Yoder v Wisconsin: The Amish Challenge Compulsory Education Laws

The photo ran first in the Des Moines Register.  The black and white picture showed eight Amish children fleeing towards a cornfield.  Some had already crossed a wire fence and were in the safety of the stalks.  Others were just passing through the fence.  And one Amish boy, dressed entirely in black and wearing the traditional wide-brimmed Amish hat, was still in full stride, running towards the corn.  It is a compelling photograph.  The picture was soon picked up nationally, running in Life magazine and newspapers around the country.  It helped spark a movement.  A movement that would eventually lead to a landmark Supreme Court decision on religious liberty.

Why did these Amish children in Buchanan County Iowa run for the fields in 1965? The story begins with the decision of local authorities to crack down on Amish parents who sent their kids to schools operated by their own faith.  The Amish teachers in one-room schoolhouse near Hazleton and Olewein were not state-certified.  In the eyes of the state, that made them illegal.  The Iowa school code required parents to send their children to state-licensed schools.

Authorities first threatened parents with fines.  For each day of school their children missed, the fines would increase.  Moreover, if they failed to pay the fines, their property would be sold at auction to pay off their debts. 

The question, as the Buchanan county attorney put it, is this: “Do these parents have the right to withhold a basic education from their children under the guise of religious freedom?”  The district school superintendent thought the answer to that question was “no.”  He told reporters the law ”ought to be enforced, not winked at.”

The plan was to round up the Amish kids, load them on to a school bus, and take them to the public schools.  But when the bus made it rounds to Amish farms, no kids were to be found.  They either hid or headed for one of their own one-room schoolhouses.  And so, the school bus driver, with his empty bus, headed to one of the Amish schools.  And along with the bus came a group of interested parties.  They included the county sheriff, the county attorney, reporters, photographers, and worried Amish parents.

The sheriff entered the school and ordered the children out to the waiting bus.  The children filed out, but as they headed toward the bus, a shout came from an Amish man in the crowd.  “Run!” he yelled.  And that’s when many of the children took off—and when the famous photograph was snapped.

Despite the adverse publicity from the photo, authorities did not give up.  A few days after the first attempted roundup, the school superintendent and truant officer Owen Snively tried it again.  At the Charity Flats Amish School, a group of Amish men stood shoulder to shoulder in an attempt to block Snively and others from entering their school.  The sheriff pushed them aside and the authorities entered the schoolroom.  They found crying children.  Sixteen children who began singing, “Jesus Loves Me”: “Jesus loves me, this I know, for the Bible tells me so.”  Snively and the superintendent tried to persuade the children to get on the bus and go to a certified school.  As they did so, an Amish leader loudly recited verses from Scripture.

Snively put his hands on the shcoulders of an Amish girl and tried to lead her toward the door.  The girl pulled back and screamed.  Snively then grabbed the girl by her arms.  She screamed again and broke away. This was not going well.  Finally, Snively and the superintendent gave up and the school bus returned to wherever it came from, empty of students.

The Buchanan county fiasco convinced both local authorities and state leaders that another approach was needed.  Buchanan County officials flew to the state capitol in Des Moines to meet with Governor Harold Hughes.

A settlement was reached.  The Amish would lease their two one-room schoolhouses to the state for $1 each.  In return, the state would provide certified teachers for the schools.  But the curriculum would not be the same curriculum taught in the public schools.  The state promised to make “adjustments to avoid conflict with Amish religious beliefs.”

Developments in Iowa were closely watched in the Amish settlements of New Glarus, in nearby south central Wisconsin.  In fact, many of the Amish residents in Wisconsin actually had fled Buchanan County because of the local crackdown on their schools.

The Amish newcomers were largely welcomed in Wisconsin.  Local hardware stores and farm implement dealers appreciated their business.  Hitching posts were placed around town to accommodate the horses and buggies used by the Amish as transport.  And Green County benefited from a boost in tourism.  People in places like Chicago and Milwaukee, it seemed, enjoyed riding around the hilly countryside to check out the Amish, as well as some of their famous baked goods.  Tour buses pulled up at Amish farms—and the tourists returned to their buses with bread, pies, and doughnuts.

