Curriculum Excusal for Religious Students


While it would be inappropriate for The Rutherford Institute to provide you with legal

advice at this time, we have reviewed the current materials relating to your inquiry and are

pleased to provide the following comments and information which we hope you find useful.


The content of school curriculum decisions is largely a matter left to the discretion of

the states. However, to some degree these decisions can be shaped by national trends.


There is an inherent tension between the interest of the state in educating its future

citizens and the interest of parents in shaping the development and education of their

children. Parents of public school children may object to particular curriculum requirements

due to their personal and religious values.i A parent's right to control his/her child's

education is supported by common law notions and constitutional precedents.ii


Since the turn of the century, state courts have supported the parents' right to have

their children excused from objectionable instruction in the classroom.iii A child may be

excused as long as such excusal does not hinder the efficiency and good order of the

schools or interfere with the rights of other students.iv Through the years, students have

been excused from many different types of classes, including family education classes, for

religious reasons.v


The Supreme Court has found that the Due Process Clause of the Fourteenth

Amendment also includes a parent's right to direct the education of one's The Free

Exercise Clause of the Constitution has been used to obtain excusal of Amish students

from compulsory school attendance laws.vii Although this decision is probably limited

because of the unique facts of the case,viii the Court found that the purposes of compulsory

education could not override the Amish way of life and the free exercise of the Amish

religion, which limits education to the eighth grade.ix Additionally, public schools cannot

require students to act against their religious beliefs; if a school's regulation has a coercive

effect, accommodation for religious objectors is proper.x


The government may only burden Free Exercise where it has a compelling interest.xi

Nonetheless, some courts have ruled that school board policies and required courses that

run afoul of parents' religious beliefs are unconstitutional only to the extent that the

required courses or policies serve no legitimate educational purpose.xii One federal

appellate court has even held that mere exposure to offensive ideas where a student is not

required to affirmatively act against his or her beliefs is an insufficient reason for excusal in

Free Exercise challenges.xiii


Several courts have recently construed educating children about AIDS to battle the

spread of the disease and other health-related issues to be sufficient state interests.xiv In

Alfonso v. Fernandez,xv a New York appellate court ruled that condom distribution was a

health service, separate from the basic educational mission of the school.xvi The court's

determination was based upon an understanding that condom distribution was intended to

stop the spread of HIV infection and effectuate disease prevention, rather than to simply

educate students regarding the proper use, risks and benefits of condoms.xvii In this New

York jurisdiction, since the school-based distribution of condoms is a health service outside

the scope of education, such distributions are subject to the same requirements that

govern other medical services, namely parental consent.xviii


In general, excusal of children from objectionable instruction is a matter of

cooperation between parents, administrators, and teachers.xix




i. See Hirschoff, Parents and the Public School Curriculum: Is There a Right to Have One's

Child Excused from Objectionable Instruction?, 50 S. Cal. L. Rev. 871, 875 (1977).

ii. Id. at 885.

iii. Id. at 886.

iv. See Hardwick v. Board of School Trustees, 54 Cal. App. 696, 205, p. 49 (1921)

(objection to dancing exercises); Trustees of Schools v. People, 87 Ill. 303 (1877)

(objection to grammar instruction); Rulison v. Post, 79 Ill. 567 (1875) (objection to

bookkeeping class); and Morrow v. Wood, 35 Wis. 59 (1874) (objection to geography

lessons). See also School Bd. Dist. #18 v. Thompson, 24 Okla. 1 (1909) (holding that a

parent's request for excusal is presumed reasonable without need for justification).

v. See Citizens for Parental Rights v. San Mateo Co. Board of Education, 51 Cal. App. 3d

1, 124 Cal. Rptr. 68 (1975); Medeiros v. Kuyosaki, 52 Haw. 436, 478 P.2d 314 (1970);

Epperson v. Arkansas, 393 U.S. 97 (1968).

vi. Meyer v. Nebraska, 262 U.S. 390 (1923).

vii. Wisconsin v. Yoder, 406 U.S. 205 (1972).

viii. See Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420 (N.Y. 1989). See also

Hirschoff, supra note 1, at 902-3, and Yoder, 406 U.S. at 235, indicating that Yoder may

only apply to organized religious groups.

ix. Id.

x. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (ruling that

ordinance requiring Jehovah's Witnesses to salute American flag was unconstitutional

restraint on Free Exercise).

xi. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981).

xii. Davis v. Page, 385 F.Supp. 395 (D.N.H. 1974).

xiii. Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th. Cir. 1987), cert. denied 484

U.S. 1066 (1988).

xiv. See Ware, 550 N.E.2d at 167 (holding that AIDS education did not admonish children's

religious beliefs because it serves a greater state interest in disease prevention); Citizens

for Parental Rights, 124 Cal.Rptr. at 68 (ruling that noncompulsory health courses did not

impinge free exercise); Smith v. Ricci, 446 A.2d 501 (N.J. 1982) (holding that family

education programs are not unconstitutional if they include opt-out provisions no

penalties with excusal). See also Parents United for Better Schools, Inc. v. School

District of Phil. Bd. Of Educ., 149 F.3d 260 (3rd Cir. 1998).

xv. 195 A.D.2d 46, 606 N.Y.S.2d 259 (A.D. 2 Dept. 1993).

xvi. 195 A.D.2d at 52, 606 N.Y.S.2d at 263.

xvii. Id. See also Larry Witham, Lawsuits Grow as Schools Pass Out Condoms, Wash. Times,

May 24, 1992, at A3. The article contains an excellent quote from Rutherford Institute

regional coordinator Dave Melton, "Giving a condom to a child is an act which goes beyond

the role of an educator . . . It inevitably entangles the school and the child with and issue

which is, at its core, both religious and ethical and is an invitation to liability."

xviii. Id.

xix. See Hirschoff, supra note 1, at 876, n. 14.