50 Years Later: Examine This Old Wisconsin v. Yoder Supreme Court Hearing

This is Part 3 of a 3-post series titled “50 Years Later . . .” The first post included the transcript of John W. Calhoun’s argument. The second post included the transcript of William B. Ball’s argument. This post includes the transcript of Calhoun’s rebuttal.

As the 50th anniversary of the United States Supreme Court case Wisconsin v. Yoder approaches, the 50th anniversary of the hearing (December 8, 1971) leading to the decision (May 15, 1972) has already passed. One of the things I recommend that everyone listens to is the actual audio from the 1971 hearing. It’s only 1 hour and 3 minutes long. There were no other hearings. 

(Scroll to the end or click here for the audio/video version of this post.)

This landmark case deemed children to be the property of parents, like inanimate objects, without any rights despite the fact that children are human beings and do have constitutional rights and were, by default, parties to the litigation. 

It took a mere 1 hour to seal the fate of American children who happened to be born into the wrong group of people. Those children were specifically singled out to be . . .

. . . denied the right to an education past the 8th grade by the highest court in the United States.

Throughout the 50 years since then, the instant they’re born, children of practicing Amish are stripped of the educational rights that all other American children are understood to have. 

Because of the precedent set by Wisconsin v. Yoder, any parent/guardian can now point to Yoder to claim the right to also deny their child an education past the 8th grade. It gets even worse: United States citizens (children and adults) don’t have the right to any education at all in the eyes of the federal court. This was solidified by Yoder, which overrides any state that has a Constitution that spells out a right to education for its residents, including compulsory education laws.

The audio of the Wisconsin v. Yoder oral argument, or hearing, is spooky. The old technology from 50 years ago makes the sound of the voices crackle and echo, like an old-time radio murder mystery show during the golden days of network broadcasting before television. That effect is even spookier when I, as a woman, hear nothing but male voices. Not a single woman or girl was allowed the opportunity to have a say in this hearing or be adequately represented in the case. The spookiness is amped up even further when I hear Ball’s self-indulgent, fictional account about me (i.e., the Amish).

The arguments by William B. Ball — the attorney who won the case for the parents, at the expense of the children — are riddled with fantasies and fetishizations about my Amish people. Ball won the case based on the most incredibly outlandish, illogical, and false claims ever made about a specific group of people. John W. Calhoun — the attorney who lost the case for the state, which was supposed to work in the best interest of the children — argued, on the other hand, in such a mild way compared to Ball who followed after him that it seems, if for no more sinister reason, the case got won by the attorney who dazzled the Supreme Court justices with an oratory performance rather than the attorney who presented the straightforward, indisputable facts. The justices should all be condemned in our history books, classrooms, and courtrooms for betraying the rights of an entire population of innocent children and subsequent adults forever after. The state also needs to be jailed for refusing to ensure that the children’s rights were protected, such as appointing them a guardian ad litem.

I wonder why the state ever challenged Ball’s win at the Wisconsin Supreme Court level when they refused to carry out such basic things as appointing the children their own attorney. Why did the state even bother appealing the decision to the federal Supreme Court? Calhoun couldn’t have done a worse job; it sounds like he intentionally tried to lose the case. What backroom deal did he benefit from?

Lest it sounds like I have nothing against Ball, I do. He didn’t care at all about us Amish and our religious rights. The only thing he cared about was using us as a guinea pig to see if he could get an extreme, i.e, unconstitutional, religious liberty exemption pushed through. If he was successful, he could use Yoder as a precedent for demanding all sorts of other extreme, i.e, unconstitutional, religious freedom exemptions. As I’ve written in other posts and articles, this case was never about protecting Amish religious freedom; it’s just marketed as such.

At any rate, if you want something truly shocking to hear about a single group of humans (and a decision that directly affects you, too!) as you commute, work out, or go about your daily routine, this audio should be at the top of your list. It’s included at the end of this post and also on my and the Amish Heritage Foundation’s YouTube channels.

If you’re more of a reader, skim the audio’s transcript. I edited the transcript for brevity and it’s broken down into three parts: John W. Calhoun’s argument, William B. Ball’s argument, and Calhoun’s rebuttal. Happy listening/reading! 

Oral Argument of the United States Supreme Court Case Wisconsin v. Yoder on December 8, 1971

[Part 3: John W. Calhoun’s rebuttal]

Chief Justice Warren E. Burger of the United States Supreme Court:

Mr. Calhoun, you have four minutes remaining. 

John W. Calhoun, attorney for the state of Wisconsin: 

We have absolutely no quarrel with the Amish way of life. In fact, to some of us, 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 I submit that retreat to a simpler era may have had some justification 200 years ago when Rousseau was exalting the virtues of the Cro-Magnon man, but that too much water has gone through the turbines for that kind of a position. What is needed is more education to cope with the problems of society, more pride in intellect, not less pride. This is what we should be developing in our educational programs. 

