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

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 1: John W. Calhoun’s argument]

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

Wisconsin against Yoder and others. 

Mr. Calhoun. 

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

Mr. Chief Justice and may it please the Court. The respondents here are members of the Old Order Amish religious sect. They reside in Green County of Southwestern Wisconsin. In November of 1968, when they refused to send their children beyond the eighth grade, a summons and criminal complaint was filed in the County Court of Green County. They were tried on April 2, 1969 for violation of the Wisconsin compulsory school attendance law. The case was tried to the County Court of Green County and the respondents were found guilty there. 

They had a trial de novo in the Circuit Court of Green County where the Court again found them guilty and imposed a minimum fine of $5.00 on each of the respondents. They appealed to the Wisconsin Supreme Court. The Wisconsin Supreme Court reversed and this Court granted certiorari on May 24th of this year. 

Respondents object to education of the children in public, private, secular, or non-secular schools beyond a certain point. At present time, the objection is eighth grade. The Trial Court noted the problem with the arbitrary eighth grade cutoff in its decision. 

Now, worried about the decisions and opinions that were filed in this case in the courts below, the Trial Court below found that the compulsory school attendance law did interfere with the freedom of the respondents to act in support of their religious beliefs. They also found that appreciable numbers of the Amish-reared youth do leave the faith. 

Both the Trial Courts concluded after several careful consideration of the cases that the compulsory school attendance laws in Wisconsin were a reasonable exercise of the police power of the state to educate its youth. 

Justice Potter Stewart: 

The state law requires attendance of school, what, through a certain age [voice overlap]? 

John W. Calhoun:

Yes, that’s through a certain age. 

Potter Stewart: 

Sixteen? 

John W. Calhoun:

Yes, 7 through 16. This is pretty general throughout the rest of the state. It is based on age but not on grade. 

Warren E. Burger:

That would mean, would it not, that if you had a remarkable or unusual child who began school when he was four and his parents wanted to take him out to pursue his own studies at a point, he’d still have to go school formally until he was 16? 

John W. Calhoun: 

If he could show achievement equivalent to a high school education at any point, he would be excused from the compulsory school attendance law. 

Warren E. Burger: 

So the achievement test is interposed on the arbitrary 16, is it not? 

John W. Calhoun: 

Yes, there is an area of discretion there to be exercised by the State Superintendent of the Public Instruction, Your Honor, and this provides for certain unusual cases and of course there are exemptions for health problems and handicaps and that sort of thing, but there’s no problem with respect to the substantial equivalency of education, the discretion resting with the State Superintendent of the Public Instruction. 

Now, the opinions of the Wisconsin Court were three in number. 

There was principal opinion, which stated on page 133 of the appendix: “We view this case as involving solely a parents’ right of religious freedom to bring up his children as he believe God dictates. If nothing else, then that God dictates in an infinite variety of ways, this makes for a thoroughly broad issue.” 

The concurring opinion has stated this: “Under the facts of this case there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides the defendants’ right to the pre-exercise of his religion.” 

Warren E. Burger: 

What happens in Wisconsin on the year of statute if a person aged under 16 wants to go off into a vocational school? 

John W. Calhoun: 

We have a vocational school situation in the law, Your Honor, which . . . 

Warren E. Burger: 

That’s considered? 

John W. Calhoun: 

Yes. 

Warren E. Burger: 

That’s the meaning? 

John W. Calhoun: 

Yes, that is a rather elaborate system of vocational schools in Wisconsin. And there is a provision specifically for children to attend the vocational school if that vocational school is within the school district. And the Trial Court asked the same question in this area and was satisfied that the vocational school law probably had no particular applications in this case, although vocational school is certainly open and available to all people in Wisconsin. 

Warren E. Burger: 

Generally, what is the range of training in a vocational school? 

John W. Calhoun: 

The range is very broad. Now, the agricultural vocational schools, which would probably interest the Amish more, are handled through the land grant, the old federal aid program to agricultural education and that’s handled in the high school. There’s a special agricultural teacher who is paid out of federal funds and that has been in existence for a long time. So that is available. There isn’t any question that these vocational programs are available to respondent [Jonas Yoder, et al.]. 

Potter Stewart: 

Is the Amish, is that private schools? 