The Amish community in New Glarus could trace its religious roots back to the Reformation.  Among the many forms of Protestantism to arise was Anabaptism.  Anabaptists followed the ethical teachings of Jesus—especially his famous “Sermon on the Mount.”  They lived simply and wore austere clothes.  They condemned drunkenness and reveling. They rejected all forms of state control over the church. They renounced wars and oath-taking.  And for their beliefs, they faced widespread persecution. 

By the late 1600s, a distinctive set of Amish beliefs had emerged.  We need not get into the details of that, but disagreement with other Anabaptists over the practices of shunning and excommunication had a lot to do with it.  In Europe, they faced persecution and shortages of land to practice their agrarian lifestyle.  So many Amish left Europe for the United States in the eighteenth and nineteenth centuries. 

Over time, a split developed in the U.S. Amish community.  The split was between those who became a bit more progressive, a bit less concerned about keeping a distance from worldly temptations—and those who clung to more conservative beliefs.  The split led to what is called “the Great Schism.”  Many of the more progressive Amish eventually became Mennonites.  The more conservative Amish came to be called “the Old Order Amish.”  The 100-member or so community in New Glarus, Wisconsin was an Old Order Amish community.

The hope in New Glarus was to avoid the controversy that led so many of them to flee Iowa.  School Superintendent Ray Habeck said, “I do not foresee any points of controversy.”  A leader in the Amish community said, “We plan to cooperate to the fullest extent our religion allows.”

Jonas Yoder moved to New Glarus from Ohio.  He left Ohio after his five-year-old daughter died of bone cancer.  He suspected a nearby chemical plant was the cause of her death.  In New Glarus, Yoder raised hogs.  He had a strong work ethic, but knew how to laugh as well.  He was well-respected in the tight-knit Amish community. 

Yoder’s two daughters were enrolled in public schools during the mid-1960s.  But they did not attend gym classes.  Jonas Yoder objected to the short and tight uniforms that were required.  He wrote a letter to the local school board.  “Christian propriety calls for one to be modestly dressed while in public,” he wrote.  At first, the school board stuck to its guns.  It told Yoder his daughters would have to wear the standard uniforms and shower after class.  But, after criticism, the school board and Yoder reached a compromise.  His girls would be allowed to wear modest, homemade uniforms and would shower in a separate dressing room. 

The Amish controversy in New Glarus caught the attention of state legislators in Madison.  One proposed bill allowed exemptions from physical education classes when parents objected on religious grounds.  Another, more sweeping, bill would have allowed Amish students to leave school altogether after they completed of eighth grade.  But some legislators worried that the amendment to the compulsory education law would only hurt Amish kids who might wish to attend college or pursue careers outside the Amish community. In the end, the legislature took no action on the Amish student bills.

The failure of the exemption bills convinced the New Glarus Amish of the need to establish their own schools.  This was part of a larger trend.  Between 1965 and 1970, the number of Amish schools around the country more than doubled.  From 150 to 303. 

In the fall of 1968, the New Glarus Amish opened their own school.  The new school had only one room.  It would had no electricity and no running water. About three dozen Amish kids planned to leave the public schools to attend the new school.  This plan did not sit well with public school officials.  State funding for schools was based on enrollment numbers.  If the Amish left the public schools, the New Glarus district would lose $20,000 in state funding. 

So the local school superintendent visited a number of Amish families.  He begged them to keep their students in school for at least the first few weeks of the school year—until the date on which the student population count would be made.  But the Amish refused.  One Amish member said, “It would not have been right to sit in their schools just so they could collect money.” 

The Amish were not opposed to their kids learning to write or do arithmetic.  Those skills were necessary to be a productive member of an Amish community.  But there was much in the curriculum of the public schools they didn’t like—especially in the high schools.  They didn’t want their children to wear gym clothes that exposed so much skin.  They didn’t want their kids exposed to television. They didn’t want their children to be taught the theory of evolution.  They worried about the temptations of school dances and high school social life in general.  They worried about their kids drifting away from the faith. They liked to point to the admonition of Romans, Chapter 12: “Be not conformed to this world.”

Jonas Yoder’s concerns with the public schools ran deep.  He said that public schools held “temptations for a different world.  I don’t want to condemn anybody, but we want to hold what we’ve got.  We want to hold our religion.”

