Road to Wisconsin v. Yoder

In 1525, a religious group was formed to challenge the positions of Martin Luther and other contemporary Protestant Reformers. This new group of believers, called the Anabaptists ("re-baptizers"), advocated adult baptism as the proper way to offer genuine, informed allegiance to God. They also favored staying separate from the world.

After Menno Simons, a charismatic Dutch Catholic Priest, joined the Anabaptists in 1536 and became a unifying leader, Anabaptists became known as "Mennonites." In 1693, a Swiss bishop named Jakob Amann led some Mennonites to establish a new sect called the "Amish." Over time, other break-off groups formed within the Mennonite and Amish family of religious tradition (hereinafter referred to collectively, for convenience only, as "Mennonites"). The splits occurred due to differences in opinion about dress, technology, language, and ritual.

Mennonites of all types believed in the Bible, and adhered to the tenet of non-violence. They typically refused to participate in wars, violent conflict, political activity, or court litigation. Many of them lived in autonomous local economic communities, engaged in farming, eschewed modern technology, and utilized home education. Natural population growth accounted for most of their membership increase.

In Europe, thousands of Mennonites were persecuted or killed, usually by Catholics or Lutherans. To flee the attacks, Mennonites established farms in rural Switzerland and southern Germany. They conducted worship and education at home rather than in church buildings, schools, or other venues open to the general public. Eventually Mennonites emigrated all over the world, especially to the Soviet Union, South America, and North America.

Mennonites first settled in Pennsylvania during the 1720's, being attracted to the comparatively inclusive social umbrella of the Philadelphia establishment. Mennonite communities gradually spread from Lancaster County to upper Midwestern states such as Ohio, Illinois, Indiana, Michigan, and Wisconsin.

In the United States, attacks on parental liberty tend to be implemented against demographic minorities based upon the minority's place in the pecking order of political unpopularity.

"Civilizing" the large "heathen" populations was the first priority of the day. Thus, enslaved African-Americans were the first to feel the full brunt of the attacks against parental rights and educational freedom. Native American children were next, coming under sustained assault from the 1830's onward. Likewise, Jews were pressured to abandon their religious studies, and atheist parents were not entitled to habeas corpus protection if a state took away their child custody.

In its second stage, compulsory "civilization" expanded from "heathen" racial minorities to the "non-Christian" religious minorities. Mormon immigrants encountered opposition from the 1830's onward. Mormon resistance culminated in the first case before the United States Supreme Court to directly deal with the parens patriae doctrine as it pertains to alternative education. Catholic immigrants were of special concern to the Know-Nothings from the 1850's onward. Not until 1925, with the Pierce v. Society of Sisters, 268 U.S. 510 (1925) Supreme Court decision, did it become clear that the public schools were prohibited from destroying Catholic schools.

The third stage consisted of targeting the remaining autonomous minority populations who were still resisting conformity. Asian immigrants, many of whom had been brought over for railroad construction or shipping work, fought for educational autonomy in cases like Farrington v. Tokushige, 273 U.S. 284 (1927), and Hirabayashi v. United States, 320 U.S. 81 (1943). German speakers preserved the right to study German in Meyer v. State of Nebraska, 262 U.S. 390 (1923). Jehovah's Witnesses fought for parental and religious autonomy in cases such as West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), and Prince v. Massachusetts, 321 U.S. 158 (1944).

A fourth stage of the "civilization" effort occurred when militant secularists managed to seize control of the public schools from the Protestant Christians. Beginning with McCollum v. Board of Education, 333 U.S. 203 (1948), the Supreme Court eliminated public-school prayer, public-school Bible study, public-school study of creationalism, and other features of Protestant instruction. The Court supplanted Protestant instruction with a forcible imposition of the secular-humanist world view. After a protracted and unsuccessful legal battle to reverse the trend, many Protestants, and especially the Evangelical Christians and Southern Christians, turned to alternative education.

