OPTING OUT OF EDUCATION: YODER, MOZERT, AND THE AUTONOMY OF CHILDREN

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<ul><li><p>445 </p><p>OPTING OUT OF EDUCATION: YODER, MOZERT, AND THE AUTONOMY OF CHILDREN </p><p>Rob Reich Department of Political Science </p><p>Stanford University </p><p>It is the future of the student, not of the parents, that is imperiled by todays 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 students 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. </p><p>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 compul- sory 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 1987 case, theU.S. Court of Appeals, 6th Circuit, denied the plea of Mozert to allow his child to opt out of the reading seriesa2 The 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. </p><p>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 states interests, then shouldnt an Amish child be required to be educated in schools? </p><p>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 </p><p>1. Justice William 0. Douglas in Wisconsin v. Yoder (19721,406 U.S. 205, at 245-46. This case will be cited as WT in the text for all subsequent references. 2. Mozert v. Huwkins County Bourdof Education (19871,827F. 2nd 1058. The 6th Circuits 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. </p><p>EDUCATIONAL THEORY / Fall 2002 / Volume 52 / Number 4 0 2003 Board of Trustees / University of Illinois </p></li><li><p>446 E D U C A T I O N A L T H E O R Y FALL 2002 1 VOLUME 52 1 NUMBEK 4 </p><p>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. </p><p>THE ESSENTIAL SIMILARITY OF YODER AND MOZERT </p><p>THE YODER CASE </p><p>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.3 The 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 character- ized 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 states 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. </p><p>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. </p><p>ROB REICH is Assistant Professor of Political Science, Ethics in Society, and [by courtesy) 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. </p></li><li><p>REICH Opting Out of Education 447 </p><p>THE MOZERT CASE The seven respondents in Mozert alleged that the public schools use of the Holt </p><p>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. </p><p>After a U.S. District Court ruled in favor of Mozert, the case was overturned by the U.S. Appeals Court (MH, 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 plaintiffs 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 Judge Cornelia 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. </p><p>ANALYSIS OF YODER AND MOZERT </p><p>BASIC SIMILARITIES Yoder and Mozert share a significant number of features in common. The cases </p><p>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).4 Acknowledging this </p><p>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. </p></li><li><p>448 E D U C A T I O N A L T H E O R Y FALL 2002 VOLUME 52 1 NUMBER 4 </p><p>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. </p><p>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 </p><p>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.6 The 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 persons religion (MH, 1063). As to the second prong, the Yoder decision notes, A States 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 </p><p>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, for example, Epperson v. Arkansas (19681,393 U.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. </p><p>6. For a discussion of this two-prong test, see Nomi Stolzenberg, He Drew a Circle that Shut Me Out, 106 Hurvard Law Review581 (1993): 592; and George W. Dent, Jr., Religious Children, Secular Schools, 61 Southern California Law Review 863 (1988): 880ff. </p></li><li><p>REICH Opting Out of Education 449 </p><p>addressed both prongs and found an unconstitutional burden that was not out- weighed by states compelling interests; Mozert found no unconstitutional burden and therefore never addressed the balancing prong7 </p><p>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 belie...</p></li></ul>

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