OPTING OUT OF EDUCATION: YODER, MOZERT, AND THE

445
OPTING OUT OF EDUCATION:
YODER, MOZERT, AND THE AUTONOMY OF CHILDREN
Rob Reich
Department of Political Science
Stanford University
It is the future of the student, not of the parents, that is imperiled by today’s decision. If aparent
keeps his child out of school beyond the grade school, then the child will be forever barred from
entry into the new and amazing world of dwersity that we have today. The child may decide that
that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that
is essential if we are to give full meaning to what we have said about the Bill of Rights and of the
right of students to be masters of their own destiny.’
Jonas Yoder, a member of the Old Order Amish religion, objected to Wisconsin
laws requiring him to send his children to secondary school. He claimed that school
attendance was offensive to andundermined his religious beliefs. In a landmark 1972
case, the Supreme Court granted Yoder an exemption from the Wisconsin compulsory school attendance laws (WY,205). The ruling set a precedent that no Amish
child could be required to attend school beyond the eighth grade. A decade later, Bob
Mozert, a Fundamentalist Christian, objected to Hawkins County, Tennessee
regulations requiring his children to read from a Holt Company basal reading series.
He claimed that information in the Holt series was offensive to and undermined his
religious beliefs. Ina 1987case, theU.S. Court of Appeals, 6th Circuit, denied the plea
of Mozert to allow his child to opt out of the reading seriesa2The ruling set a precedent
that required his children to use and be tested on the reading series unless he chose
to send them at his own expense to a private or religious school.
why was the wide-ranging request of Yoder granted while the seemingly more
moderate request of Mozert rejected? Why is objecting to the entirety of secondary
school education a more tolerable position from a legal perspective than objecting to
the compulsory use of a single reading series? On the surface, the Mozert ruling
appears to call into question the reasoning in Yoder.If a child can be compelled to use
a book in public schools because it demonstrates no burden on the right to free
exercise of religious belief and is deemed essential to the state’s interests, then
shouldn’t an Amish child be required to be educated in schools?
This article examines the legal reasoning behind the Yoder and Mozerrt cases and
attempts to explain the seemingly paradoxical rulings. Contrary to the judgment of
the U.S. Appeals Court, I argue that the two cases are essentially similar, turning on
the notion of mere exposure as harm. I shall also develop the argument, however, that
1. Justice William 0.Douglas in Wisconsin v. Yoder (19721,406U.S. 205, at 245-46. This case will be cited
as W T in the text for all subsequent references.
2. Mozert v. Huwkins County Bourdof Education (19871,827F.2nd 1058.The 6th Circuit’s rulingwas left
as binding when the Supreme Court declined to review the case. This case will be cited as M H in the text
for all subsequent references.
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both Yoder and Mozert are flawed decisions from the standpoint of liberal political
theory, for they fail to take into account the crucial and overlooked interests of the
childreninvolved. Taking into account the independent interests of children, I argue,
has the consequence that cases such as Yoder and Mozert may no longer turn on broad
principles and must be determined on their own individual merits: no blanket opt out
clause for the Amish; no blanket requirement of a particular reading series for
Fundamentalists in public schools. The voices and interests of children should be
included in any legal decision-making calculus. I conclude by examining how and
when courts might best incorporate the voices of children into legal proceedings that
concern their educational futures.
THEESSENTIAL
SIMILARITY
OF YODER
AND MOZERT
THEYODER
CASE
The three respondents in Yoder claimed that compulsory attendance laws
forcibly exposed their children to the influences of the modern world and thereby
constituted a violation of their First Amendment guarantee to free exercise of
religion.3The Amish desired the benefits of public education until the eighth grade
but held the effects of secondary school attendance to be contrary to their religious
beliefs. The Court noted that “Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community
separate and apart from the world and worldly influence” (WY,210). Compulsory
exposure to the worldly influences and values of modern life, the Court concluded,
“affirmatively compels the Amish, under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious beliefs” (WY,21 8).The
Court then considered whether the state had an overriding compelling interest in
keeping the Amish in secondary school. It concluded that the benefits accrued by
students in secondary school to be effective citizens and self-sufficient individuals
were not great enough to outweigh the substantial burden imposed upon the Amish
by compulsory attendance laws. Noting that the Amish are “productive and very
law-abiding members of society,” the Court reasoned that accommodating the
objections of the Amish would not undermine the state’s interests at stake ( WY,222).
The Court did note, however, that such a convincing showing was “one which
probably few other religious groups or sects could make” (WY, 236) The Court
therefore found in favor of Jonas Yoder and exempted him and all other Amish
parents from criminal penalties for failing to send their children to school beyond the
eighth grade.
3. The First Amendment of the United States Constitution provides that Congress shall make no law
“respecting an establishment of religion,” referred to hereafter as the Establishment Clause, and that
Congress shall makenolaw “prohibiting the free exercise thereof,”referred to hereafter as theFreeExercise
Clause. The Fourteenth Amendment makes the Bill of Rights applicable to the states.
ROB REICH is Assistant Professor of Political Science, Ethics in Society, and [bycourtesy)Education in the
Department of Political Science at Stanford University, Stanford, CA 94305-6044. His primary areas of
scholarship are political theory, liberalism, and the moral status of children.
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THEMOZERT
CASE
The seven respondents in Mozert alleged that the public schools’ use of the Holt
Basic reading series exposed their children to values and beliefs contrary to their
religious values and beliefs. The parents’ belief in Fundamentalist Christianity
commanded a literal interpretation of the Bible and viewed its teachings as inerrant.
By errposing their children to alternative and at times contrary values and beliefs, the
parents argued that the Holt reader offended their religious beliefs and unduly
burdened their right to free exercise thereof. As a remedy, the parents sought only to
have their children excused from the Holt readers and provided with alternative
materials, still within the public school environment.