School Superintendent Kenneth Glewen was not happy with the Amish not playing ball in his financing scheme.  He contacted the district attorney of Green County to see if truancy charges might be brought against Amish children who were under the age of 16 and not attending either the public or the Amish school.  By comparing the Amish and public school enrollment records, Glewen identified seven Amish youngsters who seemed to be in violation of Wisconsin’s compulsory education law.

The superintendent sent warning letters to parents whose children he believed were acting in violation of state law. Among the parents to receive the warning letter was Jonas Yoder. A couple of weeks later, he sent a second, more threatening letter.  If parents refused to comply immediately, they would be prosecuted. 

The superintendent also visited a number of the Amish parents.  The parents expressed their concerns about worldliness.  And they pointed to the Free Exercise Clause of the Constitution.  They believed firmly the First Amendment protected their decision to raise their children consistent with their religious beliefs. 

In late October 1968, Superintendent Glewen filed criminal complaints against three Amish fathers.  The complaint accused Jonas Yoder, Wallace Miller, and Adin Yudsy of violating the Wisconsin compulsory education law.  Jonas Yoder told reporters the law made no sense when applied to the Amish: “The city people need something for their children to do.  We don’t.” 

The charged offense was a misdemeanor.  The maximum penalty was a $50 fine and up to three months in jail.

At their arraignment, the Amish defendants refused to enter a plea.  Wallace Miller told the judge, “I don’t think we are guilty.”  But, he added, “Our religion doesn’t permit us to hire a lawyer.”  The Amish generally resisted “going to law,” as they called it.  They pointed to the Sermon on the Mount where Jesus said, “If any man sues you at law, and take away thy coat, let him have thy cloak too.”  But some Amish drew a distinction between suing and defending one’s self in a criminal action.

A newly formed organization called the National Committee for Amish Religious Freedom approached the New Glarus defendants.  The organization was looking for an opportunity to challenge compulsory education laws.  Would you, they asked, be willing to become defendants in a case testing the Wisconisn law?

The legal assistance would be free of charge.  And the Committee promised to simply tell the judge what the Amish believed.  One of the defendants pointed out that The Book of Acts tells that when Paul was unjustly charged with a crime, he not only defended himself, but appealed his conviction to Rome.  The defendants agreed to accept the Committee’s representation. 

But it was a controversial decision.  Jonas Yoder said, “The decision wasn’t approved by all our people all over the country.”

The Committee chose William Ball to represent Yoder, Miller, and Yutsy.  Ball was an experienced litigator, probably the “premiere constitutional litigator” in the country on church-state relations.  Ball took the case not just to win it for three defendants in Wisconsin.  He hoped to establish a precedent that could be used to expand religious freedom generally.  Ball wanted a win in the Supreme Court of the United States.

The trial of Yoder, Miller, and Yutsy opened on April 2, 1969 in Monroe, Wisconsin.  The courtroom was filled with Amish men, dressed in black and bearded.  It was a non-jury trial.

Defense attorney Ball moved to dismiss the complaints.  He argued that the Wisconsin law, as applied to the three men, violated their free exercise rights under the Constitution.  The judge denied the motion.

The prosecution’s first witness was Superintendent Glewen.  Glewen described how he had identified truant students, his discussions with the Amish families, and the warnings he had sent to them by certified mail.  The prosecution also called a teacher at the Amish school who testified that she had not seen any of the truant students in her class.  And that was it.  The state rested. A simple case.

The defense began its case by calling Superintendent Glewen back to the stand.  Glewen acknowledged that the school taught the theory of evolution.  And he admitted that the school neither taught the Ten Commandments nor provided any sort of moral training.  The curriculum was not “God-centered”—and the Amish were.

Next, Ball called Temple University professor John Hostetler to the stand.  Raised Amish himself, Hostetler was probably the country’s leading expert on the Amish religion.  The professor testified that the Amish strive to “be separate from the world.”  They want their children to have “an affinity for nature,” to be tied “to the soil,” and to live a simple, moderate life in a rural society.  He testified they sought to promote obedience to parents and a strong work ethic. 

Public schools, in the Amish view, promoted a competing value system.  The professor told the judge, “I think that if the Amish youth are required to attend, the value system of the high school as we know it today, the church community cannot last long.  It will be destroyed.”

On cross-examination, the prosecutor got Hostetler to admit that the Amish did not separate themselves from the world completely.  They interacted with neighbors and transacted business.  He also got the professor to acknowledge that nothing in the Amish faith specifically forbid attendance at public schools beyond a specific age. 