The objection that the Amish had is to have additional two years at this point, additional two years of education, and the people before the Court here are Amish. But if this Court does affirm this decision, it will apply to any number of years of education. There can be no effort or no decision of this Court, it seems to me, that can say eighth grade is the cutoff point. There is nothing logical or constitutional about the cutoff. 

Warren E. Burger: 

How can you say that, Counsel? How can you say that in such sweeping terms when for 200 or 300 years in this country, primary education has been thought to be the eight years in elementary, seven or eight years in elementary school? 

John W. Calhoun: 

Yes, but it is, it is, yes, seven or eight and now sixth grade is considered in some areas as elementary education. Seventh, eighth, and ninth are considered a middle school and then the balance high school. In some areas, there is a junior high school. 

Now, this is not so important as what is being taught as changing. The worldly courses of languages and foreign languages and the institution of educational television into the elementary grades, these things are objectionable, you see, and the dynamic quality of education makes it very difficult to say and to administer a rule which says the eighth grade is the limit beyond which anyone can be compelled to go to school. 

Warren E. Burger: 

Well, haven’t some very distinguished educators been very critical of the American system, because it was concentrating on courses like interpersonal relations, community relations, etc., with students who couldn’t spell and read adequately and write by the time they get out of high school? 

John W. Calhoun: 

May I suggest that that is true. That education today is undergoing serious study and revision, that many experts in the field have written, urging reform, and I think that this is necessary. I think that there should be organic involvement at the local level in education, that we must do this, but I think that what this Court should be doing is to encourage that sort of thing, encourage the ferment and the change that is necessary to make education a viable institution. That’s what this Court should do. Thank you. 

Justice Thurgood Marshall: 

Mr. Calhoun, do you agree with Mr. Ball’s statement that this is absolutely against the religion, to go to school beyond the elementary school? 

John W. Calhoun: 

I don’t agree with it fundamentally. No. 

Thurgood Marshall: 

Do you have anything in the record to contradict this? 

John W. Calhoun: 

That, yes, the Trial Court found, if you just bear with me, I will find that point. 

Warren E. Burger: 

Well, if it’s a finding, by the way, that the Supreme Court has rejected it, doesn’t it, it won’t help you very much, will it? 

John W. Calhoun: 

Pardon me. 

Warren E. Burger: 

If it’s one of the findings that the Supreme Court of Wisconsin rejected, it won’t help you very much.

John W. Calhoun: 

No, it isn’t, what it says is that they didn’t exactly reject it, but they just didn’t consider it, and it’s this, on page 181 of the appendix: “Obviously, in the long history of the sect, it existed in areas when and where there was no such thing as an eighth grade, or even school systems of any kind. Just how the eighth grade cutoff point was arrived at was not explained. Eight was apparently not the test, nor was the quality of the school system apparently a factor.” 

Thurgood Marshall: 

Now this is a memorandum decision by the Circuit Court? 

John W. Calhoun: 

That’s right. 

Thurgood Marshall: 

I wonder, was there any evidence? Any testimony? Any experts that contradicted this, the Amish expert? 

John W. Calhoun: 

There is, there was no expert testimony that contradicted the Amish testimony except the testimony of the state superintendent of the schools in the county. 

Thurgood Marshall: 

Did he know anything about Amish law or any doctrines? 

John W. Calhoun: 

Yes. 

Thurgood Marshall: 

He did? 

John W. Calhoun: 

He had. He knew about Amish people. He was acquainted with Amish people. They live down there. 

Thurgood Marshall: 

You deny that it isn’t part of their faith that they should not go to public schools beyond the eighth grade? 

John W. Calhoun: 

No, I deny that, I say this, that the Trial Court found that this did not interfere with their religious belief as such but with their freedom to act and that the freedom to act, the restriction on their freedom to act here was a reasonable one which has been imposed since 1642 in this country, that the compulsory school attendance is not a law which has just been recently enforced. We’ve had it since the beginning of our educational system. 

Warren E. Burger: 

Very well, Mr. Calhoun. Thank you. Thank you Mr. Ball. The case is submitted. 

Watch/Listen to the Audio/Video

Scroll to the end for the audio/video version of this post.

Disclosure: This post contains affiliate links.

FREE QUIZ: How much do you actually know about the Amish? ➜ https://www.AmishHeritage.org/amish-quiz

Curious about Amish life and culture? Join the FREE monthly-ish Amish Insider & get a link to download “4 Popular Myths About the Amish” ➜ https://www.AmishHeritage.org/news

WANT SOME ONE-ON-ONE HELP? Or Want Torah Bontrager to Speak? If you or your school, department, or organization are interested, Torah gives customized presentations or guest lectures via Zoom and culturally sensitive webinar trainings for students, educators, health and legal professionals, social workers, and law enforcement. Email or text/WhatsApp +1-212-634-4255 for more info.

---