After a U.S. District Court ruled in favor of Mozert, the case was overturned by
the U.S. Appeals Court ( M H , 1194).Exposure to diverse ways of life and beliefs, the
Appeals Court ruled, was not compulsion to believe anything and therefore did not
interfere with the parents’ freedom to practice their religion. Because reading the
Holt series ”[neither] entailed affirmation or denial of a religious belief, [nor]
performance or non-performance of a religious exercise or practice,“ and because the
state compelled no actions and only “mere exposure,” there was no showing of an
unconstitutional burden on the plaintiff‘s Free Exercise rights (MH,1065). Not
finding a burden on Free Exercise, the Appeals Court never reached the issue of
whether the state has a compelling interest sufficient to outweigh the burden in
requiringuse of the reader. The concurring opinion of JudgeCornelia Kennedy notes,
however, that “even if I were to conclude that requiring the use of the Holt series or
another similar series constituted a burden on appellees’free exercise rights, I would
find the burden justified by a compelling state interest” (MH,1070).Thus the Mozert
parents, and similarly believing Christian Fundamentalists elsewhere, were obliged
to accept the curricular materials provided by public schools, even when they were
inimical to their religious beliefs. They remained free, of course, to homeschool or
to send their children to private or religious schools where the curricular materials
would be consistent with their religious beliefs.
ANALYSIS
OF YODER
AND MOZERT
BASICSIMILARITIES
Yoder and Mozert share a significant number of features in common. The cases
both revolve around parental requests for exemptions from what the state requires
as standard practice for the education of children. Similarly, both parties argue that
such exemptions should be granted due to interference with parental religious
beliefs. Both parents in Yoder and Mozert attempt to base their exemptions, in part
at least, on the authority of a 1925 Supreme Court ruling, Pierce v. Society of Sisters,
which, according to Chief Justice Burger, “stands as a charter of the rights of parents
to direct the religious upbringing of their children’’ ( WY, 233).4Acknowledging this
4.Citing Pierce v. Society of Sisters (1925),268 U.S.510. The Court held in Pierce that states could not
require parents to send their children to public schools; the ruling gave constitutional standing to private
and parochial education. There is a great irony involved in the legacy of the Pierce case. While it is often
cited as justification for parents to control the education of their children, there were no parents involved
at all in the Pierce litigation.
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potential avenue of justification, both the Yoder and Mozert rulings explicitly
recognize the plaintiffs as sincere religious believers (WY,225; MH, 1061).As sincere
believers, the parents were able to invoke their right to direct the religious upbringing
of their children and the court may then begin to assess the claim that some burden
exists on their constitutional rights.
The question of a potential violation of the plaintiffs’ Free Exercise rights points
to an important similarity in what the cases are not. That is, neither Yoder nor
Mozert explicitly raises issues about violations of the Establishment Clause; both
cases revolve around whether Free Exercise has been unduly burdened by state
interests in the form of, respectively, compulsory attendance laws or compulsory
reading texts. Neither set of parents in Yoder or Mozert argued that the State in its
public schools had endorsed some religion contrary to their own; nor did the parents
seek toremake the public schoolsin their ownimage; nor did they insist onremoving
texts or teachers from classrooms. Both parent groups were content to leave the
public schools as they were, leaving uncontested the value or effect of the curriculum
on any students other than their own. In short, both parties questioned whether
exposure to some feature of education constituted a violation of their free exercise
of religion, not their freedom from government-imposed religion. And both refrained
from imposing their beliefs on others, thereby causing no Establishment violations
of their
Since the nature of both cases turns on alleged violations of the Free Exercise
Clause, both courts applied the same legal test in order to assess the merits of the
plaintiffs’ claims. The test consists of two prongs: a threshold question and a
balancing question. The threshold question asks whether or not the contested
practice constitutes a real burden on the free exercise of religion; the balancing
question asks, assuming a burden exists, whether or not compelling state interests
exist that would outweigh the burden on free exercise.6The Appeals Court decision
states, for example, “The first question to be decided is whether a governmental
requirement that a person be exposed to ideas he or she finds objectionable on
religious grounds constitutes a burden on the free exercise of that person’s religion’’
(MH, 1063).As to the second prong, the Yoder decision notes, “A State’s interest in
universal education, however highly we rank it, is not totally free from a balancing
process when it impinges on fundamental rights and interests, such as those
specifically protected by the Free Exercise Clause” [WY,214).The similarity of the
constitutional questions at stake in the two cases, therefore, led both courts to
structure their rulings in the general form of the two-pronged test of alleged
violations of Free Exercise. They reached, of course, different conclusions. Yoder
5. It is easy to see, however, how the cases could become entangled in the Establishment Clause, especially
the Mozert case. Had the Mozert parents requested that their children be supplied with texts that would
teach the truth of their Fundamentalist beliefs, such a request would have run afoul of the Establishment
Clause. See, forexample,Epperson v. Arkansas (19681,393U.S.97, holding that it violates the Establishment
Clause to tailor a curriculum to satisfy the principles or prohbitions of any religion; for example, laws
requiring the teaching of Creationism.
6. For a discussion of this two-prongtest, see Nomi Stolzenberg, ”He Drew a Circle that Shut Me Out,” 106
Hurvard Law Review581 (1993):592; and George W. Dent, Jr., “ReligiousChildren, Secular Schools,”61
Southern California L a w Review 863 (1988):880ff.
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addressed both prongs and found an unconstitutional burden that was not outweighed by state’s compelling interests; Mozert found no unconstitutional burden
and therefore never addressed the balancing prong7
Both courts sought to answer the threshold prong in the same manner. In what
does the asserted constitutional burden on Free Exercise consist?For both Yoder and
Mozert the question of burden turns explicitly on the alleged harm of exposure to
religiously objectionable practices or materials. This is significant, for typical cases
in the past examined whether or not the state had engaged in indoctrination or
compelled belief of some sort. Both Yoder and Mozert measure the alleged Free
Exercise burden in terms of assessing the harm of exposure itself. The Supreme Court
finds substantial harm in exposure: “The conclusion is inescapable that secondary
schooling, by exposing Amish children to worldly influences in terms of attitudes,
goals, and values contrary to their beliefs... contravenes the basic religious tenets and
practice of Amish faith” (WY, 218). The U.S. Appeals Court finds no harm in
exposure: ”The record leaves no doubt that the district court correctly viewed this
case as one involving exposure to repugnant ideas and themes as presented by the
Holt series” ( M H , 1064). As already noted, however, the Appeals Court held that
since exposure required students neither to affirm nor deny any particular religious
belief, such exposure was not a harm so large as to be an unconstitutional burden.
