Re: Homeschooling, vaccinations, and Yoder
Penn Teller illustrate the value of vaccinations. http://www.kevinmd.com/blog/2015/01/watch-2-magicians-destroy-anti-vaccine-movement-90-seconds.html -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org “It’s not the note you play that’s the wrong note – it’s the note you play afterwards that makes it right or wrong.” Miles Davis ___ 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.
Re: Homeschooling, vaccinations, and Yoder
The idea that state legislators, faced with home schooling questions, are reflecting on the best reading of Pierce, Yoder, or the Constitution (and which parts of that would they be reading?) strikes me as spectacularly fanciful. If they cared about what legal research disclosed (rather than what their constituents, supporters, or the Board of Ed wants, and why), they would know that many decisions have interpreted Pierce and Yoder as NOT requiring a right of home schooling, and that no decisions have held the opposite. They might be attentive to what other states have done, but not to any constitution-based reasons that might explain that. On Mon, Feb 2, 2015 at 4:34 PM, Paul Horwitz phorw...@hotmail.com wrote: Of course, it is also possible that these legislators believe that it *is* unconstitutional to heavily regulate homeschooling, either because it's the best reading of Yoder and Pierce going forward (and given the premise that those decisions leave the point unresolved), or because they are independently obliged to read and follow the Constitution and believe this is what its best reading demands. Even if one believes that the Court has the last word on constitutional questions, no one need believe it has the only word. Sent from my iPad On Feb 2, 2015, at 2:25 PM, Hillel Y. Levin hillelle...@gmail.com wrote: 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. ___ 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.
Re: Homeschooling, vaccinations, and Yoder
I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they *could* form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they *have*. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html On Mon, Feb 2, 2015 at 4:44 PM, Ira Lupu icl...@law.gwu.edu wrote: The idea that state legislators, faced with home schooling questions, are reflecting on the best reading of Pierce, Yoder, or the Constitution (and which parts of that would they be reading?) strikes me as spectacularly fanciful. If they cared about what legal research disclosed (rather than what their constituents, supporters, or the Board of Ed wants, and why), they would know that many decisions have interpreted Pierce and Yoder as NOT requiring a right of home schooling, and that no decisions have held the opposite. They might be attentive to what other states have done, but not to any constitution-based reasons that might explain that. On Mon, Feb 2, 2015 at 4:34 PM, Paul Horwitz phorw...@hotmail.com wrote: Of course, it is also possible that these legislators believe that it *is* unconstitutional to heavily regulate homeschooling, either because it's the best reading of Yoder and Pierce going forward (and given the premise that those decisions leave the point unresolved), or because they are independently obliged to read and follow the Constitution and believe this is what its best reading demands. Even if one believes that the Court has the last word on constitutional questions, no one need believe it has the only word. Sent from my iPad On Feb 2, 2015, at 2:25 PM, Hillel Y. Levin hillelle...@gmail.com wrote: 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. ___ 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. -- 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
Re: Homeschooling, vaccinations, and Yoder
Once again: What question are we asking? I thought we were discussing what exemptions, if any, a legislature should enact (or, more to the point, repeal). And surely it'd be ridiculous for a legislature to craft an exemption limited to minors who promise they'll never have sex. Will, on the other hand, appears to be arguing that if a legislature refuses to enact a religious exemption -- as only West Virginia and Mississippi do today -- then a religious objector ought to be able to obtain an exemption *from a court* anyway, presumably under the Free Exercise Clause. A nonstarter, I think. On Mon, Feb 2, 2015 at 3:21 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I much appreciate Will’s responses; let me offer some in turn. Will writes: (a) When you say you agree that the vaccination analysis might vary by specific vaccine, I assume you mean that the government might have a harder time proving a compelling governmental interest for some vaccines versus others when trying to argue against a religious exemption. That analysis could vary based upon (i) how effective the vaccine is (for instance, the HPV vaccine only provides protection against 2 of the approximately 40 HPV viruses, although those 2 appear to account for about 70% of the reported cervical and anal cancers related to HPV - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ); (ii) how contagious the disease is / how it spreads; and (iii) the seriousness of the effects of the disease (i.e. likelihood of death or serious long-term health consequences for those affected). I think we are in agreement on this point, but would appreciate the confirmation. I think items (ii) and (iii) are the most important ones. Item (i) would be important, I think, only as to vaccines that are of very low effectiveness. Even if a vaccine is effective only in some cases, requiring it can still be justified on the theory that some protection is better than none (especially if that some protection can materially slow the spread of the disease). (b) The question I was raising with regard to the priest / nun hypothetical was whether the proposed action or inaction of the party seeking a religious exemption would (or should) affect the analysis in any way. Using the MMR vaccine as an example, I can see the government saying that the actions or inactions of the religious objector are irrelevant because children can be exposed to the MMR viruses at all times regardless of what