religious freedom to bring up his children as he believe God dictates.

If nothing else, that God dictates in an infinite variety of ways, this makes for a thoroughly broad issue.

John W. Calhoun:

The concurring opinion has stated this.

Under the facts of this case there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides the defendants’ right to the pre-exercise of his religion.

Warren E. Burger:

What happens in Wisconsin on the year of statute if a person aged under 16 wants to go of into a vocational school?

John W. Calhoun:

We have a vocational school situation in the law, Your Honor which —

Warren E. Burger:

That is considered?

John W. Calhoun:

Yes.

Warren E. Burger:

That is the meaning?

John W. Calhoun:

Yes, that is a rather elaborate system of vocational schools in Wisconsin and there is a provision specifically for children to attend the vocational school if that vocational school is within the school district and the Trial Court asked the same question in this area and was satisfied that the vocational school law probably had no particular applications in this case, although vocational school is certainly open and available to all people in Wisconsin.

Warren E. Burger:

Generally, what is the range of training in a vocational school?

John W. Calhoun:

The range is very broad.

Now, the agricultural vocational schools which would probably interest the Amish more is handled through the land grant, the old federal aid program to agricultural education and that is handled in the high school.

There is a special agricultural teacher who is paid out of federal funds and that has been in existence for a long time.

So that is available.

There is not any question that these vocational programs are available to respondent.

Is the image of that, a private school?

John W. Calhoun:

Do they have private schools?

Yes, in many areas they do.

And in this particular instance however they apparently refused to set up any school which goes beyond the eighth grade.

There are no secondary schools in operation by the Amish in Wisconsin that I know of.

There may be some who have not been approved by the state superintendent, but are still in operation.

Harry A. Blackmun:

Mr. Calhoun, was there any element of retaliation in this case?

John W. Calhoun:

I think there was not Mr. Justice Blackmun.

There was absolutely no evidence of that and in fact this has been a rather intelligently and studiously tried case from the beginning.

There is a good –- there are statements in the record of expert witnesses speaking in favor of the Amish.

There has been no ranker and it has been a most interesting case because it has been free of that type of thing.

Harry A. Blackmun:

And yet it was triggered by the loss of state aid?

John W. Calhoun:

Well, yes, there is a loss of state aid, but that is really insignificant to the issues involved.

I do not think that has really anything to do about that.

The state aids are very small compared to the real need of the school district.

Now —

William J. Brennan, Jr.:

Do I gather the issue here, that was not whether the children must go to school rather than the issue whether the parents —

John W. Calhoun:

Yes.

William J. Brennan, Jr.:

— must see to it that the children —

John W. Calhoun:

Yes, it is not a question of children here.

The question of whether the parents can be compelled to send their children to school?

William J. Brennan, Jr.:

I take it that whether the issue constitutionally at least, whether their freedom of religion is violated by requiring them to send the children?

John W. Calhoun:

We think there are two issues here really.

First of all, it is rather the –- Let me state it, whether or not the respondents may select the time, the extent and whether or not they will comply with the compulsory school-attendance laws and whether there is somewhat more broadly stated a constitutional right to conscientiously object to education.

William J. Brennan, Jr.:

Yes, but as I gather, am I wrong, we are not concerned here of whether the children have to go to school, Amish or not.

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

John W. Calhoun:

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

I think we are concerned about that.

I do not think we can avoid that as an overriding issue and I think the dissenting opinion expressed that well, because the compelling interest of the state is in the education of the children and the interest of the child in education is important.

It is vital and this is what we think the real issues are.

Now —

Thurgood Marshall:

Mr. Calhoun, do the schools in Wisconsin and the other state that the way to get to the fact that the child is not in school is to get the parents, is that not the normal procedure (Inaudible)?

John W. Calhoun:

Is to —

Thurgood Marshall:

If I say, I will not send my child to the public school and one of them brought it to court?

John W. Calhoun:

That is right.

Thurgood Marshall:

Is that not the normal procedure?

John W. Calhoun:

That is right, yes.

Thurgood Marshall:

Is that not just as normal as any other case?

John W. Calhoun:

Yes.

Thurgood Marshall:

I (Inaudible)

John W. Calhoun:

Well, that is right.

It is question of whether or not it complied with the law.

In this —

William J. Brennan, Jr.:

Yes, but does not the state has to show a compelling interest in education?

John W. Calhoun:

Yes, we think there is a compelling interest in education.

William J. Brennan, Jr.:

Well, is it enough that there is a compelling interest in education or does it have to be other kinds of compelling interests?