From the perspective of the religious beliefs of both the Yoder and Mozert
plaintiffs, however, it is important to see that the alleged harms were exceedingly
grave. From the point of view of the Amish, the harm involved in exposure was
potential cultural extinction. One expert in the Yoder case, for example, testified that
compulsory attendance would “ultimately result in the destruction of the Old Order
Amish church community as it exists in the United States today” [WY,212). From
the point of view of the Fundamentalists, the harm involved was nothing less than
eternal damnation, for both the children and the parents who had failed to safeguard
their Christian upbringing.8The plaintiffs’ perspective is doubly important here, for
the Supreme Court’s jurisprudence typically shows that it is not a court’s role to
decide what is alegitimate or central religious belief and what is
Assuming that
the complainant’s religious belief is sincere, as was taken to be the case in both Yoder
and Mozert, the Court is left taking the plaintiffs at their word for what offends their
religious beliefs. As George Dent notes, ”For most people, serving in the army,
7. ThemorerecentrulinginEmploymentDivision v. Smith [ 1990),494U.S. 872, at 1063,callsinto question
the continuing vitality of the two-prong Free Exercise test. Writing for the majority, Justice Scalia held that
“the government’s ability to enforce generally applicable prohibitions of socially harmful conduct.. .cannot
depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”
Thus, following this newer ruling, the scrutiny of state’s interests has been relaxed.
8. Stolzenberg writes of the original testimony, “[The Fundamentalists] asserted that the children would
be eternally damned if they read the books, whereas the parents would be damned if they p e m i t t e d their
children to read them”; Stolzenberg, “He Drew a Circle that Shut Me Out,” 599 (emphases in original).
9. See Dent, “Religious Children, Secular Schools,” 899: “The Court has never denied afree exercise claim
on the ground that the belief in question was not central enough or sufficiently burdened. More important,
the Court has struck down burdens on religion that would not seem central or substantial to most people.”
On the latter point, see Stone v. Graham (1980), 449 U.S. 39 (holding that the posting of the Ten
Commandments i n a public school classroom i s unconstitutional) and West Virginia State Board of
Education v. Barnette (19431,319 U.S. 624 (holding that students could not be forced to recite the Pledge
of Allegiance and salute the flag.)
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working on weekends, attending school beyond the eighth grade, or driving a car with
a license plate that says ‘Live Free or Die’ does not entail religion. But for some people
these activities do involve faith, and the Supreme Court has routinely upheld claims
based on these faiths.’’10In Mozert, as we shall see, the Appeals Court avoided this
issue with a legal sleight of hand by claiming the state never compelled the
Fundamentalist children to make any action or declare any belief; hence, there could
be no harm in mere exposure.
ALLEGED
DIFFERENCES
The opinion in Mozert addresses the Yoder ruling directly, noting that the Yoder
case is “the only one that might be read to support the proposition that requiring
mere exposure to materials that offend one’s religious beliefs creates an unconstitutional burden on the free exercise of religion” ( M H , 1067).Substantiating my claim
that the cases are essentially similar, the Appeals Court reasons that the Yoder
precedent could apply to the Mozert case, in support of the parents. The Appeals
Court then notes, however, that ”Yoderrested on such a singular set of facts that we
do not believe it can be held to announce a general rule that exposure without
compulsion to act, believe, affirm, or deny creates an unconstitutional burden” (MH,
1067).But is Yoder really so singular?
There are three possible ways to distinguish the Yoder and Mozert cases. The
first regards the quantity of exposure. For the Amish, it was their very presence in
any school beyond eighth grade that was deemed harmful; with the Fundamentalists,
it was the presence of a particular Holt reading series that was deemed harmful. The
second regards the qualitative effectof exposure. For the Amish, the Court believed
the exposure in question burdened Free Exercise and would threaten the selfcontained, homogeneous, anti-modem Amish way of life with extinction; with the
Fundamentalists, exposure was not taken by the Court to be a burden and their
cultural survival was not contested. The third regards the question of whether
coercive exposure to diverse viewpoints and opinions, via compulsory attendance in
the Yoder case or via the Holt series in the Mozert case, constitutes a compelled act
contrary to one’s religious beliefs. For the Amish, the Court considered compulsory
attendance an action in violation of Yoder’s constitutional rights to free exercise of
religion; with the Fundamentalists, the Court of Appeals did not consider forcing the
students to use the Holt series an action and therefore it was not objectionable. I aim
to show that all three reasons fail as adequate distinctions.’l
Should differences matter in the quantity of objectionable exposure said to
interfere with the religious freedom of either the Amish or the Fundamentalists? The
10.SeeDent, ”Religious Children, Secular Schools,” 891, citing Bowen v. Roy(1986),476U.S. 693 [whether
use of a Social Security number robs one’s soul]; Wooley v. Maynard (1977),430 US. 705 [whether “Live
Free or Die” contradicts religious promise of everlasting life), and Wallace v. Iaffree [1985),472 U.S. 38
(whether a moment of sllence promotes religion).
11. A possible fourth reason is the Supreme Court’s highly unusual emphasis on the ”productive and lawabiding” record of the Amish. The implication, I assume, is that if the Mozert court were to determine that
Fundamentalists are unproductive members of society prone to criminal acts as a group, their Constitutional rights may have less applicabillty. That a court would engage in such group stereotyping is an odd
thing; that a person’s Constitutional rights would hinge on the alleged proclivities of the group of which
he is a member is even stranger.