the parents or children otherwise do (i.e. there is no realistic way in our society to prevent exposure to a virus that spreads through nose, throat and mouth droplet transmission). However, that same argument does not work as well with regard to HPV. After all, as the government admits: The surest way to eliminate risk for genital HPV infection is to refrain from any genital contact with another individual. *See* Item 3 - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ) If a religious objector says, I've got a less restrictive way to deal with the problem, i.e. avoidance of extra-marital sexual activity, does the government get a pass on its burden by arguing that Everyone's doing it and we think you will too, no matter what you tell us? Well, why not, especially if that religious objector is 13 at the time? “Everyone’s doing it, and we think there’s a strong likelihood that many of those who say they won’t nonetheless will, no matter what they tell us” strikes me as quite a sensible argument – not a pass on the government’s burden, but rather the government discharging its burden. It doesn’t even have to be “we think you will too,” in the sense that “we believe there’s a 50% chance that you in particular will have sex at one point, notwithstanding your assurance that you will never have sex.” It suffices, I think, that the government can show that many 13-year-olds who say they’ll become priests or nuns will nonetheless end up having sex, whether before, during, or after (or instead of) their membership in a religious order. Eugene ___ 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. ___ 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
RE: Homeschooling, vaccinations, and Yoder
I much appreciate Will’s responses; let me offer some in turn. Will writes: (a) When you say you agree that the vaccination analysis might vary by specific vaccine, I assume you mean that the government might have a harder time proving a compelling governmental interest for some vaccines versus others when trying to argue against a religious exemption. That analysis could vary based upon (i) how effective the vaccine is (for instance, the HPV vaccine only provides protection against 2 of the approximately 40 HPV viruses, although those 2 appear to account for about 70% of the reported cervical and anal cancers related to HPV - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ); (ii) how contagious the disease is / how it spreads; and (iii) the seriousness of the effects of the disease (i.e. likelihood of death or serious long-term health consequences for those affected). I think we are in agreement on this point, but would appreciate the confirmation. I think items (ii) and (iii) are the most important ones. Item (i) would be important, I think, only as to vaccines that are of very low effectiveness. Even if a vaccine is effective only in some cases, requiring it can still be justified on the theory that some protection is better than none (especially if that some protection can materially slow the spread of the disease). (b) The question I was raising with regard to the priest / nun hypothetical was whether the proposed action or inaction of the party seeking a religious exemption would (or should) affect the analysis in any way. Using the MMR vaccine as an example, I can see the government saying that the actions or inactions of the religious objector are irrelevant because children can be exposed to the MMR viruses at all times regardless of what the parents or children otherwise do (i.e. there is no realistic way in our society to prevent exposure to a virus that spreads through nose, throat and mouth droplet transmission). However, that same argument does not work as well with regard to HPV. After all, as the government admits: The surest way to eliminate risk for genital HPV infection is to refrain from any genital contact with another individual. See Item 3 - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ) If a religious objector says, I've got a less restrictive way to deal with the problem, i.e. avoidance of extra-marital sexual activity, does the government get a pass on its burden by arguing that Everyone's doing it and we think you will too, no matter what you tell us? Well, why not, especially if that religious objector is 13 at the time? “Everyone’s doing it, and we think there’s a strong likelihood that many of those who say they won’t nonetheless will, no matter what they tell us” strikes me as quite a sensible argument – not a pass on the government’s burden, but rather the government discharging its burden. It doesn’t even have to be “we think you will too,” in the sense that “we believe there’s a 50% chance that you in particular will have sex at one point, notwithstanding your assurance that you will never have sex.” It suffices, I think, that the government can show that many 13-year-olds who say they’ll become priests or nuns will nonetheless end up having sex, whether before, during, or after (or instead of) their membership in a religious order. Eugene ___ 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.
Re: Homeschooling, vaccinations, and Yoder
Eugene,
Your points are well taken and mirror the argument I would expect the
government to make. Let me follow up with two points / questions to push on
the larger issue a bit:
(a) When you say you agree that the vaccination analysis might vary by specific
vaccine, I assume you mean that the government might have a harder time proving
a compelling governmental interest for some vaccines versus others when trying
to argue against a religious exemption. That analysis could vary based upon
(i) how effective the vaccine is (for instance, the HPV vaccine only provides
protection against 2 of the approximately 40 HPV viruses, although those 2
appear to account for about 70% of the reported cervical and anal cancers
related to HPV -
http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ); (ii) how
contagious the disease is / how it spreads; and (iii) the seriousness of the
effects of the disease (i.e. likelihood of death or serious long-term health
consequences for those affected). I think we are in agreement on this point,
but would appreciate the confirmation.
