Yesterday, a couple of headlines caught my eye. “Homeschooling Not a Fundamental Right, Justice Dept. Argues.” That one came from evangelical commentator Napp Nazworth. “Homeschooling Not a Fundamental Right Says Justice Department” was our old friend Joe Carter’s riff on the same theme. Both articles were inspired by a piece written by the Home School Legal Defense Association’s Michael Farris, in which he responded to the Justice Department’s brief in a case HSLDA is litigating on behalf of a German family that is seeking asylum in the United States. (All the relevant briefs can be downloaded here.)
The case involves the Romeike family, which has run afoul of Germany’s compulsory schooling laws. Alone in Western Europe, Germany offers no conscientious exemption from attending state or state-supervised schools. Homeschoolers are treated like truants–indeed, arguably worse than mere truants–with parents subjected to mounting fines, jailtime, and forcible removal of the children from the family home. Most German families that seek to homeschool their children leave the country. (Indeed, there was one such family involved in our homeschool group.)
Facing fines that exceeded their capacity to pay and would have resulted ultimately in the loss of their house (not to mention the prospect of jail and loss of parental custody), the Romeikes came to the U.S on a ninety-day visa and applied for asylum. An immigration judge in Memphis granted their request, which the Obama administration appealed to the Board of Immigation Appeals. The BIA overturned the judge’s decision, and the case is now before the Sixtn Circuit Court of Appeals, with the HSLDA arguing that the Romeike’s should be granted asylum and the Department of Justice defending the BIA’s deportation decision.
The Immigration and Nationality Act authorizes the Attorney General to grant asylum to a refugee, defined as “an alien who is unwilling or unable to return to his or her home country ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” In this case, the Obama Administration states the issues as follows:
Simply put, the issues before this Court are: first, whether the record compels the finding that Germany selectively enforces its public school attendance law, or disproportionately punishes parents who violate it, in such a way that the law is merely a pretext for persecution on account of a protected ground; and second, whether homeschoolers are a cognizable group under the INA.
With respect to the first question, the administration’s argument boils down to this: Germany requires everyone to attend school, and enforces the law against everyone (with a very few exceptions granted, for example, to families that travel). It’s not an anti-homeschooling law, but rather a compulsory school attendance law. It is generally applicable and so does not single out either homeschoolers or religiously-motivated homeschoolers for especially oppressive treatment. The administration brief also reports sympathetically a German court’s explanation of the reasoning behind the law:
The general public has a justified interest in counteracting the development of religiously or philosophically motivated “parallel socieites” and in integrating minorities in this area. Integration does not only require that the majority of the population does not exclude relgiious or ideological minorities, but, in fact, that these minorities do not segregate themselves and that they do not close themselves off to a dialogue with dissenters and people of other beliefs. Dialogue with such minorities is an enrichment for an open pluralistic society. The learning and practicing of this in the sense of experienced tolerance is an important lesson right from the elementary school stage. The presence of a broad spectrum of convictions in a classroom can sustainably develop the ability of all pupils in being tolerant and exercising the dialogue that is a basic requirement of democratic decision-making process.
This is a common argument on behalf of public education that assumes (wrongly, I think) that a certain kind of pluralism will be fostered by having everyone learn the same thing at the same time in the same place. This is not an education in tolerating differences, but rather one in homogeneity. I suppose that I shouldn’t expect Justice Department attorneys to be cognizant of the rich theoretical literature here, but it displays (how shall we say?) a tin ear regarding the concerns of religious minorities in a pluralistic society. (I expect nothing else from the Obama Administration.)
Let me state the matter another way: The German government’s position is defensible, so long as one is willing to sacrifice the rights of conscience and the rights of parents on the altar of social solidarity and false toleration.
With respect to the second issue, the Justice Department brief denies that homeschoolers constitute a cognizable group in Germany. Their numbers are few (most have left the country) and they are diverse (different parents have different reasons for homeschooling). And, I guess, since German homeschooling moms don’t wear denim jumpers, you can’t recognize them on the street.
