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? Do Amish One-Room Schools Make the Grade
The Dubious Data of Wisconsin v Yoder
William A. Fischel
INTRODUCTION
American public school districts declined in number from about
200,000 at the beginning of the twentieth century to fewer than
15,000 in 2010.1 Almost all of this decline was the result of
consolidation of rural one-room schools, which were usually the only
schools in their districts, into large-area districts.2 This movement is
regarded by education historians as the product of a top-down
political process in which local interests were steamrollered by state
officials and the professional educational establishment.3 Implicit in
this account is the idea that the one-room schools were doing a good
job, except for being imperfectly bureaucratized.
My view of this transformation is different.4 The great majority of
the consolidations had to be voted on by the residents of the districts
involved or their locally elected representatives. Many districts refused
for years to consolidate.5 The chief advantage of district consolidation
was that it allowed rural and small-town children to be streamed from
multiroom, age-graded elementary schools into high schools. The oneroom
school was well suited for spreading basic literacy and numeracy
† Professor of Economics and Robert C. 1925 and Hilda Hardy Professor of Legal
Studies, Dartmouth College.
For helpful comments and advice, I thank Liz Cascio, Robert Costrell, Nora Gordon,
Trudy Huntington, Karen Johnson-Weiner, Donald Kraybill, David McConnell, Steven Nolt,
Shawn Peters, Lawrence Rosen, Bruce Sacerdote, and David Weaver-Zercher. Their
generosity should not be taken as an indication that they agree with my analysis and
conclusions.
1 See William A. Fischel, Neither “Creatures of the State” nor “Accidents of Geography”:
The Creation of American Public School Districts in the Twentieth Century, 77 U Chi L
Rev 177, 177 (2010); Department of Education, Digest of Education Statistics (National Center
for Education Statistics Nov 2010), online at http://nces.ed.gov/programs/digest/d10/tables
/dt10_090.asp (visited Oct 23, 2011).
2 See William A. Fischel, Making the Grade: The Economic Evolution of American
School Districts 68–69 (Chicago 2009).
3 See, for example, David Tyack and Thomas James, State Government and American
Public Education: Exploring the “Primeval Forest,” 26 Hist Educ Q 39, 66–67 (1986).
4 See Fischel, Making the Grade at 101 (cited in note 2). See also Fischel, 77 U Chi L
Rev at 177 (cited in note 1).
5 See Fischel, 77 U Chi L Rev at 192–95 (cited in note 1).
108 The University of Chicago Law Review [79:107
across the continent, but it was inadequate for preparing students for
high school in the twentieth century.6
A way of testing my account is to look at the most persistent
exceptions to the abandonment of one-room schools. The Amish are
a Protestant sect whose members employ much of the agricultural
and household technology of the nineteenth century.7 As American
rural school consolidation reached the Amish (circa 1930–1960),
most of them left the public school system and re-created the oneroom
schools that were the dominant mode of American education
in the nineteenth century.8
The great virtue of the one-room school was (and still is, for the
Amish) the sense of local communal participation that it engendered.
9 What is more controversial is the claim that the Amish oneroom
school is, with the possible exception of science education, the
equivalent of eight grades in a modern school.10 If this is the case,
American education took an enormously expensive, socially
disruptive wrong turn about a century ago.
The persistence of the Amish one-room schools and their
endorsement by the US Supreme Court in Wisconsin v Yoder11 seem
to support that idea. The Court held that the Free Exercise Clause of
the First Amendment prevented the state from requiring Amish
parents to send their children to school beyond the eighth grade.12
Although exemption from high school was its most important effect,
Yoder also endorsed the nonstandard elementary education offered
in Amish one-room schools, noting that “Amish children in the
eighth grade achieved comparably to non-Amish children in the
basic skills.”13 I will show that the study on which this claim is based is
badly flawed. One-room schools may serve the Amish well enough—
this Article does not recommend that the Amish be forced back into
the standard school system—but that is because they do not want
access to secondary education that most other Americans wanted.
6 See id at 185–86.
7 The Amish come in a variety of sects, of which the Old Order are the most numerous
and best known. See Charles E. Hurst and David L. McConnell, An Amish Paradox: Diversity
& Change in the World’s Largest Amish Community 18, 35–36 & table 2.1 (Johns Hopkins
2010).
8 See Karen M. Johnson-Weiner, Train Up a Child: Old Order Amish & Mennonite
Schools 7 (Johns Hopkins 2007).
9 See Wayne E. Fuller, The Old Country School: The Story of Rural Education in the
Middle West 45 (Chicago 1982); John A. Hostetler and Gertrude Enders Huntington, Children in
Amish Society: Socialization and Community Education 109 (Holt, Rinehart, and Winston 1971).
10 See Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
11 406 US 205 (1972).
12 Id at 230–31.
13 Id at 225–26 & n 13.
2012] Do Amish One-Room Schools Make the Grade? 109
I. THE AMISH ARE UNROMANTIC COMMUNITARIANS
The Amish live almost exclusively in rural areas of the United
States, with a majority in Pennsylvania, Ohio, and Indiana.14 Their
traditional clothing and lifestyle, especially their horse-and-buggy
transportation, remind many of rural America in the nineteenth
century. The defining aspect of Amish farming and transportation is
the use of the horse rather than the tractor or the automobile. Some
Amish farms will use some gas-powered machinery for harvesting
grain and other field work, but the machines are usually drawn by
horses. Their homes are not wired for external power or
communications. They forswear radios, in-house telephones,
televisions, and computers.
Most Amish live on farmsteads, and a sizable percentage still
derive most of their income from agriculture. Farming is, however, a
declining occupation. Their large families—six or more children are
common—have outstripped the supply of land in their traditional
settlements, and declining commodities prices make it more difficult
for those who do have farms to make even the modest income that
satisfies Amish goals.15 As a result, a majority of Amish are now
engaged in small enterprises or are employed as relatively unskilled
workers in rural and small-town businesses owned by both Amish
and non-Amish employers.16 However, all Amish continue to keep
modern technology at a wary distance within and around their rural
homes.
The Amish use antiquated technology in their homes and farms
because of the pervasiveness of religion in their lives.17 The Amish
are “Anabaptists,” a term that seems to suggest they are against
baptism but really means they perform only adult baptism.18 In the
German-speaking regions of Europe where they originated, they and
other Anabaptists were severely persecuted for this seemingly minor
variation in Christian practice and for their steadfast refusal to serve
in the military or otherwise use violence to defend themselves or
their property.19 They emigrated to Pennsylvania in the eighteenth
and nineteenth centuries and soon spread westward.20
14 John A. Hostetler, Amish Society 98 table 2 (Johns Hopkins 4th ed 1993).
15 See Hurst and McConnell, Amish Paradox at 196 (cited in note 7).
16 See id at 197–200.
17 See Donald B. Kraybill, The Riddle of Amish Culture 36 (Johns Hopkins revd ed 2001).
18 Hurst and McConnell, Amish Paradox at 14 (cited in note 7).
19 Id at 14–15.
20 Steven M. Nolt, A History of the Amish 63, 75, 118–19 (Good Books revd ed 2004).
The Amish are extinct in Europe.
110 The University of Chicago Law Review [79:107
Among the Amish, adult baptism must be freely chosen by both
men and women, and the choice is usually made in their late teens.21
Baptism is not just a covenant between the deity and the person who
chooses it. Those who accept baptism agree to submit to the
congregation’s ordinances and understandings that are collectively
known as the Ordnung.22 These largely unwritten rules are
interpreted by their unpaid, locally selected clergy.23
The Ordnung dictates that Amish may not own automobiles but
may ride in vehicles operated by non-Amish drivers. The types of
nonfarm jobs and businesses that Amish may engage in are likewise
subject to collective control.24 All Ordnungs permit trade with the
rest of the world for a limited variety of consumer and investment
goods. Amish clothing and furnishings are “plain and simple” but not
entirely homemade.25 It is not uncommon to see a van (owned and
piloted by a non-Amish driver) parked at a Walmart being loaded
with staples purchased by a large Amish family or two.26
The Amish are more suspicious of government than of modern
business. They will not serve on juries and rarely initiate lawsuits,
which they regard as coercive.27 Their Ordnungs disallow acceptance
of government transfers such as Social Security.28 Instead, the Amish
provide their own informal transfer systems for the aged, sick, and
needy of their community. Most important for the present article,
their Ordnungs determine that Amish children must not attend a
formal high school, even it if were operated by coreligionists.29
Amish theology enjoins them to be “not of this world.”30
Otherworldliness does not mean monastic spirituality. The Amish
are remarkably communitarian and equalitarian among themselves.31
But they do not attempt to convert others to their religion, and they
discourage “English” seekers of a simpler life who would like to join
them. (The Amish speak Pennsylvania German among themselves.)32
21 See Kraybill, Riddle of Amish Culture at 117 (cited in note 17).
22 See id at 112–13, 117–19.
23 See Hurst and McConnell, Amish Paradox at 16 (cited in note 7).
24 See Kraybill, Riddle of Amish Culture at 115 (cited in note 17).
25 Id at 60.
26 See Thomas J. Meyers and Steven M. Nolt, An Amish Patchwork: Indiana’s Old
Orders in the Modern World 1–2 (Indiana 2005).
27 Kraybill, Riddle of Amish Culture at 31 (cited in note 17).
28 See id at 277–78. The Amish were granted exemptions from Social Security and
Medicare taxes, but they pay all other taxes. Id at 278–79.
29 See Mark W. Dewalt, Amish Education in the United States and Canada 20 (Rowman
& Littlefield 2006).
30 Hostetler, Amish Society at 76 (cited in note 14).
31 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17).
32 Id at 55.
2012] Do Amish One-Room Schools Make the Grade? 111
Without converts, the Amish grow only by natural increase, and they
have done so quite successfully.33 The limit on their numbers is
primarily defection by young adults to other religions, most
commonly their more worldly and geographically proximate
Anabaptist cousins, the Mennonites.34 Defection rates declined in the
latter part of the twentieth century, and about 85 percent of the
children of Old Order Amish have remained in the fold as adults.35
As a result, estimates of Amish population, which had dwindled to
about 5,000 in 1900, have grown from about 50,000 in 1970 to nearly
250,000 in 2010.36
II. ONE-ROOM SCHOOLS HELP SOLVE AN AMISH
ECONOMIC PROBLEM
The Amish seem to be the antithesis of “homo economicus” in
that they abjure most of the pleasures of a modern economy and
aspire to a religiously derived communal spirit that disapproves of
individualism, competition, and personal ambition.37 (In these
respects, they seem rather different from the Jeffersonian “sturdy
yeoman,” to whom they were compared by the chief justice in
Yoder.)38 Called “Gelassenheit,” this communal spirit would seem
beyond economic analysis.39 But economics is the science of scarce
means, not about particular ends. Their old-fashioned ways are an
important means of maintaining Amish religious identity.
Old-fashionedness is not a static ideal. Twenty-first century Old
Order Amish often travel as passengers in cars, buses, and trains. In
their business affairs, many use telephones located outside their
homes and, increasingly, cell phones.40 The Amish accept modern
medical care, which they pay for out of pocket or with the aid of
fellow congregants.41 Despite such accommodations, the Amish
33 See id at 335 app B.
34 See Hostetler, Amish Society at 303 (cited in note 14); Albert N. Keim, From
Erlanbach to New Glarus, in Albert N. Keim, ed, Compulsory Education and the Amish: The
Right Not to Be Modern 9–10 (Beacon 1975).
35 See Hurst and McConnell, Amish Paradox at 80 table 3.1 (cited in note 7).
36 Donald B. Kraybill, Introduction: The Struggle to Be Separate, in Donald B. Kraybill
and Marc A. Olshan, eds, The Amish Struggle with Modernity 1, 9 table 1.1 (New England
1994); Young Center for Anabaptist and Pietist Studies, Amish Population Trends 1991–2010:
Twenty-Year Highlights (Elizabethtown College 2011), online at http://www2.etown.edu
/amishstudies/Population_Trends_1991_2010.asp (visited Oct 24, 2011).
37 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17).
38 406 US at 225–26 & n 14.
39 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17) (“Roughly translated,
Gelassenheit means ‘submitting, yielding to a higher authority.’”).
40 Hurst and McConnell, Amish Paradox at 52 (cited in note 7).
41 See id at 227–34.
112 The University of Chicago Law Review [79:107
maintain enough of their old-fashioned ways to keep the rest of the
world at a polite distance.
But the polite distance creates a problem for their youth.
Without converts, the Amish must preserve their way of life and
religion by transferring it to their children and keeping them in the
fold.42 They tend to live in contiguous settlements of several
congregations, but the personal freedom and consumption
opportunities of their non-Amish neighbors, tourists, customers, and
business associates are frequently evident to them and their
children.43
The Amish maintain their adult cohesiveness by means of
rewards and penalties. The benefits of conformity are a
comprehensive system of spiritual and social support and a slowly
evolving acceptance of modern conveniences and sources of income.
