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 > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get > password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ===== 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 __________________________________ Do you Yahoo!? Yahoo! Mail - More reliable, more storage, less spam http://mail.yahoo.com _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw