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 sch
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 suic
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 Nint
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
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 legislato
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 c
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
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 instruct
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
Marty,
I think the analysis has a lot of similarities whether the question is framed
as (a) what religious exemptions (if any) should a legislature grant to
vaccination laws or (b) what exemptions might be required under a Free Exercise
Clause analysis. My point was simply to question whether a
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 part
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
wha
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 indep
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
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) applic
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 o
Dear colleagues-
I wanted to share with the members of this group that my new book--The Myth of
the Cultural Jew: Culture and Law in Jewish Tradition--is now out and available
on Amazon (http://amzn.to/15f7bLH), Barnes & Noble, and of course the Oxford
University Press website. I am deeply gra
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
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 va
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
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 Christiani
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 vaccinati
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 wrote:
> I did very similar research for a piece I wrote in th
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 (r
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 Poli
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
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