(b) The question I was raising with regard to the priest / nun hypothetical was
whether the proposed action or inaction of the party seeking a religious
exemption would (or should) affect the analysis in any way. Using the MMR
vaccine as an example, I can see the government saying that the actions or
inactions of the religious objector are irrelevant because children can be
exposed to the MMR viruses at all times regardless of what the parents or
children otherwise do (i.e. there is no realistic way in our society to prevent
exposure to a virus that spreads through nose, throat and mouth droplet
transmission). However, that same argument does not work as well with regard
to HPV. After all, as the government admits: The surest way to eliminate risk
for genital HPV infection is to refrain from any genital contact with another
individual. See Item 3 -
http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ) If a
religious objector says, I've got a less restrictive way to deal with the
problem, i.e. avoidance of extra-marital sexual activity, does the government
get a pass on its burden by arguing that Everyone's doing it and we think you
will too, no matter what you tell us?
I recognize that the HPV vaccine may be an outlier on this, but I think it
provides good material to try to figure out where the boundaries are in this
debate over vaccinations and religious exemptions.
I look forward to your thoughts.
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
From: Volokh, Eugene vol...@law.ucla.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Monday, February 2, 2015 1:34 PM
Subject: RE: Homeschooling, vaccinations, and Yoder
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{}#yiv7149436468 I agree that the vaccination analysis might
well vary, in some situations, by the specific vaccine involved. But I’m not
sure that the priest/nun hypothetical really illustrates that. One can
intend to be a priest or nun, but people are notoriously fallible (I believe
Christianity has a thing or two to say about that), and have been known to
lapse despite their best intentions. Plus of course priests and nuns sometimes
deliberately leave the religious life, and 14-year-olds who intend to become
priests and nuns sometimes change their mind before they can actually join.
Now, to be sure, HPV spread (like HIV spread) disproportionately
stems from those who have more sexual partners than from those who have fewer.
But it’s very hard for the government to know with any confidence
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 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)
RE: Homeschooling, vaccinations, and Yoder
Many have viewed Yoder as offering no education after 8th grade. But the Court viewed the Amish as providing appropriate vocational education after 8th grade. 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 4:19 PM To: Law Religion issues for Law Academics Subject: RE: Homeschooling, vaccinations, and Yoder 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 [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
Re: Homeschooling, vaccinations, and Yoder
Of course, it is also possible that these legislators believe that it *is* unconstitutional to heavily regulate homeschooling, either because it's the best reading of Yoder and Pierce going forward (and given the premise that those decisions leave the point unresolved), or because they are independently obliged to read and follow the Constitution and believe this is what its best reading demands. Even if one believes that the Court has the last word on constitutional questions, no one need believe it has the only word. Sent from my iPad On Feb 2, 2015, at 2:25 PM, Hillel Y. Levin hillelle...@gmail.com wrote: 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. ___ 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.
RE: Homeschooling, vaccinations, and Yoder
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.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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
Re: Homeschooling, vaccinations, and Yoder
The California case is (on its own terms) a terrible statutory interpretation decision. It came about after the same court initially interpreted the california statute to prohibit homeschooling. There was a massive public outcry and a huge amount of political pressure brought on the court. So the court reheard the case and used this convoluted constitutional avoidance argument to find in favor of homeschooling. If I recall correctly, the family in this case hadn't really made a credible free exercise type claim! If anyone wants the earlier ruling, I've got it (but I can't send it on the listserv). And I do my best to rehabilitate the court's second opinion in my article here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677689 I think I offer a better defense of the court's decision than the constitutional avoidance claim, but I'm not sure it is actually convincing. On Mon, Feb 2, 2015 at 5:49 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Very interesting, and thanks very much! The Michigan case does indeed rely on *Yoder*, in holding that the statutory requirement that the homeschooling parents be certified instructors was unconstitutional, as to parents who had a religious objection to providing certified instructors. (“Because the DeJonges' faith professes ‘that parents are the ones that are responsible to God for the education of their children,’ they passionately believe that utilizing a state-certified teacher is sinful.”) The California decision is very odd, though, and makes me wonder how it fits with the general body of religious exemption law: The sole United States Supreme Court case directly addressing home education concluded that members of the Old Order Amish religion possessed a constitutional right to exempt their children from Wisconsin’s compulsory education law after the eighth grade. (Wisconsin v. Yoder (1972) 406 U.S. 205 (Yoder).) While the facts in Yoder are clearly different from the facts in this case, we recognize that, if we interpret California’s compulsory education law to prohibit home schools unless taught by a credentialed teacher, California’s statutory scheme would present the same constitutional difficulties as the scheme in Yoder if *applied to similarly-situated parents* to the Old Order Amish. In other words, if the Yoder parents were subject to California’s