Mennonites were, even under the narrowest of definitions, Christian, Aryan, and peaceful. They were educated in European farming techniques and language. Most Mennonites lived in Pennsylvania or in states which traced their legal pedigrees to the Northwest Ordinance. Thus, an organized attempt to "civilize" the Mennonites did not commence until the third stage of forced assimilation, when Mennonite habits came into stark conflict with an industrial, war-time America.

As the American economy shifted from an agrarian to and industrial base, the merchant community became vexed by the Mennonite economic system. Mennonites, like the Mormons of the pioneer era, lived in large, autonomous, self-sufficient communities. Mennonites made few purchases from outsiders, and did not participate in the political process. Industrialists coveted attractive Mennonite land holdings. Like Native Americans, Mennonites resisted efforts to enroll their children in outside schools or otherwise impose certified teachers. These practices frustrated the efforts of local educators, who wanted to increase their own revenue streams from the state tax coffers.

World War I and World War II intensified friction with the pacifist Mennonites. Some Americans disapproved of the Mennonites' refusal to enlist in the military. The final straw was the New Deal of the 1930's. In an effort to reduce unemployment during the Great Depression, the Roosevelt Administration cooperated with the states to raise compulsory school attendance ages and enact labor laws prohibiting youth apprenticeship. Roosevelt's tactic curried favor with labor union members, educators, and older workers (old enough to vote), by eliminating job competition from teenagers (too young to vote).

At the behest of state school authorities, Ohio initiated an intense multi-state campaign of persecution against the Mennonites. Beginning in 1914, fathers were fined, arrested, and convicted for refusing to send their children to Ohio public schools. Custody of Mennonite children was taken away from Mennonite parents. Farm equipment, livestock, and farms were confiscated from Mennonite parents. Some Mennonite children were forced to attend state boarding schools, where Mennonite clothing and grooming was stripped away. The problems were similar to those encountered by Native Americans, and the situation became especially oppressive in Ohio, Iowa, Pennsylvania, Indiana, Kentucky, Arkansas, Kansas, and Wisconsin.

The Mennonite response was similar to the strategy previously utilized by the Mormons. Many Mennonites moved to more friendly states, while others fled to Canada, Mexico, or Latin America. Starting in 1925, Mennonites in hostile jurisdictions began forming their own private religious schools. Some Mennonites switched from "unaccredited" home education to the use of "accredited" home-correspondence curriculum. Public educators were not placated. Public educators obtained the State v. Hoyt, 146 A. 170 (N.H. 1929), decision (which did not involve Mennonites) and implemented the precedent aggressively wherever a sympathetic state court could be found. Two Mennonite defeats were particularly devastating: State v. Hershberger, 144 N.E.2d 693 (Ohio App. Ct. 1955), and State v. Garber, 419 P.2d 896 (Kan. 1966), cert denied, 389 U.S. 51 (1967).

A 1965 incident in Olwein, Iowa, garnered national attention and signaled an intensification of the effort to stamp out Mennonite culture. Iowa officials physically herded terrified Mennonite children into buses in order to force them into state-prescribed education. The immigration of Mennonites into the open spaces of Wisconsin began to accelerate in response to pressure exerted in Iowa and other states. But officials in Wisconsin proved equally inhospitable.

After a string of unsuccessful battles in state court, the sixty-year struggle of the Mennonites against compulsory education culminated in a case before the United States Supreme Court. Like Mormons in Mormon Church v. United States, 136 U.S. 1 (1890), and Catholics in Pierce v. Society of Sisters (1925), Mennonites found their educational and cultural viability at stake in Wisconsin v. Yoder (1972). Public educators were having Mennonites criminally prosecuted for living a Mennonite lifestyle.

Assisting the Mennonites was a Lutheran paster from Livonia, Michigan, named Rev. William C. Lindholm. Dr. Lindholm, a native Iowan, was horrified when he happened to see photographs of terrified Amish children running from truant officers in an Iowa cornfield. He eventually founded the National Committee for Amish Religious Freedom to help stop cultural genocide against the Mennonites. In the process of his early efforts on behalf of the Mennonites, he became aware of the plight of Jonas Yoder and the Yoder family in Wisconsin. The Yoders were Old Order Amish.

