I did very similar research for a piece I wrote in the B.U. L. Rev. in 1987, and found exactly the same thing -- courts very much resisted extending Yoder into a general right to home school. They distinguished Yoder based on age of the children and character of the relevant religious community (recall the emphasis in Yoder on Amish self-reliance over a long period of time). Legislatures and agencies did the work of extending the right to home school to a much broader population.
On Mon, Feb 2, 2015 at 10:50 AM, Berg, Thomas C. <tcb...@stthomas.edu> wrote: > Neal Devins’s article in the George Washington Law Review (1992 I think) > documents this dynamic: home-schoolers losing in court after *Yoder* but > then prevailing in legislature and agencies. > > > > ----------------------------------------- > > Thomas C. Berg > > James L. Oberstar Professor of Law and Public Policy > > University of St. Thomas School of Law > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2015 > > Phone: (651) 962-4918 > > Fax: (651) 962-4996 > > E-mail: tcb...@stthomas.edu > > SSRN: http://ssrn.com/author=261564 > > Weblog: http://www.mirrorofjustice.blogs.com > <http://www.mirrorofjustice.blogs.com/mirrorofjustice> > > > ---------------------------------------------------------------------------- > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Doug Laycock > *Sent:* Monday, February 02, 2015 8:31 AM > *To:* 'Law & Religion issues for Law Academics' > *Subject:* RE: Homeschooling, vaccinations, and Yoder > > > > 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 > <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 > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Finkelman, Paul > *Sent:* Sunday, February 01, 2015 9:27 PM > *To:* 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 > > www.paulfinkelman.com > > ************************************************* > ------------------------------ > > *From:* 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. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