The most dramatic moment of the trial came when the prosecutor suggested to Hostetler that public education served a basic goal that even the Amish could agree on: to help “a child make his or her place in the world.”  Hostetler paused, then said, “It depends on which world.”

On re-direct examination, Ball came back to the professor’s distinction between the two worlds.  “Were you suggesting that Amish education has as its basic goal the achieving of Heaven?”  Yes, that is precisely what I meant.

Hostetler’s testimony provided the trial record Ball would use in his appeals.  It would be cited often by judges, and always to the benefit of the Amish.

The defense also called three members of the New Glarus Amish community.  When asked why the Amish felt the need to pull kids out of school after the eighth grade, one witness answered: “You got to get that religion in them.  Just like when you plant a tree—plant it straight or it will always be crooked.”  Fifteen-year old Frieda Yoder also testified.  She gave short answers, but said that attending high school would be against her religious beliefs.  Finally, defendant Wallace Miller took the stand.  He described his community’s vocational training program for high-school age children.  The defense hoped the judge would see the program as a reasonable alternative to the high school curriculum. 

The defense took a hit, however, when the judge asked whether the vocational program had been in place when the criminal complaint was filed.  Miller admitted it had not been.

The defense concluded its case with testimony about what solid and untroublesome people the Amish were.  A sheriff testified that the Amish were about the last people he’d ever expect to see in a line-up.  And the director of the county’s social services agency affirmed that the Amish were never a drain on the county’s resources.

After the trial, the judge asked for briefs on the religious freedom issue.  The state argued that the Amish were free to believe what they want, but they had to conform their conduct to state law for the good of society. 

The defense argued that the law threatened the viability of the Amish faith.  As a result, Ball contended, the state should had to show a compelling interest in requiring the Amish to attend school past the eighth grade.  The evidence, he said, showed no such strong interest existed.

Four months later, Judge Roger Elmer handed down his decision.  He said that the Amish beliefs were sincere and that the Amish possessed “exceptional morality.”  But he worried about the effects a blanket exemption for the Amish would have on some Amish kids.  Kids who might later abandon the faith, or who might want to pursue higher education or technical careers.

It seemed a close case to the judge.  So he relied on a burden of proof.  He said that, as a trial judge, he should only overturn a state statute if the statute was unconstitutional beyond a reasonable doubt—and he had doubts.  The compulsory education law was a reasonable exercise of governmental power.

The ruling was as William Ball had expected.  He vowed to appeal. 

The case made its way to the Wisconsin Supreme Court.  Ball told the justices, “Society has no right to conscript the services of a youth into the ranks of the educated.”  The attorney for the state argued that an exemption would reduce choices for Amish youth.  “These Amish kids have no other options that to stay and join the order; it’s hard for them to get into the mainstream without an education.”  Moreover, he argued, to exempt only the Amish would be to favor one religion over others—and that’s an “establishment of religion.”

The justices of the Wisconsin Supreme Court voted by a 6 to 1 margin to strike down the state law.  The Court said enforcement of the compulsory education law could lead to—quote—“extermination of their religious community.”  There was no compelling state need to enforce the law against Amish parents. The law, the Court said, violated the First Amendment’s Free Exercise Clause.  The dissent focused on the rights of the Amish kids to make their own choices in the matter.  Their rights, the dissent argued, had been completely ignored.  They weren’t even represented in court—and they were being relegated to—quote—“a life of ignorance.”  Yes, the Amish worry “How are you goin’ to keep ‘em down on the farm once they’ve seen Paree”—but don’t people have  right to go to Paris if they wish?

Now it was the state’s turn to appeal.  The State worried Yoder would lead to chaos.  They feared how other religious groups and parents with moral objections to the public school curriculum might use Yoder. 

The U. S. Supreme Court granted cert.  There were Amish settlements in 19 states.  The issue in Yoder was likely to crop up again in other states.  This was a key factor in the decision of the Court to hear the case.

Yoder’s attorneys relied heavily in their brief on a recent Warren Court precedent.  The 1963 case of Sherbert v Verner said that state laws burdening free exercise rights could only stand if the state could show a compelling state interest in their enforcement. 