RFlrH
Opting Out of Education
Mozert ruling states that, ”Unlike the plaintiffs in the present case, the parents in
Yoder didnot want their children to attend any high school or be exposed to any part
of a high school curriculum” (MH, 1067).Seen in this light, the seemingly paradoxical rulings make at least some common sense. Jonas Yoder alleged that the totality
of secondary school education was a Free Exercise violation; Bob Mozert alleged only
the Holt reading series was a Free Exercise violation. This line of reasoning attempts
to correlate the amount of putative harm done by exposing children to unwanted
beliefs with the amount of time such exposure takes place. The more the exposwe,
apparently, the greater the harm. But this idea is clearly flawed for two reasons. First,
Hawkins County school officials themselves testified that the Holt series was
integrated into the whole of the school curriculum. Concepts discussed in reading
class came up in other classes. Therefore, on the defendant’s own admission, the
entirety of the school curriculum was implicated in the alleged harm (MH, 1072).”
Second, the Fundamentalist parents asserted that exposure to the Holt series, no
matter how limited in comparison to the exposure in the Amish case, was equally
devastating. In both cases, irrespective of the amount of exposure, the religious
beliefs of the plaintiffs commanded them to avoid exposure at the pain of, either,
potential cultural extinction or eternal damnation. If the constitutional relevance of
a putative harm rests on the quantity of exposure, courts thereby ignore the very
value of the Free Exercise Clause - the freedom of religious belief. Quantity of
exposure cannot determine whether a harm exists.
Should differences matter in the qualitative effects of objectionable exposure?
This notion seems to make more intuitive sense than quantity, for the overall effect
of exposure has more a plausible relation to harm than quantity of exposure. The
Supreme Court emphasized this point in Yoder when it acknowledged that ”enforcement of the State’s requirement of compulsory formal education.. .would gravely
endanger if not destroy the free exercise of respondent’s religious beliefs” (WY, 219).
The reason for the grave endangerment was that forced exposure to worldly influences “substantially interferes with the religious development of the Amish child
and his integration into the way of life of the Amish faith community” (WY, 218).
But, of course, the very same thing is at stake for the Fundamentalists. In their own
testimony, the Mozert parents were at pains to indicate how allowing their children
to read from the Holt series would tear their children from the community of the
Fundamentalist faith, thereby interfering with their Pierce-derivedright to direct the
religious upbringing of their ~hi1dren.l~
The &strict court judge, who had ruled in
12. The school officials raised this issue to point out the impossibility of an opt-out clause from just the
reading classes. Without a hint of irony, Judge Kennedy writes in her concurring opinion, “The Director of
Elementary Education testified that teachers use every opportunity within the school day to reinforce
information taught in the different subject areas.”
13. SeeVickiFrost’s extensive testimony, as describedinStephenBates, Battleground [New York: Poseidon
Press, 1993).Walter Lippmanrecognized the gave threat posedby modern secular society to Fundamentalist
believers in a classic broadside written in 1926. Imagining a dialogue between a Fundamentalist and a
secular rationalist, Lippman’s rationalist asks that there be an open-minded dwcussion about whether citizens should rely on faith or reason. His Fundamentalist replies, “Your request that I be tolerant and amiable
is. ..a suggestion that I submit the foundation of my life to the destructive effects of your skepticism, your
indifference, and your good nature. You ask me to smile and to commit suicide”; Walter Lippman,
American Inquisitors: A Commentary on Dayton and Chicago (New York: MacMillan, 19261 65-66.
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favor of the Mozert parents, obviously agreed: “It seems hardly possible to question
the fact that the plaintiff‘s free exercise rights have been burdened”(MH, 1200).If the
capacity of parents to incorporate their children into their own religious fold has legal
standing, then no differencein effect can be discerned between Yoder and Mozert.
Another possible qualitative distinction of the effect of exposure calls attention
to the potential long-run practical consequences to the faith as a whole, not to
individual children. In Yoder, the majority noted that compulsory attendance was
potentially threatening to “the continued survival of Amish communities as they
exist in the United States today’’ (WY, 209). And the Mozert decision says, with
explicit reference to the Yoder case, “NOsuch threat exists in the present case“ (MH,
1067). Several commentators cite this as a crucial distinction between the two
cases.14But no guarantee exists in the Constitution that subgroups will be supported
and maintained.15And anyway, the claim is essentially secular, not religious. If the
vitality of any group‘s way of life is threatened, may it claim a constitutional
violation? Moreover, to say that the harm is relative to the long-term effects to the
faith as a whole raises the thorny issue of the courts defining what religious beliefs
are central to the faith and which not. As noted previously, the Supreme Court has
never denied a Free Exercise claim because the belief in question was not central
enough.
One other possibility along the lines of qualitative effects of exposure highlights
the uniquely extreme separatist tendencies of the Amish as compared to those of the
Fundamentalists. The Mozert ruling made note of this: “The parents in Yoder were
required to send their children to some school that prepared them for life in the
outside world, or face official sanctions. The parents in the present case want their
children to acquire all the skills required to live in modem society” ( M H , 1067).16In
short, the principled differencewould be that the Amish separate and the Fundamentalists integrate. But because the Amish are self-segregating and self-sufficient,
should their claims of constitutional violations be granted greater leeway or stricter
scrutiny? No constitutionally recognized reason can justify this argument; the
doctrinal significance of prior assimilation is wholly unexplained. Nor is there any
reasonable argument to be made on behalf of distinguishing the Amish and the
Fundamentalists on these grounds. True, the insular and nonpolitical Amish are
different from the integrated and politically active Fundamentalists. But the degree
14. See Bates, Battleground, 298, and Stolzenberg, “He Drew a Circle that Shut Me Out,” 636. See also the
writing of several political philosophers who hold this to be a critical distinction worthy of justifying the
outcome of the two cases, Avishai Margalit and Moshe Halberd, “The Right to Culture,” Social Research
[Fall 1994):491-510;and Will Kymlicka, Mdticulturd Citizenship [Oxford OxfordUniversity Press, 1995).
15.Another problem with the idea of cultural preservation programs, as I have previously suggested, is that
the idea seems to assume that while societies are multicultural, individuals are monocultural. For more on
this, see Rob Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago:University of Chicago Press, ZOOZ), chap. 3.
16. Philosophers have also made much of this distinction. See Jeff Spinner, The Boundaries of Citizenship
(Baltimore:Johns Hopkins University Press, 1993J,95-99, calling the Amish “partial citizens”; and Stephen
Macedo, “Liberal Civic Education and Religious Fundamentalism: the Case of Godv. John Rawls?” Ethics
105, no. 3 (April 1995):468-96, arguing for prudential accommodation.
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of integration and political participation in mainstream society carries no moral
weight, for the state ought not assume that the preferences of parents in either case
determine the future interests of their children.
Finally, the third possible distinction questions whether mandatory attendance
and reading of the Holt texts constitutes a mandatory act that contravenes some
person’s religious doctrine. The Mozert opinion makes much of the claim that “what
is absent from this case is the critical element of compulsion to affirm or deny a
religious belief or to engage or refrain from engaging in a practice forbidden or
required in the exercise of the plaintiff‘s religion” ( M H , 10691. The compulsory
attendance laws in the Amish case were obvious examples of state coercion that
compelled conduct, which the Court then found to be a practice forbidden by the
Amish religion (and therefore a burden on Free Exercise).The mandatory use of the
Holt readers in the Mozert case, however, was found by the Appeals Court to be mere
exposure, not compulsory ~ 0 n d u c t .By
l ~ this odd reasoning, requiring a child to read
apparently does not constitute compulsory conduct; readmg is not an action! A
concurring opinion in Mozert takes the Appeals Court to task for this stunning twist
in logic. Making an analogy to the case of reading a book on the Catholic Church’s
Index Librorum Prohibitorurn, concurring Judge Boggs concludes that “I would
hardly think it can be contended that a school requirement that a student engage in
an act (thereading of the book) which would be a specifically mortal sin under the
teaching of a major organized religion would be other than ’conduct prohibited by
religion”’ (MH, 1073, 1075).On this more plausible understanding of conduct, then,
the situations in the Amish case and the Fundamentalist case are similar, not
different.Both cases involve compelled conduct, school attendance on the one hand
and the reading of the Holt series on the other, that is contrary and burdensome to
the religious beliefs of the parents.
In fact, the Mozert parents and the Amish parents appear, after this analysis, to
be similarly situated in all important regards. The alleged differences in the two cases
- quantity of exposure, quality of exposure, and absence of conduct - do not
withstand close scrutiny. Contrary to the finding in Mozert, the Amish case is not
“singular”; the Fundamentalists occupy an essentially similar position. Each case
turns on a Free Exercise test where the burden of Free Exercise is measured by the
putative harm caused by mere exposure.
Since, however, I find both rulings flawed, I make only limited conclusions from
the foregoing analysis. If my analysis is correct, one of two things follow. The first
possibility is that the Yoder decision should have guided jurisprudence in Mozert,
implying that ample constitutional space existed for accommodating the Fundamentalist parents. It seems bizarre, after all, that the State can mandate the reading of an
17. The Appeals Court contrasts the mere exposure in Mozert to the compelled conduct in Sherbert v.
Verner [ 1963),374 U.S. 398 (where a sabbatarian was denied unemployment benefits for refusing to work
on Saturdays); in Thomos v. Review Board (1981),450 U.S. 707 (where a Jehovah‘s Witness was denied
unemployment compensation after quitting a job that required him to work on military tanks); and in
Hobbie v. Unemployment (1987),480 U.S. 136 (reaffirming holdings in Sherbert and Thomas).
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individual reading series from a particular company (MH, 1O73).lsYet such is the
consequence of the Court of Appeals’ ruling, to wit: ”ASwe ultimately decide here,
on the present state of constitutional law, the school board is indeed entitled to say,
‘my way or the highway”’ ( M H , 1074).19The second possibility is that the Mozert
ruling calls into question the reasoning in Yoder, implying that despite the conceded
burden to Free Exercise, the Amish could be compelled under the Constitution to
observe school attendance laws. If, as in Judge Kennedy’s ruling, the prescribed
reading of the Holt series constituted a compelling state interest sufficient to
outweigh the burden on Free Exercise, why shouldn’t the Amish children be
compelled to attend school? In sum, if Jonas Yoder’s children can opt out, why can’t
Bob Mozert’s; or if Mozert’s can be compelled, why shouldn’t Yoder’s?
CHILDREN’S
INTERESTS
IN EDUCATION
I purposely leave the issue undecided. No general answer can be given either way,
for I believe that the arguments offered in both decisions overlook the crucial
position and interests of the children themselves. Both Yoder and Mozert are cases
about the education of children, yet in neither case is it presumed that the children’s
individual and distinct interests should be a part of the legal calculus. Indeed, Justice
Douglas’s dissent in Yoder suggests that had the focus of the case been on children’s
interests, the case may have been decided differently. According to Douglas, “if an
Amish child desires to attend high school, and is mature enough to have that desire
respected, the State may well be able to override the parents’ religiously motivated
objections” (WY,242).
Inthis space I can only begin to give an outline of the case for includmg children’s
interests and voices in legal decisions concerning their education. My case rests on
the proposition that children have an interest in becoming autonomous adults, and
that developing autonomy requires an education that engages a person with value
diversity. The consequence of this view is that courts should consider the incorporation of children’s own voices into legal proceedings in order to determine what
their preferences are. We ought to abandon judicial establishment of broad principles
exempting entire religious groups from some part of education, otherwise required
of all others, when the parents of children allege an unconstitutional burden on their
religious liberty. When listening to the voice of the individual child, cases should be
decided on a case-by-case basis.
The reason it is imperative to take the child’s interests and voice into account
involves no legal or logical cartwheels. Put simply, judges should not presume that
18. Judge Boggs understands the silly implications in his concurring opinion: “The school board recognizes
no limitation on its power to require any curriculum, no matter how offensive or one-sided, and to expel
those who will not study it, so long as it does not violate the Establishment Clause. Our opinion today
confirms that right.”
19. Noting all the critical comments of Judge Boggs, it is something of a mystery why he found in favor of
Hawkins County. Bogs’s opinion “reluctantly conclude[s] that under the Supreme Court’s decisions as we
have them, school boards may set curricula bounded only by the Establishment Clause, as the State
contends” (MH,1080). This is nonsense. The courts have often muddled in school curricula when the
Establishment Clause is not anissue. FroinBrown v. Board to theMilZiken remedies to bilingual education
provisions in Lau, the Court has been active in the inner workings of schools. See the encyclopedic
catalogue in Betsy Levin, “Educating Youth for Citizenship,” 95 Yale L a w Toourno1 1647 (1986):fnl0.
