by Christopher J. Klicka
As homeschooling continues to grow, so does the number of parents who teach their children at home under religious exemption. However, religious exemption is not for everyone.
This section will help you understand the provisions allowed under Virginia law for parents with sincere religious convictions.
The availability of a religious exemption from public school attendance is guaranteed by law in Virginia Code §22.1-254. The Code states:
B. A school board shall excuse from attendance at school:
1. Any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school. For purposes of this subdivision, the term bona fide religious training or belief does not include essentially political, sociological or philosophical views or a merely personal moral code.
It is the school board itself, not the superintendent or any other administrator, who is charged with the duty of excusing those who are entitled to the benefit of the statute. The statute does not permit a school board to insist that a parent submit a particular form as a condition to receiving the benefit of the statute. The statute does not permit a school board to compel a family to submit annual requests. Once the excuse is granted, it is in effect indefinitely. Furthermore, once the excuse has been granted, it is applicable in any other Virginia county to which the family may relocate. This is because the school board acts as the agent of the state in granting the excuse, and the excuse is in relation to state law, not merely county policy.
Section 22.1-254(H)(5) states that children who are excused under the religious exemption above are excused from all provisions of the compulsory attendance law, including the homeschool requirements of §22.1-254.1. Families who are excused need not file an annual notice of intent or a year-end assessment.
To wrongly prohibit a family from operating their homeschool according to their convictions not only would violate §22.1-254(B)(1) but also would violate their First Amendment right to freely exercise their religious beliefs. [See Wisconsin v. Yoder, 406 U.S. 205, (1972); State v. Whisner, 47 Ohio St. 2d 181, 351 N.E. 2d 750 at 761, (1976); and Sherbert v. Verner, 374 U.S. 398, (1963).] The intent of §22.1-254(B)(1) of the Virginia Code is to protect the right of families to freely exercise their religious beliefs in the context of educating their children.
II. Three Areas of Inquiry
The first issue is whether the parents’ opposition to public school attendance is based on personal religious beliefs as opposed to merely political, sociological or philosophical views or a merely personal moral code. The second issue is whether the parents’ religious beliefs concerning the education of their children are bona fide or sincere. The third issue relates to the children themselves. The statute grants a right to an excuse to any pupil, who together with his parents, by reason of bona fide religious training OR belief, is conscientiously opposed to attendance at school. The use of the word “or” was an intentional change from the federal law (see below) on which the Virginia statute was based which required religious training AND belief. With this purposeful change from “and” to “or”, it is clear that parents have a statutory option to either (1) allow their child to personally express his or her religious belief; or (2) demonstrate that they are training their children to be conscientiously opposed to attendance at public school. If parents so choose, they can decide to only give evidence as to their child’s religious training instead of having the child try to express his or her religious belief. As long as the parents teach their children the same religious beliefs as they themselves hold, the children need not describe their beliefs.
If a school board finds that a particular family satisfies these three criteria, the board shall excuse their children. This is not discretionary; it is a mandatory legal duty. Several key cases and an attorney-general opinion must be followed by the board each time they determine whether a family’s beliefs are religious and bona fide.
When drafting the religious exemption statute in 1950, the Virginia Legislature used the same (nearly identical) language that was used two years earlier in the federal Universal Military Training and Service Act of 1948. Section 6(j) of that act [50 USC App. 456(j)] provides a religious exemption from military service for conscientious objectors. It states in part that persons who by reason of their religious training and belief are conscientiously opposed to participation in war are exempt from combatant training and service in the armed forces of the U.S. Because of the very close relationship between the federal conscientious exemption and Virginia’s exemption, court decisions construing the federal exemption are commonly used to shed light on Virginia’s exemption.
The federal exemption defines the phrase “religious training and belief” as an individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but not including essentially political, sociological, or philosophical views or a merely personal moral code. In U.S. v. Seeger, 380 U.S. 163 (1965), the U.S. Supreme Court defined the phrase “religious training and belief” (the same language used in §22.1-254(B)(1)) to mean a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God (Seeger, 380 U.S. 176). The Court further declared,
Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.
Id., at 176. The Court also explained that a belief is not religious if it is essentially political, sociological, or philosophical or based merely on a personal moral code. The Court explained that “ a merely personal moral code” means one which is only personal and which is the sole basis for the individual’s belief, and which is in no way related to a Supreme Being. Based on this holding, we understand that a family’s beliefs are “religious” when their entire belief system is dependent on a supernatural God and His revelation.
The U.S. Supreme Court has offered some guidelines on determining whether an individual’s religious beliefs are sincere or bona fide. In Thomas v. Review Board, 450 U.S. 707, (1980), the Court stated religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection (Id. at 714). Furthermore, in U.S. v. Ballard, 322 U.S. 78 (1944), the Court declared in applying the Free Exercise Clause, courts may not inquire into the truth, validity, or reasonableness of a claimant’s religious beliefs. Also according to the U.S. Supreme Court in Hobbie, the timing of one’s religious beliefs are irrelevant and immaterial.