John W. Calhoun: 

Do they have private schools? Yes, in many areas they do. And in this particular instance, however, they apparently refuse to set up any school which goes beyond the eighth grade. There are no secondary schools in operation by the Amish in Wisconsin that I know of. There may be some who haven’t been approved by the state superintendent but are still in operation. 

Justice Harry A. Blackmun: 

Mr. Calhoun, was there any element of retaliation in this case? 

John W. Calhoun: 

I think there was not, Mr. Justice Blackmun. There was absolutely no evidence of that and in fact this has been a rather intelligently and studiously tried case from the beginning. There is a good, there are statements in the record of expert witnesses speaking in favor of the Amish. There’s been no rancor and it has been a most interesting case because it has been free of that type of thing. 

Harry A. Blackmun: 

And yet it was triggered by the loss of state aid? 

John W. Calhoun: 

Well, yes, there is a loss of state aid, but that is really insignificant to the issues involved. I don’t think that has really anything to do about this. The state aids are very small compared to the real need of the school district. 

Now . . .

Justice William J. Brennan, Jr.: 

Well, I gather the issue here, though, was not whether the children must go to school but rather the issue was the parents . . .  

John W. Calhoun: 

Yes. 

William J. Brennan, Jr.: 

. . . must see to it that the children . . .

John W. Calhoun: 

Yes, it isn’t a question of truancy here. The question is of whether the parents can be compelled to send their children to school.

William J. Brennan, Jr.: 

I take it that it’s certainly a limited issue, constitutionally at least, whether their freedom of religion is violated by requiring them to send their children to school? 

John W. Calhoun: 

We think there are two issues here really. First of all is whether the, let me state it, whether or not the respondents may select the time, the extent and whether or not they will comply with the compulsory school attendance laws and whether there is somewhat more broadly stated a constitutional right to conscientiously object to education. 

William J. Brennan, Jr.: 

Yes, but as I gather, am I wrong, we’re not concerned here of whether the children have to go to school, Amish or not. We’re concerned with whether Amish parents can be compelled under the threat of criminal punishment? 

John W. Calhoun: 

Well, of course, we’re concerned about the rights of the child to an education. I think we’re concerned about that. I don’t think we can avoid that as an overriding issue and I think the dissenting opinion expressed that well, because the compelling interest of the state is in the education of the children and the interest of the child in education is important. It’s vital and this is what we think the real issues are. 

Now . . . 

Justice Thurgood Marshall: 

Mr. Calhoun, is it true in Wisconsin and other states that the way to get to the fact the child is not going to school is to get the parents? Is that the normal procedure [inaudible]? 

John W. Calhoun: 

Is to . . . 

Thurgood Marshall: 

If I say I will not send my child to the public school, I’m the one that’s brought in to court? 

John W. Calhoun: 

That’s right. 

Thurgood Marshall: 

Is that the normal procedure? 

John W. Calhoun: 

That’s right, yes. 

Thurgood Marshall: 

Isn’t it just as normal as any other case? 

John W. Calhoun: 

Yes. 

Thurgood Marshall: 

I [inaudible] . . . 

John W. Calhoun: 

Well, that’s right. It’s a question of whether or not they complied with the law. In this . . . 

William J. Brennan, Jr.: 

Yes, but doesn’t the state have to show a compelling interest in education? 

John W. Calhoun: 

Yes, we think there’s a compelling interest in education. 

William J. Brennan, Jr.: 

Well, is it enough that there’s a compelling interest in education or does it have to be some other kind of compelling interest? 

John W. Calhoun: 

No, I don’t think there has to be any other kind of compelling interest because it is through compulsory education, compulsory school attendance, that the interest is implemented. The interest, the subject we regulate is education. 

William J. Brennan, Jr.: 

Well, I don’t see how anyone could question that the state has a compelling interest in education.

John W. Calhoun: 

Yes. 

William J. Brennan, Jr.: 

But do you think that answers the . . .

John W. Calhoun: 

I don’t think it answers the question completely. No, I don’t think it answers the question completely. 

William J. Brennan, Jr.: 

It has to have a compelling interest in total compliance, does it? [voice overlap] Can you demonstrate that? 

John W. Calhoun: 

No, I don’t think that the, the compelling interest is not in total compliance necessarily. The question is whether or not the Court can say that the Amish parents have a constitutional right to conscientiously object to education, to sending their children to school. 