The Yoder family's troubles began when the local Old Order Amish opened their own elementary school program, resulting in the transfer of 37 children out of the local Wisconsin government grade school. Kenneth J. Glewen, the local school district administrator, decided to stop his school district's loss of $18,000 in tax revenue by filing a truancy complaint. The complaint included fifteen-year-old Frieda Yoder and presented the threat of criminal prosecution and other measures if Jonas Yoder refused to cooperate. Glewen spoke to the local newspapers about the danger of "dirty, barefoot Amish kids," and told both the press and legal authorities that the teenagers would become "delinquent" dangers to the community unless public education intervened to prevent this growing menace to society.

On Christmas Eve, 1968, Catholic attorney William Bentley Ball received an urgent telephone call from Reverend Lindholm. Ball responded to Lindholm's entreaties by agreeing to provide legal assistance for the Yoders. Ball contacted Wisconsin Superintendent of Public Instruction, Dr. William C. Kahl, and then sent a formal letter to Kahl dated January 20, 1969. Ball requested that the threats against the Yoders be discontinued on the ground that Yoder's "home vocational school" qualified for the "legal excuse" exception in Wisconsin's compulsory attendance statute. Kahl was unmoved.

The prosecution of Jonas Yoder was handled by the large-framed State Deputy Attorney General Robert D. Martinson, who was assisted by local District Attorney L.A. Koenig. A bench trial was held before Judge Roger L. Elmer, a man with a rather bookish personality, because Ball believed community prejudice fomented against the Mennonites by the local press had made it virtually impossible to find a fair jury. During the prosecution, Koenig justified Wisconsin's aggressive parens patriae approach to education by relying upon the educational views of the former Iron Chancellor of Germany, Otto von Bismarck. Bismarck's imperialistic philosophy, which included a purge against freedom of the press and freedom of religion in Germany known as the Kulturkampf ("culture war"), helped lay the early political and philosophical groundwork for Germany's later excesses during World War I and World War II.

Ball was appalled by Koenig's theories but understood how to litigate in order to effectively counter such ideas. Ball's tactics are now a familiar part of the playbook for any knowledgeable attorney who has been involved in legally defending alternative education or parental liberty. Ball pointed out that the truancy complaint appeared to be motivated by concerns about tax revenue, not about serving the best interests of the Mennonite children. Under examination from Ball, who asked on the basis of a hunch, Undersherriff Wilbur Deininger conceded that he was unaware of even one arrest of a Mennonite for any violent or nonviolent crime in Green County, even though Mennonite educational practices had been long established and should already have created some delinquents. Similarly, Ray F. Kaskey, Director of Department of Social Services for Green County, testified under Ball's examination that not one Mennonite in Green County was unemployed, or accepting public assistance, or involved in an illegitimate birth, or suffering from alcoholism. Thus, the evidence showed that Wisconsin's defamations against Yoder and his community were unsubstantiated, as was the professed concern about the possible tax burdens inflicted upon Wisconsin taxpayers by the allegedly backward Mennonite community.

Ball also utilized a respected expert witness, Professor John A. Hostetler, a sociologist and anthropologist from Temple University. Professor Hostetler ably explained why public education would destroy Amish culture. Hostetler was key to Ball's strategy of placing critical facts in the record for later use on appeal. Similarly, Dr. Donald A. Erickson, Associate Professor of Education at the University of Chicago, testified that "the current education system is detached from the real world" and that Wisconsin's government education would not help the Mennonites. Frieda Yoder testified that her absence from government school was based upon the religious convictions of her Mennonite family.

Jonas Yoder was found guilty by the trial judge and fined, but refused to pay the fine as a matter of conscience. William Ball, with the help of his law partner, Joseph G. Skelly, then a relatively new Catholic attorney from Pennsylvania, appealed the Yoder case, eventually all the way to the United States Supreme Court. Attorneys from Jewish, Seventh-Day Adventist, and Church of Christ organizations also rallied behind the cause, filing friend-of-the-Court briefs to support the two Catholics who were representing Mennonites at the request of a Lutheran pastor. But despite all of the effort and laudable interdenominational cooperation, a dejected Bill Ball wrote Joe Skelly a note at counsel table immediately after oral arguments had concluded: "We have LOST".