John W. Calhoun:

No, I do not think there has to be any other kind of compelling interest because it is through compulsory education, compulsory school attendance that the interest is implemented.

The interest, the subject we regulate is education.

William J. Brennan, Jr.:

Well, I do not see how any would question that, since the state has the compelling interest in education?

John W. Calhoun:

Yes.

William J. Brennan, Jr.:

But do you think that answers the —

John W. Calhoun:

I do not think it answers the question completely.

William J. Brennan, Jr.:

No, I do not think it answers the question completely.

It has to have a compelling interest in total compliance, does it?(Voice Overlap)

Can you demonstrate that?

John W. Calhoun:

No, I do not think the compelling interest is not in total compliance necessarily.

The question is whether or not the Court can say that the Amish parents have a constitutional right to conscientiously object to education, to sending their children to school.

William J. Brennan, Jr.:

Well, you do not –- does the state challenge that this is — their position about education is very often moot for their religion?

John W. Calhoun:

What we have said in that is simply this; that as the Trial Court said, it interferes with their freedom to act but not with their religious belief as such and that the cases are clear and this Court has pronounced time and again that the freedom to act may be restricted in interpretation of the First Amendment, but the freedom to believe may not.

William J. Brennan, Jr.:

You mean the old polygamy cases?

John W. Calhoun:

That is right.

The old Morgan cases, Cantwell versus Connecticut.

William J. Brennan, Jr.:

Is that what we have here?

John W. Calhoun:

Yes.

Yes, it is a simple as that, it can be decided that way.

William J. Brennan, Jr.:

I wish it were.

I do not find that.

John W. Calhoun:

What we are saying here is essentially that there is a compelling interest in education.

That is essentially our view, and that this Court and the Congress, people of this country have manifested this compelling interest.

The concurring opinion —

William J. Brennan, Jr.:

(Voice Overlap) how any would challenge that?

John W. Calhoun:

That is right.

I do not either and that is what we find wrong, and this is why we are here because this is what they said.

Under the facts of this case, there has been an inadequate showing that the State’s interest in establishing and maintaining an educational system overrides defendants’ right to the free exercise of religion.

It is just as clear as that.

It is as clear as the conscientious subject of their cases.

John W. Calhoun:

It is as clear as the statement in Gillette.

It is as clear as Ballard and Seeger.

I do not want to equate.

I do not want to equate military rule and/or imply by equating compulsory education with military conscription that the heavy hand of the state is being applied here.

It is quite the contrary.

The compulsory school-attendance laws have been in existence for years.

They were part of the established church when this country was founded the, when the colonists established the bureaucratic societies in the pre-revolutionary days when the church became — this established a compulsory school-attendance laws remained.

They remained in a democratic fashion and they are applied and enacted in a democratic fashion.

When you talk about Sherbert against Verner which is the case in which the respondents rely, you have an entirely different set of values.

You are not talking in Sherbert against Verner about a social institution of the type of education, military conscription, and the system of taxation, all of these other things where the legislature acts to grant the exemption.

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

It is the legislature that should determine whether the compulsory school-attendance laws are necessary to enact or to obtain the full benefit of education to the individual and society.

At this point, I think we get through an important area for this Court to consider.

I am sure that you are aware of Justice Frankfurter’s opinion in Minersville v. Gobitis and in his dissent in West Virginia against Barnett.

In these particular cases, he espoused the importance of a legislature and it is in this particular area, in the area of education where we are talking in terms of positive movement of more education and not less —

Warren E. Burger:

We have further —

John W. Calhoun:

— that the legislature has an important function.

Warren E. Burger:

We have other cases of course as you will know where the power and the duty of the state to support education comes into collision with the religion clauses of the First Amendment and is that not we have here?

John W. Calhoun:

Well —

Warren E. Burger:

In what form?

John W. Calhoun:

Well, what cases in particular do you have in mind?

Warren E. Burger:

Well, the recent cases that we decided where states were giving support to —

John W. Calhoun:

Yes, I think that —

Warren E. Burger:

That state action will be in conflict with the First Amendment?

John W. Calhoun:

No, I think that what — Yes, I think what the Court is –- I think what we are doing is opening up a different approach to the same argument.

We will arrive at the same conclusion.

As I think Justice White said, it is our good fortune in Lemon v. Kurtzman that the states have undertaken to educate our youth and to compel their attendance in school by compulsory school attendance.

Now, what we are concerned about here takes us to Pierce against the Society of Sisters of the Holy Name where the Court said, that we could not compel attendance at public schools, but there was no reason why attendance could not be compelled at public or private, secular or non-secular schools and this is not the area when you talk about age of parochial education that we get into it.