Although the Amish are committed to hard work and simplicity,
most are not unusually ascetic. They visit one another to gossip, eat
heartily, hold quilting bees, hunt and fish, tell jokes, and play
softball.44 They read the tamer works of American literature and
sometimes travel in groups to national parks.45 Controlled adoption
of modern technology and consumer goods probably helps to hold
families within the Amish fold. But leaders are also aware that
allowing too much modernity has caused defections by families from
liberalized Amish congregations to more conservative groups.46
The penalty for baptized adults who stray from the strictures of
the Ordnung is “shunning,” a systematic isolation from the
community, including from members of his or her own family.47
Raised in a community in which communal bonds, egalitarian
sociability, and a collective road to salvation are paramount, Amish
who are shunned endure a steep price that is mitigated primarily by
the congregation’s willingness to forgive those who publicly repent of
their transgressions and return to the fold.48 (The Mennonites, who
usually do not shun defectors, could be thought of as having to
increase the economic benefits to members—modern consumption
opportunities—since the costs of religious disobedience are lower.)
Full-scale shunning is applied only to adults who have accepted
baptism and then persistently strayed from the local Ordnung.49 At
42 See Kraybill, Riddle of Amish Culture at 317 (cited in note 17).
43 See id at 309–11, 324.
44 See id at 150–52.
45 See id at 153.
46 See Hurst and McConnell, Amish Paradox at 51–52 (cited in note 7).
47 See id at 83–84.
48 See Kraybill, Riddle of Amish Culture at 139 (cited in note 17).
49 See Hurst and McConnell, Amish Paradox at 83 (cited in note 7).
2012] Do Amish One-Room Schools Make the Grade? 113
age sixteen—a year or two after their terminal year in school (eighth
grade) but before baptism—Amish boys and girls are given leave to
experience the non-Amish world. They can, to an extent that varies
locally, drive cars, wear contemporary clothes, use modern
technology, and socialize with non-Amish peers.50 This period of
Rumspringa (“running around”) is normally followed by a decision
by Amish in their late teens or early twenties to accept baptism and
the strictures of the Ordnung.51
The idea behind Rumspringa is that acceptance of baptism is
more sincere if one has experienced the world outside first.52 But in
fact most Amish youth are unprepared to use this time for anything
more than bonding with their Amish peers and some slightly naughty
recreation.53 On the order of 90 percent eventually accept baptism,
embrace church obligations, and, sooner or later, marry an Amish
man or woman.54
Amish youths’ lack of preparation for meaningful engagement
with the outside world during Rumspringa is in large measure the
product of the limitations imposed on Amish youth by their oneroom
schools. The Amish know from experience that formal high
school education is extremely hazardous to Amishness. Both the
Amish and the anthropologists who have studied them agree that
mainstream, advanced education would open up worldly
possibilities, and association with non-Amish students would
undermine their commitment to the Amish way of life and pave the
way out.55
50 See Kraybill, Riddle of Amish Culture at 145 (cited in note 17).
51 Id at 145–47.
52 Hurst and McConnell, Amish Paradox at 68 (cited in note 7).
53 See Steven V. Mazie, Consenting Adults? Amish Rumspringa and the Quandary of
Exit in Liberalism, 3 Persp Polit 745, 752–53 (2005) (stating that many youth do not explore the
outside world they have yet to be exposed to but rather socialize at bowling alleys or get drunk
in cornfields); Kraybill, Riddle of Amish Culture at 145–46 (cited in note 17) (describing the
range of activities young people engage in with their peers, from recreational sports to parties
with alcohol).
54 See Kraybill, Riddle of Amish Culture at 186 (cited in note 17). See also Mazie, 3 Persp
Polit at 752–53 (cited in note 53).
55 See Hostetler and Huntington, Children in Amish Society at 102 (cited in note 9);
Wayne Edgar Miller, A Study of Amish Academic Achievement *3–5 (unpublished PhD
dissertation, University of Michigan, 1969) (on file at the University of Michigan); Kraybill,
Riddle of Amish Culture at 176 (cited in note 17); Sara E. Fisher and Rachel K. Stahl, The
Amish School 88 (Good Books revd ed 1997) (describing a former Amish man who attended
high school and whose “sorrowful conclusion was that it is not possible for most Amish
children to go to high school and remain Amish”).
114 The University of Chicago Law Review [79:107
III. ONE-ROOM SCHOOLS WORKED BEST FOR A
LIMITED CURRICULUM
Public schools were formerly an exception to Amish
disengagement with government institutions. Before World War II,
most Amish attended the same one-room schools that their non-
Amish neighbors attended.56 The Amish would end their education
with the eighth grade. Their engagement with public schools
unraveled when rural school districts were consolidated and the
minimum school-leaving age was raised from fourteen to sixteen.57
After a period of nonviolent resistance to truancy laws, the Amish in
most states were granted exceptions.58 Their children did not have to
complete more than eight years of formal education, and the Amish
could establish their own parochial schools with Amish-approved
teachers. In Pennsylvania, Ohio, and Indiana, where the majority of
the Amish reside, a program of home-based vocational education
was required for another two years, but most of this involved homebased
training that Amish teenagers would have received without
state compulsion.59
Amish one-room schools bear more than a passing similarity to
their nineteenth-century predecessors. Schools in both eras were
neighborhood based, and children usually walked to school. As in
the early nineteenth century, the operational expenses of Amish
schools are largely funded by parental tuition assessments.60 Amish
one-room schools are modest affairs, and their comforts largely
reflect local home conditions. Outdoor toilets are the rule in areas
settled by the more traditional groups.61
Teachers in early American one-room schools seldom had more
education than their most advanced students.62 Amish teachers, who
are almost always Amish themselves, are likewise lacking in formal
education beyond the eighth grade.63 Local Amish school directors,
who are typically parents of those in the school, do the hiring and pay
56 See Keim, From Erlanbach to New Glarus at 11 (cited in note 34).
57 Id at 13–15.
58 See, for example, Kan Stat Ann § 72-1111(g). See also Shawn F. Peters, The Yoder
Case: Religious Freedom, Education, and Parental Rights 43–47 (Kansas 2003).
59 See Dewalt, Amish Education at 88–89 (cited in note 29) (describing a Pennsylvania
home-based vocational plan).
60 See Nancy Beadie, Tuition Funding for Common Schools: Education Markets and
Market Regulation in Rural New York, 1815–1850, 32 Soc Sci Hist 107, 115 (2008); Johnson-
Weiner, Train Up a Child at 154 (cited in note 8); Fuller, Old Country School at 26 (cited in
note 9).
61 See Johnson-Weiner, Train Up a Child at 26–28 (cited in note 8).
62 See Carl F. Kaestle, Pillars of the Republic: Common Schools and American Society
1780–1860 20 (Hill & Wang 1983).
63 Dewalt, Amish Education at 116 (cited in note 29).
2012] Do Amish One-Room Schools Make the Grade? 115
the teacher.64 Most Amish teachers are unmarried young women who
will stop teaching after their wedding, as was generally the case in
early one-room American schools.65 The pay scale reflects the
opportunity cost of teaching, which for unmarried Amish women is
relatively unskilled labor as a household worker.66 However, eighth
grade is a ceiling on the education of Amish teachers, so they should
not be thought of as dysfunctional dropouts, and those who choose to
teach get some assistance from Amish newsletters and training
seminars.67
The method of instruction in nineteenth-century rural schools
was to divide students into recitation groups according to previous
accomplishment in each subject.68 Because attendance by many
children was irregular, a recitation group in intermediate reading
(say) could include children who were ages nine, eleven, thirteen,
and sixteen. Recitation group members would be assigned a passage
to read and (usually) memorize. Another group might be assigned
something in arithmetic and another in spelling. They would study
silently while the teacher examined another group in a subject they
had previously been assigned to study.69
Groups would thus rotate between what we would now call
study hall and the recitation bench and back again throughout the
day.70 A teacher who taught four subjects at three levels each would
thus have twelve recitation groups per day. Over a six-hour school
day, each student’s group would on average recite for half an hour in
each subject, and each student would have the teacher’s attention (in
the student’s recitation group) for a total of two hours and be in
study hall four hours a day.
In Making the Grade, I argued that the recitation method was
effective for teaching basic literacy and numeracy for a population
that was highly mobile and widely dispersed, and whose children
often could attend only part time.71 Children who missed a few weeks
of a school term could return and join another recitation group and
pick up where they left off. There was no need to start over in the
64 Id at 54.
65 See id at 117; Kaestle, Pillars of the Republic at 20 (cited in note 62).
66 See Hostetler and Huntington, Children in Amish Society at 56 (cited in note 9).
67 See Dewalt, Amish Education at 121–24 (cited in note 29).
68 See David L. Angus, Jeffrey E. Mirel, and Maris A. Vinovskis, Historical Development of
Age Stratification in Schooling, 90 Teachers Coll Rec 211, 216 (1988). See also Larry Cuban, How
Teachers Taught: Constancy and Change in American Classrooms 1890–1980 25–27, 31 (Longman
1984).
69 See Cuban, How Teachers Taught at 19 (cited in note 68).
70 See id.
71 Fischel, Making the Grade at 65 (cited in note 2).
116 The University of Chicago Law Review [79:107
same grade and waste time learning things already mastered, as there
were no age-specific grades or even a standard school year.72 A
“common school education” was complete when the scholar ran out
of textbook material to learn.73
The problem with the ungraded method was that only a few
subjects could be covered during each school day. With the rise of
high school and its increased economic payoff around the beginning
of the twentieth century,74 most urban schools shifted to the nowstandard
age-graded method. This allowed a single teacher to teach
several subjects to the same age-defined cohort of children. If she
taught six subjects to the entire class who were all the same age, each
subject would get one hour in the six-hour day, and students would
not have to be in “study hall” except when in-class seatwork was part
of the lesson plan.
The age-graded system was less viable in rural, one-room
schools. A teacher with a full eight grades and six subjects to teach
would have forty-eight separate recitation periods. This amounts to
seven-and-a-half minutes per recitation period, or for the typical
student, forty-five minutes of face time with the teacher (shared with
his or her recitation group compatriots) over a six-hour day. Of
course few of the one-room schools that tried to cover more than
reading, spelling, and arithmetic literally followed such a schedule.75
But even with trimming the curriculum and combining classes, rural
teachers often had more than two dozen daily recitations, averaging
less than fifteen minutes.76 These educational disabilities finally made
rural voters accede to the consolidations that state-level educators
had been urging for over a century.
Modern Amish one-room schools do not have the problem of
spotty attendance that complicated age grading in earlier one-room
schools.77 But dividing students into eight grade levels still runs into
the inescapable problem of limited time. The modern Amish oneroom
school has responded to the time constraints by teaching fewer
subjects. The Amish do not believe in evolution, but they do not
make a big deal about it because they teach very little science.
History, social studies, art, and music are likewise given short shrift.
72 See id at 123–24.
73 See id at 43–44.
74 See Claudia Goldin and Lawrence F. Katz, The Race between Education and
Technology 167 (Belknap 2008).
75 See Fischel, Making the Grade at 83–84 (cited in note 2).
76 See, for example, Cuban, How Teachers Taught at 119 (cited in note 68).
77 See Dewalt, Amish Education at 54 (cited in note 29).
2012] Do Amish One-Room Schools Make the Grade? 117
Detailed accounts of Amish school days indicate that almost threequarters
of each day is spent on reading, spelling, and arithmetic.78
IV. THE YODER DECISION WAS SHAPED BY JOHN A. HOSTETLER
By the 1960s, the Amish retreat from public education was well
under way, but many state and local officials were initially unwilling
to accept their nonstandard elementary schools. Amish parents were
sometimes jailed for refusing to send their children to either public
or private high school.79 In an especially heavy-handed incident, Iowa
school officials attempted in 1965 to force Amish children in a oneroom
school onto a bus to transport them to a public elementary
school.80 Nationally circulated photographs of terrified, straw-hatted
children running into cornfields to avoid what looked to many like a
public kidnapping helped turn public opinion in favor of the Amish.81
Iowa’s governor was forced to intervene and craft a compromise
similar to that of other states that allowed the Amish to keep their
one-room schools and avoid high school.82
Faced with unyielding, nonviolent resistance by an
unthreatening people, most state legislatures let the Amish pursue
their separate, traditional path.83 The event that displaced the
negotiated education arrangements with individual states was the
refusal of the Amish in a Wisconsin community to send their
children to a state-approved high school. Wisconsin had not worked
out any accommodation with the Amish—their presence in the state
dated only from the 1960s—and in 1968 local public school
authorities brought their truancy to the attention of state
authorities.84 The Amish themselves were, for religious reasons,
unwilling to hire an attorney. A non-Amish organization founded by
a Lutheran minister persuaded Jonas Yoder and two other fathers to
accept a legal defense.85 The judge in the trial court nonetheless held
for the state of Wisconsin and fined the Amish parents token
amounts for their noncompliance. The decision was appealed to the
state supreme court.86
78 See, for example, id at 107, 114; Fisher and Stahl, Amish School at 32–39 (cited in
note 55).
79 See Kraybill, Riddle of Amish Culture at 168–69 (cited in note 17).
80 See Hostetler and Huntington, Children in Amish Society at 97–98 (cited in note 9).
81 Hostetler, Amish Society at 264–65 (cited in note 14).
82 Id at 267–68.
83 See Peters, Yoder Case at 44–47 (cited in note 58).
84 See id at 7, 33–35.
85 See William C. Lindholm, The National Committee for Amish Religious Freedom, in
Donald B. Kraybill, ed, The Amish and the State 109, 109–15 (Johns Hopkins 2d ed 2003).
