Yoder Revisited: Why the Landmark Amish Schooling Case Could—And Should—Be Overturned

Note — Volume 97, Issue 3

97 Va. L. Rev. 681
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Wisconsin v. Yoder is a case in which the United States Supreme Court held that Amish children could not be compelled by the state to attend school past eighth grade, as this would violate their parents’ Free Exercise rights. This Note asserts that Yoder is an obsolete opinion that is ripe for overturning. 

The Supreme Court takes into account four stare decisis factors when reconsidering a prior decision. It considers (1) whether the factual circumstances have evolved in such a manner “as to have robbed the old decision of significant application or justification,” (2) whether the decision is subject to reliance interests that would create “special hardships or inequities” if it were overruled, (3) whether “related principles of law have so far developed as to have left the old decision no more than a remnant of abandoned doctrine,” and (4) whether the decision has proven to be unworkable.

This Note holds that the Yoder decision does not hold up under these considerations. It contends that (1) the factual assumptions that underpin Yoder are no longer accurate and that recent changes have undermined the decision, (2) that the Yoder exemption is not subject to reliance interests that would create “special hardships or inequities” if it were overturned, (3) that the Court’s ruling in Employment Division v. Smith has leftYoder a relic of abandoned doctrine, and (4) that the “hybrid-rights” theory that Yoder’scontinued applicability rests on is unworkable. 

The Note concludes that because Yoder fails each of the four stare decisis tests, the decision should be overturned.

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  Volume 97 / Issue 3  

Participatory Democracy and Free Speech

By Robert Post
97 Va. L. Rev. 477

Participatory Democracy as the Central Value of American Free Speech Doctrine

By James Weinstein
97 Va. L. Rev. 491

Is Democracy a Sound Basis for a Free Speech Principle?

By C. Edwin Baker
97 Va. L. Rev. 515

Democratic Participation and the Freedom of Speech: A Response to Post and Weinstein

By Vincent Blasi
97 Va. L. Rev. 531