We get into a proposition that embraces to augment this and that is not really the question here.

The question here is education or no education?

John W. Calhoun:

It is not the question of private education or public education or how much one should be aided over the other.

Yes, there is a First Amendment question, but it is an establishment question rather than a freedom to worship question.

William J. Brennan, Jr.:

I take it if, I think you said earlier in answer to Mr. Justice Douglas’ question that the Amish do have their own school?

John W. Calhoun:

Yes.

William J. Brennan, Jr.:

And I take it, it is like Roman Catholic Protestants or any the other Protestant schools, if the standards of education in those schools met the State’s standards, you would not be here, would you?

John W. Calhoun:

That is right.

We would not.

William J. Brennan, Jr.:

And is it that they will not comply with the state quality standard, is that not?

John W. Calhoun:

Yes, they will not.

As a matter of fact, that is correct, yes.

They have no schools.

Warren E. 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?

John W. Calhoun:

Well, I am not sure because I am not sure whether that would meet the standard.

We probably would not be here.

We might be in some other Lower Court determining whether there was a reasonable ruling by the administrative bodies that is the Department of Public Instruction who are experts in this area.

But it would not be the same constitutional question that is involved here.

That I think is safe to say that we would not be here.

Now —

William J. Brennan, Jr.:

Incidentally, does –- do the Amish have any formal schools in Wisconsin?

John W. Calhoun:

Do the Amish?

William J. Brennan, Jr.:

Yes.

John W. Calhoun:

Yes, I think there are some grade schools and I believe they were establishing a grade school in the Green County area.

I am not sure of that but I know there are some schools that established up in the Medford area in the Northern part of the state.

William J. Brennan, Jr.:

Does the quality of education on those schools satisfies state standards?

John W. Calhoun:

I believe that those schools do satisfy state standards, although it may be that the superintendent has not made a ruling on that.

Now, I have indicated that the compulsory school-attendance law and the ruling of the Wisconsin Courts are more properly analyzed in terms of the a conscientious objector cases, Walz, Seeger, and Gillette.

And to this extent, the ruling of the Wisconsin Court does present a constitutional right to anyone who has conscientious objection based on a sincere moral belief to object to education.

And we submit that this would raise have it with the educational system not only in Wisconsin, but throughout the country.

Now, let us look at the specific laws for example.

There is a correlation expressed in Prince against Massachusetts, a correlation for example between compulsory education and compulsory school attendance and the child labor laws.

John W. Calhoun:

They are integrated.

We quoted that the child labor laws to show them in our brief.

Now, not only is there a correlation there, but there must be a correlation in the whole program, the whole legislative program regarding children.

The matter in which a juvenile judge for example deals with a dependent child would be affected by the decision of this Court and if it were to say that there is a constitutional right to conscientiously object education, I feel that it would be removing a vital tool from the administration of a law as it relates to youth and children.

I will reserve the rest of my time Your Honor for rebuttal.

Warren E. Burger:

Very well, Mr. Calhoun.

Harry A. Blackmun:

Mr. Calhoun, would your case be any different if instead of age 16, if it were age 21?

John W. Calhoun:

That question was asked last night.

No, I think then we got into the area of reasonableness, Your Honor and again the line is drawn somewhere and it is reached by a basis that is non-arbitrary and I assume this is done in the legislative halls and in the testimony of witnesses were experts in education before various committees.

Age 21 would not be a particularly advisable area whether in terms of education today this is reasonable.

It would probably have to be determined by the Court.

It would not seem to be the case.

But I do not think the principle, the underlying principle is much different.

In other words, it is a matter of legislative administrative concern.

Warren E. Burger:

Very well, Mr. Calhoun.

Mr. Ball.

William B. Ball:

Mr. Chief Justice and may it please the Court.

Wisconsin Attorney General’s attempt to have these Amish parents found criminally guilty has now entered into the fourth year.

This in spite of the fact that in January of this year, the Supreme Court of the State by a six to one vote tendered two conclusions and I am quoting out from the concurring opinion, “that there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides defendant’s right to free exercise of religion” and secondly, “that Amish should not be required to attend the school which meets the requirements of state law beyond the eighth grade.”

And even the one dissenting opinion that of Mr. Justice Heffernan talks about how this prosecution came to be triggered.

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 age.

I am going to tax the Court by going over just a little bit some of the facts as they have been presented because I think they are basic, from hearing the questions that have been asked.

