Opting out of education: Yoder, mozert, and the autonomy of children

Educational Theory

Volumn 52, Issue 4, 2002, Pages 445-461

  Reich, Rob ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 2942676600     PISSN: 00132004     EISSN: 17415446     Source Type: Journal    
DOI: 10.1111/j.1741-5446.2002.00445.x     Document Type: Article

References (34)

1. Justice William O. Douglas in Wisconsin v. Yoder (1972), 406 U.S. This case will be cited as WY in the text for all subsequent references. 205, 245-46.
2. Mozert v. Hawkins County Board of Education (1987), 827.F.2nd 1058. The 6th Circuit's ruling was left as binding when the Supreme Court declined to review the case. This case will be cited as MH in the text for all subsequent references.
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 make no law "prohibiting the free exercise thereof," referred to hereafter as the Free Exercise Clause. The Fourteenth Amendment makes the Bill of Rights applicable to the states.
4. Citing Pierce v. Society of Sisters, 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.(1925).
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, 393 U.S. 97, holding that it violates the Establishment Clause to tailor a curriculum to satisfy the principles or prohibitions of any religion; for example, laws requiring the teaching of Creationism.(1968).
6. For a discussion of this two-prong test, see Nomi Stolzenberg, "He Drew a Circle that Shut Me Out," 106 Harvard Law Review 581 (1993): 592.
7. George W. Dent, Jr., "Religious Children, Secular Schools," 61 Southern California Law Review 863 (1988): 880ff.
8. The more recent ruling in Employment Division v. Smith), 494 U.S. 872, at 1063, calls into 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.1990.
9. 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 permitted their children to read them"; Stolzenberg, "He Drew a Circle that Shut Me Out," 599 (emphases in original).
10. Dent, "Religious Children, Secular Schools," 899: "The Court has never denied a free 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, 449 LT.S. 39 (holding that the posting of the Ten Commandments in a public school classroom is unconstitutional) and West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624 (holding that students could not be forced to recite the Pledge of Allegiance and salute the flag.)(1980).
11. Dent, "Religious Children, Secular Schools," 891, citing Bowen v. Roy (1986), 476 U.S. 693 (whether use of a Social Security number robs one's soul); Wooley v. May hard, 430 U.S. 705 (whether "Live Free or Die" contradicts religious promise of everlasting life); and Wallace v. Jaffree (1985), 472 U.S. 38 (whether a moment of silence promotes religion).(1917).
12. 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 applicability. 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.
13. 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 tu reinforce information taught in the different subject areas.".
14. Vicki Frost's extensive testimony, as described in Stephen Bates, Battleground (New York: Poseidon Press, 1993). Walter Lippman recognized the gave threat posed by 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 cpen-minded discussion about whether citi zens 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, 1926) 65-66.
15. 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 Halbertal, "The Right to Culture,"Social Research (Fall 1994): 491-510.
16. Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995).
17. 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 monoculturai. For more on this, see Rob Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago:, chap. 3. Univer sity of Chicago Press, 2002).
18. Philosophers have also made much of this distinction. See Jeff Spinner, The Boundaries of Citizenship (Baltimore: Johns Hopkins University Press, 1993), 95-99, calling the Amish "partial citizens" and Stephen Macedo, "Liberal Civic Education and Religious Fundamentalism: the Case of DOI: 10.1086/293723 arguing for prudential accommodation. God v. John Rawls?" Ethics 105, no. 3 (April 1995): 468-96,.
19. The Appeals Court contrasts the mere exposure in Mozert to the compelled conduct in Sherbert v. Verner, 374 U.S. 398 (where a Sabbatarian was denied unemployment benefits for refusing to work on Saturdays); in Thomas 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 Hobble v. Unemployment (1987), 480 U.S. 136 (reaffirming holdings in Sherbert and Thomas).(1963).
20. 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.".
21. Noting all the critical comments of judge Boggs, it is something of a mystery why he found in favor of Hawkins County. Boggs'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 an issue. From Brown v. Board to the MiUiken remedies to bilingual education 1647 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 Law Journal 1986.
22. In Reich, Bridging Liberalism and Multiculturalism, I offer a detailed argument in support of a child's interest in education for autonomy.
23. 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 Liberalism (Oxford: Oxford University Press, 1997); feminist theorists include Susan Moller Okin, Is Muhiculturalism Bad for Womenl (Princeton: Princeton University Press, 1999.
24. Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thoughts, Possibilities" Yale Journal of Law and Medicine 1, no.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, 7 (1989).
25. Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 175.
26. Joseph Raz, "Liberalism, Scepticism, and Democracy," Iowa Lnw Review 74 (1988): 133.
27. Harry Brighouse, "Civic Education and Liberal Legitimacy," Ethics 108, no. 4 (1998): 735.
28. In this article Brighouse also distinguishes between autonomy-facilitating and autonomy-promoting education (p.). 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 Doghouse'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.733.
29. The argument in this section draws on portions of an argument I make in a discussion of homcschooling in Reich, Bridging Liberalism, chap. 6.
30. This is the famous case of Bellotti v. Eaitd, 443 U.S. 622, in which the U.S. Supreme Court held that lower courts should not interfere with the choices of a mature minor, even if judges helieved that an abortion would not he in the child's best interest.(1979).
31. G. Melton, cited in John Hill and Grayson Hohnbeck, "Attachment and Autonomy During Adolescence,"Annals of Child Development: A Research Annual 3, ed. Grover Whitehurst (Greenwich, Conn.: Jai Press, 1986), 148.
32. Walter Mlyniec, "A Judge's Ethical Dilemma: Assessing a Child's Capacity to Choose," 64 Fordham Law Review 1873 (1996): 1907.
33. Emily Buss, "What Does Frieda Voder Believe?" 2 University of Pennsylvania Journal of Constitutional Law 53 (1999) 53-76.
34. Martha Minow, Making All the Difference (Ithaca, N.Y.: Cornell University Press), 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, 296.1990.