86 Yoder, 406 US at 208–09.
118 The University of Chicago Law Review [79:107
Unlike other state courts with similar cases, the supreme court
of Wisconsin ruled in favor of the Amish.87 Because this was contrary
to other states’ rulings based on the First Amendment’s Free
Exercise Clause, the state attorney general appealed the decision to
the US Supreme Court. The Court granted certiorari and in a
unanimous decision (with a partial dissent by Justice William
Douglas about the unexamined educational rights of the children)
held that the Amish parents did not have to send their children to
high school and could maintain their own elementary schools,
subject to unspecified state regulations.88
The organization that represented the Amish at trial and
through its appeals had as its star witness John Andrew Hostetler,
who is widely regarded as the father of modern Amish studies.89 Born
in 1918 to an Amish family, Hostetler declined Amish baptism and
instead became a Mennonite.90 After conscientious-objector service
in World War II, he attended a Mennonite college and earned a PhD
in sociology from Pennsylvania State University in 1953.91 He
enjoyed a long and prolific career writing about the Amish and other
Anabaptist societies until his death in 2001. His Amish Society
became the leading academic treatise on the subject, going through
four editions starting in 1963, and he wrote numerous popular books
and articles on the Amish.92 Because he had declined baptism and
thus not broken his vows in leaving the Amish, he was not shunned
as an apostate, and his fluency in Pennsylvania German helped him
gain the confidence of his subjects. Hostetler, by the 1960s, was a
professor of sociology at Temple University in Philadelphia, but his
sympathies for the Amish were well-known among his colleagues
and the Amish themselves.93
Hostetler’s testimony at the Wisconsin trial was enormously
influential in the appellate decisions.94 He explained the connection
between the Amish insistence on a limited education and the
survival of their religion. Requiring Amish children to go to high
school or mix with non-Amish children in modern, regional
87 State v Yoder, 182 NW2d 539, 542 (Wis 1971).
88 Yoder, 406 US at 234–35.
89 David L. Weaver-Zercher, An Uneasy Calling: John A. Hostetler and the Work of
Cultural Mediation, in David Weaver-Zercher, ed, Writing the Amish: The Worlds of John A.
Hostetler 98, 100–01 (Pennsylvania State 2005).
90 See id at 101–04.
91 John A. Hostetler, An Amish Beginning, in Weaver-Zercher, ed, Writing the Amish 5,
25, 29 (cited in note 89).
92 See Weaver-Zercher, Uneasy Calling at 111–15 (cited in note 89).
93 See id at 99, 132–33.
94 See Peters, Yoder Case at 90–94 (cited in note 58); Lawrence Rosen, The
Anthropologist as Expert Witness, 79 Am Anthro 555, 563 (1977).
2012] Do Amish One-Room Schools Make the Grade? 119
elementary schools would lead them astray. Moreover, a study
Hostetler had done assured the court that the eight years of
education in one-room schools would be just as good as that in
public schools. The study was noted in Chief Justice Warren Burger’s
opinion:
All of the children involved in this case are graduates of the
eighth grade. In the county court, the defense introduced a
study by Dr. Hostetler indicating that Amish children in the
eighth grade achieved comparably to non-Amish children in the
basic skills.
Hostetler and Huntington summarized a study that Hostetler
had undertaken in 1969 with a grant from the US Office of
Education.95 The achievement results referred to by the Court were
only part of Hostetler’s extensive report. The achievement tests and
the statistical analysis were conducted by Wayne Edgar Miller, who
used the results as the centerpiece of his PhD dissertation in
education administration at the University of Michigan.96 Miller and
Hostetler reported the same statistical study, but because each
offered some different perspectives, I discuss both of them below but
treat Hostetler as the principal investigator.
V. THE HOSTETLER-MILLER STUDY WAS MARRED BY
SELECTION BIAS
Hostetler’s 1969 Office of Education project was an exercise in
persuasion. While there was a gloss of objectivity—much of the
background work reprises his scholarly Amish Society—the thrust of
the report reads as a defense of the Amish way of life and their oneroom
school system, as Hostetler had intended from the outset.97 On
the basis of Miller’s statistical study, Hostetler and Huntington, the
source cited by the Supreme Court in Yoder, concluded, “As judged
by education testing standards the overall performance of the Amish
is similar to that of a representative sample of rural school children
in the United States.”98
95 John A. Hostetler, Educational Achievement and Life Styles in a Traditional Society,
the Old Order Amish ii (Department of Health, Education, and Welfare Sept 1969).
96 See generally Miller, Amish Academic Achievement (cited in note 55). Miller, like
Hostetler, admired the Amish and spoke Pennsylvania German. Id at 2.
97 See John A. Hostetler, Old Order Amish Child Rearing and Schooling Practices: A
Summary Report (1970), in Weaver-Zercher, ed, Writing the Amish 236, 236–37 (cited in
note 89) (admitting that he only compared Amish educational achievement to their own
community standards).
98 Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
120 The University of Chicago Law Review [79:107
Hostetler and Miller selected (with the help of Gertrude
Huntington) fourteen private Amish one-room schools.99 The test
that was the basis for Hostetler’s comparative claims was a
customized version of the Iowa Test of Basic Skills.100 The scores of
the fourteen one-room schools were collectively compared to the
same tests administered to both Amish and non-Amish children in
six consolidated public schools in which students were divided by age
cohorts—that is, they were multiroom schools with a teacher for
each age-graded cohort. The Amish private schools included six
from northern Indiana, seven from Ohio, and one from Ontario. The
six public schools were in Ohio and Michigan.101
Because the one-room schools were private, the researchers had
to persuade Amish school directors, teachers, and parents to allow
them to conduct the tests. The Amish were suspicious of tests that
might be used against their system. So the authors explained that the
purpose of their tests was to help the Amish and that the schools
would not be identified by name or specific location. Even with these
assurances, many schools declined.102 Hostetler admitted, “The
possibility of obtaining a random sampling of all Amish children for
testing was impossible and impractical.”103
Those that did agree to be tested were indeed special.
Summarizing the study, Hostetler and Huntington explained, “The
teachers were experienced, having taught no less than three years;
they were considered by the community to be good teachers.”104 Thus
the Amish one-room schools were selected in a way that filtered out
inexperienced and ineffective teachers. (Cooperation of officials in
the six public schools to which the Amish schools were compared
was easily obtained, though they too were unidentified.)105
The problems of getting the Amish to cooperate did not end
with getting the consent of adults. The children in the Amish schools
were unfamiliar with testing. Miller indicated that the test
administrators (who seem to have included himself) explained the
tests carefully “with additional time provided to enable students and
teacher to ask questions as they arose.”106 More surprising was
Miller’s candid description of outright censoring:
99 Hostetler, Educational Achievement at 51 (cited in note 95).
100 See note 109 and accompanying text.
101 Miller, Amish Academic Achievement at 116 (cited in note 55).
102 Id at 108–09.
103 Hostetler, Educational Achievement at 50 (cited in note 95).
104 Hostetler and Huntington, Children in Amish Society at 90 (cited in note 9).
105 See Hostetler, Educational Achievement at 165 (cited in note 95).
106 Miller, Amish Academic Achievement at 112 (cited in note 55).
2012] Do Amish One-Room Schools Make the Grade? 121
There was some difficulty with a very few students who tired
quickly and marked their answer sheets at random, making
some unusual pictures or number designs. These few were
excluded from the total tabulation as invalid. A few pupils gave
“wise” and “curt” answers on the fact sheet to questions that
they may have thought personal or irrelevant, but these were
reviewed and corrected before leaving the school.107
It is not entirely clear that any of the interventions affected the
Iowa Tests of Basic Skills, which were the basis for Hostetler’s claim
of Amish educational equivalence. Several other tests measuring
aptitude and personality traits were also administered.108 But at the
very least, Miller’s observations reveal more than a mere inclination
to root for the Amish. Even after selecting schools in a way that
favored the Amish, Hostetler’s team was willing to censor responses
that would have made Amish schools look bad.
Table 1 contains the number of schools and children tested,
some demographics of the children and their families, and the
selected Iowa Test results for each group of schools. Table 1 reports
all of the information about the eighth-grade tests that Hostetler and
Miller published, but Hostetler added some discussion of tests in
younger grades (not reported in Table 1), which did nothing to
change his conclusions.109
107 Id at 114 (emphasis added).
108 See Hostetler, Educational Achievement at 186, 189–240 (cited in note 95).
109 See id at 172 & table 7.
122 The University of Chicago Law Review [79:107
TABLE 1. SAMPLE CHARACTERISTICS AND IOWA TEST SCORES
Source: Hostetler, Educational Achievement at 51–53, 170 (cited in note 95); Miller, Amish Academic
Achievement at 124–48 (cited in note 55).
* There are three, not six, schools in columns (3) and (4) combined. Public “Amish half” and “non-Amish
half” schools are approximations of the proportions in the three schools that Hostetler and Miller designated
as “mixed” schools.
The fourteen Amish one-room schools (column 1) had the
smallest eighth-grade cohorts, about four in each. The largest unit,
the public school that had no Amish (column 5), had only 27 eighth
graders. It is possible that the five public schools that had at least
some Amish pupils (columns 2–4) combined some grades (say,
AMISH PRIVATE ONE-ROOM SCHOOLS AND PUBLIC SCHOOLS
(1)
Private
(2)
Public
(3)
Public
(4)
Public
(5)
Public
One-Room
Amish All Amish Amish Half
Non-Amish
Half
All Non-
Amish
Number of
schools 14 2 3* 3* 1
Eighth
graders
tested 61 28 26 34 27
Eighth
graders
per school 4.36 14 8.67 11.33 27
Children
per family 8.5 7.6 7.3 4.2 4.3
Time in
same
home 11.5 yrs 13.5 yrs 10.5 yrs 7.1 yrs 6.5 yrs
Walk to
school 70% 9% 0% 11% 11%
Family
farmers 75% 63% 58% 9% 30%
Iowa Test Scores Relative to National Mean, in Years.Months
Arithmetic
problems 1.06 1.14 0.02 -0.83 -0.19
Word usage 0.64 -0.37 -0.37 -1.22 -1.90
Spelling 0.51 0.09 0.28 -1.16 -0.83
Reference
use -1.00 -0.34 -0.74 -0.95 -0.55
Reading -1.20 -1.34 -1.20 -1.23 -1.14
Vocabulary -1.61 -1.86 -2.23 -1.09 -0.70
2012] Do Amish One-Room Schools Make the Grade? 123
seventh and eighth), since their average class size is small, but it is
clear from the low percentage of pupils who walked to school that
these were consolidated elementary schools of the sort that the
Amish were said to want to avoid. (This raises the question of why
Amish children were attending such schools, but later authors have
indicated that many rural public schools, especially in Ohio and
Indiana, strive to accommodate the Amish in their jurisdictions.)110
The clearest demographic differences between the Amish
(columns 1–3) and the non-Amish (columns 4–5) are the Amish’s
larger family size, lower mobility (as judged by years in same home),
and larger percentage of families who are farmers. The test scores
themselves are arrayed (in this Article’s Table 1) in the order of
those in which the eighth graders in the Amish one-room schools did
best. The scores were reported as deviations from a national gradeequivalent
mean for Iowa Tests, to be read in years (to the left of the
decimal) and months (after the decimal point) above or below the
average.111 (I take the second digit after the decimal point as tenths of
a month.) Thus the eighth graders in the Amish one-room school
(column 1) had a score of 1.06 for arithmetic problem solving, which
is one year and six-tenths of a month above the national grade norm.
Both Miller and Hostetler report the results of an analysis of
variances between the groups of eighth graders in each of the
columns. Thus, for example, Miller finds that the mean “arithmetic
problem solving” score for the sixty-one Amish one-room students
(column 1 in Table 1 above) is significantly higher than that of the
thirty-four non-Amish students in the three mixed public schools
(column 4).112 These comparisons are misleading. The relevant issue
is the quality of Amish one-room schools versus public consolidated
schools, not Amish students versus non-Amish students. The number
of observations for that purpose is fourteen one-room schools and
six public schools. Counting each of the eighth graders as a relevant
observation in a statistical sample makes the sample look artificially
large. One needs enough student scores to reliably infer something
about each type of school (something achievable for the one-room
schools only by grouping them), but confidence in the differences in
school averages does not add to the number of schools compared.
The more important sample here is not the students but the twenty
schools, and this is far too small a sample to make confident
generalizations, even if the sample had been randomly chosen.
110 See Hurst and McConnell, Amish Paradox at 156 (cited in note 7).
111 Hostetler, Educational Achievement at 170 (cited in note 95).
112 See Miller, Amish Academic Achievement at 134–35 table 13 (cited in note 55). See
also Hostetler, Educational Achievement at 318 table A-14 (cited in note 95).
124 The University of Chicago Law Review [79:107
The most logical test of this small sample would be to compare
the Iowa Test scores of the 61 children in the Amish one-room
schools to those of the 115 children in the six public schools.113 On
this basis the fourteen Amish one-room schools come out looking a
little better than the six public schools. The public-school eighth
graders performed slightly better in the tests on vocabulary and use
of reference materials, while the Amish one-room scholars
performed distinctly better in arithmetic problem solving, word
usage, and spelling. Reading comprehension was about the same for
both groups. It is notable that students in all of these schools are
below the national grade average in most of the areas tested, though
it is conceivable that this shortcoming characterized small rural
schools generally in the late 1960s. In any case, it should be evident
from my discussion of sample bias, tendentious testing procedures,
and the meager number of schools to be compared that any
generalizations based on this study should have been made with
many qualifications.