Fortunately, Bill Ball's darkest fears were not realized. The cooperation did yield results. Yoder proved to be one of the most important Supreme Court decisions in the history of the United States. In a decisive victory for alternative education, parental liberty, and religious freedom, the Court reaffirmed Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Yoder curtailed the campaign of cultural genocide waged against the Mennonites and other similar demographic minorities.

Yoder also ushered in the "modern" era of alternative education and home education for non-Mennonites. But the battle was just beginning. Just as they had in the 1920's, public educators resisted implementation of the United States Supreme Court's decisions. Public educators and some state courts argued that Yoder merely created a narrow "Amish Exception" which did not apply to Native Americans, Mormons, African-Americans, or anyone else. This legal strategy did not succeed in stopping families outside the Mennonite community from joining the home-education movement.

Establishment figures of various political stripes in New York and Washington were not enamored with the National Committee for Amish Religious Freedom. Moreover, elite legal professionals and academics were downright hostile to the home-education community as a whole. In 1986, U.S. Secretary of Education William Bennett suggested that private and home schools were guilty of "educational abuse" of children if compliance with government education standards did not occur (Bennett has subsequently become an advocate of home education). At the forefront of the opposition from the judicial bench were Judge Robert H. Bork, Justice John Paul Stevens, and Justice Antonin Scalia.

Bork wrote books, gave speeches, and issued judicial opinions that were hostile to parental liberty, religious liberty, and alternative education. He attacked Yoder and Pierce in his book The Tempting of America and wrote opinions hostile to parental liberty, Franz v. United States, 526 F. Supp. 126 (D.D.C. 1981), rev'd 707 F.2d 582 (D.C. Cir. 1983), order supplemented by 712 F.2d 1428 (D.C. Cir. 1983), on remand, 591 F. Supp. 374 (D.D.C. 1984). In a 1998 address to the Catholic League for Religious and Civil Rights, Bork lamented that "expansion" of constitutional religious liberty caused by cases such as Yoder would tend to "favor fringe religions and cults and to discriminate against mainline churches." In making such assertions, Bork conveniently omitted the fact that the Catholic Church itself had once been considered a dangerous sect in the United States and that many "mainline" Americans had previously attempted to completely abolish all forms of Catholic education.

For their part, Justices Stevens and Scalia led the successful effort in Employment Division v. Smith, 485 U.S. 660 (1988), to eliminate the compelling state interest doctrine for federal constitutional protection of First Amendment free exercise rights. In City of Boerne v. Flores, 521 U.S. 507 (1997), Justices Stevens and Scalia also successfully struck down a remedial Religious Freedom Restoration Act (RFRA) passed by Congress as a rebuke to the Smith decision, invalidating RFRA to the extent that RFRA purported to apply to state and local government entities. However, RFRA continues to apply to the federal government, and a patchwork of state constitutional and statutory provisions has helped mitigate the damage inflicted by Smith. Many prominent legal scholars and attorneys did step forward to help fight the harmful trend, including such notables as Professor Michael McConnell, William Bentley Ball, John Whitehead, and Justice Dallin H. Oaks.

In Troxel v. Granville, 530 U.S. 57 (2000), Justices Stevens and Scalia teamed up once again to advocate the total elimination of constitutional protection for parental liberty, including the practical reversal of Meyers, Pierce, and Yoder. Fortunately, the attempt by four justices to eliminate or severely curtail parental liberty was narrowly turned back by a five-justice majority consisting of Chief Justice William Rehnquist, Justice Sandra Day O'Connor, Justice Clarence Thomas, Justice Ruth Bader Ginsberg, and Justice Stephen Breyer. At the present time the perilous battle for the future of parental liberty and alternative education continues unabated.

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