compulsory education law (and without taking into account any issue with respect to a required curriculum – see fn. 35, post), the law would be unconstitutional as to them if home schools were not private schools, but the constitutional difficulty would disappear under the interpretation that home schools may be private schools. As such, the interpretation we adopt avoids the constitutional difficulty. The point of religious exemption law, as I understand it, is that a generally applicable statute can be generally constitutional, but courts should carve out religious exemptions for the rare cases when a religious exemption is both claimed and justified. Reading a statute to avoid constitutional problems in the rare case brought by “similarly-situated parents to the Old Order Amish” – as opposed to just saying that those similarly-situated parents would get religious exemptions if they claimed them – seems to be a misreading of *Yoder *and religious exemption law more broadly. Or am I mistaken on this? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, February 02, 2015 2:15 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Homeschooling, vaccinations, and Yoder I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they *could* form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they *have*. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
RE: Homeschooling, vaccinations, and Yoder
But isn’t the central question protecting “free exercise” when there are arguably significant third-party consequences? Inevitably, we return to the problem at the heart of Mill’s On Liberty: Can we really identify a category of acts that do not inflict harm on third parties. What about suicide? For many of us, that would be a quintessential example, so that the state has no interest in trying to prevent suicide by competent adults. But for others, suicide is not only immoral, but also a grievous harm inflicted on survivors. Or that old standby, religious sacrifice. Why not, at least if those being sacrificed, perhaps like suicide bombers, accept their demise in the name of a higher calling? Ditto with regard to adult bigamy? Marci, I know, believes that women are harmed by the practice. What if one begs to disagree and wants more evidence of specifiable harms? But re vaccinations, at least if we’re talking about contagious diseases, it’s altogether easy to figure out the potential harm. So some take refuge in statistics—the harm isn’t that likely, even if it’s costs are great in the unlikely event that it is suffered—or in straight-out balancing: the harm isn’t that great and should be willingly accepted as the relatively small price to pay for protecting religious freedom. But how does this square, say, with the employment accommodation cases (is the right cite Thornton?), where, as I recall, people aren’t not allowed to generate costs to third parties if they refuse to work on religiously-freighted days (as against the duty of the employer, which I don’t object to, to try to work out accommodations by eliciting voluntary day shifting and the like). sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Monday, February 02, 2015 6:11 PM To: Law Religion issues for Law Academics Subject: RE: Homeschooling, vaccinations, and Yoder Legislators and others might also think that people have rights beyond those set out in the Constitution or provided for even on a fair reading of the Constitution – rights that ought to be respected by government even though the Constitution does not require that they be respected. Cf. the Ninth Amendment. To the extent that the state and federal constitutions permit legislators to recognize such rights, they can of course do so. (Of course states can recognize rights in their own constitutions beyond those provided for in the federal constitution, again, so long as such recognition doesn’t violate the federal constitution.) Consider, e.g., Eugene’s argument for permissibility of legislative accommodation of religious exercise, and consider both federal and state RFRAs. I do have difficulty with the notion that religious exercise can’t to some degree be protected qua religious exercise, given the specific recognition in the 1st Am of the right to free exercise of religion. Even a legislator who thinks the Smith decision is right as an interpretation of the demands made by the Constitution might think that the policies behind the Free Exercise clause or the importance of religious liberty as part of what it means to be free justify special protection for exercise of religion, at least as broadly defined. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, February 02, 2015 3:49 PM To: Law Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder I think I agree with everything Paul says here, and I didn't mean to suggest naivete or anything else; I just meant to disagree with the assertion that I understood Paul to be making. In particular, I agree that if you asked many state legislators--and especially those who favor homeschooling for personal or political reasons--they will honestly tell you that they believe that the state cannot conscript their children into schools (public or otherwise) without giving parents some rights to homeschool. In my view, they are certainly wrong as a federal constitutional matter. But I do think they believe it, as do many parents who homeschool. (Indeed, this is part of my argument in the paper I linked to.) On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz phorw...@hotmail.commailto:phorw...@hotmail.com wrote: I have no complaint about the way Hillel puts things below. I had no complaint, as such, about the way he put things the first time. And I could think of much worse things to be accused of than naiveté. But I should like to defend myself to a certain extent. Of course I understand that legislators are motivated by politics! I would have hoped it was obvious that I did. And of course I understand that one could think of more suitable parties than legislators when thinking
RE: Homeschooling, vaccinations, and Yoder
