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3/30/2010 5:00:59 PM
Home School Legal Defense Association
Virginia--Why the Suspended Policy Is Out Of Bounds

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From the HSLDA E-lert Service...
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Virginia--Why the Suspended Policy Is Out Of Bounds

Dear HSLDA Members and Friends in Warren County:

We appreciate the school board's decision promptly to suspend the
erroneous March 11 religious exemption policy.

There are a number of problematic issues in the March 11 policy. But
here is some additional background for those interested in
understanding why three policy features, in particular, are legally
out of bounds.

The March 11 policy required a family to prove that religious
exemption was the only way to protect their religious convictions --
that neither operating under the home instruction statute, enrolling
their children a private school, nor hiring a tutor would protect
their convictions.

But this flies in the face of a 1991 Virginia Supreme Court decision.
In Johnson v. Prince Willliam County School Board, a case handled by
HSLDA's beloved Chris Klicka, the Prince William County School Board
argued that the Johnsons were not entitled to the religious exemption
if some other lawful form of education would accommodate their
beliefs. But the Virginia Supreme Court rejected that argument. The
Court said, "We will agree with the Johnsons that the sole test is the
bona fides [good faith] of their religious beliefs." The Court
repudiated parts of several Virginia Attorney General opinions that
said the opposite. Because of this court case, it is not lawful for a
school board to force a family to prove that no other form of
education would protect their beliefs.

The March 11 policy said the school board could allow its decision to
be influenced by how the parents' beliefs "compared to those generally
held by members of the religious organization to which they belong."

But the idea that religious freedom should only be protected if a
person's beliefs line up with the teachings of a religious entity has
at least twice been rejected by the U.S. Supreme Court. In 1981, the
Court said, "The guarantee of free exercise is not limited to beliefs
which are shared by all of the members of a religious sect." The
Court said that it was not up to judges to determine whether this
person or that person " ... more correctly perceived the commands of
their common faith." Thomas v. Review Board, 450 U.S. 707, 715-716.

And in 1989, the U.S. Supreme Court said, "We reject the notion that
to claim the protection of the Free Exercise clause, one must be
responding to the commands of a particular religious organization."
Frazee v. Illinois Department of Employment Security, 489 U.S. 829,
834.

The March 11 policy said the school board could allow its decision to
be influenced by whether a parent's belief is "merely a social
response to changing times."

But the religious exemption statute does not allow a school board to
favor or disfavor religious beliefs based on where they came from. The
concurring justices in the Johnson case disapproved of a school board
creating a test more stringent than the religious exemption statute
itself. Furthermore, In 1987 the U.S. Supreme Court said " ... so long
as one's faith is religiously-based at the time it is asserted, it
should not matter, for constitutional purposes, whether that faith is
derived from revelation, study, upbringing, gradual evolution, or some
source that appears entirely incomprehensible." Hobbie v. Unemployment
Appeals Commission, 480 U.S. 136, 144 n.9.

The March 11 policy said the school board could allow its decision to
be influenced by whether "the belief, if contested, would change."

But according to the Virginia Supreme Court in the Johnson case, the
only test is the bona fides (good faith, or sincerity) of a person's
beliefs. The religious exemption statute does not require a person to
prove that his beliefs would never change in the future. Adding this
requirement would create a more stringent test than the religious
exemption statute itself. And according the U.S. Supreme Court in the
Hobbie decision, if one's faith is religiously-based "at the time it
is asserted," that should be sufficient. The religious exemption
statute is concerned only with one's present beliefs.

Thank you for standing with us for freedom!

Sincerely Yours,

Scott A. Woodruff, Senior Counsel

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