The other major problem with Hostetler’s study was its
exclusion of academic subjects to be tested. The Iowa Tests of Basic
Skills were widely used by schools inside and outside Iowa as a
diagnostic tool.114 For the eighth graders in Hostetler’s study, the
Iowa Tests were given for “vocabulary, reading comprehension,
spelling, word usage, knowledge and use of reference materials, and
arithmetic problem solving.”115
This sounds reasonably comprehensive, but it actually
represented only about half of the Iowa Test battery. Not
administered were the tests for “capitalization, punctuation, map
reading, reading graphs and tables, and arithmetic concepts.”116
Hostetler excluded these because the Amish did not study them with
the same intensity as the other areas.117 This makes the high Amish
scores in arithmetic (the area in which they scored unambiguously
better than non-Amish) less impressive. “Arithmetic problem
solving,” which the Amish were good at, is different from
“arithmetic concepts,” which were not tested. But the latter skill is
113 Hostetler also compared Amish students in all types of schools (columns 1–3 in
Table 1) to non-Amish in all schools (columns 4 and 5), see Hostetler, Educational
Achievement at 235–40 (cited in note 95), but this comparison confounds the issue of school
quality with the characteristics of the students.
114 See id at 47–48.
115 Miller, Amish Academic Achievement at 112 (cited in note 55).
116 Id.
117 Hostetler and Huntington, Children in Amish Society at 90 (cited in note 9).
2012] Do Amish One-Room Schools Make the Grade? 125
most useful for doing any further work in mathematics.118 Nor were
other Iowa Tests of quantitative skills, such as interpreting graphs
and tables, included in Hostetler’s customized battery.
There was another Amish advantage of using the Iowa Tests as
they were then constituted. The Iowa Tests did not test all of the
subjects that are normally taught in elementary schools. They did not
test social studies, science, history, or geography. Teachers in Amish
one-room schools spend much less time on these subjects because
they have so many grade-levels to teach. The critical but unstated
advantage that this confers on the Amish one-room school is that
most of the students’ normal school time is spent on the subjects that
Hostetler selected for testing. Thus, the drawback of the one-room
school—the single teacher having to manage many short recitation
sessions—is offset by having the tests exclude the subjects she has
does not have time, parental permission, or personal knowledge to
teach.
The comparison of Amish one-room schools to public schools
thus appears as if both Amish (in one-room schools) and publicschool
students spent the same fraction of their time on each subject.
But the public-school kids also had to study history, social studies,
world geography, modern science, mathematical concepts, physical
education, art, and music. The more extensive curriculum of the
public schools meant that their students devoted proportionately less
time to the subjects in which both they and the Amish private school
students were tested. Amish one-room-school students thus had an
advantage in taking tests that were keyed exclusively to subjects they
studied. Figuratively speaking, public-school kids were training for
the decathlon, while the Amish one-room-school kids trained for the
pentathlon (which I take here to mean half of the decathlon events),
and it was only the pentathlon events in which both competed.119
118 For example, compare doing division with the concept of things being divisible. The
first can be done perfectly by rote memorization, but the second allows a person to take the
idea of division and apply it in other circumstances.
119 In an email of March 15, 2011 (on file with the author), Trudy Huntington, Hostetler’s
coauthor, who was then with the University of Michigan, explained that:
[b]ecause we were interested (at least I was) in whether it was possible for Amish to
successfully teach their own children, I felt it was only fair to test those subjects that were
actually being taught. As is evident there was no interest among the Amish in preparing
children for higher education. The comparison with rural public schools was to evaluate
results in those areas of education that the Amish deemed important—not to compare the
total educational preparation for higher education or for life off the farm. In those
educational areas that the Amish considered important, the Amish and the public schools
proved to be comparable.
Email from Gertrude Huntington, former professor, University of Michigan, to William
Fischel, Professor of Economics, Dartmouth College (Mar 15, 2011) (on file with author).
126 The University of Chicago Law Review [79:107
There are some other biases in the testing that favored the
Amish. Amish children often did not enter first grade until they
turned age seven, and so their eighth graders were on average older
than those in the non-Amish comparison groups.120 If modern studies
can be applied to the 1960s, children who enter first grade at an older
age have a considerable academic advantage in school.121 As
indicated in Table 1, Amish families stay in their homes (and
presumably the same schools) about 50 percent longer than non-
Amish families. Again, modern research has found that frequently
changing schools is detrimental to children’s learning.122
But these last two are minor issues compared to Hostetler’s
powerfully biased selection of schools and academic subjects to be
tested. His results do not support the claim that “[a]s judged by
education testing standards the overall performance of the Amish is
similar to that of a representative sample of rural school children in
the United States.”123 The educational testing was selected to cover
only the subjects taught intensively in Amish one-room schools; the
test administrators censored unwanted results; the sample was tiny,
irreproducible, and selected to get the better one-room schools; and
the geographic area was not “the United States” but a few vaguely
identified areas of the Midwest.
CONCLUSION: IS YODER STILL GOOD FOR THE AMISH?
Yoder did not entirely exempt the Amish from state regulations
concerning school attendance. It instead commended programs like
the Pennsylvania post-eighth-grade vocational plan, which involved
two years of home-based training in which formal classroom work
was three hours a week.124 The critical post-Yoder difference from
these previously negotiated compromises is that state educators now
know that the Amish have a powerful fallback position if officials
were to press for more formal education. Even though the Amish are
reluctant to litigate, the Yoder decision could make states leery of
pressing the Amish beyond any educational standards mentioned in
the Court’s opinion. My guess is that many state officials are grateful
not to have to play the bad cop in negotiating with the Amish. Even
120 Hostetler, Educational Achievement at 166 (cited in note 95).
121 Elizabeth Cascio and Diane Whitmore Schanzenbach, First in the Class? Age and the
Education Production Function *1 (NBER Working Paper No 13663, Dec 2007), online at
http://www.nber.org/papers/w13663 (visited Oct 25, 2011).
122 See Eric A. Hanushek, John F. Kain, and Steven G. Rivkin, Disruption versus Tiebout
Improvement: The Costs and Benefits of Switching Schools, 88 J Pub Econ 1721, 1743–44 (2004).
123 Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
124 Yoder, 406 US at 236 & n 23.
2012] Do Amish One-Room Schools Make the Grade? 127
some previously accepted programs of post-elementary education
have fallen away.125
I would not dispute that eight years of one-room schooling was
adequate for the vision of Amish life as it existed for the first twothirds
of the twentieth century, when most Amish were farmers and
horse-powered agriculture was still economically viable. But twentyfirst-
century Amish are having to adapt to an economy in which they
must deal with technologically sophisticated employers, suppliers,
and customers.126 The Amish are resourceful and hardworking, but it
may someday occur to them that the eighth-grade ceiling on their
formal education needs to be reexamined. If this is the case, Yoder
may not be so Amish friendly. Although he was not concerned about
their lack of formal education, Donald Kraybill, Hostetler’s
successor as the leading scholar on Amish affairs, declared in an
interview that a (hypothetical) Amish attempt to establish vocational
high schools “would certainly undermine the legal decision of the US
Supreme Court in Wisconsin v. Yoder.”127
The Yoder decision itself was extraordinarily specific to the
Amish and their agrarian way of life.128 Later Supreme Court
decisions have further narrowed its precedential value, as William
Ball, the lawyer for the Amish, lamented in later writings.129 Although
the Amish are still protected by Yoder, the protection is based not on
religious liberty considerations but on parental rights, which Ball
regarded as peripheral to the case.130 Given this narrow legal
platform, the Amish and their sympathizers might reasonably fear
that increments to formal education beyond the eighth grade or a
more comprehensive elementary program could undermine Amish
self-determination in educational matters. What was once a floor on
Amish education now looks like a ceiling.
I want to gingerly suggest that Yoder may no longer be as
important in allowing the Amish to find their own educational paths.
Even if they were to depart from its apparent eighth-grade ceiling on
their education, it is unlikely that states would force them back into a
125 See Johnson-Weiner, Train Up a Child at 162 (cited in note 8).
126 See generally Donald B. Kraybill and Steven M. Nolt, Amish Enterprise: From Plows
to Profits 3 (Johns Hopkins 2d ed 2004). It should be noted, however, that Donald Kraybill and
Steven Nolt are optimistic about the ability of Amish entrepreneurs to succeed without
attending high school. See id at 202.
127 Interview with Donald Kraybill (2008), online at http://www.amishamerica.com/anamish-
america-q-and-a-with-professor-donald-kraybill (visited Oct 25, 2011).
128 406 US at 235.
129 William B. Ball, First Amendment Issues, in Kraybill, ed, Amish and the State 253, 264
(cited in note 85). On William Ball’s larger mission to promote public funding for Catholic
parochial education, see Peters, Yoder Case at 64 (cited in note 58).
130 See Ball, First Amendment Issues at 264 (cited in note 129).
128 The University of Chicago Law Review [79:107
system that necessarily culminates with high school. For one thing,
there is widespread approval by the public of the Amish, who are
now “viewed as a living part of America’s heritage.”131 One
manifestation of this is that many Amish settlements are objects of
ethnic tourism. The Amish have not sought this attention, but most
have grudgingly adapted to tourism, and a growing number profit
from the additional demand for their locally made crafts and
prepared foods.132
More important is that tourism enhances the value of an Amish
community to others in the regions where they are concentrated.
Kraybill concludes after an extended and somewhat ambivalent
discussion of tourism that “the economic value of the Amish as a
tourist attraction has greatly enhanced their bargaining power with
public officials.”133 The power comes from their willingness to “exit”
rather than exercise political or legal “voice,” to use terms made
famous by Albert Hirschman.134 Historically, the Amish have
preferred to emigrate from unfriendly jurisdictions rather than
become entangled in political institutions, and this persists to the
present. A group left Nebraska in the early 1980s over a dispute with
the state about teacher certification and milk processing standards,
declining the offer of legal counsel by Ball, the successful Yoder
attorney.135
Another reason for the decline in the importance of Yoder is the
rise of the homeschool movement. Despite the limiting language of
Chief Justice Burger’s opinion, non-Amish families who wanted to
homeschool their children rather than send them to public or
approved private schools were inspired by the notion that parental
rights could trump compulsory education statutes.136 Even though no
court case has specifically extended Yoder’s protections to
homeschoolers, the movement has grown spectacularly since 1970.137
131 Peter V. Schaeffer, Outline of an Economic Theory of Assimilation, 36 J Regional
Analysis & Pol 153, 158 (2006). The Amish were not formerly so well regarded. See Hostetler,
Amish Society at 397 (cited in note 14).
132 See Kraybill, Riddle of Amish Culture at 292 (cited in note 17).
133 Id at 293.
134 Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms,
Organizations, and States 23, 35 (Harvard 1970).
135 Dewalt, Amish Education at 42 (cited in note 29).
136 See Peters, Yoder Case at 174 (cited in note 58); Martha Minow, Keynote: Before and
after Pierce; A Colloquium on Parents, Children, Religion and Schools, 78 U Detroit Mercy L
Rev 407, 417 (2001).
137 Compare Patricia M. Lines, Homeschoolers: Estimating Numbers and Growth 1
(Office of Educational Research and Improvement, Department of Education Spring 1999),
online at http://www2.ed.gov/offices/OERI/SAI/homeschool/homeschoolers.pdf (visited Oct
25, 2011) (stating that estimates suggest that between 10,000 and 15,000 children were
homeschooled in the late 1970s), with Stacey Bielick, Kathryn Chandler, and Stephen P.
2012] Do Amish One-Room Schools Make the Grade? 129
Homeschool organizations have instead used political action to change
state laws about attendance, curriculum, and teacher qualifications
that stood in their way. Among the states that now have highly
liberalized homeschooling statutes is Wisconsin, whose formerly rigid
school laws started the controversy in Yoder.138 The political clout of
homeschoolers provides an umbrella that shields the Amish, too.139
I close with a reminder of my original mission. I wanted to show
that one-room school education is not an adequate substitute for
multiroom elementary schools for children who expect to go to high
school. The early twentieth-century high school movement caused
the consolidation of the tens of thousands of one-room school
districts. The voters who accepted this did so for a good reason, not
because bureaucrats forced it on them. One-room schools could not
reliably stream children into secondary education. The Amish cling
to them for that very reason.
Broughman, Homeschooling in the United States: 1999 4 table 1 (Office of Educational
Research and Improvement, Department of Education July 2001), online at
http://nces.ed.gov/pubs2001/2001033.pdf (visited Oct 25, 2011) (estimating the number of
homeschooled children at 850,000 in 1999).
138 See Robin L. West, The Harms of Homeschooling, 29 Phil & Pub Pol Q 7, 11 (2009).
139 Traditional Amish, however, usually disdain homeschooling because it does not
promote the group socialization that their one-room schools foster. See Hurst and McConnell,
Amish Paradox at 162 (cited in note 7) (describing the reactions of many Old Order Amish to
homeschoolers and noting that they see them as “dissenters” who are not fully engaged in the
community).