Very interesting, and thanks very much! The Michigan case does indeed rely on Yoder, in holding that the statutory requirement that the homeschooling parents be certified instructors was unconstitutional, as to parents who had a religious objection to providing certified instructors. (“Because the DeJonges' faith professes ‘that parents are the ones that are responsible to God for the education of their children,’ they passionately believe that utilizing a state-certified teacher is sinful.”) The California decision is very odd, though, and makes me wonder how it fits with the general body of religious exemption law: The sole United States Supreme Court case directly addressing home education concluded that members of the Old Order Amish religion possessed a constitutional right to exempt their children from Wisconsin’s compulsory education law after the eighth grade. (Wisconsin v. Yoder (1972) 406 U.S. 205 (Yoder).) While the facts in Yoder are clearly different from the facts in this case, we recognize that, if we interpret California’s compulsory education law to prohibit home schools unless taught by a credentialed teacher, California’s statutory scheme would present the same constitutional difficulties as the scheme in Yoder if applied to similarly-situated parents to the Old Order Amish. In other words, if the Yoder parents were subject to California’s compulsory education law (and without taking into account any issue with respect to a required curriculum – see fn. 35, post), the law would be unconstitutional as to them if home schools were not private schools, but the constitutional difficulty would disappear under the interpretation that home schools may be private schools. As such, the interpretation we adopt avoids the constitutional difficulty. The point of religious exemption law, as I understand it, is that a generally applicable statute can be generally constitutional, but courts should carve out religious exemptions for the rare cases when a religious exemption is both claimed and justified. Reading a statute to avoid constitutional problems in the rare case brought by “similarly-situated parents to the Old Order Amish” – as opposed to just saying that those similarly-situated parents would get religious exemptions if they claimed them – seems to be a misreading of Yoder and religious exemption law more broadly. Or am I mistaken on this? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, February 02, 2015 2:15 PM To: Law Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they could form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they have. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html ___ 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.
Re: Homeschooling, vaccinations, and Yoder
, in the constitutional interpretive community. -- From: hillelle...@gmail.com Date: Mon, 2 Feb 2015 17:14:40 -0500 Subject: Re: Homeschooling, vaccinations, and Yoder To: religionlaw@lists.ucla.edu I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they *could* form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they *have*. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html ___ 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.
RE: Homeschooling, vaccinations, and Yoder
Legislators and others might also think that people have rights beyond those set out in the Constitution or provided for even on a fair reading of the Constitution – rights that ought to be respected by government even though the Constitution does not require that they be respected. Cf. the Ninth Amendment. To the extent that the state and federal constitutions permit legislators to recognize such rights, they can of course do so. (Of course states can recognize rights in their own constitutions beyond those provided for in the federal constitution, again, so long as such recognition doesn’t violate the federal constitution.) Consider, e.g., Eugene’s argument for permissibility of legislative accommodation of religious exercise, and consider both federal and state RFRAs. I do have difficulty with the notion that religious exercise can’t to some degree be protected qua religious exercise, given the specific recognition in the 1st Am of the right to free exercise of religion. Even a legislator who thinks the Smith decision is right as an interpretation of the demands made by the Constitution might think that the policies behind the Free Exercise clause or the importance of religious liberty as part of what it means to be free justify special protection for exercise of religion, at least as broadly defined. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, February 02, 2015 3:49 PM To: Law Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder I think I agree with everything Paul says here, and I didn't mean to suggest naivete or anything else; I just meant to disagree with the assertion that I understood Paul to be making. In particular, I agree that if you asked many state legislators--and especially those who favor homeschooling for personal or political reasons--they will honestly tell you that they believe that the state cannot conscript their children into schools (public or otherwise) without giving parents some rights to homeschool. In my view, they are certainly wrong as a federal constitutional matter. But I do think they believe it, as do many parents who homeschool. (Indeed, this is part of my argument in the paper I linked to.) On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz phorw...@hotmail.commailto:phorw...@hotmail.com wrote: I have no complaint about the way Hillel puts things below. I had no complaint, as such, about the way he put things the first time. And I could think of much worse things to be accused of than naiveté. But I should like to defend myself to a certain extent. Of course I understand that legislators are motivated by politics! I would have hoped it was obvious that I did. And of course I understand that one could think of more suitable parties than legislators when thinking about consistent, thoughtful, serious attempts to understand and follow the Constitution. (Mind you, on reflection I'm not sure who, exactly: not this or most Presidents, for instance; not this or most Congresses; I'm not all that certain I'd put every academic student of the Constitution in that category either. Military officers, maybe.) I did have a point in offering my comment, but it was not the result of some belief, fanciful or otherwise, that legislators are paragons of seriousness in interpreting the constitution. The point is that, if those cases are open on this issue--and I did not make an assertion about that one way or the other; I took it as a premise for purposes of responding to Hillel--then legislators are entitled, and indeed obliged, to make their own decision about