The legal basis for this prosecution is the refusal of these parents on religious grounds to afford the three children in question at most two years of high school under a statute which requires not a high school course, not four years of high school, not even one year necessarily but merely school through age 15 not through age 16, through age 15 according to the statute.

Now, the state interest becomes a little bit varied when we think in terms of compelling state interest because if there is a VOs or the technical school, vocational school in the school district then the age limit is 18, up to 18 the child is to attend.

A different standard applies where there is no VO school and the record in this case establishes that there was no vocational school in this district.

Now, then in terms of the interest the state has been trying to compel these children to attend school beyond the eighth grade, we have to realize that for Frieda Yoder, the daughter of Jonas Yoder, one of the three children in question, only one year of schooling was involved because she was 15 years and five months old on the day the criminal complaint was brought against her father.

Barbara Miller would have only six months of the state benefit of additional compulsory education because she was 15 years and eight months old at the time the criminal complaint was brought.

Now, it is the position of the Amish parents that the application of the statute to them violates their free exercise of religion and that there has been no showing whatever, no showing at all that non-application of the statute to them violates or creates any substantial danger to any interest of the State of Wisconsin.

Nobody on our side challenges the fact that the compulsory attendance laws as we speak a compelling state interest.

We have merely, in fact emphasized in this case and in our defense, it is our whole sole support of the statement of this Court in Brown versus the Board of Education wherein the Court said education is a principle instrument in awakening the child’s cultural values and preparing them for later professional training and in helping him to adjust normally to his environment.

William B. Ball:

This is a superb description of what the Amish people believe in terms of education.

My argument, may it please the Court, will pursue two points.

One the pre-exercise claim and secondly the question of danger to interest of the state which the State of Wisconsin has said existence of substantially degree.

The free exercise point is extremely important that is it is extremely important, but I will try to develop this at some length because here we are not talking about one tenet of the religion being at stake, for example observance of the Sabbath or opposition to military training.

We are not talking here about one particular practice, say spreading the gospel through speech or press or simply as a period of a number of cases.

We are not talking about one forced exercise such as the salute to a greater image or recitation of papers or bible reading.

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.

In Graver versus Kansas, Kansas versus Graver rather, the only other State Supreme Court decision in point various Kansas’ attention was paid to the actualities of the Amish religious claim, and therefore, we are dwelling on that to some extent here this morning.

Potter Stewart:

The Amish are in what, about a dozen or 15 states of the union something?

William B. Ball:

Yes, about 15 Mr. Justice Stewart.

Potter Stewart:

And is it about?

William B. Ball:

About 50,000 people.

Potter Stewart:

And each Amish Community is unique in a way, is it not, there are local variations among them, are they not among there?

William B. Ball:

There are slight variations among them.

I would say the Old Order Amish are fairly uniform whether you find them in Lancaster County, Pennsylvania or you find them them in Madison, Wisconsin.

They are very much the same.

They follow the same practices and have the same attitudes toward religion, education, children, the simple life and so on.

Potter Stewart:

Same basic life now?

William B. Ball:

Yes sir.

Potter Stewart:

It is based on their religious belief?

William B. Ball:

Yes sir.

Potter Stewart:

And we are talking in this case about the Old Order Amish.

Is it only the Old Order Amish so called do where they object to formal education?

William B. Ball:

Old Order Amish and Order Mennonite and some variants of these same groups which are nevertheless basically the same.

Potter Stewart:

They have a common (Voice Overlap) the Anabaptists as I understand?

William B. Ball:

Yes, that is correct.

Potter Stewart:

And this particular people go back to Switzerland and they what, Sixteenth century?

William B. Ball:

They do.

They go back to a time in the sixteenth century Mr. Justice Stewart when a number of people of the Protestant Reformation sought to return to what they believe to be the Golden Age of Christianity.

In the early centuries of Christianity and reject the institutional churches of the Catholic Church and the other Protestant Churches and to do this, and to have that life, they believe that their lives had to be governed completely by the Sermon on the Mount and this would be therefore the cult of the creating of a community of love, of mutual health, of simplicity, closeness to nature, animals, soil, plants and so on turning the other cheek, and extremely importantly, perhaps the most critical point in the understanding of the Amish religion, separation from the world is they believe was not only the practical means whereby this light could be lit, but was also a means, a principle enjoined upon them by the Gospels themselves for St. Paul’s speaks and says, do not be conformed to this world.

William B. Ball:

This is a basic doctrine of Amish religious teaching and so therefore they in two ways have sought to separate themselves in the world and have maintained this over the centuries.

First of all, they see that there has to be a separation from what they consider, pride of intellect, that is to say the higher learning as they express it.