Another factor that in the mind of the Obama Administration militates against regarding German homeschoolers as refugees who deserve asylum is that, to the degree they constitute a group, it is not one marked by an “immutable characteristic.” People change. One year, they homeschool, the next year they don’t. Let’s not get into the fact that a couple might regard themselves as called by God or otherwise conscientiously obliged to homeschool. They could change their minds. Needless to say, this is a very cavalier way of regarding parental responsibility and religious duty. (I expect nothing else from the Obama Administration.)
The HSLDA brief defines the matter quite differently, beginning from the premises that “protection from persecution is at the heart of the international refugee regime” and that “[p]ersecution is widely recognized as the sustained or systematic violation of basic human rights demonstrative of a failure of state protection.” Citing the Universal Declaration of Human Rights, the International Covenant on Civil and Poltiical Rights, and the International Covenant on Economic, Social, and Cultural Rights, the HSLDA argues that both the international community in general and Germany in particular have pledged to respect the right of parents to direct the religious and moral education of their children.
Regarded in this light, the Romeikes are simply exercising their rights as parents, which rights are denied by a generally applicable German law. That the Obama administration hides behind the fact that the law is generally applicable, equally denying everyone a widely recognized right, indicates what one might generously call a tin ear regarding the widely recognized rights of parents.
Perhaps they simply don’t want to open the gates to a flood of German families seeking to escape the oppressive Geman Bildungsstaat, and they’ll avail themselves of any argument that will keep those pesky homeschoolers out. I’d be more impressed by their narrow legalism if they took the time to denounce Germany’s highhandedness toward homeschooling parents (which for a time merited a rather neutral reference in State Department human rights and relgiious freedom reports, but which seems to have fallen off the radar).
But with Farris, Nazworth, and Carter, I worry about what the future holds in my country. I’ve seen my share of liberal elite hostility toward homeschooling. I can at least conceive the possibility that a state might seek to regulate it out of existence. And if that happened, I don’t see the Obama Administration on the front lines, citing either the various international covenants or Meyer v. Nebraska in defense of the rights of parents.
February 15th, 2013 | 5:12 pm
Let me state the matter another way: The German government’s position is defensible, so long as one is willing to sacrifice the rights of conscience and the rights of parents on the altar of social solidarity and false toleration.
That’s a great line.
The Germans seem to think that such a sacrifice is indeed perfectly defensible since the state has an interest in preventing “parallel societies.” The fact that the Obama administration thinks more like the Germans than Americans on this issue is telling.
February 15th, 2013 | 5:19 pm
Joe Carter comes close to using the Other F-Word. I’ll pass as well although my personal experience of the America the president wants to expand beyond the schools, left-wing churches, professional schools, Hollywood, the theatre, publishing and on and on often brings that word to mind. Only half of American voters seem to care. And only half of Catholics.
February 15th, 2013 | 5:23 pm
Compulsory education is a really cool religion freedom/freedom of association/autonomy issue. And I suspect it is only tangentially related to this conflict.
I suspect the real, if perhaps unstated, issue here is the power of the US to control influence immigration.
The US grants asylum to people who are in really bad circumstances. So, a kid might be compelled to attend German elementary schools. Does it impinge upon the family’s autonomy? Perhaps. But is it worse than the degree of impingement suffered by, oh, the 1.3 billion residents of Communist China?
If we say that the burden of attended a German grade school is sufficient to justify asylum, we’re pretty much saying that we have no limits on immigration anymore; anyone who can show that they are at least as oppressed as a citizen of Germany is welcome in. And I suspect that a large proportion of the world’s population might pass that test.
February 15th, 2013 | 5:25 pm
This hits a nerve with me, as I home schooled from 1991 until 2006. The parents are the primary teachers of their children. Schools HELP parents teach but should not be given the complete task of doing so. I have Montessori training and the entire child is taught, mind, heart, soul and body.