what the federal Constitution, and/or their state constitution, requires with respect to homeschooling. It would not surprise me if they did not take this duty especially seriously, of course. I would add that although I am fine with most of Hillel's response, I would part ways slightly on one thing. It would not surprise me--to the contrary, it would surprise me if it were never the case--if there are some legislators, and specifically some who are ardent supporters of homeschooling, who are strongly convinced that there is a constitutional right to homeschool and that it includes the right to be substantially unregulated. They may be totally wrong; they certainly would be engaged in extremely motivated reasoning, as everyone else does; and they certainly ought to be aware of the political gains that would be involved in taking such a position. But, given that this is a culture war issue for this constituency, I would be surprised if some of them hadn't actually become convinced of the constitutional rightness of their position. Of course I understood the point of Hillel's comment to be primarily, if not purely, descriptive. But it seemed to me that if we were going to talk
Re: Homeschooling, vaccinations, and Yoder
My colleague Fred Schauer has just published a new book suggesting that neither politicians nor most Americans care what the law is. They comply only when there is a realistic prospect of sanctions. Discouraging, but there it is. Which is why I also teach Remedies. An overview of Fred's book is here: http://www.law.virginia.edu/html/news/2015_spr/force-of-law.htm On Mon, 2 Feb 2015 21:52:52 + Levinson, Sanford V slevin...@law.utexas.edu wrote: For what it’s worth, I agree completely with Chip. Although he’s obviously a first-rate lawyer, he is also channeling in this message the finding of most political scientists, i.e., that legislators care far, far more about being re-elected and remaining in good graces with their political party than with what courts might say several years down the pike. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Homeschooling, vaccinations, and Yoder
I have no complaint about the way Hillel puts things below. I had no complaint, as such, about the way he put things the first time. And I could think of much worse things to be accused of than naiveté. But I should like to defend myself to a certain extent. Of course I understand that legislators are motivated by politics! I would have hoped it was obvious that I did. And of course I understand that one could think of more suitable parties than legislators when thinking about consistent, thoughtful, serious attempts to understand and follow the Constitution. (Mind you, on reflection I'm not sure who, exactly: not this or most Presidents, for instance; not this or most Congresses; I'm not all that certain I'd put every academic student of the Constitution in that category either. Military officers, maybe.) I did have a point in offering my comment, but it was not the result of some belief, fanciful or otherwise, that legislators are paragons of seriousness in interpreting the constitution. The point is that, if those cases are open on this issue--and I did not make an assertion about that one way or the other; I took it as a premise for purposes of responding to Hillel--then legislators are entitled, and indeed obliged, to make their own decision about what the federal Constitution, and/or their state constitution, requires with respect to homeschooling. It would not surprise me if they did not take this duty especially seriously, of course. I would add that although I am fine with most of Hillel's response, I would part ways slightly on one thing. It would not surprise me--to the contrary, it would surprise me if it were never the case--if there are some legislators, and specifically some who are ardent supporters of homeschooling, who are strongly convinced that there is a constitutional right to homeschool and that it includes the right to be substantially unregulated. They may be totally wrong; they certainly would be engaged in extremely motivated reasoning, as everyone else does; and they certainly ought to be aware of the political gains that would be involved in taking such a position. But, given that this is a culture war issue for this constituency, I would be surprised if some of them hadn't actually become convinced of the constitutional rightness of their position. Of course I understood the point of Hillel's comment to be primarily, if not purely, descriptive. But it seemed to me that if we were going to talk about the role played by past decisions of the Court in influencing legislators, then it was important, for both descriptive and normative reasons, to be clear that the legislators who accept the arguments on behalf of homeschooling lobbyists might conceivably, mirabile dictu, agree with them. It can't, after all, be surprising that in a country where there are people who homeschool for religious reasons, and an even larger number of people who don't but hold traditionalist religious views, a legislator might from time to time be elected who actually believes in this kind of reading of the Constitution. It's even possible that such a legislator might, at one and the same time, have both cynical political and sincere constitutional views on the matter. That is, after all, how many if not most people, of whatever political stripe, reason about the Constitution a good deal of the time. May I add that, despite our well-founded lack of faith in legislators' sincerity or seriousness about interpreting the Constitution, we often, for various reasons, act as if they are at least capable of doing so. People write letters to them, for instance, purporting to explain the law. It is possible that all such efforts are purely cynical: merely an effort to put a good face on the real work of calculating interest-group politics that is going on behind the scenes. But I would like to think that there is a bit of sincerity, or perhaps cynicism with just a bit of hopefulness and idealism mixed in, in such efforts; and I think our politics will function better in the long run if we treat those legislators as participants, however imperfect, in the constitutional interpretive community. From: hillelle...@gmail.com Date: Mon, 2 Feb 2015 17:14:40 -0500 Subject: Re: Homeschooling, vaccinations, and Yoder To: religionlaw@lists.ucla.edu I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they could form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely
Re: Homeschooling, vaccinations, and Yoder
I've gotten a little bit lost re: whether we are discussing the right to home school or the right to not have your children vaccinated against contagious disease. But I must add that the legislative support, now quite widespread, for home schooling is not limited to or focused on those who home school for religious reasons. Many parents choose to home school for quite secular reasons -- they lack confidence in the public schools, and they cannot afford and/or dislike the private school options they have. The 1980's lobbying for home school laws certainly included folks like Michael Farris and the Home School Legal Defense Association, but the coalition became and still is much broader than that. So if legislators are thinking in constitutional terms, those terms are most likely parents' rights, not free exercise. This is why I asked what part of the Constitution Paul or anyone else thought that legislators were reading (hard to find parents' rights in the document, though not hard to find them in the decisional law). As to Sandy's reference to third party harms as a limit on free exercise claims, the decision he is referring to is Estate of Thornton v. Caldor, holding that the Establishment Clause (not just harms to third parties as a competing interest) limits the shifting of burdens of compliance with religious norms (there, Sabbath observance). A number of participants on this list were quite vocal about the force that Caldor should have played (but didn't) in the Hobby Lobby litigation; for whatever institutional or other reasons it may have had, the Department of Justice never argued Hobby Lobby in Establishment Clause terms (even as it did argue that women's interests in access to contraceptives would be compromised if Hobby Lobby prevailed). And, whatever happens in the long run, female employees and female dependents of all employees, of Hobby Lobby have indeed been deprived of insurance coverage for the contraceptives in dispute. Those are quite specific third party harms. Sorry for wandering so far off the thread, but Sandy's post invited this. On Mon, Feb 2, 2015 at 8:25 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: But isn’t the central question protecting “free exercise” when there are arguably significant third-party consequences? Inevitably, we return to the problem at the heart of Mill’s *On Liberty*: Can we really identify a category of acts that do not inflict harm on third parties. What about suicide? For many of us, that would be a quintessential example, so that the state has no interest in trying to prevent suicide by competent adults. But for others, suicide is not only immoral, but also a grievous harm inflicted on survivors. Or that old standby, religious sacrifice. Why not, at least if those being sacrificed, perhaps like suicide bombers, accept their demise in the name of a higher calling? Ditto with regard to adult bigamy? Marci, I know, believes that women are harmed by the practice. What if one begs to disagree and wants more evidence of specifiable harms? But re vaccinations, at least if we’re talking about contagious diseases, it’s altogether easy to figure out the potential harm. So some take refuge in statistics—the harm isn’t that likely, even if it’s costs are great in the unlikely event that it is suffered—or in straight-out balancing: the harm isn’t that great and should be willingly accepted as the relatively small price to pay for protecting religious freedom. But how does this square, say, with the employment accommodation cases (is the right cite Thornton?), where, as I recall, people aren’t not allowed to generate costs to third parties if they refuse to work on religiously-freighted days (as against the duty of the employer, which I don’t object to, to try to work out accommodations by eliciting voluntary day shifting and the like). sandy *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Scarberry, Mark *Sent:* Monday, February 02, 2015 6:11 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Homeschooling, vaccinations, and Yoder Legislators and others might also think that people have rights beyond those set out in the Constitution or provided for even on a fair reading of the Constitution – rights that ought to be respected by government even though the Constitution does not require that they be respected. Cf. the Ninth Amendment. To the extent that the state and federal constitutions permit legislators to recognize such rights, they can of course do so. (Of course states can recognize rights in their own constitutions beyond those provided for in the federal constitution, again, so long as such recognition doesn’t violate the federal constitution.) Consider, e.g., Eugene’s argument for permissibility of legislative accommodation of religious exercise, and consider both federal and state RFRAs. I do have
RE: Homeschooling, vaccinations, and Yoder
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.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://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.edumailto: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.edumailto: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.edumailto: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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edumailto: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
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] 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
Re: Homeschooling, vaccinations, and Yoder
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
Re: Homeschooling, vaccinations, and Yoder
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
Re: Homeschooling, vaccinations, and Yoder