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.

They believe that life is a very short pilgrimage and its whole purpose is to get human beings to their salvation in the arms of God.

A question was posed, a very enlightening question was posed upon the trial by the Deputy Attorney General assigned to the Department of Education in Wisconsin.

He said to Professor John Hostetler who was an expert witness on the side of the defense and who is the world’s foremost authority on the Amish people, he asked Dr. Hostetler, is it not that the point of education to help a person to get ahead in the world?

And Dr. Hostetler superbly replied, it depends on which world, later explaining that of course what he meant was that the aim of education as far as the Amish are concerned is to get to heaven.

Therefore they reject what many or the rest of us accept in a world of knowledge and they believe that the education in writing and reading an arithmetic which a child can acquire up until the time of adolescence is sufficient education, particularly in view of the fact that Amish life is not concerned with technical and technological achievement and development.

Potter Stewart:

And Dr. Hostetler grew up in an Amish community and he is a Ph. D?

William B. Ball:

That is correct.

Potter Stewart:

And how is that to explain?

William B. Ball:

It shows that he lets the Amish faith.

It shows that people can live the Amish faith and that the fact that they began in life as Amish children is necessarily a crippling experience.

He later elected to leave the Amish faith and this is done in the Amish faith at the time of adult baptism.

At that time, a child or a young man or woman must face up to the fact that whether he wishes to leave the Amish life or not.

He may refuse to leave the Amish life if he wishes to.

Some do.

There are no wholesale departures from the ranks of the Amish people.

I think that we brought out in our brief and in Dr. Hostetler as many of his works on this subject is shown that while there is some attrition, the community has continued in pretty much the same size over the years.

Well, his first rejection — almost rejection of the world of intellect and the second —

Potter Stewart:

Is there a belief in elementary education or just an acceptance of it?

I am talking about education through the eighth grade, learning to spell and decipher (Voice Overlap)

William B. Ball:

Well, they believe that those basic skills are sound and desirable for a child to have.

They are quite aware of their citizenship.

hey believe that a person should be able to read and write and communicate.

Potter Stewart:

So there is more than just an acquiescence on is that there is an affirmative acceptance?

William B. Ball:

Yes, there is an affirmative acceptance of education on that point.

Harry A. Blackmun:

Mr. Ball, I take that in the — among the consistent adherence to the church, there are no professional people, no lawyers, no positions?

William B. Ball:

That is quite true Mr. Justice Blackmun.

Harry A. Blackmun:

Unless they come back after the education?

William B. Ball:

Yes, that is quite correct.

Harry A. Blackmun:

And yet they do rely on, certainly on medical knowledge and elsewhere do they not?

William B. Ball:

Yes, they rely upon medical knowledge.

They simply –- their point of view is not whether medical knowledge is necessarily good for the world.

Their point of view is simply based upon the fact that they believe that they themselves may not pursue the higher learning.

This is a point of strict relief with these people.

Harry A. Blackmun:

They will seek medical treatment?

William B. Ball:

Yes, they will seek medical treatment.

Right now, they are receiving the health, so they did not seek it.

It came to them through the National Committee for Amish Religious Freedom, but they do not.

They would far rather suffer personally, prosecution then make a test case going to Court and so on.

Harry A. Blackmun:

In that connection, is there any — has there been any attempt to compromise the situation as evidently was done in Pennsylvania?

William B. Ball:

Yes, Mr. Justice Blackmun, the supplemental appendix sets forth the ethics which we made under a number of provisions of Wisconsin law in which we felt there was some daylight of these people.

We attempted a negotiation for them to avoid having any kind of Court case and these attempts were rejected out of hand as I think the supplemental appendix very clearly reveals.

The second element of separation is the separation from the ways of the world.

The Amish do not want their children and they do not want themselves to be exposed to the spirit of luxury, lust, temptation, of strife, consumerism, competition, speed, violence, and other such elements, as are commonly found in our American way.

Therefore education for them embraces a rejection of the higher learning and a positive emphasis upon learning of the agriculture life.

It rejects the concept of exposure to and service in the ways of the world and when you add to this, the factor of adolescence you will see why an Amish person whether we would agree with him or not may not in a religious point of view attend school beyond the eighth grade.

That factor of adolescence is extremely basic in Amish religious thinking.

It is the time which leads to adult baptism.

It is the time of the starting of life to work, meeting the challenges of real responsibilities on the part of young people.

It is a very sensitive time when values are formed.

The Amish religion forbids high school then because of those three elements, a tremendous stress on the importance of the opportunity which adolescence creates.