Sherbert was a sharp departure from an earlier Supreme Court interpretation of the Free Exercise Clause.  When a Mormon polygamist in the Utah Territory challenged his conviction under a federal anti-polygamy law, the state dismissed the claim with magisterial certainty.  Chief Justice Waite said the Clause only protected religious beliefs, not religious conduct.  The Chief Justice wrote that to hold otherwise would be “to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” But all that changed with Sherbert.  The Court ruled in that case that South Carolina could not deny unemployment benefits to a Seventh Day Adventist because she refused to work on Saturdays, her Sabbath.

Oral argument in Yoder took place on December 8, 1971.  Assistant Attorney General John Calhoun told the justices that the compulsory education law was “a reasonable exercise of the police power of the state to educate its youth.”  He allowed that the Amish lived honorable lives. Calhoun said, “In the remorseless daily crunch of living, the grass on the Amish side of the fence looks green and much greener than ours at times.”  But, he argued, “What is needed is more education to cope with the problems of society, not less.”

William Ball emphasized the threat that compulsory education laws posed to the Amish faith.  And he pointed to a nearly complete lack of evidence that Amish were harming the state’s interests in any way. Ball said “not one witness, not one scrap of evidence” suggested that the state had a compelling interest in keeping Amish kids in school beyond age 14.  

He seemed to have a friendly audience.  The justices threw him softball questions and he batted them well enough.  Oddly, no justice really pressed him on what many thought was the state’s strongest argument: the adverse effects an exemption would have on life options for the Amish kids pulled out of school. 

Chief Justice Warren Burger wrote the Court’s opinion.  To him it seemed, as one wag put it, the Amish kids were the kind of kids he hoped his grandchildren would become.  He wrote, “The evidence showed that the Amish have an excellent record as law-abiding and generally self-sufficient members of society.” He praised “their devotion to a life in harmony with nature and the soil.”

The Chief Justice saw the case as involving only the rights of Amish parents, not Amish children. “It is the parents who are subject to prosecution here,” he noted.  The state had failed he said, to show any harm to the public safety, peace, order, or welfare” that might come from exempting the Amish from the compulsory education law.  The free exercise rights of the parents trump the state’s interests.

Justice William O. Douglas wrote a partial dissent.  “It is the future of the student, not the future of the parents, that is imperiled by today's decision,” he wrote. “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.”  He worried that children will be—quote—“harnessed to the Amish way of life” and have their lives “stunted and deformed.” He argued that children “should be given an opportunity to be heard before the State gives the exemption which we honor today.”

The outcome in Yoder should have come as no surprise.  The Amish were sympathetic defendants. The exemption they asked for was relatively inoffensive—as opposed to an exemption from polygamy law or drug laws.  And the state had not presented as strong a case as it could have. 

Reporters found Jonas Yoder unloading grain on his farm.  He seemed uncomfortable answering their questions.  He said, “I feel we had a miracle made for us, and I don’t feel like making words.” He added that he was “glad to have it over with” and “wished it had been anybody else” but him. 

Yoder’s attorney, William Ball, called the decision “a great victory for religious liberty.”  In the years that followed, the Yoder precedent proved helpful to conservative Christians seeking legal protection for home education.

In the mid-1970s, there was an exodus of Amish families from New Glarus.  Over two-thirds of the community departed.  Some said the hilly country around New Glarus made for hard farming.  Some said state sanitary regulations had made dairy farming too difficult.  Others suggested that technology, and even debate over the Yoder litigation, had led to religious division.

Jonas Yoder and his family packed up in 1973 and moved to Missouri.  Wallace Miller and his family left three years later for Evansville, Wisconsin.

Even for fans of liberty, Yoder is a difficult case.  Yoder pitted against each other two liberty interests: the liberty of Amish parents to shape their children’s values and protect their religious community and the liberty of Amish children to make fundamental choices about the direction of their lives. 

Yoder is a case where communitarians and egalitarians are likely to see things differently.  Communitarians stress the importance of strengthening private associations and institutions as buffers against the power of the state.  In their view, the stronger the roles of family, churches, and other associations, the more secure liberty is.  And they see Yoder as rightly decided. 

Egalitarians, on the other hand, prefer to maximize individual choice and emphasize self-realization.  And they are uncomfortable with a decision that leaves Amish youths with few options.  It’s hard to work in Silicon Valley, to become as astronaut or a concert violinist if your formal education ended after eighth grade.