Doug is mostly correct. The few lower court decisions on point have generally limited Yoder to the Amish (it is sometimes referred to in the cases and literature as "the Amish exception).
However, I think it is mistake to say that the legality of homeschooling across the country is purely a result of political pressure in legislatures and agencies. To be sure, there is a good deal of that going on. The pro-homeschool lobby is focused on the issue; and it is really difficult to identify any lobbying group that would counter their interests. (The story is pretty much the same with the anti-vaxers in general.) So the political story here is an important one. But the Court's decisions in Yoder and Pierce v. Society of Sisters play an important role too. Together, these cases leave the question of whether the state can prohibit or heavily regulate home schooling open, and they suggest (though do not explicitly find) a parental right of some sort. The pro-homeschooling groups make use of these cases when they lobby, leaving regulators with the impression that it might be unconstitutional to heavily regulate homeschooling. As a result--together with the political economy on the matter and the practical questions about how the state meaningfully *could* regulate homeschooling--they often throw their hands up and concede. Further, some lower courts have used Yoder and Pierce to read homeschooling protections broadly in statutory interpretation cases (applying constitutional avoidance). There was a state appellate court decision about 6 years ago in California along these lines. Finally, I wonder how courts in states that recognize strong religious freedom/parental rights but also constitutionally guarantee a free public education to every child would mediate a decision by a state to condition public schooling on vaccination. On Mon, Feb 2, 2015 at 9:31 AM, Doug Laycock <dlayc...@virginia.edu> wrote: > 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 > <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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ 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.