Now if they are placed in school, the record shows that they are going to be — these children are going to be exposed to the social life in the school, be it public, private, or parochial.

They are going to be exposed to a curriculum much of which they must religiously reject and much of which is the purpose to their intended life as growing up in the Amish faith community.

William J. Brennan, Jr.:

Well, one of those schools that the Attorney General has said the Amish have established is where they adhere to the state standards, is it not correct?

William B. Ball:

Mr. Justice Brennan, those are all elementary schools.

The Amish do not maintain any high school whatever —

William J. Brennan, Jr.:

That is if you were reading, writing —

William B. Ball:

Yes, that is correct Mr. Justice Brennan.

Now, when you take a child from Amish life at adolescence and place him in a high school, he is naturally going to be exposed to those values which his parents’ religion rejects, is going to be exposed in those ways of life which typify high school today and this alienation which is abundant testimony in the record, this alienation of the child who has been raised as he has a right to be raised in the Amish faith community up until adolescence.

There is no disagreement with that on the part of the state.

He has been raised in that atmosphere up until then to be suddenly placed in a high school where there is different dress, different speech, very, very different people with very, very different backgrounds.

This is extremely traumatic to the person and this alienation is psychologically damaging to such a person.

Potter Stewart:

Why is that so much more traumatic than the eighth grade would be?

William B. Ball:

In the eighth grade, our particular defendants were in parochial schools, Amish parochial schools until the eighth grade.

They attend an eighth grade, they attend up to that time whether they are in a public or an Amish school to be at least in part associated with other Amish children.

The Amish placed a tremendous importance of task coming to adolescence.

They believe that it is at that time in one’s life when you are heading toward adult baptism and when the whole person is in the state of permanent change that at that time in your life, the influences of the world can be especially deadly to the Amish child.

I think adolescence is a very important part of this whole thinking of the Amish that up until the eighth grade in those earlier years, the chance or the temptations to become a worldly person and the imposition of values in another school system may have far less impact than they will to a child who is beyond or in adolescence.

Thurgood Marshall:

Do I understand that this particular community, the elementary school is more or less regional so that most of the students are Amish students or not, is that what you are saying?

William B. Ball:

Yes, this is correct.

The Amish parochial schools are Amish schools and the children —

Thurgood Marshall:

They are around here, in this town?

Any other?

William B. Ball:

Yes, in fact it was understood that this prosecution was triggered by the very fact that as the record shows an Amish one to eighth grade school had been started.

Thurgood Marshall:

Yes, it had been started.

Actually that started —

William B. Ball:

Now these children —

Thurgood Marshall:

What about that time they went to the regular?

William B. Ball:

There is a number — many Amish children have attended public schools Mr. Justice Marshall.

Thurgood Marshall:

Well, where they mixed in with others or where they —

William B. Ball:

Yes.

Thurgood Marshall:

Because of locality?

William B. Ball:

The pattern varies.

In some cases they have been mixed in with others and some where it had been perhaps a majority of Amish children in school.

Thurgood Marshall:

But in the high school level there would be broader mix obviously?

William B. Ball:

In the high school level it would be a very much broader mix and at the time of high school the child is then in the Amish religion being prepared for a complete vocation in Amish life.

And this is extremely disrupted to that vocation and secondly, it is a time in life when exposures to these elements are going to have a very serious impact upon his values.

William B. Ball:

He will have been raised and even in the eighth grade in the eighth year essentially in an Amish community and the involvement in high school with its social life and everything else is going to be destructive of his faith.

Warren E. Burger:

The religious point of view, is this elementary education approach somewhat like that of the Jewish faith with the — I think it is age 13 when a Jewish child is considered to have become a mature adult?

William B. Ball:

Yes.

Warren E. Burger:

Is there an analogy between the Amish attitude and that with the Jewish faith?

William B. Ball:

I think it is quite a close analogy Mr. Chief Justice Burger and I think that is well brought out by the way in the brief of the — brief amicus curiae in this case by the Synagogue Council of America and other related Jewish groups.

The –- I would like to comment if I may with the time that remains to discuss the danger would strike which a state has said it is faced with, if these Amish children for religious reasons are permitted to not attend school through age 15.

One has to ask whether the state with its very ample legal research resources, why they never placed a single witness on the stand produce any documentary evidence at all once rapid with any study which would give color to the charge that Amish non-attendance threatens some compelling state interest.

All the evidence on that point of compelling state interest came to the defense.

State offered really two points.

First of all that Amish non-attendance, two years, one year, six months, whatever it might be threatens of all things the states establishing and maintaining an educational system.