Do we want a government full of hidden agendas and ideologies to take over completely the education of our children? Bismarck figured this out and made Germany into a nation which accepted, down the road, Hitler-unthinking, malleable citizens.
The day American bans home schooling is the day it is no longer a republic but a tyranny.
We want to teach children how to think, not merely how to agree with the prevailing ideologies of a particular government.
It is not only a right, but a duty for parents to be directly involved in the teaching of their children either part-time or full-time. Anything is abdication of personal responsibility in forming a person to be an adult of character and uniqueness, and not merely an unthinking cog in a machine.
February 15th, 2013 | 5:27 pm
ooops forgot else after anything–it is late in Europe.
February 15th, 2013 | 5:33 pm
I wrote this last year. http://supertradmum-etheldredasplace.blogspot.co.uk/2012/01/obama-against-home-schooling.html
February 15th, 2013 | 5:54 pm
Needless to say, this is a very cavalier way of regarding parental responsibility and religious duty.
There is no specifically religious duty to homeschool though. It’s not a central teaching in Christianity, but an individual believer’s decision. I think the state should allow this, and even though I dislike homeschooling, I don’t see the concept as abusive in itself enough to warrant losing your kids over unless it’s abused as a form of serious, harm-inducing parental neglect.
I’d be in favor of asylum just because they might lose their kids for something we think isn’t a crime. But choosing public, private, or homeschooling isn’t a particularly religious duty according to the tenets of faith, and we have to be careful in expanding the concept too far.
February 15th, 2013 | 6:25 pm
I didn’t read the links, but doesn’t every parent “homeschool”, at least through good or bad example? If so, every parent is at potential odds with the government.
Where are the Diversity Committees on this one?
February 16th, 2013 | 5:49 am
“The general public has a justified interest in counteracting the development of religiously or philosophically motivated “parallel societies” and in integrating minorities in this area.”
Anyone who knows France and the French press will know that there is great concern there about « communautarisme » by which they mean religious and ethnic solidarities and allegiances that threaten to override republican unity. This concern is largely incomprehensible to Americans who have learned to embrace the realities of their multi-ethnic, multi-cultural society, but it is deeply rooted in European political culture, going back at least as far as Rousseau’s suspicion of particular interests that undermine the general will.
Indeed, every politician, of the Left or of the Right, berates the perceived racism of “Anglo-Saxon” multiculturalism – Try Goggling « l’affaire du voile » or « l’affaire du foulard » [The headscarf business] However much people might have differed over that particular policy, they vied with each other in declaring their commitment to the Jules Ferry Laws, the Law of 1905, the ideal of laïcité and their unbounded faith in the capacity of the educational system to eliminate « communautarisme » (that fertile source of all social ills) and to mould future citizens of the Republic, one and indivisible.
February 16th, 2013 | 7:02 am
If there is any country on Earth where homeschooling ought to be encouraged, not forbidden, it is Germany. Diversity of thought should be sought after there, not eliminated, if history has anything at all to tell us about the fruit of a generation of Germans thinking and acting in lockstep.
February 16th, 2013 | 8:35 am
Another example of a government “willing to sacrifice the right of conscience … on the altar of false toleration” is provided by Fr. Walter Ciszek, S.J.
He writes that in the former Soviet Union a “right to practice religion” was guaranteed along with another guarantee, that of a right to disseminate atheistic propaganda, one that was “exercised to the full by the state”.
The result of the “suffocating” atmosphere of atheistic intimidation was a change in the “entire social life of the country”.
Thus under the guise of providing a “right to practice religion” were Russian believers deprived of their freedom.
February 16th, 2013 | 9:13 am
I’ve always thought this issue was clear-cut, but I wonder if part of Germany’s concern might be that the Muslims in that country are not well integrated into German society. It’s a big issue there, and the government has introduced classes on Islam into the schools to try to increase their integration. As there is pressure on Muslims everywhere to radicalize, perhaps the government fears that allowing home schooling would enable Muslims to withdraw from society further and turn their children into jihadists.
