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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 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.

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 (19721,406 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 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.

EDUCATIONAL THEORY / Fall 2002 / Volume 52 / Number 4 0 2003 Board of Trustees / University of Illinois

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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.

THE ESSENTIAL SIMILARITY OF YODER AND MOZERT

THE YODER 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.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 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 [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.

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THE MOZERT 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 (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 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 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.

ANALYSIS OF YODER AND MOZERT

BASIC SIMILARITIES

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).4 Acknowledging 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.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 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, 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.

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.


addressed both prongs and found an unconstitutional burden that was not out- weighed 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” (MH, 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.8 The 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. ThemorerecentrulinginEmployment Division 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 in 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.’’10 In 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” (MH, 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 ”Yoder rested 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 effect of exposure. For the Amish, the Court believed the exposure in question burdened Free Exercise and would threaten the self- contained, 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 law- abiding” 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 Constitu- tional 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.

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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 ”enforce- ment 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-derived right 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 difference in 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, “NO such threat exists in the present case“ (MH, 1067). Several commentators cite this as a crucial distinction between the two cases.14 But no guarantee exists in the Constitution that subgroups will be supported and maintained.15 And 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” (MH, 1067).16 In short, the principled difference would be that the Amish separate and the Fundamen- talists 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 -5 10; 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: Univer- sity 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, 1993 J, 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.


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” (MH, 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 ~0nduct . l~ By 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 (the reading 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 Fundamen- talist 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).ls Yet such is the consequence of the Court of Appeals’ ruling, to wit: ”AS we 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).19 The 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, i f 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).

In this 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 incorpo- ration 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.


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 substi- tutes 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.21 The 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.”22 Being 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.


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-by- case 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-case basis, balancing the rights, religious and otherwise, of the parents, the interests of the state, and the interests of the child.

INCORPORATING CHILDREN‘S INTERESTS: WHEN AND 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 andLibera1 Legitimacy,” 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.26 The 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-year old 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. Several factors 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.


decision making, related to matters of psychotherapy, abortion, medical treatment, and contraception, current psychological research does not support such an age- graded 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 decision- making 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, i f 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.30 Moreover, 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 case- by-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.

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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.