The Dubious Data of Wisconsin v Yoder
William A. Fischel
INTRODUCTION
American public school districts declined in number from about
200,000 at the beginning of the twentieth century to fewer than
15,000 in 2010.1 Almost all of this decline was the result of
consolidation of rural one-room schools, which were usually the only
schools in their districts, into large-area districts.2 This movement is
regarded by education historians as the product of a top-down
political process in which local interests were steamrollered by state
officials and the professional educational establishment.3 Implicit in
this account is the idea that the one-room schools were doing a good
job, except for being imperfectly bureaucratized.
My view of this transformation is different.4 The great majority of
the consolidations had to be voted on by the residents of the districts
involved or their locally elected representatives. Many districts refused
for years to consolidate.5 The chief advantage of district consolidation
was that it allowed rural and small-town children to be streamed from
multiroom, age-graded elementary schools into high schools. The oneroom
school was well suited for spreading basic literacy and numeracy
† Professor of Economics and Robert C. 1925 and Hilda Hardy Professor of Legal
Studies, Dartmouth College.
For helpful comments and advice, I thank Liz Cascio, Robert Costrell, Nora Gordon,
Trudy Huntington, Karen Johnson-Weiner, Donald Kraybill, David McConnell, Steven Nolt,
Shawn Peters, Lawrence Rosen, Bruce Sacerdote, and David Weaver-Zercher. Their
generosity should not be taken as an indication that they agree with my analysis and
conclusions.
1 See William A. Fischel, Neither “Creatures of the State” nor “Accidents of Geography”:
The Creation of American Public School Districts in the Twentieth Century, 77 U Chi L
Rev 177, 177 (2010); Department of Education, Digest of Education Statistics (National Center
for Education Statistics Nov 2010), online at http://nces.ed.gov/programs/digest/d10/tables
/dt10_090.asp (visited Oct 23, 2011).
2 See William A. Fischel, Making the Grade: The Economic Evolution of American
School Districts 68–69 (Chicago 2009).
3 See, for example, David Tyack and Thomas James, State Government and American
Public Education: Exploring the “Primeval Forest,” 26 Hist Educ Q 39, 66–67 (1986).
4 See Fischel, Making the Grade at 101 (cited in note 2). See also Fischel, 77 U Chi L
Rev at 177 (cited in note 1).
5 See Fischel, 77 U Chi L Rev at 192–95 (cited in note 1).
108 The University of Chicago Law Review [79:107
across the continent, but it was inadequate for preparing students for
high school in the twentieth century.6
A way of testing my account is to look at the most persistent
exceptions to the abandonment of one-room schools. The Amish are
a Protestant sect whose members employ much of the agricultural
and household technology of the nineteenth century.7 As American
rural school consolidation reached the Amish (circa 1930–1960),
most of them left the public school system and re-created the oneroom
schools that were the dominant mode of American education
in the nineteenth century.8
The great virtue of the one-room school was (and still is, for the
Amish) the sense of local communal participation that it engendered.
9 What is more controversial is the claim that the Amish oneroom
school is, with the possible exception of science education, the
equivalent of eight grades in a modern school.10 If this is the case,
American education took an enormously expensive, socially
disruptive wrong turn about a century ago.
The persistence of the Amish one-room schools and their
endorsement by the US Supreme Court in Wisconsin v Yoder11 seem
to support that idea. The Court held that the Free Exercise Clause of
the First Amendment prevented the state from requiring Amish
parents to send their children to school beyond the eighth grade.12
Although exemption from high school was its most important effect,
Yoder also endorsed the nonstandard elementary education offered
in Amish one-room schools, noting that “Amish children in the
eighth grade achieved comparably to non-Amish children in the
basic skills.”13 I will show that the study on which this claim is based is
badly flawed. One-room schools may serve the Amish well enough—
this Article does not recommend that the Amish be forced back into
the standard school system—but that is because they do not want
access to secondary education that most other Americans wanted.
6 See id at 185–86.
7 The Amish come in a variety of sects, of which the Old Order are the most numerous
and best known. See Charles E. Hurst and David L. McConnell, An Amish Paradox: Diversity
& Change in the World’s Largest Amish Community 18, 35–36 & table 2.1 (Johns Hopkins
2010).
8 See Karen M. Johnson-Weiner, Train Up a Child: Old Order Amish & Mennonite
Schools 7 (Johns Hopkins 2007).
9 See Wayne E. Fuller, The Old Country School: The Story of Rural Education in the
Middle West 45 (Chicago 1982); John A. Hostetler and Gertrude Enders Huntington, Children in
Amish Society: Socialization and Community Education 109 (Holt, Rinehart, and Winston 1971).
10 See Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
11 406 US 205 (1972).
12 Id at 230–31.
13 Id at 225–26 & n 13.
2012] Do Amish One-Room Schools Make the Grade? 109
I. THE AMISH ARE UNROMANTIC COMMUNITARIANS
The Amish live almost exclusively in rural areas of the United
States, with a majority in Pennsylvania, Ohio, and Indiana.14 Their
traditional clothing and lifestyle, especially their horse-and-buggy
transportation, remind many of rural America in the nineteenth
century. The defining aspect of Amish farming and transportation is
the use of the horse rather than the tractor or the automobile. Some
Amish farms will use some gas-powered machinery for harvesting
grain and other field work, but the machines are usually drawn by
horses. Their homes are not wired for external power or
communications. They forswear radios, in-house telephones,
televisions, and computers.
Most Amish live on farmsteads, and a sizable percentage still
derive most of their income from agriculture. Farming is, however, a
declining occupation. Their large families—six or more children are
common—have outstripped the supply of land in their traditional
settlements, and declining commodities prices make it more difficult
for those who do have farms to make even the modest income that
satisfies Amish goals.15 As a result, a majority of Amish are now
engaged in small enterprises or are employed as relatively unskilled
workers in rural and small-town businesses owned by both Amish
and non-Amish employers.16 However, all Amish continue to keep
modern technology at a wary distance within and around their rural
homes.
The Amish use antiquated technology in their homes and farms
because of the pervasiveness of religion in their lives.17 The Amish
are “Anabaptists,” a term that seems to suggest they are against
baptism but really means they perform only adult baptism.18 In the
German-speaking regions of Europe where they originated, they and
other Anabaptists were severely persecuted for this seemingly minor
variation in Christian practice and for their steadfast refusal to serve
in the military or otherwise use violence to defend themselves or
their property.19 They emigrated to Pennsylvania in the eighteenth
and nineteenth centuries and soon spread westward.20
14 John A. Hostetler, Amish Society 98 table 2 (Johns Hopkins 4th ed 1993).
15 See Hurst and McConnell, Amish Paradox at 196 (cited in note 7).
16 See id at 197–200.
17 See Donald B. Kraybill, The Riddle of Amish Culture 36 (Johns Hopkins revd ed 2001).
18 Hurst and McConnell, Amish Paradox at 14 (cited in note 7).
19 Id at 14–15.
20 Steven M. Nolt, A History of the Amish 63, 75, 118–19 (Good Books revd ed 2004).
The Amish are extinct in Europe.
110 The University of Chicago Law Review [79:107
Among the Amish, adult baptism must be freely chosen by both
men and women, and the choice is usually made in their late teens.21
Baptism is not just a covenant between the deity and the person who
chooses it. Those who accept baptism agree to submit to the
congregation’s ordinances and understandings that are collectively
known as the Ordnung.22 These largely unwritten rules are
interpreted by their unpaid, locally selected clergy.23
The Ordnung dictates that Amish may not own automobiles but
may ride in vehicles operated by non-Amish drivers. The types of
nonfarm jobs and businesses that Amish may engage in are likewise
subject to collective control.24 All Ordnungs permit trade with the
rest of the world for a limited variety of consumer and investment
goods. Amish clothing and furnishings are “plain and simple” but not
entirely homemade.25 It is not uncommon to see a van (owned and
piloted by a non-Amish driver) parked at a Walmart being loaded
with staples purchased by a large Amish family or two.26
The Amish are more suspicious of government than of modern
business. They will not serve on juries and rarely initiate lawsuits,
which they regard as coercive.27 Their Ordnungs disallow acceptance
of government transfers such as Social Security.28 Instead, the Amish
provide their own informal transfer systems for the aged, sick, and
needy of their community. Most important for the present article,
their Ordnungs determine that Amish children must not attend a
formal high school, even it if were operated by coreligionists.29
Amish theology enjoins them to be “not of this world.”30
Otherworldliness does not mean monastic spirituality. The Amish
are remarkably communitarian and equalitarian among themselves.31
But they do not attempt to convert others to their religion, and they
discourage “English” seekers of a simpler life who would like to join
them. (The Amish speak Pennsylvania German among themselves.)32
21 See Kraybill, Riddle of Amish Culture at 117 (cited in note 17).
22 See id at 112–13, 117–19.
23 See Hurst and McConnell, Amish Paradox at 16 (cited in note 7).
24 See Kraybill, Riddle of Amish Culture at 115 (cited in note 17).
25 Id at 60.
26 See Thomas J. Meyers and Steven M. Nolt, An Amish Patchwork: Indiana’s Old
Orders in the Modern World 1–2 (Indiana 2005).
27 Kraybill, Riddle of Amish Culture at 31 (cited in note 17).
28 See id at 277–78. The Amish were granted exemptions from Social Security and
Medicare taxes, but they pay all other taxes. Id at 278–79.
29 See Mark W. Dewalt, Amish Education in the United States and Canada 20 (Rowman
& Littlefield 2006).
30 Hostetler, Amish Society at 76 (cited in note 14).
31 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17).
32 Id at 55.
2012] Do Amish One-Room Schools Make the Grade? 111
Without converts, the Amish grow only by natural increase, and they
have done so quite successfully.33 The limit on their numbers is
primarily defection by young adults to other religions, most
commonly their more worldly and geographically proximate
Anabaptist cousins, the Mennonites.34 Defection rates declined in the
latter part of the twentieth century, and about 85 percent of the
children of Old Order Amish have remained in the fold as adults.35
As a result, estimates of Amish population, which had dwindled to
about 5,000 in 1900, have grown from about 50,000 in 1970 to nearly
250,000 in 2010.36
II. ONE-ROOM SCHOOLS HELP SOLVE AN AMISH
ECONOMIC PROBLEM
The Amish seem to be the antithesis of “homo economicus” in
that they abjure most of the pleasures of a modern economy and
aspire to a religiously derived communal spirit that disapproves of
individualism, competition, and personal ambition.37 (In these
respects, they seem rather different from the Jeffersonian “sturdy
yeoman,” to whom they were compared by the chief justice in
Yoder.)38 Called “Gelassenheit,” this communal spirit would seem
beyond economic analysis.39 But economics is the science of scarce
means, not about particular ends. Their old-fashioned ways are an
important means of maintaining Amish religious identity.
Old-fashionedness is not a static ideal. Twenty-first century Old
Order Amish often travel as passengers in cars, buses, and trains. In
their business affairs, many use telephones located outside their
homes and, increasingly, cell phones.40 The Amish accept modern
medical care, which they pay for out of pocket or with the aid of
fellow congregants.41 Despite such accommodations, the Amish
33 See id at 335 app B.
34 See Hostetler, Amish Society at 303 (cited in note 14); Albert N. Keim, From
Erlanbach to New Glarus, in Albert N. Keim, ed, Compulsory Education and the Amish: The
Right Not to Be Modern 9–10 (Beacon 1975).
35 See Hurst and McConnell, Amish Paradox at 80 table 3.1 (cited in note 7).
36 Donald B. Kraybill, Introduction: The Struggle to Be Separate, in Donald B. Kraybill
and Marc A. Olshan, eds, The Amish Struggle with Modernity 1, 9 table 1.1 (New England
1994); Young Center for Anabaptist and Pietist Studies, Amish Population Trends 1991–2010:
Twenty-Year Highlights (Elizabethtown College 2011), online at http://www2.etown.edu
/amishstudies/Population_Trends_1991_2010.asp (visited Oct 24, 2011).
37 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17).
38 406 US at 225–26 & n 14.
39 See Kraybill, Riddle of Amish Culture at 29–30 (cited in note 17) (“Roughly translated,
Gelassenheit means ‘submitting, yielding to a higher authority.’”).
40 Hurst and McConnell, Amish Paradox at 52 (cited in note 7).
41 See id at 227–34.
112 The University of Chicago Law Review [79:107
maintain enough of their old-fashioned ways to keep the rest of the
world at a polite distance.
But the polite distance creates a problem for their youth.
Without converts, the Amish must preserve their way of life and
religion by transferring it to their children and keeping them in the
fold.42 They tend to live in contiguous settlements of several
congregations, but the personal freedom and consumption
opportunities of their non-Amish neighbors, tourists, customers, and
business associates are frequently evident to them and their
children.43
The Amish maintain their adult cohesiveness by means of
rewards and penalties. The benefits of conformity are a
comprehensive system of spiritual and social support and a slowly
evolving acceptance of modern conveniences and sources of income.