Six judges below and the Wisconsin Supreme Court denied this fact.

Certainly, here there is no danger of fraud.

Very few people could show what the Amish have shown that is to say a unique and ancient religious tradition and religious claim that the obvious nurture and protection of children which takes place in the Amish community which treasures children, the whole factor of training in life that are useful and productive vocation and no casting of the children upon the community, certainly here there is far less danger at all or disturbance of a system that was found in Sherbert versus Verner.

No one else’s rights are harmed by virtue of Amish none attendance.

And here I am reminded of the statement of Mr. Justice Brennan in dissenting in Braunfeld when he said that values of the First amendment looked primarily towards preservation of personal liberty rather than toward fulfillment of collective goals.

Here we have precisely that put in the scope.

The collective goal is not going to be disturbed by the fact that these children did not attend school.

Additionally, that I have to reinforce what Mr. Calhoun said a few moments ago when he pointed to the Court the findings of the Trial Court, the finding of the Circuit Court and the determination by the State Supreme Court that could be exercised of the Amish religion was patently here involved.

That the state’s action enforcing these children into high school constitutes a denial of the free exercise of religion.

This I think is established in the case irrespective of what may be brought at the Amish religion.

The remaining question then becomes one of a compelling state interest which means what is the danger to the state and certainly it is not in the general enforcement or maintenance of an educational system.

Now, does it deny the child free choice?

Does it deny the child as the state says his right to an education?

There is national consensus that we have cited in our brief at page 32 to this effect that there is no compelling state interest reflected in state compulsory attendance laws in having children attend school beyond the 15th birthday and this seems to be if this is the case in state after state after state that the state does not feel that a child needs to attend school beyond 15 then it seems to me that these children in question do not present in terms of their own rights to an education any danger to any compelling state interest.

We have produced an evidence and cited in our brief this study which was by Professor John Hostetler under a Commission from the U.S. Office of Education of achievements of Amish children and standardized testing and it reveals that they perform well.

The state has referred to Prince versus Massachusetts in its argument on behalf of parens patriae but we have been able to show I think quite clearly that there is no such danger to these children as was involved in the Prince case whose facts were that of a child hawking religious magazines at night in streets.

Amish life is a gardener of nurture of children.

Certainly, the Attorney General is not telling us that the Child Labor Laws in Wisconsin are not enforced and certainly therefore if there is any need for protection in that direction, the State of Wisconsin is very able to afford that protection.

The state has thought loosely about the disease of ignorance and opening the gateways of opportunity to these children.

We introduced positive evidence which shows that Amish education produces good people.

William B. Ball:

We cited the testimony of Dr. Erickson of the University of Chicago and we specifically asked him questions concerning Amish education which he had very carefully studied and his comment was this.

The Amish definitely provide for their children of high school age what could be called an education.

Remember this was uncontroverted by anything the state chose to put in the record.

I would be inclined to say that they do a better job at this than most of the rest of us do.

The Amish are in a fortunate position respecting schooling which they conduct for children beyond the eighth grade.

It is learning by doing, an ideal system.

We are learning that current education is detached from the real world and that in the things they talk about, pupils do not become involved or have real responsibility.

The lack in modern education of a clear connection between learning and doing is responsible for much of the student actions that we have today.

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.

Dr. Littell an authority in the history of the Amish people stated that they have not been known who have committed a felony in 250 years on this soil.

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 afford as an example for the rest of our society.

We placed the Welfare Director on the stand, the Welfare Director of Green County, and we asked him whether the Amish take care of their old people, their dependent people and the Director of Welfare testified that 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 and public funds for the aged.

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

They have been in the education business for 300 years.

They are the finest natural farmers in the western hemisphere.

You go up — members of the Court you go up to Lancaster County in Pennsylvania and if you were to see these people, see them in actuality, you would find young men who are heads of family and managers of large farms, experts in husbandry, you would find in their women very model women, managers of households, very fine people.

I think that it is quite surprising that these people are singled out as not having an education, denying their people of education.

For 300 years, these people have done superbly.

For 300 years these people have performed very well in our society.

The question before the Court then is whether the state may destroy because that is what it will come to if these children are forced into high school, a peaceable, self sustaining community, 250 years on this soil on the ground, if parents in that community cannot send their children on account of a clear mandate of their religion to one or two years of high school.

Mr. Justice Stewart, in Braunfeld said that the orthodox Jews in that case were faced with a cruel choice.

A far cruel choice is presented in this case.

If the decision of this Court is against the Amish, I fear that many people will feel that this Court has indicted our nation as two (Inaudible) to allow difference, innocent difference to exist and to flourish in its midst.