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 (1987).
Furthermore, it is important to emphasize (as the Attorney General also emphasized below), that the First Amendment also protects personal religious convictions which are not held by the all members of the particular religious sect. The Court ruled that they must allow for intrafaith differences because:
The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.
Thomas v. Review Board, 450 U.S. 707, 715-716 (1981).
A family is entitled to the exemption even if their convictions are not supported by a tenet or doctrine of their church or denomination. In Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989), the U.S Supreme Court held that in order for a religious belief to be legitimate or bona fide, the religious belief may be personal rather than mandated by a church. The Court held that whether or not the individual’s church formally supports the religious belief held by the individual is irrelevant in determining the legitimacy of that religious belief (489 U.S. at 833).
This case involved a man (Frazee) who, although not part of any particular church or denomination, claimed he was a Christian and that his religious convictions prohibited him from working on Sunday. He refused a job that would have required him to work on Sunday. When he applied for unemployment, his application was denied because the Illinois unemployment agency had a policy that would not recognize personal religious beliefs, but only religious beliefs that were based on a tenet of a church or denomination. The U.S. Supreme Court ruled that Frazee’s personal beliefs were legitimate and protected by the First Amendment. As a result, Frazee was permitted to collect unemployment. The Court held:
Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but 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.
489 U.S. at 834.
The Court emphasized that a person’s religious beliefs can be bona fide and legitimate even though they are not supported by any particular church tenet. Personal religious beliefs are bona fide and are protected by the U.S. Constitution and Virginia Code §22.1-254(B)(1).
Several earlier cases involved conscientious objectors who were members of religious organizations where the beliefs in question were held in common, but the Frazee Court clarified those cases:
It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief.
103 L Ed 2d at 919.
A Virginia state court case, Commonwealth of Virginia v. Foreman, Fifteenth Judicial District, June 5, 1987, relied on several Supreme Court free-exercise rulings in reaching a decision on a religious-exemption case. In that case, the local school board wrongfully denied the family’s religious exemption. The District Court overturned the school board and granted the exemption.
In essence, §22.1-254(B)(1) is nothing more than an acknowledgment by the Commonwealth of Virginia that it has no jurisdiction over the educational program of families who have sincerely held, bona fide religious convictions opposed to public school attendance. This is very similar to the legal status of private schools in the Commonwealth, which the state has no authority to regulate.
One comment needs to be made concerning the relation between the homeschool law and the religious exemption statute. The homeschool law (§22.1-254.1), which was passed in 1984—over 30 years after the religious exemption statute—was not meant to replace the religious exemption or to make the religious exemption more difficult to obtain. The sponsor of the homeschool law, Delegate Dillard, has stated under oath that in sponsoring the law, he had no intention whatsoever of requiring families seeking the exemption to prove anything more than what was required before passage of the new homeschool law. This is confirmed in the homeschool statute itself, in §22.1-254.1(D), which states that nothing in this section shall prohibit a pupil and his parents from obtaining an excuse from school attendance by reason of bona fide religious training or belief pursuant to §22.1-254(B)(1). This was further confirmed in Johnson v. Prince William County, 404 S.E.2d 209 (Va. 1991). Although the Virginia Supreme Court ruled 4 to 3 that the Johnson’s beliefs were philosophical rather than religious, the Court unanimously ruled that the sole test is the bona fides of their religious beliefs (404 S.E.2d at 211 and 214). The Court condemned portions of two attorney general opinions that improperly required families seeking a religious exemption to prove that homeschooling and private schooling does not accommodate their religious beliefs (Id. at 211 and 212). The Court said the sole test is whether public school attendance violates the family’s bona fide religious beliefs.
Furthermore, the Johnson Court explained that the state’s interest in seeing that children are educated is not permitted to be a factor in deciding whether an exemption should be confirmed. The inquiry and consideration of a school board can proceed no further than religious beliefs. The Court held that, in the context of a religious objection, the state waived its interest in the education of a child by enacting the religious exemption statute.
Although the Johnsons lost at the appellate level, they subsequently reapplied for a religious exemption. On the second application, the Prince William County School Board properly applied the religious-exemption statute in accordance with the Johnson case, and the exemption was granted.