Although the Amish are committed to hard work and simplicity,
most are not unusually ascetic. They visit one another to gossip, eat
heartily, hold quilting bees, hunt and fish, tell jokes, and play
softball.44 They read the tamer works of American literature and
sometimes travel in groups to national parks.45 Controlled adoption
of modern technology and consumer goods probably helps to hold
families within the Amish fold. But leaders are also aware that
allowing too much modernity has caused defections by families from
liberalized Amish congregations to more conservative groups.46
The penalty for baptized adults who stray from the strictures of
the Ordnung is “shunning,” a systematic isolation from the
community, including from members of his or her own family.47
Raised in a community in which communal bonds, egalitarian
sociability, and a collective road to salvation are paramount, Amish
who are shunned endure a steep price that is mitigated primarily by
the congregation’s willingness to forgive those who publicly repent of
their transgressions and return to the fold.48 (The Mennonites, who
usually do not shun defectors, could be thought of as having to
increase the economic benefits to members—modern consumption
opportunities—since the costs of religious disobedience are lower.)
Full-scale shunning is applied only to adults who have accepted
baptism and then persistently strayed from the local Ordnung.49 At
42 See Kraybill, Riddle of Amish Culture at 317 (cited in note 17).
43 See id at 309–11, 324.
44 See id at 150–52.
45 See id at 153.
46 See Hurst and McConnell, Amish Paradox at 51–52 (cited in note 7).
47 See id at 83–84.
48 See Kraybill, Riddle of Amish Culture at 139 (cited in note 17).
49 See Hurst and McConnell, Amish Paradox at 83 (cited in note 7).
2012] Do Amish One-Room Schools Make the Grade? 113
age sixteen—a year or two after their terminal year in school (eighth
grade) but before baptism—Amish boys and girls are given leave to
experience the non-Amish world. They can, to an extent that varies
locally, drive cars, wear contemporary clothes, use modern
technology, and socialize with non-Amish peers.50 This period of
Rumspringa (“running around”) is normally followed by a decision
by Amish in their late teens or early twenties to accept baptism and
the strictures of the Ordnung.51
The idea behind Rumspringa is that acceptance of baptism is
more sincere if one has experienced the world outside first.52 But in
fact most Amish youth are unprepared to use this time for anything
more than bonding with their Amish peers and some slightly naughty
recreation.53 On the order of 90 percent eventually accept baptism,
embrace church obligations, and, sooner or later, marry an Amish
man or woman.54
Amish youths’ lack of preparation for meaningful engagement
with the outside world during Rumspringa is in large measure the
product of the limitations imposed on Amish youth by their oneroom
schools. The Amish know from experience that formal high
school education is extremely hazardous to Amishness. Both the
Amish and the anthropologists who have studied them agree that
mainstream, advanced education would open up worldly
possibilities, and association with non-Amish students would
undermine their commitment to the Amish way of life and pave the
way out.55
50 See Kraybill, Riddle of Amish Culture at 145 (cited in note 17).
51 Id at 145–47.
52 Hurst and McConnell, Amish Paradox at 68 (cited in note 7).
53 See Steven V. Mazie, Consenting Adults? Amish Rumspringa and the Quandary of
Exit in Liberalism, 3 Persp Polit 745, 752–53 (2005) (stating that many youth do not explore the
outside world they have yet to be exposed to but rather socialize at bowling alleys or get drunk
in cornfields); Kraybill, Riddle of Amish Culture at 145–46 (cited in note 17) (describing the
range of activities young people engage in with their peers, from recreational sports to parties
with alcohol).
54 See Kraybill, Riddle of Amish Culture at 186 (cited in note 17). See also Mazie, 3 Persp
Polit at 752–53 (cited in note 53).
55 See Hostetler and Huntington, Children in Amish Society at 102 (cited in note 9);
Wayne Edgar Miller, A Study of Amish Academic Achievement *3–5 (unpublished PhD
dissertation, University of Michigan, 1969) (on file at the University of Michigan); Kraybill,
Riddle of Amish Culture at 176 (cited in note 17); Sara E. Fisher and Rachel K. Stahl, The
Amish School 88 (Good Books revd ed 1997) (describing a former Amish man who attended
high school and whose “sorrowful conclusion was that it is not possible for most Amish
children to go to high school and remain Amish”).
114 The University of Chicago Law Review [79:107
III. ONE-ROOM SCHOOLS WORKED BEST FOR A
LIMITED CURRICULUM
Public schools were formerly an exception to Amish
disengagement with government institutions. Before World War II,
most Amish attended the same one-room schools that their non-
Amish neighbors attended.56 The Amish would end their education
with the eighth grade. Their engagement with public schools
unraveled when rural school districts were consolidated and the
minimum school-leaving age was raised from fourteen to sixteen.57
After a period of nonviolent resistance to truancy laws, the Amish in
most states were granted exceptions.58 Their children did not have to
complete more than eight years of formal education, and the Amish
could establish their own parochial schools with Amish-approved
teachers. In Pennsylvania, Ohio, and Indiana, where the majority of
the Amish reside, a program of home-based vocational education
was required for another two years, but most of this involved homebased
training that Amish teenagers would have received without
state compulsion.59
Amish one-room schools bear more than a passing similarity to
their nineteenth-century predecessors. Schools in both eras were
neighborhood based, and children usually walked to school. As in
the early nineteenth century, the operational expenses of Amish
schools are largely funded by parental tuition assessments.60 Amish
one-room schools are modest affairs, and their comforts largely
reflect local home conditions. Outdoor toilets are the rule in areas
settled by the more traditional groups.61
Teachers in early American one-room schools seldom had more
education than their most advanced students.62 Amish teachers, who
are almost always Amish themselves, are likewise lacking in formal
education beyond the eighth grade.63 Local Amish school directors,
who are typically parents of those in the school, do the hiring and pay
56 See Keim, From Erlanbach to New Glarus at 11 (cited in note 34).
57 Id at 13–15.
58 See, for example, Kan Stat Ann § 72-1111(g). See also Shawn F. Peters, The Yoder
Case: Religious Freedom, Education, and Parental Rights 43–47 (Kansas 2003).
59 See Dewalt, Amish Education at 88–89 (cited in note 29) (describing a Pennsylvania
home-based vocational plan).
60 See Nancy Beadie, Tuition Funding for Common Schools: Education Markets and
Market Regulation in Rural New York, 1815–1850, 32 Soc Sci Hist 107, 115 (2008); Johnson-
Weiner, Train Up a Child at 154 (cited in note 8); Fuller, Old Country School at 26 (cited in
note 9).
61 See Johnson-Weiner, Train Up a Child at 26–28 (cited in note 8).
62 See Carl F. Kaestle, Pillars of the Republic: Common Schools and American Society
1780–1860 20 (Hill & Wang 1983).
63 Dewalt, Amish Education at 116 (cited in note 29).
2012] Do Amish One-Room Schools Make the Grade? 115
the teacher.64 Most Amish teachers are unmarried young women who
will stop teaching after their wedding, as was generally the case in
early one-room American schools.65 The pay scale reflects the
opportunity cost of teaching, which for unmarried Amish women is
relatively unskilled labor as a household worker.66 However, eighth
grade is a ceiling on the education of Amish teachers, so they should
not be thought of as dysfunctional dropouts, and those who choose to
teach get some assistance from Amish newsletters and training
seminars.67
The method of instruction in nineteenth-century rural schools
was to divide students into recitation groups according to previous
accomplishment in each subject.68 Because attendance by many
children was irregular, a recitation group in intermediate reading
(say) could include children who were ages nine, eleven, thirteen,
and sixteen. Recitation group members would be assigned a passage
to read and (usually) memorize. Another group might be assigned
something in arithmetic and another in spelling. They would study
silently while the teacher examined another group in a subject they
had previously been assigned to study.69
Groups would thus rotate between what we would now call
study hall and the recitation bench and back again throughout the
day.70 A teacher who taught four subjects at three levels each would
thus have twelve recitation groups per day. Over a six-hour school
day, each student’s group would on average recite for half an hour in
each subject, and each student would have the teacher’s attention (in
the student’s recitation group) for a total of two hours and be in
study hall four hours a day.
In Making the Grade, I argued that the recitation method was
effective for teaching basic literacy and numeracy for a population
that was highly mobile and widely dispersed, and whose children
often could attend only part time.71 Children who missed a few weeks
of a school term could return and join another recitation group and
pick up where they left off. There was no need to start over in the
64 Id at 54.
65 See id at 117; Kaestle, Pillars of the Republic at 20 (cited in note 62).
66 See Hostetler and Huntington, Children in Amish Society at 56 (cited in note 9).
67 See Dewalt, Amish Education at 121–24 (cited in note 29).
68 See David L. Angus, Jeffrey E. Mirel, and Maris A. Vinovskis, Historical Development of
Age Stratification in Schooling, 90 Teachers Coll Rec 211, 216 (1988). See also Larry Cuban, How
Teachers Taught: Constancy and Change in American Classrooms 1890–1980 25–27, 31 (Longman
1984).
69 See Cuban, How Teachers Taught at 19 (cited in note 68).
70 See id.
71 Fischel, Making the Grade at 65 (cited in note 2).
116 The University of Chicago Law Review [79:107
same grade and waste time learning things already mastered, as there
were no age-specific grades or even a standard school year.72 A
“common school education” was complete when the scholar ran out
of textbook material to learn.73
The problem with the ungraded method was that only a few
subjects could be covered during each school day. With the rise of
high school and its increased economic payoff around the beginning
of the twentieth century,74 most urban schools shifted to the nowstandard
age-graded method. This allowed a single teacher to teach
several subjects to the same age-defined cohort of children. If she
taught six subjects to the entire class who were all the same age, each
subject would get one hour in the six-hour day, and students would
not have to be in “study hall” except when in-class seatwork was part
of the lesson plan.
The age-graded system was less viable in rural, one-room
schools. A teacher with a full eight grades and six subjects to teach
would have forty-eight separate recitation periods. This amounts to
seven-and-a-half minutes per recitation period, or for the typical
student, forty-five minutes of face time with the teacher (shared with
his or her recitation group compatriots) over a six-hour day. Of
course few of the one-room schools that tried to cover more than
reading, spelling, and arithmetic literally followed such a schedule.75
But even with trimming the curriculum and combining classes, rural
teachers often had more than two dozen daily recitations, averaging
less than fifteen minutes.76 These educational disabilities finally made
rural voters accede to the consolidations that state-level educators
had been urging for over a century.
Modern Amish one-room schools do not have the problem of
spotty attendance that complicated age grading in earlier one-room
schools.77 But dividing students into eight grade levels still runs into
the inescapable problem of limited time. The modern Amish oneroom
school has responded to the time constraints by teaching fewer
subjects. The Amish do not believe in evolution, but they do not
make a big deal about it because they teach very little science.
History, social studies, art, and music are likewise given short shrift.
72 See id at 123–24.
73 See id at 43–44.
74 See Claudia Goldin and Lawrence F. Katz, The Race between Education and
Technology 167 (Belknap 2008).
75 See Fischel, Making the Grade at 83–84 (cited in note 2).
76 See, for example, Cuban, How Teachers Taught at 119 (cited in note 68).
77 See Dewalt, Amish Education at 54 (cited in note 29).
2012] Do Amish One-Room Schools Make the Grade? 117
Detailed accounts of Amish school days indicate that almost threequarters
of each day is spent on reading, spelling, and arithmetic.78
IV. THE YODER DECISION WAS SHAPED BY JOHN A. HOSTETLER
By the 1960s, the Amish retreat from public education was well
under way, but many state and local officials were initially unwilling
to accept their nonstandard elementary schools. Amish parents were
sometimes jailed for refusing to send their children to either public
or private high school.79 In an especially heavy-handed incident, Iowa
school officials attempted in 1965 to force Amish children in a oneroom
school onto a bus to transport them to a public elementary
school.80 Nationally circulated photographs of terrified, straw-hatted
children running into cornfields to avoid what looked to many like a
public kidnapping helped turn public opinion in favor of the Amish.81
Iowa’s governor was forced to intervene and craft a compromise
similar to that of other states that allowed the Amish to keep their
one-room schools and avoid high school.82
Faced with unyielding, nonviolent resistance by an
unthreatening people, most state legislatures let the Amish pursue
their separate, traditional path.83 The event that displaced the
negotiated education arrangements with individual states was the
refusal of the Amish in a Wisconsin community to send their
children to a state-approved high school. Wisconsin had not worked
out any accommodation with the Amish—their presence in the state
dated only from the 1960s—and in 1968 local public school
authorities brought their truancy to the attention of state
authorities.84 The Amish themselves were, for religious reasons,
unwilling to hire an attorney. A non-Amish organization founded by
a Lutheran minister persuaded Jonas Yoder and two other fathers to
accept a legal defense.85 The judge in the trial court nonetheless held
for the state of Wisconsin and fined the Amish parents token
amounts for their noncompliance. The decision was appealed to the
state supreme court.86
78 See, for example, id at 107, 114; Fisher and Stahl, Amish School at 32–39 (cited in
note 55).
79 See Kraybill, Riddle of Amish Culture at 168–69 (cited in note 17).
80 See Hostetler and Huntington, Children in Amish Society at 97–98 (cited in note 9).
81 Hostetler, Amish Society at 264–65 (cited in note 14).
82 Id at 267–68.
83 See Peters, Yoder Case at 44–47 (cited in note 58).
84 See id at 7, 33–35.
85 See William C. Lindholm, The National Committee for Amish Religious Freedom, in
Donald B. Kraybill, ed, The Amish and the State 109, 109–15 (Johns Hopkins 2d ed 2003).