One point which has not been mentioned in this thread is that homeschoolers and religious communities oftentimes object to vaccination on a vaccine specific basis, rather than an across-the-board objection to all vaccines. For instance, as various states have considered adding the HPV vaccination (http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx ), there has been substantial debate in religious communities over the necessity for a vaccination related to a sexually transmitted disease. It strikes me that the government's interest with regard to vaccinations may vary widely based upon the particular vaccination involved (i.e. the government would certainly seem to have a more compelling public health argument for vaccination of diseases which are airborne or passed by mere physical contact, whereas the argument appears far less compelling when dealing with diseases passed solely through sexual activity). After all, what would the government's compelling interest be to require HPV vaccination if a particular student stated that they intended to be a priest or nun and adhere to an oath of perpetual celibacy (or more likely, that the students simply meant to practice abstinence)? Stated another way, if vaccination is analyzed under a third party burden perspective, doesn't that analysis vary by the specific vaccine involved? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: Richard Dougherty dou...@udallas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, February 2, 2015 11:39 AM Subject: Re: Homeschooling, vaccinations, and Yoder 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 afterYoder but then prevailing in legislature and agencies. -Thomas C. BergJames L. Oberstar Professor of Law and Public PolicyUniversity of St. Thomas School of LawMSL 400, 1000 LaSalle AvenueMinneapolis, MN 55403-2015Phone: (651) 962-4918Fax: (651) 962-4996E-mail:tcberg@stthomas.eduSSRN:http://ssrn.com/author=261564Weblog:http://www.mirrorofjustice.blogs.com 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 LaycockRobert E. Scott Distinguished Professor of LawUniversity of Virginia Law School580 Massie RoadCharlottesville, 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
RE: Homeschooling, vaccinations, and Yoder
I agree that the vaccination analysis might well vary, in some situations, by the specific vaccine involved. But I’m not sure that the priest/nun hypothetical really illustrates that. One can intend to be a priest or nun, but people are notoriously fallible (I believe Christianity has a thing or two to say about that), and have been known to lapse despite their best intentions. Plus of course priests and nuns sometimes deliberately leave the religious life, and 14-year-olds who intend to become priests and nuns sometimes change their mind before they can actually join. Now, to be sure, HPV spread (like HIV spread) disproportionately stems from those who have more sexual partners than from those who have fewer. But it’s very hard for the government to know with any confidence who will have few (or no) sexual partners – regardless of whether they say they will have few (or no) sexual partners. Given this, if we think people should generally be vaccinated against some disease (because of the danger that they will spread it to others), I can’t see how there can be a vaccine exemption for people based on their claims about their sexual intentions. Also, as I understand it the HPV vaccine is generally urged for people who have not yet begun to have sex. These will generally be minors, and the objections will generally come from their parents. And a parent’s prediction of their child’s future sexual behavior (or even future religious behavior) strikes me as even less credible than the child’s prediction of his or her future sexual or religious behavior. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Monday, February 02, 2015 10:16 AM To: Law Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder One point which has not been mentioned in this thread is that homeschoolers and religious communities oftentimes object to vaccination on a vaccine specific basis, rather than an across-the-board objection to all vaccines. For instance, as various states have considered adding the HPV vaccination (http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx ), there has been substantial debate in religious communities over the necessity for a vaccination related to a sexually transmitted disease. It strikes me that the government's interest with regard to vaccinations may vary widely based upon the particular vaccination involved (i.e. the government would certainly seem to have a more compelling public health argument for vaccination of diseases which are airborne or passed by mere physical contact, whereas the argument appears far less compelling when dealing with diseases passed solely through sexual activity). After all, what would the government's compelling interest be to require HPV vaccination if a particular student stated that they intended to be a priest or nun and adhere to an oath of perpetual celibacy (or more likely, that the students simply meant to practice abstinence)? Stated another way, if vaccination is analyzed under a third party burden perspective, doesn't that analysis vary by the specific vaccine involved? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: Richard Dougherty dou...@udallas.edumailto:dou...@udallas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Monday, February 2, 2015 11:39 AM Subject: Re: Homeschooling, vaccinations, and Yoder 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.edumailto: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.edumailto: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
RE: Homeschooling, vaccinations, and Yoder
I think Yoder set the stage for exemptions from schools and for people to demand, first on religious grounds, and then on secular grounds, the right to keep their children completely out of any schools. There was a significant rise in home schooling after Yoder, although I do not have the statistics handy. (I should add that I home schooled my daughter (in 4 different states) until 8th grade, and was always shocked at how little the states did to investigate whether I was qualified to do so or what I was teaching her. In Virginia I only had to prove that I had a college degree to be allowed to home school. If I remember correctly, in Oklahoma I was not required to even tell the state I was homeschooling my child. On the other hand, in some states, home schooling is regulated and there is even mandated testing to prove the home schooling is going on and is effective. I agree that people are unlikely to home school merely to avoid vaccinations. My point is that children who are home schooled may never be vaccinated. * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] 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] 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edumailto: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
