September 12, 2012

Defending the Religious Exemption

Scott Woodruff answers questions and assists members regarding legal issues in Virginia. He and his wife homeschooled their children. Read more >>

Some media outlets have published criticism recently of Virginia’s religious exemption statute. The criticism is not valid.

The statute has been on the books for 35 years. It works well. No change is needed. Here is a rebuttal of each point of criticism.

“Once children are exempted from public school attendance, they might get no education at all.”

It is always easy to stir up anxiety about “what ifs.” But let’s look at the reality.

In 1994, Dr. Brian D. Ray analyzed the standardized test scores of students educated under the religious exemption. He concluded: “Based on this sample of students, Virginia’s home educated students operating under the state of Virginia’s religious exemption statute are doing quite well in terms of academic achievement. In fact, on average, they score 33 to 40 percentile points higher than the national average of students tested.”

It’s not strongly religious people the commentators should be worried about. They should be worried about the profoundly secular public schools which, sadly, have turned out thousands of functionally illiterate adults.

The religious exemption law has been on the books for 35 years now. Has something happened recently to justify sudden concern? No. If it were causing any actual problem—as opposed to hand-wringing over “what ifs”—it would have shown during those 35 years.

People of strong religious faith have historically been some of the most highly motivated to educate their children. Indeed, history will reflect that people of religion were the leading edge of the literacy movement precisely because it was so important for them that their children be able to read the Bible independently. It still is.

There is no empirical reason to doubt that students under the religious exemption are receiving a satisfactory education. The empirical evidence available to us indicates religiously exempt students score way ahead of others on standardized tests. Let’s focus on that reality.

“The religious exemption violates Virginia’s Constitution.”

A commentator has suggested that the Virginia Constitution gives a child a right to an education and that the child’s right to an education is violated when school board exempts the child from public school attendance. If this commentator had tried to make this argument to a judge, he would have been booted unceremoniously out of court. It simply doesn’t hold water.

Because children are citizens, they enjoy many rights under the Virginia and United States constitutions, including the right to freedom of religion and freedom of association. However, until they reach adulthood, their parents are the custodians of those rights. The parent, not the child, determines how the child’s rights will be exercised, just as if it were a custodial bank account. If a child wants to attend the church down the street, but his parents forbid him, the issue is over. The parent gets to decide how the child’s right to worship will be exercised, not the child.

Likewise, the parent, not the child, gets to decide how the child’s right to an education will be exercised. If the parent wishes to waive the child’s right to a public school education, the parent has the authority to do that. The religious exemption statute simply implements one way a parent, on behalf of his child, can waive the right to a public education. This does not violate the Virginia Constitution; it honors it.

“The religious exemption statute needs to be changed because schools have no idea how to implement it.”

Local school boards have a significant amount of discretion in deciding what procedures to adopt to implement the religious exemption. It allows flexibility for school boards to try various approaches and then adjust their policies based on the results.

A number of years ago, many school boards held full-fledged hearings—almost like a trial—any time anyone requested a religious exemption. But as time went on, they realized that this was not a wise use of resources. It was extremely rare for a parent to request a religious exemption who did not actually deserve it, so conducting a hearing was simply a waste of time and money.

Some school boards then simplified the process and simply called in the parents for a question-and-answer session in front of the school board. But school boards realized that this, too, was not a wise use of their resources. So they simplified the process and instructed their attorney to question the parents instead. But as time went on, they realized this was also a waste of money.

Through trial and error, most school boards have adopted a policy something like this: if the parents submit in writing a good-faith explanation that public school attendance would violate their religious convictions, and there is no reason to doubt their sincerity, the school board grants the exemption. If the school board has some reason to question the parent’s sincerity, they may require additional supporting information, or even require something like a formal hearing.

This flexibility allows school boards to adjust to various circumstances. Some school boards have adopted formal policies for processing religious exemption requests; others have not. When mistakes are made, they generally get corrected before a lot of time and expense are invested. I speak from my experience in representing families seeking the exemption during the past 14 years.

School boards implement a variety of procedural approaches to the religious exemption, but this is a strength of the statute, not a weakness.

A commentator suggested that school boards appear to routinely violate the statute. The argument is based exclusively on the observation that school systems use a wide variety of procedural approaches to implementing the statute. The argument is false. When a statute gives administrative discretion, evidence of a wide variety of implementation practices is hardly proof that a school system is violating the law.

“School boards almost never ask the children themselves what they believe.”

This is a correct observation, and also a correct implementation of the statute. The statute does not require that a religious objection be based exclusively on faith. It can be based on “training or belief.” If a parent has religious objections to public school attendance, and he is training his child in the same beliefs, the child is entitled to the religious exemption by virtue of his training.

It is very important that the statute reads “training or belief” rather than “training and belief.” If the latter were the case, it would be necessary, arguably, to question every single child about his personal faith during the process. However, the Virginia legislature has wisely avoided this awkward situation by allowing a child’s training to satisfy the law. It is therefore not necessary for school boards to ask individual children what they believe so long as the parents confirm that they are training the child’s in the same beliefs that they themselves hold.

The use of “or” rather than “and” is not a mere accident. Virginia’s religious exemption statute was drawn nearly verbatim from the federal statute that allows conscientious objectors to be exempt from military service. The federal statute used the phrase “training and belief.” The Virginia legislature intentionally switched to “or belief” when adapting this language for Virginia’s own exemption.

The commentator who criticized school boards for not interrogating children about their faith failed to understand the significance of the word “training” in the statute.

“School boards almost never deny exemption requests.”

Having personally assisted literally hundreds of families obtain a religious exemption, I can testify that it virtually never happens that a family who doesn’t deserve the exemption asks for it. School boards almost never deny the request because folks who don’t deserve it almost never request it.

School boards are not afraid to deny the exemption in an appropriate case. Our organization has represented several families whose exemptions were denied.


Virginia has always been a leader in protecting religious freedom. Our religious exemption statute is an example of our leadership in this incredibly important area. It demonstrates that we highly value the consciences of people of faith.

The empirical evidence indicates that parents provide an excellent education to their children after receiving a religious exemption. The statute gives school boards significant flexibility on procedural issues so local conditions can be considered.

A child’s right to an education is always in the hands of his parents. It respects our constitutional values to allow parents to decide whether child a should attend public school or obtain an exemption.

As we have already noted, the religious exemption statute has served us well for 35 years. No changes are needed.