86 Yoder, 406 US at 208–09.
118 The University of Chicago Law Review [79:107
Unlike other state courts with similar cases, the supreme court
of Wisconsin ruled in favor of the Amish.87 Because this was contrary
to other states’ rulings based on the First Amendment’s Free
Exercise Clause, the state attorney general appealed the decision to
the US Supreme Court. The Court granted certiorari and in a
unanimous decision (with a partial dissent by Justice William
Douglas about the unexamined educational rights of the children)
held that the Amish parents did not have to send their children to
high school and could maintain their own elementary schools,
subject to unspecified state regulations.88
The organization that represented the Amish at trial and
through its appeals had as its star witness John Andrew Hostetler,
who is widely regarded as the father of modern Amish studies.89 Born
in 1918 to an Amish family, Hostetler declined Amish baptism and
instead became a Mennonite.90 After conscientious-objector service
in World War II, he attended a Mennonite college and earned a PhD
in sociology from Pennsylvania State University in 1953.91 He
enjoyed a long and prolific career writing about the Amish and other
Anabaptist societies until his death in 2001. His Amish Society
became the leading academic treatise on the subject, going through
four editions starting in 1963, and he wrote numerous popular books
and articles on the Amish.92 Because he had declined baptism and
thus not broken his vows in leaving the Amish, he was not shunned
as an apostate, and his fluency in Pennsylvania German helped him
gain the confidence of his subjects. Hostetler, by the 1960s, was a
professor of sociology at Temple University in Philadelphia, but his
sympathies for the Amish were well-known among his colleagues
and the Amish themselves.93
Hostetler’s testimony at the Wisconsin trial was enormously
influential in the appellate decisions.94 He explained the connection
between the Amish insistence on a limited education and the
survival of their religion. Requiring Amish children to go to high
school or mix with non-Amish children in modern, regional
87 State v Yoder, 182 NW2d 539, 542 (Wis 1971).
88 Yoder, 406 US at 234–35.
89 David L. Weaver-Zercher, An Uneasy Calling: John A. Hostetler and the Work of
Cultural Mediation, in David Weaver-Zercher, ed, Writing the Amish: The Worlds of John A.
Hostetler 98, 100–01 (Pennsylvania State 2005).
90 See id at 101–04.
91 John A. Hostetler, An Amish Beginning, in Weaver-Zercher, ed, Writing the Amish 5,
25, 29 (cited in note 89).
92 See Weaver-Zercher, Uneasy Calling at 111–15 (cited in note 89).
93 See id at 99, 132–33.
94 See Peters, Yoder Case at 90–94 (cited in note 58); Lawrence Rosen, The
Anthropologist as Expert Witness, 79 Am Anthro 555, 563 (1977).
2012] Do Amish One-Room Schools Make the Grade? 119
elementary schools would lead them astray. Moreover, a study
Hostetler had done assured the court that the eight years of
education in one-room schools would be just as good as that in
public schools. The study was noted in Chief Justice Warren Burger’s
opinion:
All of the children involved in this case are graduates of the
eighth grade. In the county court, the defense introduced a
study by Dr. Hostetler indicating that Amish children in the
eighth grade achieved comparably to non-Amish children in the
basic skills.
Hostetler and Huntington summarized a study that Hostetler
had undertaken in 1969 with a grant from the US Office of
Education.95 The achievement results referred to by the Court were
only part of Hostetler’s extensive report. The achievement tests and
the statistical analysis were conducted by Wayne Edgar Miller, who
used the results as the centerpiece of his PhD dissertation in
education administration at the University of Michigan.96 Miller and
Hostetler reported the same statistical study, but because each
offered some different perspectives, I discuss both of them below but
treat Hostetler as the principal investigator.
V. THE HOSTETLER-MILLER STUDY WAS MARRED BY
SELECTION BIAS
Hostetler’s 1969 Office of Education project was an exercise in
persuasion. While there was a gloss of objectivity—much of the
background work reprises his scholarly Amish Society—the thrust of
the report reads as a defense of the Amish way of life and their oneroom
school system, as Hostetler had intended from the outset.97 On
the basis of Miller’s statistical study, Hostetler and Huntington, the
source cited by the Supreme Court in Yoder, concluded, “As judged
by education testing standards the overall performance of the Amish
is similar to that of a representative sample of rural school children
in the United States.”98
95 John A. Hostetler, Educational Achievement and Life Styles in a Traditional Society,
the Old Order Amish ii (Department of Health, Education, and Welfare Sept 1969).
96 See generally Miller, Amish Academic Achievement (cited in note 55). Miller, like
Hostetler, admired the Amish and spoke Pennsylvania German. Id at 2.
97 See John A. Hostetler, Old Order Amish Child Rearing and Schooling Practices: A
Summary Report (1970), in Weaver-Zercher, ed, Writing the Amish 236, 236–37 (cited in
note 89) (admitting that he only compared Amish educational achievement to their own
community standards).
98 Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
120 The University of Chicago Law Review [79:107
Hostetler and Miller selected (with the help of Gertrude
Huntington) fourteen private Amish one-room schools.99 The test
that was the basis for Hostetler’s comparative claims was a
customized version of the Iowa Test of Basic Skills.100 The scores of
the fourteen one-room schools were collectively compared to the
same tests administered to both Amish and non-Amish children in
six consolidated public schools in which students were divided by age
cohorts—that is, they were multiroom schools with a teacher for
each age-graded cohort. The Amish private schools included six
from northern Indiana, seven from Ohio, and one from Ontario. The
six public schools were in Ohio and Michigan.101
Because the one-room schools were private, the researchers had
to persuade Amish school directors, teachers, and parents to allow
them to conduct the tests. The Amish were suspicious of tests that
might be used against their system. So the authors explained that the
purpose of their tests was to help the Amish and that the schools
would not be identified by name or specific location. Even with these
assurances, many schools declined.102 Hostetler admitted, “The
possibility of obtaining a random sampling of all Amish children for
testing was impossible and impractical.”103
Those that did agree to be tested were indeed special.
Summarizing the study, Hostetler and Huntington explained, “The
teachers were experienced, having taught no less than three years;
they were considered by the community to be good teachers.”104 Thus
the Amish one-room schools were selected in a way that filtered out
inexperienced and ineffective teachers. (Cooperation of officials in
the six public schools to which the Amish schools were compared
was easily obtained, though they too were unidentified.)105
The problems of getting the Amish to cooperate did not end
with getting the consent of adults. The children in the Amish schools
were unfamiliar with testing. Miller indicated that the test
administrators (who seem to have included himself) explained the
tests carefully “with additional time provided to enable students and
teacher to ask questions as they arose.”106 More surprising was
Miller’s candid description of outright censoring:
99 Hostetler, Educational Achievement at 51 (cited in note 95).
100 See note 109 and accompanying text.
101 Miller, Amish Academic Achievement at 116 (cited in note 55).
102 Id at 108–09.
103 Hostetler, Educational Achievement at 50 (cited in note 95).
104 Hostetler and Huntington, Children in Amish Society at 90 (cited in note 9).
105 See Hostetler, Educational Achievement at 165 (cited in note 95).
106 Miller, Amish Academic Achievement at 112 (cited in note 55).
2012] Do Amish One-Room Schools Make the Grade? 121
There was some difficulty with a very few students who tired
quickly and marked their answer sheets at random, making
some unusual pictures or number designs. These few were
excluded from the total tabulation as invalid. A few pupils gave
“wise” and “curt” answers on the fact sheet to questions that
they may have thought personal or irrelevant, but these were
reviewed and corrected before leaving the school.107
It is not entirely clear that any of the interventions affected the
Iowa Tests of Basic Skills, which were the basis for Hostetler’s claim
of Amish educational equivalence. Several other tests measuring
aptitude and personality traits were also administered.108 But at the
very least, Miller’s observations reveal more than a mere inclination
to root for the Amish. Even after selecting schools in a way that
favored the Amish, Hostetler’s team was willing to censor responses
that would have made Amish schools look bad.
Table 1 contains the number of schools and children tested,
some demographics of the children and their families, and the
selected Iowa Test results for each group of schools. Table 1 reports
all of the information about the eighth-grade tests that Hostetler and
Miller published, but Hostetler added some discussion of tests in
younger grades (not reported in Table 1), which did nothing to
change his conclusions.109
107 Id at 114 (emphasis added).
108 See Hostetler, Educational Achievement at 186, 189–240 (cited in note 95).
109 See id at 172 & table 7.
122 The University of Chicago Law Review [79:107
TABLE 1. SAMPLE CHARACTERISTICS AND IOWA TEST SCORES
Source: Hostetler, Educational Achievement at 51–53, 170 (cited in note 95); Miller, Amish Academic
Achievement at 124–48 (cited in note 55).
* There are three, not six, schools in columns (3) and (4) combined. Public “Amish half” and “non-Amish
half” schools are approximations of the proportions in the three schools that Hostetler and Miller designated
as “mixed” schools.
The fourteen Amish one-room schools (column 1) had the
smallest eighth-grade cohorts, about four in each. The largest unit,
the public school that had no Amish (column 5), had only 27 eighth
graders. It is possible that the five public schools that had at least
some Amish pupils (columns 2–4) combined some grades (say,
AMISH PRIVATE ONE-ROOM SCHOOLS AND PUBLIC SCHOOLS
(1)
Private
(2)
Public
(3)
Public
(4)
Public
(5)
Public
One-Room
Amish All Amish Amish Half
Non-Amish
Half
All Non-
Amish
Number of
schools 14 2 3* 3* 1
Eighth
graders
tested 61 28 26 34 27
Eighth
graders
per school 4.36 14 8.67 11.33 27
Children
per family 8.5 7.6 7.3 4.2 4.3
Time in
same
home 11.5 yrs 13.5 yrs 10.5 yrs 7.1 yrs 6.5 yrs
Walk to
school 70% 9% 0% 11% 11%
Family
farmers 75% 63% 58% 9% 30%
Iowa Test Scores Relative to National Mean, in Years.Months
Arithmetic
problems 1.06 1.14 0.02 -0.83 -0.19
Word usage 0.64 -0.37 -0.37 -1.22 -1.90
Spelling 0.51 0.09 0.28 -1.16 -0.83
Reference
use -1.00 -0.34 -0.74 -0.95 -0.55
Reading -1.20 -1.34 -1.20 -1.23 -1.14
Vocabulary -1.61 -1.86 -2.23 -1.09 -0.70
2012] Do Amish One-Room Schools Make the Grade? 123
seventh and eighth), since their average class size is small, but it is
clear from the low percentage of pupils who walked to school that
these were consolidated elementary schools of the sort that the
Amish were said to want to avoid. (This raises the question of why
Amish children were attending such schools, but later authors have
indicated that many rural public schools, especially in Ohio and
Indiana, strive to accommodate the Amish in their jurisdictions.)110
The clearest demographic differences between the Amish
(columns 1–3) and the non-Amish (columns 4–5) are the Amish’s
larger family size, lower mobility (as judged by years in same home),
and larger percentage of families who are farmers. The test scores
themselves are arrayed (in this Article’s Table 1) in the order of
those in which the eighth graders in the Amish one-room schools did
best. The scores were reported as deviations from a national gradeequivalent
mean for Iowa Tests, to be read in years (to the left of the
decimal) and months (after the decimal point) above or below the
average.111 (I take the second digit after the decimal point as tenths of
a month.) Thus the eighth graders in the Amish one-room school
(column 1) had a score of 1.06 for arithmetic problem solving, which
is one year and six-tenths of a month above the national grade norm.
Both Miller and Hostetler report the results of an analysis of
variances between the groups of eighth graders in each of the
columns. Thus, for example, Miller finds that the mean “arithmetic
problem solving” score for the sixty-one Amish one-room students
(column 1 in Table 1 above) is significantly higher than that of the
thirty-four non-Amish students in the three mixed public schools
(column 4).112 These comparisons are misleading. The relevant issue
is the quality of Amish one-room schools versus public consolidated
schools, not Amish students versus non-Amish students. The number
of observations for that purpose is fourteen one-room schools and
six public schools. Counting each of the eighth graders as a relevant
observation in a statistical sample makes the sample look artificially
large. One needs enough student scores to reliably infer something
about each type of school (something achievable for the one-room
schools only by grouping them), but confidence in the differences in
school averages does not add to the number of schools compared.
The more important sample here is not the students but the twenty
schools, and this is far too small a sample to make confident
generalizations, even if the sample had been randomly chosen.
110 See Hurst and McConnell, Amish Paradox at 156 (cited in note 7).
111 Hostetler, Educational Achievement at 170 (cited in note 95).
112 See Miller, Amish Academic Achievement at 134–35 table 13 (cited in note 55). See
also Hostetler, Educational Achievement at 318 table A-14 (cited in note 95).
124 The University of Chicago Law Review [79:107
The most logical test of this small sample would be to compare
the Iowa Test scores of the 61 children in the Amish one-room
schools to those of the 115 children in the six public schools.113 On
this basis the fourteen Amish one-room schools come out looking a
little better than the six public schools. The public-school eighth
graders performed slightly better in the tests on vocabulary and use
of reference materials, while the Amish one-room scholars
performed distinctly better in arithmetic problem solving, word
usage, and spelling. Reading comprehension was about the same for
both groups. It is notable that students in all of these schools are
below the national grade average in most of the areas tested, though
it is conceivable that this shortcoming characterized small rural
schools generally in the late 1960s. In any case, it should be evident
from my discussion of sample bias, tendentious testing procedures,
and the meager number of schools to be compared that any
generalizations based on this study should have been made with
many qualifications.
