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Let me take a few words to say why I feel so certain that the present Supreme Court will rule this way. In his short but very interesting and important book, THE NATURE OF THE JUDICIAL PROCESS, former Supreme Court Justice Benjamin Cardozo, explaining to law students (to whom these lectures were originally given) how judges arrive at their decisions, said that there were essentially four ways in which judges could and did look at cases.

In the "Philosophical" approach they examine them in terms of basic legal principles, found perhaps in the Constitution itself, perhaps in the Anglo-Saxon Common Law from which the Constitution arose, perhaps in even older and more fundamental principles of right and justice. Such judges ask themselves, in effect, what is the right, the fair, the just thing to do in this case. Most people not familiar with the law, and not long ago I was certainly one of them, would have assumed as I did that all judges thought this way all the time. But for many and often very good reasons, this is not always so.

Another way of looking at cases, called by Cardozo the "Historical" approach, is to ask what the law itself has said about similar cases over the years. Historically-minded judges want to preserve, as far as they can, the unity and internal consistency of the law, so that as far as possible people will be able to predict, from what the courts have said in the past, what they will be likely to say in the future. In making their rulings they cannot to some degree avoid making new law, but they want this new law to disturb the existing body of law as little as possible. If the law must change, as it cannot avoid changing, to take account of new problems and conditions, they prefer it to change by gradual steps, not by sudden announcements of new positions or sudden reversals of old ones. In this frame of mind judges are much influenced by precedents, which tend to make the law predictable.

Still another kind of judge - I forget Cardozo's name for these - is what has elsewhere been called "strict constructionists." When facing a dispute over the meaning or application of a particular law, such judges ask, what did the lawmakers, when they wrote this law, intend to have happen, how would they have written it if they had known about the case now before us. In People v. Turner, of which we wrote GWS 29 and 30, the court was thinking primarily in this way.

Finally we have what Cardozo called the "Sociological" approach to the law. In this, judges facing a case ask themselves, what will be the social consequences of our ruling this way or that? Now must we rule in order to make happen what we want to have happen, or to prevent from happening what we don't want to have happen? In this frame of mind judges act primarily as if they were legislators. The judges who have so far refused to award damages to parents whose children the schools had completely failed to educate thought in this way; they said, in effect, if we start awarding money damages against schools for failing to teach, our courtrooms will soon be bursting with complaining parents and the schools will soon be broke, neither of which we want. So, in spite of the rights of the parents and the seriousness of the injuries which may have been done to them and their children, these judges have not awarded damages, and in my judgment are not likely to do so.

The present Burger court is, from the point of view of home schoolers, probably the worst kind we could have. Like the Warren court of the '50's, they are a very sociologically-minded and legislative court, but unlike the Warren court, they are a very anti-libertarian one. They feel that in general the state has lost far too much of its power and authority over its citizens, and are determined to restore them. In any conflict between the power of the state and the liberties, and in the case of atomic energy even the physical safety of its citizens, they almost always come down strongly on the side of the state. Beyond that, they tend to be constructionists, preferring to interfere as little as possible with whatever legislative bodies want to do. Finally, they are very worried (and rightly) about the increasing overcrowdedness of our courts, so much so that if they had no other reasons for saying that home schooling was the business of the legislatures rather than the courts, they would find this reason enough.

Some of the home schoolers who want to take broad constitutional cases up through the Federal courts claim that in Wisconsin v. Yoder a majority of the justices presently on the Supreme Court said, in effect, "if your religious convictions forbid your sending your children to school, then they don't have to go." The fact is that the Court went to great trouble to make clear that this is not what they were saying. They stressed instead that the Amish were a long-established sect; that the prohibition against sending their children to school past eighth grade was itself long-established and was uniformly observed through their church; that they had shown over many years that their children, despite their abbreviated schooling, grew up to be productive and useful citizens, and no burden or danger to the state; and finally, that this exemption granted to the Amish was not to be considered as applying to any individual who might for whatever personal reasons want to avoid the requirements of compulsory schooling. Indeed, three of the justices, in a concurring opinion, said that if even the Amish, instead of claiming the right not to send their children to school after eighth grade, had claimed the right not to send them at all, they might well have ruled the other way - as they put it, the difference between eight years of school and ten is probably not very great, in this case not enough to justify trampling on the Amish's religious convictions. This very cautious and heavily circumscribed ruling is a long way from some of the optimistic interpretations of Yoder presently circulating in the home schooling movement.