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Opting Out of Education
the interests of children are identical to the interests of parents. Both Yoder and
Mozert present the conflict as one between the Free Exercise rights of the parent
plaintiffs and the interest of the state in regulating education. In neither case is there
significant discussion about the Free Exercise rights of the children. Whether the
State acts unfairly in compelling parents to send their children to secondary school
or to accept a specific reading series is a reasonable and legitimate question. Equally
reasonable and legitimate, it seems to me, is whether in vindicating their own Free
Exercise rights, the parents usurp those of their children by compelling them to
accept an education that precludes exposure to diverse ideas and ways of life. Douglas
again:
It is the future of the student, not of the parents, that is imperiled by today’s decision. If a parent
keeps his child out of school beyond the grade school, then the child will be forever barred from
entry into the new and amazing world of diversity that we have today. The child may decide that
that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that
is essential if we are to give full meaning to what we have said about the Bill of fights and of the
right of students to be masters of their own destiny. If he is harnessed to the Amish way of life
by those in authority over him and if his education is truncated, his entire life may be stunted
and deformed IWY, 245-46).
Let us leave aside, however, the essentially legal or Constitutional question of
whether the parents’ Free Exercise claims may stand in for the Free Exercise claims
of their children. The independent interests of children rest on a foundation of
philosophical reasoning that, hearkening back to Kant, views all persons, including
children, as ends in themselves. Children are the property of neither their parents nor
of the state, and no person or institution may legitimately fix and determine the ends
that another person pursues, treating them as a mere means or vehicle of their own
interests. Thus, legal mechanisms that install parents’ interests as foolproof substitutes for their children’s interests ignore the moral status of children as independent
and separate persons.
Of course, the reason that chldren’s interests are often subsumed under the
interests of their parents is that children are needy and dependent; they are not yet
able to articulate and defend their interests. Recognizing the independent interests
of children in education does not mean that children are best suited to supervise the
promotion of these interests; nor does it mean that they are able even to articulate
them. But the problem of children’s neediness and dependence, and the problem of
who shall represent children’s interests, does not invalidate the interests. It merely
points to the need for debate about when paternalism over children is no longer
justified and when, developmentally, children might capably represent themselves,
especially in cases where cases conflict.
At its heart, this is an argument about the interest that all people within a liberal
state, including children, have in becoming autonomous. I have developed this
argument in detail elsewhere, though arguments about the importance of individual
autonomy have deep roots in liberal political theory, stretching back at least to John
Stuart
And though it is a matter of controversy in contemporary debates,
20. In Reich, Bridging Liberalism and Multiculturalism, I offer a detailed argument in support of a child’s
interest in education for autonomy.
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theorists of varying persuasions - liberals, republicans, feminists, and
multiculturalists -have all endorsed the core value of autonomy.21The claim has
been made most cogently by Joseph Raz, who writes, “Liberalism upholds the value
for people of being in charge of their life, charting its course by their successive
choices.”22Being able to make choices and exercise autonomy, however, depends on
living in an environment that provides a range of diverse options from which to
choose: “Autonomy is valuable only if one steers a course for one’s life through
significant choices among diverse and valuable options.’Iw Autonomy, in this sense,
is connected to pluralism. A concern for autonomy means providing an environment
where choice is meaningful, where opportunities to lead one kind of life or another
are real options.
Becoming autonomous is also important for political purposes in a liberal state.
In order to secure the legitimacy and stability of the principles of justice by which all
shall be governed, the liberal state must cultivate autonomy in each citizen so that
their consent to the principles governing their lives will be uncoerced. On the one
hand, then, the state respects the autonomy of all citizens. For political principles
and policies to be legitimate, the state cannot coerce or compel their acceptance.
Taking the autonomy of its citizens seriously, the state needs to gain their consent
on basic questions of justice and political policies, and it will need to facilitate and
encourage their political participation on a free and equal basis. On the other hand,
the state must cultivate the exercise of autonomy in its citizens. Because consenting
to principles of justice and political policies in a diverse society will involve
understanding that others are motivated by different ends, consent will involve
reflecting critically and independently upon one’s own conception of the good and
upon others’ as well. In order to formulate reasons that might be publicly acceptable,
citizens must be capable of a critical appraisal of themselves and others. People who
justify their political actions and decisions on the basis of reasons that others might
reasonably accept have, in effect, recognized that a range of reasonable conceptions
of the good exist and made an evaluation about how best to appeal to those who do
not share their own life commitments and projects.
Putting these pieces together, we can conclude that, for a liberal state to be
legitimate, it must respect the autonomy of citizens in seeking their consent to
21. Liberal proponents of autonomy include Amy Gutmann, Democratic Education [Princeton:Princeton
University Press, 1986).Advocates of republican political theory who view individual autonomy as central
include Richard Dagger, Civic Virtues: Rights, Citizenship, and Republican Ziberalism (Oxford Oxford
University Press, 1997); feminist theorists include Susan Moller Okin, Is Multiculturalism Bad for
Women! (Princeton: Princeton University Press, 1999)and Jennifer Nedelsky, “Reconceiving Autonomy:
Sources, Thoughts, Possibilities” Yalelournal of Lawand Medicine 1, no. 7 (1989).Finally, Will Kymlicka,
the advocate of the most widely known theory of multiculturalism, is perhaps the strongest defender of
individual autonomy, writing that ”Liberals are committed to supporting the right of individuals to decide
for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to
(perhaps even defined by] the view that individuals should have the freedom and capacity to question and
possibly revise the traditional practices of their community, should they come to see them as no longer
worthy of their allegiance” and that “We must endorse the traditional belief in personal autonomy”;
Kymlicka, Multicultural Citizenship, 162.