The other major problem with Hostetler’s study was its
exclusion of academic subjects to be tested. The Iowa Tests of Basic
Skills were widely used by schools inside and outside Iowa as a
diagnostic tool.114 For the eighth graders in Hostetler’s study, the
Iowa Tests were given for “vocabulary, reading comprehension,
spelling, word usage, knowledge and use of reference materials, and
arithmetic problem solving.”115
This sounds reasonably comprehensive, but it actually
represented only about half of the Iowa Test battery. Not
administered were the tests for “capitalization, punctuation, map
reading, reading graphs and tables, and arithmetic concepts.”116
Hostetler excluded these because the Amish did not study them with
the same intensity as the other areas.117 This makes the high Amish
scores in arithmetic (the area in which they scored unambiguously
better than non-Amish) less impressive. “Arithmetic problem
solving,” which the Amish were good at, is different from
“arithmetic concepts,” which were not tested. But the latter skill is
113 Hostetler also compared Amish students in all types of schools (columns 1–3 in
Table 1) to non-Amish in all schools (columns 4 and 5), see Hostetler, Educational
Achievement at 235–40 (cited in note 95), but this comparison confounds the issue of school
quality with the characteristics of the students.
114 See id at 47–48.
115 Miller, Amish Academic Achievement at 112 (cited in note 55).
116 Id.
117 Hostetler and Huntington, Children in Amish Society at 90 (cited in note 9).
2012] Do Amish One-Room Schools Make the Grade? 125
most useful for doing any further work in mathematics.118 Nor were
other Iowa Tests of quantitative skills, such as interpreting graphs
and tables, included in Hostetler’s customized battery.
There was another Amish advantage of using the Iowa Tests as
they were then constituted. The Iowa Tests did not test all of the
subjects that are normally taught in elementary schools. They did not
test social studies, science, history, or geography. Teachers in Amish
one-room schools spend much less time on these subjects because
they have so many grade-levels to teach. The critical but unstated
advantage that this confers on the Amish one-room school is that
most of the students’ normal school time is spent on the subjects that
Hostetler selected for testing. Thus, the drawback of the one-room
school—the single teacher having to manage many short recitation
sessions—is offset by having the tests exclude the subjects she has
does not have time, parental permission, or personal knowledge to
teach.
The comparison of Amish one-room schools to public schools
thus appears as if both Amish (in one-room schools) and publicschool
students spent the same fraction of their time on each subject.
But the public-school kids also had to study history, social studies,
world geography, modern science, mathematical concepts, physical
education, art, and music. The more extensive curriculum of the
public schools meant that their students devoted proportionately less
time to the subjects in which both they and the Amish private school
students were tested. Amish one-room-school students thus had an
advantage in taking tests that were keyed exclusively to subjects they
studied. Figuratively speaking, public-school kids were training for
the decathlon, while the Amish one-room-school kids trained for the
pentathlon (which I take here to mean half of the decathlon events),
and it was only the pentathlon events in which both competed.119
118 For example, compare doing division with the concept of things being divisible. The
first can be done perfectly by rote memorization, but the second allows a person to take the
idea of division and apply it in other circumstances.
119 In an email of March 15, 2011 (on file with the author), Trudy Huntington, Hostetler’s
coauthor, who was then with the University of Michigan, explained that:
[b]ecause we were interested (at least I was) in whether it was possible for Amish to
successfully teach their own children, I felt it was only fair to test those subjects that were
actually being taught. As is evident there was no interest among the Amish in preparing
children for higher education. The comparison with rural public schools was to evaluate
results in those areas of education that the Amish deemed important—not to compare the
total educational preparation for higher education or for life off the farm. In those
educational areas that the Amish considered important, the Amish and the public schools
proved to be comparable.
Email from Gertrude Huntington, former professor, University of Michigan, to William
Fischel, Professor of Economics, Dartmouth College (Mar 15, 2011) (on file with author).
126 The University of Chicago Law Review [79:107
There are some other biases in the testing that favored the
Amish. Amish children often did not enter first grade until they
turned age seven, and so their eighth graders were on average older
than those in the non-Amish comparison groups.120 If modern studies
can be applied to the 1960s, children who enter first grade at an older
age have a considerable academic advantage in school.121 As
indicated in Table 1, Amish families stay in their homes (and
presumably the same schools) about 50 percent longer than non-
Amish families. Again, modern research has found that frequently
changing schools is detrimental to children’s learning.122
But these last two are minor issues compared to Hostetler’s
powerfully biased selection of schools and academic subjects to be
tested. His results do not support the claim that “[a]s judged by
education testing standards the overall performance of the Amish is
similar to that of a representative sample of rural school children in
the United States.”123 The educational testing was selected to cover
only the subjects taught intensively in Amish one-room schools; the
test administrators censored unwanted results; the sample was tiny,
irreproducible, and selected to get the better one-room schools; and
the geographic area was not “the United States” but a few vaguely
identified areas of the Midwest.
CONCLUSION: IS YODER STILL GOOD FOR THE AMISH?
Yoder did not entirely exempt the Amish from state regulations
concerning school attendance. It instead commended programs like
the Pennsylvania post-eighth-grade vocational plan, which involved
two years of home-based training in which formal classroom work
was three hours a week.124 The critical post-Yoder difference from
these previously negotiated compromises is that state educators now
know that the Amish have a powerful fallback position if officials
were to press for more formal education. Even though the Amish are
reluctant to litigate, the Yoder decision could make states leery of
pressing the Amish beyond any educational standards mentioned in
the Court’s opinion. My guess is that many state officials are grateful
not to have to play the bad cop in negotiating with the Amish. Even
120 Hostetler, Educational Achievement at 166 (cited in note 95).
121 Elizabeth Cascio and Diane Whitmore Schanzenbach, First in the Class? Age and the
Education Production Function *1 (NBER Working Paper No 13663, Dec 2007), online at
http://www.nber.org/papers/w13663 (visited Oct 25, 2011).
122 See Eric A. Hanushek, John F. Kain, and Steven G. Rivkin, Disruption versus Tiebout
Improvement: The Costs and Benefits of Switching Schools, 88 J Pub Econ 1721, 1743–44 (2004).
123 Hostetler and Huntington, Children in Amish Society at 96 (cited in note 9).
124 Yoder, 406 US at 236 & n 23.
2012] Do Amish One-Room Schools Make the Grade? 127
some previously accepted programs of post-elementary education
have fallen away.125
I would not dispute that eight years of one-room schooling was
adequate for the vision of Amish life as it existed for the first twothirds
of the twentieth century, when most Amish were farmers and
horse-powered agriculture was still economically viable. But twentyfirst-
century Amish are having to adapt to an economy in which they
must deal with technologically sophisticated employers, suppliers,
and customers.126 The Amish are resourceful and hardworking, but it
may someday occur to them that the eighth-grade ceiling on their
formal education needs to be reexamined. If this is the case, Yoder
may not be so Amish friendly. Although he was not concerned about
their lack of formal education, Donald Kraybill, Hostetler’s
successor as the leading scholar on Amish affairs, declared in an
interview that a (hypothetical) Amish attempt to establish vocational
high schools “would certainly undermine the legal decision of the US
Supreme Court in Wisconsin v. Yoder.”127
The Yoder decision itself was extraordinarily specific to the
Amish and their agrarian way of life.128 Later Supreme Court
decisions have further narrowed its precedential value, as William
Ball, the lawyer for the Amish, lamented in later writings.129 Although
the Amish are still protected by Yoder, the protection is based not on
religious liberty considerations but on parental rights, which Ball
regarded as peripheral to the case.130 Given this narrow legal
platform, the Amish and their sympathizers might reasonably fear
that increments to formal education beyond the eighth grade or a
more comprehensive elementary program could undermine Amish
self-determination in educational matters. What was once a floor on
Amish education now looks like a ceiling.
I want to gingerly suggest that Yoder may no longer be as
important in allowing the Amish to find their own educational paths.
Even if they were to depart from its apparent eighth-grade ceiling on
their education, it is unlikely that states would force them back into a
125 See Johnson-Weiner, Train Up a Child at 162 (cited in note 8).
126 See generally Donald B. Kraybill and Steven M. Nolt, Amish Enterprise: From Plows
to Profits 3 (Johns Hopkins 2d ed 2004). It should be noted, however, that Donald Kraybill and
Steven Nolt are optimistic about the ability of Amish entrepreneurs to succeed without
attending high school. See id at 202.
127 Interview with Donald Kraybill (2008), online at http://www.amishamerica.com/anamish-
america-q-and-a-with-professor-donald-kraybill (visited Oct 25, 2011).
128 406 US at 235.
129 William B. Ball, First Amendment Issues, in Kraybill, ed, Amish and the State 253, 264
(cited in note 85). On William Ball’s larger mission to promote public funding for Catholic
parochial education, see Peters, Yoder Case at 64 (cited in note 58).
130 See Ball, First Amendment Issues at 264 (cited in note 129).
128 The University of Chicago Law Review [79:107
system that necessarily culminates with high school. For one thing,
there is widespread approval by the public of the Amish, who are
now “viewed as a living part of America’s heritage.”131 One
manifestation of this is that many Amish settlements are objects of
ethnic tourism. The Amish have not sought this attention, but most
have grudgingly adapted to tourism, and a growing number profit
from the additional demand for their locally made crafts and
prepared foods.132
More important is that tourism enhances the value of an Amish
community to others in the regions where they are concentrated.
Kraybill concludes after an extended and somewhat ambivalent
discussion of tourism that “the economic value of the Amish as a
tourist attraction has greatly enhanced their bargaining power with
public officials.”133 The power comes from their willingness to “exit”
rather than exercise political or legal “voice,” to use terms made
famous by Albert Hirschman.134 Historically, the Amish have
preferred to emigrate from unfriendly jurisdictions rather than
become entangled in political institutions, and this persists to the
present. A group left Nebraska in the early 1980s over a dispute with
the state about teacher certification and milk processing standards,
declining the offer of legal counsel by Ball, the successful Yoder
attorney.135
Another reason for the decline in the importance of Yoder is the
rise of the homeschool movement. Despite the limiting language of
Chief Justice Burger’s opinion, non-Amish families who wanted to
homeschool their children rather than send them to public or
approved private schools were inspired by the notion that parental
rights could trump compulsory education statutes.136 Even though no
court case has specifically extended Yoder’s protections to
homeschoolers, the movement has grown spectacularly since 1970.137
131 Peter V. Schaeffer, Outline of an Economic Theory of Assimilation, 36 J Regional
Analysis & Pol 153, 158 (2006). The Amish were not formerly so well regarded. See Hostetler,
Amish Society at 397 (cited in note 14).
132 See Kraybill, Riddle of Amish Culture at 292 (cited in note 17).
133 Id at 293.
134 Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms,
Organizations, and States 23, 35 (Harvard 1970).
135 Dewalt, Amish Education at 42 (cited in note 29).
136 See Peters, Yoder Case at 174 (cited in note 58); Martha Minow, Keynote: Before and
after Pierce; A Colloquium on Parents, Children, Religion and Schools, 78 U Detroit Mercy L
Rev 407, 417 (2001).
137 Compare Patricia M. Lines, Homeschoolers: Estimating Numbers and Growth 1
(Office of Educational Research and Improvement, Department of Education Spring 1999),
online at http://www2.ed.gov/offices/OERI/SAI/homeschool/homeschoolers.pdf (visited Oct
25, 2011) (stating that estimates suggest that between 10,000 and 15,000 children were
homeschooled in the late 1970s), with Stacey Bielick, Kathryn Chandler, and Stephen P.
2012] Do Amish One-Room Schools Make the Grade? 129
Homeschool organizations have instead used political action to change
state laws about attendance, curriculum, and teacher qualifications
that stood in their way. Among the states that now have highly
liberalized homeschooling statutes is Wisconsin, whose formerly rigid
school laws started the controversy in Yoder.138 The political clout of
homeschoolers provides an umbrella that shields the Amish, too.139
I close with a reminder of my original mission. I wanted to show
that one-room school education is not an adequate substitute for
multiroom elementary schools for children who expect to go to high
school. The early twentieth-century high school movement caused
the consolidation of the tens of thousands of one-room school
districts. The voters who accepted this did so for a good reason, not
because bureaucrats forced it on them. One-room schools could not
reliably stream children into secondary education. The Amish cling
to them for that very reason.
Broughman, Homeschooling in the United States: 1999 4 table 1 (Office of Educational
Research and Improvement, Department of Education July 2001), online at
http://nces.ed.gov/pubs2001/2001033.pdf (visited Oct 25, 2011) (estimating the number of
homeschooled children at 850,000 in 1999).
138 See Robin L. West, The Harms of Homeschooling, 29 Phil & Pub Pol Q 7, 11 (2009).
139 Traditional Amish, however, usually disdain homeschooling because it does not
promote the group socialization that their one-room schools foster. See Hurst and McConnell,
Amish Paradox at 162 (cited in note 7) (describing the reactions of many Old Order Amish to
homeschoolers and noting that they see them as “dissenters” who are not fully engaged in the
community).