For all of these reasons I have been trying for some time now, in GWS and through personal conversations and correspondence, to dissuade people from bringing broad cases into the Federal courts. Whether I was right or wrong in this, I have to recognize that the effort is failing. Many people active and prominent in the movement are continuing publicly to urge aggressive action in the courts, and indeed at least four cases seem already to have started on their way, three of them damage suits against the schools, and one what we might call a Leave-Us-Alone suit. Before long these will probably be followed by many others. What will happen to them in the lower courts, and how long it will take them to work their way, if any do, into the Supreme Court, I don't know. But I have started to accept it as a fact of life, and urge others to accept it, that within a few years we will see a Supreme Court ruling saying, first, that there is no generalized constitutional right of parents to escape, for whatever reasons, the compulsory education laws of the several states; secondly, that education is the constitutional province of the states and that in this area they may make whatever regulations they wish; and finally, that no burden of proof will rest on the states to show that these regulations are reasonable and necessary, but only on those who claim they are not. Or, which amounts to the same thing, we will get such a ruling from a lower Federal court and the Supreme Court will refuse to hear an appeal from it. This may not happen for two or three years, but I think we should be prepared for it. If and when it happens, we don't want the phones here to start ringing day and night with people saying, "Help' Help' The Supreme Court has just ruled against home schooling, what do we do now?"

One thing to do now is to realize that though such a ruling would be a very serious setback, it would not be the end of home schooling. As we know, there are active and growing home schooling movements in Canada and Great Britain, yet neither of these countries have constitutions like ours, under which the courts can simply strike down legislation written by Parliament. When home schoolers go to court there, what they say is not that the law is unconstitutional but that they, in teaching their own children, are in fact obeying it, meeting its requirements and satisfying its true intent. There is no reason why home schoolers in this country could not, if they had to, fight and win many such cases in state courts, and in this and later issues of GWS we will discuss how we might prepare such cases.

The case of the Edgingtons in New Mexico, described elsewhere in this issue, is an example of how the law works, changes, and grows. If two parties are in dispute under a particular law, they both try to get the courts to interpret the law in their favor; if the courts disappoint one of the parties - as they must - then that party goes back to the legislature to try to get a more favorable law. As long as the schools see home schoolers as a serious threat, this game of court-to-legislature-to-court is going to continue. It's unrealistic for us to think that we can, so to speak, end the game while we are ahead. The only way to end the game is to end the conflict, which is what we here at GWS want to find ways to do.

Note that in this ruling Judge Kase was thinking like (in Cardozo's terms) a philosophical judge. In saying that the statute in question made no sense, he was calling on an old Roman maxim of law (I forget the Latin), "The law is not an ass." Such judges feel that a fundamental requirement of any law, one much older than the Constitution itself, is that it make sense, and not be self-contradictory or absurd. We would probably do well, as we continue our struggles in the courts, to take note and keep track of such philosophical judges, since, if we prepare our cases well, we have a much better chance of winning in their courts.

Meanwhile, this case is important for just the reason given in the story, that in finding for the parents Judge Kase "focused primarily upon the wording of the statute involved," rather than on any First Amendment or other constitutional rights. He threw out the law (which a strict constructionist" judge would never have done) not because it was unconstitutional but because it didn't make sense and hence was bad law. Since his argument does not rest primarily on the U.S. constitution, it will remain available as a useful defense for home schoolers even if our constitutional defenses should be lost. (Copy of the ruling available from NALSAS, Box 2823, Santa Fe NM 87501, for $1 and a business-size self-addressed and stamped envelope.)

