I agree entirely that Pierce plays a very important role in
homeschooling rhetoric. If it weren’t for the result and reasoning in Pierce,
the rhetorical case for homeschooling would be much weaker. But Pierce seems
quite apt to homeschooling because it asserts a right (1) applicable to all
grades, which in turn stems from a right (2) to school children, albeit through
an alternative system, rather than a right to exempt them from academic
education (as opposed to vocational education), period. That’s very closely
connected to homeschooling.
Yoder strikes me as much more distant from homeschooling, both
because it only applies only to high-school-age students, and because it
asserts a right not to have children continue their academic education.
Homeschooling is generally billed as a more effective way of academically
educating students, or at least a comparatively effective way. So I’d like to
know more about how much of an effect Yoder has been having on the political
debate in this matter.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, February 02, 2015 12:25 PM
To: Law & Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder
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<mailto: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<tel:434-243-8546>
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto: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<tel:518-439-7296> (p)
518-605-0296<tel: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<mailto:religionlaw-boun...@lists.ucla.edu>]
on behalf of Perry Dane [d...@crab.rutgers.edu<mailto: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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--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________
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