In Wisconsin v. Yoder, the Supreme Court defended the right of Amish parents to remove their children from state schools after the 8th grade. Despite freeing Amish children from an extra two years of state schooling, there is still a great deal wrong with the Yoder decision. Most of the problem stems from Justice Burger’s use of the Free Exercise Clause of the First amendment, instead of some grounding the decision in some free assembly construction or other secular justification. By choosing to build the argument against compulsory education around the free exercise of religion, Burger knowingly excludes secular claims to the right of exit from government schools, as well as the claims of any religious groups not recognized by the United States Government. Crafting an example of unprotected secular conduct, Burger argues that, had Henry David Thoreau decided to avoid schooling mandates because of his “subjective evaluation and rejection of the contemporary secular values accepted by the majority” then his rejection of state schooling, and its inculcation of values with which Thoreau took issue, would not be protected. Given that Thoreau was a literary genius, and worked as a tutor for some time, were he to ask for an exemption from state schooling requirements, I would be inclined to give it to him, but then again, I think the pledge of allegiance is rather creepy, and I see little value in illiberally instantiating homogenous norms through compulsory education. The early progressives who made up the Common School Movement thought a bit differently about the supposed dangers of multiculturalism and unchecked immigration.
While a jab at the Common School Movement and public school nationalism may seem tangential, the spirit behind public education has a great deal to do with the acceptability of deviation from its norms. If, as many liberals believe, public education ought to be offered so that all individuals have the opportunity, regardless of their socio-economic status, to learn the skills necessary for participation in society, then no real problem is presented by groups wishing to educate their offspring on their own. If we consider their education inferior, we might be disappointed they do not make better use of the tools they are offered, but their lack of participation does us no harm. On the other hand, if public schooling is seen as a necessary prerequisite for participation in the democratic state, deviation weakens the whole, depriving the nation of a greatly demanded resource. Under this model, divergence cannot be tolerated, like dry rot it weakens the superstructure of the state.
In attempting to differentiate between mere “matters of personal preference” and “deep religious conviction”, Burger ignores the possibility that personal preferences can be respected, while considering faith based objections to be nothing more than a strongly held spiritual preference. He does, at least not that it is extremely difficult to determine, on the margin, what religious beliefs ought to be protected, calling the problem “a most delicate question”. While any state decision about the legitimacy of a group’s belief system seems, at face value, suspect, in 1993 the ATF did not even approach this “delicate question” before riddling David Koresh’s compound will bullets and pumping it full of noxious gas. This tendency to marginalize religious beliefs considered outside the mainstream makes grounding any right on standards of faith even more tenuous. It is a fair bit harder for the state to dispute someone’s citizenship or basic humanity, though the hardworking boys down at Guantanamo are giving it an honest try.
The state simply lacks the capacity to safely ferret out false faiths and separate personal preference from belief. More importantly, unless a high school education is seen as a prerequisite of a functioning democracy, there is no need to limit compulsory school exemptions to religious groups. With a dropout rate of near 25 percent, if the United States is to be considered a democracy, this theory cannot possibly hold true. While Wisconsin v. Yoder protected the autonomy of a vulnerable religious minority, it set a double standard for state schooling exemptions, ignoring valid secular objections to compulsory schooling.