William J. Brennan, Jr.: 

Well, you don’t, does the state challenge that this is their position about education? Is the [?] for their religion? 

John W. Calhoun: 

What we have said in that is simply this, that as the Trial Court has said: “It interferes with their freedom to act but not with their religious belief as such. And that the cases are clear. And this Court has pronounced time and again that the freedom to act may be restricted in interpretation of the First Amendment, but the freedom to believe may not.”

William J. Brennan, Jr.: 

You mean the old polygamy cases? 

John W. Calhoun: 

That’s right. The old Mormon cases, Cantwell v. Connecticut . . . 

William J. Brennan, Jr.: 

Is that what we have here? 

John W. Calhoun: 

Yes. Yes. It’s as simple as that. We decided that. 

William J. Brennan, Jr.: 

I wish it were. I don’t find that . . . 

John W. Calhoun: 

What we’re saying here is essentially that there is a compelling interest in education. That’s essentially our view, and that this Court and the Congress, people of this country have manifested this compelling interest. The concurring opinion . . .

William J. Brennan, Jr.: 

[voice overlap] . . . see how anyone could challenge that? 

John W. Calhoun: 

That’s right. I don’t either, but Your Honor, and this is what we find wrong, and this is why we’re here. Because this is what they said: “Under the facts of this case, there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides the defendants’ right to the free exercise of religion. It’s just as clear as that. It’s as clear as the conscientious objector cases. It’s as clear as the statement in Gillette [Gillette v. United States]. It’s as clear as Welsh [Welsh v. United States] and Seeger [United States v. Seeger].”

I don’t want to equate, I don’t want to equate military rule and/or imply by equating compulsory education with military conscription that the heavy hand of the state is being applied here. It’s quite the contrary. 

The compulsory school attendance laws have been in existence for years. They were part of the established church when this country was founded, when the colonists established the theocratic societies in the pre-Revolutionary days, when the church became . . . this established a compulsory school attendance laws . . . remained. They remained in a democratic fashion and they are applied and enacted in a democratic fashion. 

When you talk about Sherbert against Verner [Sherbert v. Verner], which is the case in which the respondents rely, you have an entirely different set of values. You’re not talking in Sherbert against Verner about a social institution of the type of education, military conscription, the system of taxation, all of these other things where the legislature acts to grant the exemption. This is a positive force that we’re dealing with for the benefit of society and it is the legislature that should determine in its own area of protection of the liberties of this country. It is the legislature that should determine whether the compulsory school attendance laws are necessary to enact or to obtain the full benefit of education to the individual and society. 

At this point, I think we get through an important area for this Court to consider. I’m sure that you’re aware of Justice Frankfurter’s opinion in Minersville v. Gobitis [Minersville School District v. Gobitis] and in his dissent in West Virginia against Barnett [West Virginia State Board of Education v. Barnette]. In these particular cases, he espoused the importance of a legislature and it is in this particular area, in the area of education where we are talking in terms of positive movement of more education and not less . . . 

Warren E. Burger: 

We have further . . .

John W. Calhoun: 

. . . that the legislature has an important function. 

Warren E. Burger: 

We have other cases, of course, as you will know where the power and the duty of the state to support education comes into collision with the religion clauses of the First Amendment and isn’t that what we have here?

John W. Calhoun: 

Well . . . 

Warren E. Burger: 

In a different form? 

John W. Calhoun: 

Well, what cases in particular do you have in mind? 

Warren E. Burger: 

Well, the recent cases that were decided where states were giving support to private schools and . . . 

John W. Calhoun: 

Yes, I think that . . .

Warren E. Burger: 

[voice overlap] . . . that state action will start to be in conflict with the First Amendment? 

John W. Calhoun: 

No, I think that what, yes, I think what the Court is, I think what we’re doing is opening up a different approach to the same argument. We’ll arrive at the same conclusion. As I think Justice White said, it’s our good fortune in Lemon v. Kurtzman that the states have undertaken to educate our youth and to compel their attendance in school by compulsory school attendance. 

Now, what we’re concerned about here takes us to Pierce against the Society of Sisters of the Holy Name [Pierce v. Society of Sisters] where the Court said that we couldn’t compel attendance at public schools, but there was no reason why attendance could not be compelled at public or private, secular or non-secular schools and this is the area when you talk about the age of parochial education that we get into. 

We get into a proposition that endeavors to augment this and that is not really the question here. 

The question here is education or no education. 

It’s not the question of private education or public education or how much one should be aided over the other. 

Yes, there is a First Amendment question, but it’s an establishment question rather than a freedom to worship question. 

William J. Brennan, Jr.: 

I take it if, I think you said earlier in answer to Mr. Justice Douglas’ question that the Amish do have their own schools? 

John W. Calhoun: 

Yes. 

William J. Brennan, Jr.: 

And I take it, it’s like the Roman Catholic parochial schools or any other parochial schools. If the standards of education in those schools met the state’s standards, you wouldn’t be here, would you? 

John W. Calhoun: 

That’s right. We would not. 

William J. Brennan, Jr.: 

And is it that they will not comply with the state quality standard, is that it? 

John W. Calhoun: 

Yes, they won’t. As a matter of fact, that’s correct, yes. They have no [secondary] schools. 

Warren E. Burger: 

If the Amish could show, they haven’t done so in this case I take it, but if they could show that their own training in agriculture brought their children at age 16 to the same point or higher point of achievement as compared to those who went to the vocational schools to learn about agriculture, would you be here then? 

John W. Calhoun: 

Well, I’m not sure, because I’m not sure whether that would meet the standard. We probably wouldn’t be here. We might be in some other Lower Court determining whether there was a reasonable ruling by the administrative bodies such as the Department of Public Instruction who are experts in this area. But it would not be the same constitutional question that’s involved here. That I think is safe to say that we would not be here. 

Now . . . 

William J. Brennan, Jr.: 

Incidentally, does, do the Amish have any formal schools in Wisconsin? 

John W. Calhoun: 

Do the Amish? 

William J. Brennan, Jr.: 

Yes. 

John W. Calhoun: 

Yes, I think there are some grade schools and I believe they were establishing a grade school in the Green County area. I’m not sure of that, but I know there are some schools that are established up in the Medford area in the Northern part of the state. 

William J. Brennan, Jr.: 

Does the quality of education in those schools satisfy state standards? 

John W. Calhoun: 

I believe that those schools do satisfy state standards, although it may be that the superintendent hasn’t made a ruling on it. 

Now, I’ve indicated that the compulsory school attendance law and the ruling of the Wisconsin Courts are more properly analyzed in terms of the conscientious objector cases, Welsh, Seeger, and Gillette. And to this extent, the ruling of the Wisconsin Court does present a constitutional right to anyone who has a conscientious objection based on a sincere moral belief to object to education. And we submit that this would raise havoc with the educational system, not only in Wisconsin, but throughout the country. 

Now, let’s look at the specific laws for example. There is a correlation expressed in Prince against Massachusetts [Prince v. Massachusetts], a correlation, for example, between compulsory education and compulsory school attendance and the child labor laws. They are integrated. We quoted the child labor laws to show them in our brief. 

Now, not only is there a correlation there, but there must be a correlation in the whole program, the whole legislative program regarding children. The manner in which a Juvenile [Court] judge, for example, deals with a dependent child would be affected by the decision of this Court and if it were to say that there is a constitutional right to conscientiously object to education, I feel that would be removing a vital tool from the administration of the law as it relates to youth and children. 

I’ll reserve the rest of my time, Your Honor, for rebuttal. 

Warren E. Burger: 

Very well, Mr. Calhoun. 

Harry A. Blackmun: 

Mr. Calhoun, would your case be any different if, instead of age 16, if it were age 21? 

John W. Calhoun: 

That question was asked last night. No, I think then we got into the area of reasonableness, Your Honor, and again the line is drawn somewhere and it’s reached by a basis that is not  

arbitrary, and I assume this is done in the legislative halls and in the testimony of witnesses who are experts in education before various committees. 

Age 21 would not be a particularly advisable area. Whether in terms of education today this is reasonable, it would probably have to be determined by the Court. It would not seem to be the case. 

But I don’t think the principle, the underlying principle is much different. In other words, it’s a matter of legislative administrative concern. 

Warren E. Burger: 

Very well, Mr. Calhoun. 

Watch/Listen to the Audio/Video

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

---

Disclosure: This post contains affiliate links.