Please do not take me to be saying that there are no kinds of cases that we can win in Federal courts. On the contrary, I think that we may be able to win there, (after first going through the state courts) whenever we can show that a particular family has been either (1) denied the right of due process, in short, that in prosecuting the family the state failed to follow its own required legal procedures, or (2) denied equal treatment under the law, that is, has been forbidden to do what other citizens are free to do, and/or required to do what other citizens are free not to do; still more specifically, has been required to obey laws and regulations which the state's own schools widely ignore or disobey. I think we may also be able to win at least some cases in which we can show that the effect of the state's education laws on a particular family is less to hold the parents and children up to the minimum standards of the state schools than to hold them down to them. To philosophical judges we can say that this is unfair and unjust; to political judges - and we should know which kind we have to deal with - we can say that it is not in the best interests of society, which is on the contrary best served by allowing and encouraging all parents, not just rich ones, to get the best education for their children that they can, if need be, making it for themselves.

Since these are the kinds of arguments that we will have to make if, as seems likely, we lose our constitutional support, we should start making them right now, both in the educational proposals we make to schools and in the legal briefs we draw up if and when we are forced into court. The advantage of cases won by such arguments is that, unlike constitutionally based cases, these Due Process and/or Equal Treatment cases will still stand as helpful precedents no matter how bad a future Supreme Court ruling may be.

But the main point of this article is that we must now greatly increase our efforts, first, to get good home schooling laws passed in the legislatures, and secondly, to achieve cooperative relationships with as many as possible of the local schools. In any states which pass legislation saying in one form or another something reasonably close to what we put into our model legislation (GWS #30), parents would not have to worry much about what the courts might or might not say. And the strongest position of all will be, as it is right now, to have a really friendly, understanding, and cooperative local school district. If the local district not just grudgingly but warmly approves the idea of your teaching your own children and wants to help as much as it can and in whatever ways suit you best, then you don't have to worry about either legislatures or courts; with that much school support, you will easily find a legal way to home school. So our most urgent task, now more so than ever, is to persuade our local school people, and beyond them the state authorities, that home schooling is not a threat to their existence and that their best interests will be served by working with it instead of fighting it. To convince them of this is not an easy job and will not be accomplished in a year or two. All the more reason to get to work on it as soon as we can. One way to do this will be to establish more effective local organization and lines of communication. Another way may be to give the widest possible circulation to our legislative proposal and to my article from Phi Delta Kappan (see excerpts in this issue). -JH

MINNESOTA VS. TOLLEFSRUD

STATE OF MINNESOTA, COUNTY OF HOUSTON COUNTY COURT, CRIMINAL DIVISION State of Minnesota, Plaintiff, vs. Thomas Tollefsrud, Defendant

The above-entitled matter came on for hearing on the 19th day of

January, 1983 before the Honorable Robert E. Lee, County Judge.

... IT IS ORDERED:

1. That as applied to this defendant, MSA 120.10 and MSA 120.12 are unconstitutional intrusions on the First and Fourteenth Amendment rights of the defendant.

2. That the motion of the defendant is granted.

3. That the complaint is dismissed.

Dated: February 9, 1983.

MEMORANDUM

This prosecution is concerned with the constitutionality of imposing criminal penalties upon the Tollefsruds for their religiously based refusal to compel their children to attend a public school. The State of Minnesota is seeking to brand these parents as criminals for following their religious beliefs. This Court does not recognize that the State of Minnesota can constitutionally do so.

The First Amendment to the United States Constitution states, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The "free exercise" clause was made applicable to the respective States through the concept of "liberty" as embodied and defined in the Fourteenth Amendment ... The analysis or test of the concept of "free exercise" has a broad application (United States vs. Ballard, 322 US 78 1944) and the Court has indicated that a proper inquiry is limited to whether or not the party charged with the offense was sincere in his (or her) beliefs.