22. Joseph Raz, Etlucs in the Public Domain (Oxford: Clarendon Press, 1994), 175.
23. Joseph Raz, “Liberalism, Scepticism, and Democracy,” Iowa Law Review 74 (1988):133.
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Opting Out of Education
principles of justice and their application to political institutions and policies. If the
consent of citizens is to be uncoerced, citizens must have the capacity to reflect
critically upon political principles, and upon their own and others’ political arguments. As Harry Brighouse says, “It is empty to claim that a state is legitimate
because its coercive actions would have been accepted by autonomous citizens
unless that same state has ensured that each person has been able to become
Legitimacy relies upon both respect for and the fostering of autonomy. Once legitimate consent to the political principles that will regulate society
has been established, however, the question of stability arises. Given that principles
of justice do not specify correct policies in detail, and given that citizens h e and new
ones are born, how will citizens with different and potentially incompatible conceptions of the good reach a stable consensus about determining the political institutions and policies that will govern them all?To achieve this stability, the liberal state
must foster the exercise of autonomy such that citizens are capable of giving public
reasons whose validity might be acknowledged by all.
What is the consequence in Yoder and Mozert when we view the interests of
children as independent from those of their parents?If Frieda Yoder were to ratify the
wishes of her parents to be exempt from compulsory attendance laws, as she actually
did, then the court might wish to grant an exemption to her family. If Adin Yutzy and
Wallace Miller (other children in the Yoder case),however, were to express a desire
to attend public secondary school, the court might wish to override the parents’
concededly well-founded religious objections. Similarly, if Sundee Mozert were to
agree that exposure to the Holt series was a terrible burden on her religious liberty,
then the court might force the schools to accommodate her opt-out request. If Travis
Mozert, however, were to voice the desire to read the Holt series required of all other
students, the court might override his parents’ religious objections. Taking the voice
and interest of children seriously means examining the merits of cases on a case-bycase basis. Courts should avoid issuing sweeping principles of exemption for entire
religious groups. They should equally avoid issuing sweeping principles of forced
exposure to a particular curriculum for religious groups. Assuming the autonomous
judgment of the child, courts should presume to consult children and make decisions
on a case-by-casebasis, balancing the rights, religious and otherwise, of the parents,
the interests of the state, and the interests of the child.
INCORPORATING
CHILDREN‘S
INTERESTS:
WHENAND HOW?
Traditional jurisprudence has viewed questions about the educational authority
of children as a contest or balancing act between the rights of the parents and the
interests of the state. I have suggested that when the educational future of the child
24. Harry Brighouse, ”Civic Education andLibera1Legitimacy,”Ethics 108, no. 4 (1998):735.In this article
Brighouse also distinguishes between autonomy-facilitating and autonomy-promoting education (p. 733).
He argues that the liberal state need only facilitate, not promote, autonomy. This strikes me as a classic
case of a distinction without a difference. Even accepting Brighouse’s claim that autonomy is character
neutral and just a set of skills, a notion of autonomy I find implausible, it is still difficult to see how the
teaching of a set of skills that will be necessarily deployed if the state is to be legitimate can be separated
from actually promoting the use of the skills.
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is at stake the courts should also presume to hear the voice of the children affected
by any potential ruling. But should it do so in all cases, even when children are very
young or when doing so may magnify conflict between a child and parent? Assuming
that children do have an interest in becoming autonomous and that their interests
should not be subsumed under those of their parent, how ought their voices and
preferences be incorporated into legal proceedings?
It would be wrong to draw a hard and fast rule. In my view, judges should act with
discretion in incorporating the voice of the child when it is possible that the child has
autonomous views and when the expression of a child’s preference in a courtroom
will not cause more harm than
Revising legal procedures in this way does not
require any revolution in precedent. There are many cases across a wide variety of
areas in which courts not only solicited the opinions of children but also accorded
them significant weight. In custody conflicts, in disputes over the medxal health
treatment of children, and in cases where juvenile delinquents waive their rights,
courts routinely evaluate a child’s maturity and often solicit the preference of the
child. In at least one prominent, though controversial, area of the law - the ability
of teenage girls to obtain an abortion - courts have ruled not only that a child’s
preference may override the objection of her parents but that a court is not even
required to notify her parents or seek their views.26The history of the treatment of
children in legal proceedings may be inconsistent in the United States, but the
presence of children’s voices in courtrooms is far from unprecedented.
A judge’s first consideration in deciding whether to solicit the views of the child
ought to be whether or not the child can be expected to have achieved or approached
autonomy. The reason is obvious: The preferences of an autonomous person are
deserving of respect. The crucial factor here, obviously, will be the child’s age and
maturity. Asking a five-year old to provide areasonedanswer as to whether he or she,
all things considered, would like to be exempted from some religiously burdensome
part of a school curriculum is fanciful. Expecting a five-yearold to provide a reasoned
objection to the religious wishes of his or her parents borders on the preposterous. As
a general rule, the older the child, the greater the likelihood that he or she will have
developed a threshold level of autonomy.
Of course, no simple algorithm exists that can determine whether any specific
child is autonomous. But the lack of such an algorithm does not mean that courts
should presume to hear the voice of children only once they have reached adulthood
at the arbitrarily set age of eighteen. Severalfactors weigh in favor of viewing children
younger than eighteen as capable of autonomous decision making. First, numerous
psychological studies indicate that the decision-making competence of late adolescents does not differ from that of adults. According to one review of the literature,
“in so far as denial of autonomy has been based on assumptions of incompetence in
25. The argument in this section draws on portions of an argument I make in a discussion of homeschooling
in Reich, Bridging Liberalism, chap. 6 .
26. This is the famous case of BelIotti v. Baird, 443 US. 622 (1979),in which the U.S. Supreme Court held
that lower courts should not interfere with the choices of a mature minor, even if judges believed that an
abortion would not be in the child’s best interest.
