This is impressionistic and not based on a systematic survey, but home
schoolers lost most of their cases challenging restrictions on home
schooling. For better or worse, courts said Yoder was only about the Amish.
Home schoolers won their battle in most states politically, through the
legislature or through continued pressure on the relevant state agencies.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 02, 2015 1:00 AM
To: Law & Religion issues for Law Academics
Subject: Homeschooling, vaccinations, and Yoder
I agree that homeschooling is a possible constraint on the
effectiveness of schooling-based immunization, though given the burdens of
homeschooling, I'm not sure how many people's homeschooling choices are
going to be driven primarily by vaccination preferences.
But can you elaborate, please, on Yoder leading to
"unregulated home schooling"? As I read Yoder, it authorized an exemption
from schooling - with no requirement for further study, no requirement of
passing various tests, etc. -for ages 14 and up, and pretty strongly
suggested that no exemption from schooling would be available for materially
younger children. Most homeschoolers, especially those who homeschool in
the prime vaccination years, wouldn't really get the benefit of Yoder as
such.
More broadly, I don't think there's much in Yoder that suggests that any
exemption regime has to be "virtually unregulated." And
http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and
http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the big
surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well
after Yoder. It certainly may be the case that there is such a strong
causal link, but I'd just like to hear a little more about it.
Eugene
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Sunday, February 01, 2015 9:27 PM
To: d...@crab.rutgers.edu <mailto:d...@crab.rutgers.edu> ; Law & Religion
issues for Law Academics
Subject: RE: Vaccine objectors
one thought on Marty's point 1. The number of children being home schooled
is huge. If the vehicle for requiring immunization is schooling then many
people will avoid the mandate by opting out of schools. Virtually
unregulated home schooling is one of the consequences of Yoder.
*************************************************
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (p)
518-605-0296 (c)
paul.finkel...@albanylaw.edu <mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com <http://www.paulfinkelman.com/>
*************************************************
_____
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane
[d...@crab.rutgers.edu]
Sent: Sunday, February 01, 2015 11:15 PM
To: Law & Religion issues for Law Academics
Subject: Re: Vaccine objectors
Marty,
I agree with # 1, except in states that might have a particularly robust
state free exercise doctrine.
I also agree with # 2.
The issue with respect to # 3, though, is this: What if it turns out that
an exemption regime limited to actual religious objections (and not
"personal" ones) did not produce serious third-party burdens because the
number of kids left unvaccinated would not be enough to compromise "herd
immunity"?
Such a regime would, I believe, be constitutional. But it does raise at
least a question for folks who (a) argue that "religion is not special," (b)
it is generally unfair to limit exemption regimes to folks with religious
motives, and (c) the best remedy to such unfairness should generally be to
"level up" to include deep non-religious beliefs rather than "level down" to
eliminate exemptions entirely.
Perry
On 02/01/2015 10:38 pm, Marty Lederman wrote:
I'm a bit confused as to which question Perry and Sandy (and Doug?) are
discussing. To break it down a bit for clarification:
1. It would be perfectly constitutional for the state to require everyone
to be vaccinated; a fortiori, vaccination can be made a condition of
attending school. That's basically what the Second Circuit case is about;
and of course it's correct.
2. It would also be perfectly constitutional for the state to exempt any
children whose parents have a "personal" objection to immunization,
religious or otherwise. The only question as to those exemption laws is one
of policy -- and I'd hope that recent events cause state legislatures to
seriously consider repealing such exemptions.
3. But if a state chooses to exempt people only for religious reasons, that
raises not only a policy question (which is the one I intended to raise in
starting this thread -- should other states follow MS and WV in refusing to
grant even religious exemptions?), but also a serious Establishment Clause
question, in light of the third-party burdens (those borne by the children
who are not immunized as well as the children who are made more susceptible
to disease). I haven't checked in a while, but I believe no court has ever
held such religious exemptions unconstitutional except where they
discriminate among religions. I am inclined to say that they are
unconstitutional even where not discriminatory; but the case law does not,
as far as I know, yet support that view.
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