If I remember correctly, in Texas the tipping point was a court decision, Leeper v. Arlington, in which the court recognized home schools as private schools under Texas law.
Richard Dougherty On Mon, Feb 2, 2015 at 9:56 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > 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. > -- Richard J. Dougherty, Ph.D. Chairman, Politics Department University of Dallas 1845 E. Northgate Drive Irving, TX 75062 972-721-5043
_______________________________________________ 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.