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Opting O u t of Education
decision making, related to matters of psychotherapy, abortion, medical treatment,
and contraception, current psychological research does not support such an agegraded distincti~n.”~‘
Second, judges or other court-appointed experts are not
powerless in evaluating a child’s autonomy. A straightforward way to attempt such
an evaluation is to initiate a dialogue with the child about the matter being decided
in the courtroom. Children who approach or display autonomous reasoning will
display some cognitive maturity, will be able to offer reasons for their preferences,
will be able to describe the sources of information for their preferences, and will be
aware that other possible preferences or courses of action are possible, not only in the
abstract but for themselves. Walter Mlyniec recommends a procedure called an
“informed consent dialogue” in which a judge or some third party engages a child in
discussion in order to determine his or her cognitive maturity and whether he or she
voluntarily and knowingly agrees to the action or decision wished for him or her by
the parents or the state. In light of the scientific evidence that supports the decisionmaking capacities of adolescents and the possibility of enacting such dialogues,
Mlyniec concludes that, absent evidence to the contrary, courts should assume that
children above the age of fourteen have the ability to reason as well as adults and that
their voices deserve a hearing in legal conflicts in which it is their future at stake.28
Finally, as is clear from the previous remarks, developing autonomy depends on
developing certain cognitive skills. The mark of an autonomous person is in part the
ability to reason critically, to subject the views of himself and others to sympathetic
but critical scrutiny, and to possess the knowledge that ends and values beyond the
ones he now pursues, are live possibilities. If a child - or any adult for that matter
-has been rigorously secluded and shielded from value diversity, his or her horizon
of choice is severely limited. Not only is it impossible to pursue an end or endorse
a value one does not know exists, it is also impossible to evaluate the worthiness of
one’s own ends and values without some rival alternatives that serve as a comparison. Thus, an autonomous child will evince anunderstanding of the fact that the way
of life he pursues is not the only way of life possible.
But even when judges have good reason to expect that a child may be autonomous, they must still weigh a second consideration before introducing his or her
voice into a legal proceeding. Judges must be concerned about any possible harm to
children who are placed in a potentially adversarial relationship with those on whom
they rely for shelter, food, and, not least, love. The child is partially or fully
dependent. A clear danger exists when courts invite children to articulate views that,
if contrary to those of their parents and community, will strain or perhaps sever the
relations they have with the most important people in their lives -parents, siblings,
cultural group leaders, and religious authorities. Emily Buss, for example, argues that
while courts may often have solid grounds to accord children rights of religious
27. G. Melton, citedin JohnHill andGrayson Holmbeck, ”Attachment and Autonomy During Adolescence,”
Annals of Child Development:A Research Annual3, ed. Grover Whitehurst (Greenwich, Conn.: Jai Press,
19861,148.
28. Walter Mlyniec, “A Judge’s Ethical Dilemma: Assessing a Child’s Capacity to Choose,” 64 Fordham
LawReview 1873 (1996):at 1907.
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exercise that are independent of their parents, the state will do more harm than good
if it actively seeks to elicit children's religious views in order to protect them.29
But Buss's view is misguided. While a concern for the likely future consequences
of introducing the dissenting voice of a child into a courtroom is valid, this is no
reason to ignore the views of the child. The charge that attributing legal standing to
children and listening for their independent views will harm them by producing
conflict within familial and communal relationships is itself a dangerous position.
As Martha Minow has noted, such objections have been used to justify domination
and hierarchy in cases concerning criminalizing rape within marriage and assigning
rights to employees in companies.30Moreover, in some instances, there is likely
already to be familial or communal strife, and what the child is often seeking is
protection of her considered interests, not a muzzle because, it is believed, the
continued expression of her beliefs will introduce still more conflict. Courts should
be wary not to compromise the position of the most vulnerable and least powerful,
the children, in an ostensible attempt to forestall potential harm to them.
How then should judges consider the possibility that the expression of children's
voices within a court will cause lasting harm to the children? There is no easy
answer, and here I think we have no choice but to rely on the wisdom of judges. If they
have good reason to believe that inviting the views of children will cause them real
psychological trauma or even physical harm, judges should proceed with caution.
And if judges believe that the child's voice will play no significant role in deciding
the outcome of the case, it may be reasonable to forego soliciting the opinion of the
child.
The upshot is that judges must make a judgment call about when to solicit the
views of children within a courtroom, taking into account the likelihood of a child's
autonomy and an assessment about the possible negative consequences to the child.
The interests of children should never be subsumed under those of their parents, but
there need not be an automatic expectation that if a case reaches the courtroom,
children should be called upon to express their preferences.
Finally, it is worth considering the administrative consequences that my caseby-case recommendation might place on the legal system. Critics may worry that
unmanageable administrative burdens might befall courts if they were frequently to
incorporate a child's voice and preferences into legal proceedings involving conflicts
between the state and parents over educational authority. But the implication here
is not that courts should hear every case in which a child's educational interests
potentially conflict with the interests of his or her parents, or hear the case of all
parents who claim that state regulations undermine their attempt to direct the
29. Emily Buss, "What DoesFriedaYoder Believe?" 2 Universityof Pennsylvania[ournal o f Constitutional
Law 53 (1999)53-76.
30. Martha Minow, Making All the Difference (Ithaca, N.Y.: Cornell University Press, 1990),293. I agree
with Minow's claim that the attribution of rights to children does not undermine community but makes
possible ongoing conversations about boundaries and membership in communities. She writes, "The
language of rights thus draws each claimant into the community and grants each a basic opportunity to
participate in the process of communal debate"; Minow, Making All the Difference,296.
h1CH
Opting Out of Education
upbringing, religious or otherwise, of their children. To the contrary, courts should
prefer extra-legal mechanisms for the negotiation and resolution of chsputes, and
they should encourage the establishment of such mechanisms. Perhaps more often
than not, conflicts about educational authority can be resolved before they reach a
court. A concurring judge in the Mozert case, for example, noted his “profound sense
of sadness” at the decision, for “at the classroom level, the pupils and teachers. ..had
in most cases reached a working accommodation“ (MH, 1073). The state can
certainly set up, and indeed often has set up, procedures and venues for the
negotiation of conflicts over homeschooling, as well as other educational disputes
(such as conflicts over the provision of special education and opting out of sexual
education curricula). Surely some cases will still need to be heard by courts. But the
possibility of an administrative burden in these cases should not outweigh the justice
due to litigants, especially when children and their futures are involved.
461