The Court has noted that nontraditional beliefs, including secular humanism and atheism are all "religions" for the purpose of the "free exercise" analysis. (Fowler vs. Rhode Island, 345 US 67, 1953.) The Court held that it was "no business of the Courts to say that what is a religious practice or activity for one group is not a religion that comes within the protection of the First Amendment."

The free exercise of one's religious beliefs prohibits the invasions or intrusions of civil authority, and it is incumbent for one in such a case to show the coercive effect of a legislative enactment as it operates against him in the practice of his religion. (School Dist. of Abington vs. Schemysp, 314 US 203.)

The stated religious beliefs and convictions of the Tollefsruds are on a collision course with the avowed determination of the school authorities to prosecute them, convict them of criminal offenses, and seek the adjudication of the Courts to sentence them to jail, impose monetary fines, or both.

The leading case on the proposition confronting this Court is Wisconsin vs. Yoder (406 US 205, 1972, CT 1526).

The sincerity of the religious beliefs and convictions of the Tollefsruds is not challenged. The prosecution has filed no affidavits disputing the contentions of the Tollefsruds that as stated in their joint affidavit "to send a child to a system of education which does not center around the Bible and which does not teach faith in Jesus Christ, is to endanger the eternal destiny of that child and to bring God's judgment upon one's self as well."

Nor is it contended by the prosecution that the parents (Tollefsruds) are attempting to replace state educational requirements with their own idiosyncratic views of what a child needs to know to be useful and productive in our society. (See Wisconsin vs. Yoder).

The Tollefsruds affirm that they are regularly using materials supplied by the Christian Liberty Academy and that the children are tested annually using the Iowa Tests of Basic Skills. The prosecution has filed no affidavits challenging or disputing the effectiveness of these education resources.

It is contended by the prosecution in this case that the Yoder case is distinguished, since in Yoder, the Amish children were required to attend the public schools from grades one to eight. A careful reading of that case compels this Court to conclude that the issue of the age of the student was not decided by the U.S. Supreme Court.

... As appears from the affidavit submitted by the Tollefsruds, they sincerely accept the fundamental conviction that their children are a special gift of God, and that they are accountable to God, as parents, for the life of that child, from its first day on earth.

A considerable portion of the Yoder case is devoted to a historical analysis of the Amish religion and the unique life-style fundamental to the Amish communities. The US Supreme Court was vitally concerned with the possible consequences to the Amish beliefs and traditions if their children were required to attend secondary schools. That feature is not necessarily involved with the Tollefsruds, but it is of critical importance that the Amish rejection of formal secondary education is rooted in a literal Biblical context. It is the decision of this Court that the Tollefsruds must be afforded the same guarantees, even though they are not involved in a community of believers, as are the Amish, and even though they also reject formal elementary education.

It is also suggested by the prosecution that the State's interest in the compulsory school attendance of the Tollefsrud children is paramount to that of the parents and that the children's interests must be recognized.

This argument was rejected in Yoder. The children are not parties to the litigation.

"It is the parents who are subject to prosecution for failing to cause their Children to attend school and it is their right of free exercise of religion, not their children's, that must determine the State's power to impose criminal penalties on the parent" (Wisconsin vs. Yoder).

The prosecution makes no claim that the health or safety of the Tollefsrud children is at stake, or is in any way jeopardized by the refusal of the parents to send their children to the public school.

In conclusion, this Court is eminently satisfied that the Tollefsruds sincerely believe, profess, and live their religious convictions.

... It is urged by defendants that MSA 120.10 is unconstitutionally vague. Since this Court has determined that the present action should be dismissed as against these defendants, the Court is not disposed to make any further determination as to that issue; since it is not critical to the issue of the First and Fourteenth Amendment rights of these defendants.

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