I am very sympathetic to a strong version of
the Sherbert "individualized determinations" doctrine as articulated in
Smith, Lukumi and lower-court cases. (I think FOP v.
Newark involves a somewhat different, but related, issue, namely,
nonindividualized but categorical secular exemptions that have no
religious counterpart.) In the (hypothetical) case of the California
mission field trip, however, the application of the rule is probably not so
simple.
Rick argues that the religious exemption must be
granted if the school "has an individualized
process for exemptions. For example, if the school allows students to miss a
field trip if they are sick, or to attend the funeral or wedding of a close
relative, it must grant a religious exemption or pass strict scrutiny under
Sherbert." Perhaps that's correct, if
the only question were the student's absence from the field trip
itself. But presumably the school would require the sick student, or the
student attending the wedding, to somehow "make up" for the absence,
by learning the curricular materials, or performing the necessary tasks, in
another fashion, or at another time. Some (but not all) religious
objections, however, are of parents who do not wish their children to be exposed
to the materials at all -- i.e., they seek an opt-out from the
curricular requirement. Mozert is, of course, the most famous
example. (I have no idea whether this describes any objection to the
mission field trip hypo.) If the school does not generally grant
secular opt-outs from satisfaction of the curricular requirement itself -- and
presumably it doesn't in the examples Rick gives -- then neither the
Sherbert "individualized determinations" doctrine nor the FOP v.
Newark "categorical exemptions" doctrine will be of much help to the
religious objector.
----- Original Message -----
From: "Rick Duncan" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
Sent: Saturday, March 13, 2004 11:48
AM
Subject: Re: Individualized Exemption
Process
> I'll answer based upon what I think you are asking.
>
> The generally applicable rule in a case like this is
> "all students must attend the field trip" or, as in
> Axson-Flynn, "all students must participate in all
> acting class exercises." If the school enforced these
> rules against everyone, there would be no problem.
> But, of course, whoever made the rule also has the
> power to waive it, and most schools and bureaucracies
> have some ad hoc process for individualized
> exemptions. You can go to the teacher or the principal
> or some administrator and say "my sister is getting
> married on that day, can I miss" or "my father died
> and I have to attend his funeral" or "I've got the flu
> and I have to stay home and rest."
>
> Suppose the school grants one or more of those
> individualized requests for a waiver, but then refuses
> to grant a waiver to a student whose reason for the
> excusal is based upon a religious objection ("the
> field trip is on Good Friday so I can't go" or "I have
> a religious objection to visiting this particular
> site").
>
> Under Sherbert as transfigured in Smith and Lukumi,
> "where a State has in place a system of individual
> exemptions, it may not refuse to extend that system to
> cases of religious hardship without compelling
> reason." This doctrine applies when the state has set
> up a process that lends itself "to individualized
> governmental assessment of the reasons for the
> relevant conduct." In Sherbert, for example, the
> Employment Security Commission was in the business of
> making individualized assessments to determine whether
> an applicant's refusal of work was for "good cause."
> When it denied Ms. Sherbert's request for a "good
> cause" exemption, strict scrutiny was properly applied
> because of the individualized exemption process (or so
> speaketh the Court in Smith and Lukumi).
>
> To trigger strict scrutiny under Sherbert as it exists
> today, a claimant need only show:
>
> 1. that an individualized exmption process is in place
> to assess whether an applicant's reasons constitute
> "good cause" for an exemption (or demonstrate a
> "hardship" or "special circumstances" justifying an
> exemption or waiver);
>
> 2. that at least one "good cause" or "hardship" or
> "special circumstances" exemption has been garnted in
> the past; and
>
> 3. that the applicant's request for a
> religiously-motivated "good cause" or "hardship" or
> "special circumstances" exemption has been rejected.
>
> If the applicant make this showing, the case is
> covered by the new Sherbert test, and strict scrutiny
> applies. Indeed, it is arguable that the applicant is
> required to show only #1 and #3 above (i.e the mere
> existence of an individualized exemption process plus
> denial of the applicant's claim for a religious
> exemption is enough to trigger strict scrutiny).
>
> The idea is that the risk of discrimination against
> religious claimants is very high when the process
> involves an ad hoc subjective assessment of whether
> the claimant's reasons are "good" or "special."
>
> I am currently working on a short article on Sherbert
> and individualized exemptions, and it is a very
> interesting issue to think about.
>
> When I first suggested that Mike Paulsen argue
> Sherbert in Axson-Flynn, he was pretty skeptical. But
> the more he thought about it, the more he liked it.
> Most universities and public schools have these kinds
> of discretionary systems for waivers from various
> rules and requirements. If such a system exists, a
> person seeking a waiver based upon his or her religion
> has a very strong argument that the exemption must be
> granted unless the school has a compelling
> justification for its refusal.
>
> Cheers, Rick Duncan
>
>
>
> --- Bill Funk <[EMAIL PROTECTED]> wrote:
> > Those of you who have read these cases, can you
> > clarify whether the
> > strict scrutiny is triggered whenever a religious
> > exemption is denied or
> > when an exemption is denied because the request for
> > it is religiously
> > based? That is, if a school, for example, denied a
> > particular request
> > for a religiously based exemption because this
> > particular request,
> > whether or not it was based on religious reasons,
> > would not qualify for
> > an exemption under their generally applicable rules
> > (perhaps because it
> > was for too long a period or because a particularly
> > required class would
> > be missed), would that denial trigger strict
> > scrutiny? Or, is strict
> > scrutiny triggered only when the school says, we
> > give exemptions for
> > dentists' and doctors' appointments and various
> > other things, but not
> > for religious studies?
> > Bill Funk
> >
> > _______________________________________________
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>
>
> =====
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> "When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone." C.S.Lewis
>
> "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
>
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