Perhaps this will also be responsive to Bill's question about the approach
to Sherbert suggested by Rick:
If the student says, "I want an exemption from all field trips, because it
is against my religion to go on field trips," Sherbert strict scrutiny is
not triggered just because the school grants (or has in place an
individualized system for considering granting) students exemptions from
particular field trips for nonreligious reasons. Strict scrutiny would be
triggered if the school grants (or at least has in place an individualized
system for considering granting) students exemption from *all* field trips
for nonreligious reasons. The existence of nonreligious exemptions would
only, I think, under Rick's approach to Sherbert, require the granting of
religious exemptions of the same magnitude.
On a related note, in the Philadelphia (?) police case involving the no
beards policy (I'm at home and don't remember the case name), the police
granted an exemption for undercover officers. That exemption did not
undercut the supposed purpose of the policy--uniformity of appearance of
officers so that the public can identify them quickly. Undercover officers
are not supposed to be identifiable! But the exemption for medical needs of
uniformed officers did have a similar effect on the purposes of the policy
that a religious exemption would have. Thus the granting of the medical
exemptions triggered application of Sherbert to the claim for a religious
exemption. Another way of looking at this is that an "exemption" that does
not undercut the purpose of a policy is not an exemption at all but rather
just part of the definition of the policy. Of course that point is not
original with me.
Mark Scarberry
Pepperdine
-----Original Message-----
From: Rick Duncan
To: Law & Religion issues for Law Academics
Sent: 3/13/04 8:48 AM
Subject: Re: Individualized Exemption Process
Bill: I'm not sure I understand your question, but
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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