In Dusan v. Cumberland County School Board (Chancery No. 2102, Cumberland County Circuit Court, September 15, 1993), the school board denied the Dusans’ request in a 2-to-1 decision without any reason. The Dusans appealed to the Circuit Court, and Judge Snoddy reversed the denial, finding that the School Board’s decision was arbitrary and an abuse of its discretion. The Cumberland County Circuit Court relied heavily on the fact that the family had submitted affidavits from pastors and letters from friends who vouched for the fact that their beliefs were religious and sincere. Since the record showed the Board had no evidence to the contrary, the Court ruled in favor of the Dusans.
The Attorney General Opinion of November 18, 1988 emphasizes that religious beliefs, in order to be bona fide, do not need to be part of the form of worship of a particular sect. (See p. 2 of the Attorney General Opinion of November 18, 1988.) In fact, “there is no legal requirement . . . that a . . . religious belief meet organizational or doctrinal tests in order to qualify for constitutional protection” (Id. p.2). Furthermore, the Attorney General states:
A believer’s articulation of his religion should not be dissected and rejected simply because it is not as sophisticated as it might be, nor should interfaith differences determine what is a religious belief and what is merely a personal philosophical belief [Thomas v. Review Brd.,450 U.S. 707 at 715]. The guarantee of free exercise is not limited to beliefs which are shared by all members of a religious sect. Id. at 715-16.
Id. p. 2.
It is irrelevant whether other people in the family’s church believe differently concerning the education of their children.
Educational “monitoring” is not allowed. The opinion states:
Under the provisions of Section 22.1-256(A)(4) [now 22.1-254(H)(5)], however, the General Assembly has provided a complete exemption from compulsory school attendance for a child excused on religious grounds. It is my opinion, therefore, that a school system lacks the authority to monitor the educational growth of a child through regular testing . . .
In other words, only the religious beliefs can be examined, not the educational progress. This assertion is consistent with §22.1-254(H)(5), which exempts families with religious exemptions from all the other compulsory attendance requirements, including testing. The Attorney General also declares:
There can be no question that local school boards must respect a bona fide religious objection to school attendance made by parents on behalf of their children. Parents have the right to direct the religious growth of their children, and there are no facts presented that would outweigh this parental right.
Id. p. 4.
VII. Who is a “parent”?
Logically, only those under a statutory obligation have any need for an excuse or exemption. According to §22.1-254.A, the group of persons who have a duty to comply with the compulsory-attendance statute are: “Every parent, guardian, or other person in the Commonwealth having control or charge of any child… .” It would be logical to define the group of persons entitled to an excuse or exemption in exactly the same way as the group under the obligation is defined. This is precisely what the Virginia legislature has done by including a definition of “parent” in §22.1-254.1.D as follows:
D. For purposes of this section, “parent” means the biological parent or adoptive parent, guardian or other person having control or charge of a child.
Therefore, the person or persons who are entitled to the religious exemption are the same persons who would otherwise be under obligation to comply with the compulsory-attendance statute. To determine who may request a religious exemption, we need only look at who could be charged with a violation of the compulsory-attendance statute. In a non-traditional or one-parent family, the parent or other person having actual control or charge of the child is entitled to the benefit of the statute.
All of the above authorities point to a single conclusion. If parents express a sincere religious belief that they would be disobeying God to send their children to public school, the school board must grant them a religious exemption. Courts will reverse school boards that fail to perform their statutory duty in this regard. The major consideration of the Board is to determine whether the parents’ religious objections to public school attendance are genuine or fraudulent. If the beliefs are genuine and bona fide, the family shall be granted a religious exemption. Neither the logic of that religious belief nor the timing of that religious belief can be considered. Nor can the church membership of the parents be considered.
The school board cannot consider whether it believes religious exemptions in general are a good idea, whether the board thinks the parents will do a good job teaching their children, or whether they believe homeschooling in general is a good idea. The school board cannot consider whether the family’s religious beliefs can be accommodated in any other manner. A school board is not permitted to insist that a particular form be filled out as a precondition.
The vast majority of school boards in Virginia handle religious exemptions as an administrative matter, without a hearing, making a decision simply upon a family’s submission of documents establishing their bona fide religious beliefs. A letter from a parent can establish his or her religious beliefs. An affidavit from a pastor or religious expert can suffice to establish that the beliefs are “religious.” Letters from individuals who know the family can establish the sincerity of the beliefs. Nonetheless, a parent may establish that their beliefs are sincere and religious with only their own statement.
The Virginia legislature has determined that where parents have sincere religious convictions against placing their children in public school, it is more important to respect those religious convictions than to require compliance with the compulsory attendance statute. The legislature has delegated to local school boards the administration of compulsory-attendance exemptions. It is not, however, the prerogative of a school board to second-guess the wisdom of the legislature. A board’s duty is to apply the law in an objective, even-handed manner consistent with precedents.
© Christopher J. Klicka, Senior Counsel of the Homeschool Legal Defense Association. This paper was originally presented in 1989 to the Virginia Association of School Board Attorneys.