In this case, it is not a religious freedom issue; Islam is both a religion practiced privately and a political ideology that can be dangerous within a non-Muslim country, and it is the political part that is the problem. But it’s impossible for the government to separate these two.
We have the same issue here with charter schools.
February 16th, 2013 | 11:20 am
I’m sympathetic about a state interest in preventing parallel societies; but seeing that they’re German and have the history they do, let ‘em start by suppressing the beer halls.
February 16th, 2013 | 11:45 am
I think Germany is wrong to not have a homeschooling option available to parents who are serious about it, but the US is right to oppose granting non-citizens aslyum simply because they don’t like their country’s educational system.
Sorry homeschooling is a policy, not a right. It’s not parental rights, its parental responsibilities. Or to put it more simply, there’s a huge difference between your sofa and your kid. Since kids are humans and members of society, they cannot be viewed as simple property of their parents. Since kids have limited capacity to manage their own interests, society has a responsibility to ensure that they are provided for until they achieve their own maturity. Most of the time the best way to do this is via their parents who have the most direct incentive to see to their well being. In that sense a parent is entrusted with authority, not a right. Rights do not embed obligations, responsibilities do. You have a right to freedom of religion, you have no responsiblity to have serious religious beliefs or a coherent theology. A cop doesn’t have a right write tickets, he has a responsibility to enforce law and safety. He has the authority to issue tickets only in that helps him carry out those responsibilities. A community may vote to raise the speed limit, the cop may complain that this makes his job of enforcing safety harder but he can’t argue that his ‘right to write speeding tickets’ is being violated.
Sorry the community has a right to ensure children are educated. It may be a sensible policy to include homeschooling as an option but it’s not a right. Even states that have homeschooling as an option require parents submit reviews of their lesson plans and establish that they really are educating their kids. Even if Germany had the same there would certainly still be some parents who don’t even agree with…
February 16th, 2013 | 11:48 am
Briefly, Germany has a right to run their own system, esp. given that the country has many types of schools both private and public. It may be good policy to have a homeschooling option but it’s not any ‘fundamental right’. If some German parents want to apply for US citizenship because they think their children will get a better education in the US, I’m all for it. But there’s no reason that German’s seeking homeschooling should get to leap over their peers.
February 16th, 2013 | 2:42 pm
Much less can they be viewed as the property of the state, as though the state only delegates its own authority to the parents, allowing them to be involved in the education of their children, but the state remains the final authority in matters regarding that education.
It should be evident, to Catholics at least, that the primary rights over the education of children belongs to parents, not the state:
February 16th, 2013 | 2:52 pm
nobody.really wrote: “I suspect the real, if perhaps unstated, issue here is the power of the US to control influence immigration. The US grants asylum to people who are in really bad circumstances. So, a kid might be compelled to attend German elementary schools. Does it impinge upon the family’s autonomy? Perhaps. But is it worse than the degree of impingement suffered by, oh, the 1.3 billion residents of Communist China?”
That’s a good argument. That’s not, however, the argument the government made.
February 16th, 2013 | 3:03 pm
I agree with nobody.really. Unless it is the case (and I don’t believe it is) that this German couple is being singled out for harsh treatment by the German government that we don’t know about, giving them asylum in the United States on the grounds that they have a “right” to homeschool their children in Germany is a declaration that all homeschoolers in Germany are oppressed and may seek asylum in the United States. We might also declare that all Muslim women in France have a “right” to veil their faces in public and invite them to seek asylum in the United States. In a great many ways, the United States is most free country in the world. To declare all of our freedoms fundamental human rights and then sanction asylum for anyone in the world who is not as free as a United States citizen strikes me as lunacy.