The Amish did not come here as fearful supplicants to this Court.

They come here with confidence, believing in this Court as there brothers in justice, in love and goodness, and belief in constitutional liberty.

William B. Ball:

Thank you.

Warren E. Burger:

Thank you Mr. Ball.

Mr. Calhoun, you have four minutes remaining.

John W. Calhoun:

We have absolutely no quarrel to the Amish way of life.

In fact in some others, in the remorseless daily crunch of living, the grass on the Amish side of the fence looks green and much greener than ours at times.

But I submit that retreat to a similar era may have had some justification 200 years ago when Russo was exalting the virtues of the Pro-American man, but that too much water has gone through the turbines for that kind of a position.

What is needed is more education to cope with the problems of society, more pride in intellect not less pride.

This is what we should be developing in our educational programs.

The objection that the Amish had is to have additional two years at this point, additional two years of education and the people before the Court here are on it.

But if this Court does mature in this decision, it will apply to any number of years of education.

There can be no effort or no decision of this Court it seems to me that can say eighth grade is the cutoff point.

There is nothing logical or constitutional about the cutoff.

Warren E. Burger:

How can you say that counsel?

How can you say that in such sweeping terms when for 200 or 300 years in this country, primary education has been thought to be eight years in elementary, seven or eight years in elementary school?

John W. Calhoun:

Yes, but it is — It is — Yes, seven or eight and now sixth grade is considered in some areas as elementary education.

Seventh, eighth and ninth are considered a middle school and then the balance high school.

In some areas, there is a junior high school.

Now, this is not so important as what is being taught as changing.

The worldly courses of languages and foreign languages and the institution of educational television into the elementary grades, these things are objectionable to see and the dynamic quality of education makes it very difficult to say and to administer a rule which says the eighth grade is the limit beyond which anyone can be compelled to go to school.

Warren E. 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?

John W. Calhoun:

May I suggest that that is true.

That education today is undergoing serious study and revision that many experts in the field have written, urging reform and I think that this is necessary.

I think that there should be organic involvement at the local level in education that we must do this, but I think what this Court should be doing is to encourage that sort of thing, encourage the affirmance and the change that is necessary to make education a viable institution.

That is what this Court is to do.

Thank you.

Thurgood Marshall:

Mr. Calhoun, do you agree with Mr. Ball’s statement that this is absolutely against the religion, to go to school beyond the elementary school?

John W. Calhoun:

I do not agree with it fundamentally.

No.

Thurgood Marshall:

Do you have anything in the record to contradict this?

John W. Calhoun:

That — Yes, the Trial Court found — If you just bear with me, I will find that point.

Warren E. Burger:

Well, if it is a finding by the way that the Supreme Court has rejected it, does it not — it will not help you very much, will it?

John W. Calhoun:

Pardon me.

Warren E. Burger:

If one of the findings of the Supreme Court Wisconsin rejected it, it will not help you very much?

John W. Calhoun:

No, it is not — what it says is that they did not exactly reject it, but it just did not consider and it is this, on page 181 of the appendix.

Obviously, in the long history of the sect, it is existed in areas when and where there was no such thing as an eighth grade or an even school systems of any kind.

Just how the eighth grade cutoff point was arrived at was not explained.

Eight was apparently not the test nor does the quality of the school system apparently a factor.

Thurgood Marshall:

Now this is a memorandum decision by the Circuit Court?

John W. Calhoun:

That is right.

Thurgood Marshall:

I wonder, is there any evidence?

Any testimony?

Any expert that contradict this, the Amish expert?

John W. Calhoun:

There is — There was no expert testimony that contradicted the Amish testimony except the testimony of the state superintendent of the schools in the county.

Thurgood Marshall:

Did he know anything about the Amish law or any doctrines?

John W. Calhoun:

Yes.

Thurgood Marshall:

He did?

John W. Calhoun:

He had.

He knew about Amish people.

He was acquainted with Amish people, they live down there.

Thurgood Marshall:

You deny that it is not the part of their faith that they should not go to public schools beyond the eighth grade?

John W. Calhoun:

No, I deny that — I say this, that the Trial Court found that this did not interfere with the religious belief as such but with their freedom to act and that the freedom to act, the restriction of the freedom to act here was a reasonable one which has been imposed since 1642 in this country, that the compulsory school-attendance is not a law which has just recently been enforced.

We have had it since the beginning of our educational system.

Warren E. Burger:

Very well, Mr. Calhoun.

Thank you.

Thank you Mr. Ball.

The case is submitted.