February 16th, 2013 | 4:33 pm
“Even states that have homeschooling as an option require parents submit reviews of their lesson plans and establish that they really are educating their kids. Even if Germany had the same there would certainly still be some parents who don’t even agree with…”
But that is NOT the situation here. The situation here is that the German state requires non-homeschooling *regardless* of whether the child is being properly educated. It is one thing to argue that the community has an interest in ensuring that children are educated, but it is a different matter to argue that the state has precedence over the parents in deciding how that it is done, provided it is ensured that it is done.
Sure, some people aren’t happy with state standards for educating homeschooled children. But the fact that some people will argue for a greater scope of rights really doesn’t tell us anything about whether guaranteeing a lesser scope of rights is appropriate. That’s rather like arguing, “Well, some people would argue that everybody should get free newspapers, so as long as the government isn’t smashing printing presses there’s no problem with government-issued permits for publishing.”
Whether or not this is a wise decision on the State Department’s part, your point that states have a responsibility to see that children are educated doesn’t really establish that states should be allowed to forbid parents from educating their own children under all circumstances.
February 16th, 2013 | 4:57 pm
Boonton, I agree with the point, but the problem is that there are strong penalties for an act that prevent them from returning. While you can argue homeschooling is not a fundamental right, having children taken away from their families over such if they return makes it more complicated.
A hypothethical example. No one has a fundamental right to drive. But if a woman who learned how to drive secretly flees their banana republic, and asks for asylum else she will face a lifetime sentence if shipped back is different, so long as we believe that the privilege of driving is allowable.
I don’t think we can in good conscience send someone back to lose their kids just by doing something we would believe is both lawful and not harmful.
February 16th, 2013 | 8:23 pm
I’d frame this issue not in terms of a “fundamental right to homeschool”, but as a religious freedom issue. If a government were to ban all private schools (sectarian and secular), this would be an infringement on religious freedom because it deprives religious families of a major method through which their faith is transmitted. A similar argument could be made for homeschooling.
Of course, Europe isn’t exactly known for its robust First Amendment freedoms (witness the hate speech laws in the UK and the law against wearing religious symbols in French public schools), so maybe that wouldn’t fly with them either.
This all seems like just a symptom of a larger problem: parents generally view the education of their school-age children as primarily the responsibility of institutions (school, the local church, etc.) rather than as their own.
February 17th, 2013 | 6:44 am
The German Constitution guarantees the right to establish private schools and these are subsidised by the state. However, the state does enforce minimum standards, such as teaching qualifications and curriculum.
Bear in mind that many children come from homes where German is not spoken, especially in neighbourhoods where foreign brides are the rule. These often have neither the need nor the opportunity to learn German.
Accommodation can be given for religious instruction in other ways. In France, for example, public schools have to close for a half-day each week (it was two half-days when Saturday was a school day) to allow pupils to receive religious instruction, if their parents so wish.
February 17th, 2013 | 8:26 am
Dave, Pentamom,
A hypothethical example. No one has a fundamental right to drive. But if a woman who learned how to drive secretly flees their banana republic, and asks for asylum else she will face a lifetime sentence if shipped back is different, so long as we believe that the privilege of driving is allowable.
First I don’t buy the moment they touch down in Germany they are getting arrested and their kids ripped from them. I’m quite sure that the law allows the gov’t to take kids away from parents for refusing to educate them in Germany, just as it is in the US. But I suspect like the US in that it would be a last resort meaning the couple has an opportunity to make their case that they are able to self-educate their children as well or better than the other options in Germany.
Second, suppose they do fight but loose? Well their options are to send their kids to a private school in Germany that best suits their wishes, hire private tutors, or seek to move to a state that allows homeschooling. Again its a policy, not a right, if you’re not allowed to do it then you’re not allowed.
John
I’d frame this issue not in terms of a “fundamental right to homeschool”, but as a religious freedom issue. If a government were to ban all private schools (sectarian and secular), this would be an infringement on religious freedom because it deprives religious families of a major method through which their faith is transmitted.
This would be merit more consideration if Germany had banned all private schools, or had banned religious education outside of schools. And before we go more with ‘religious freedom’ someone should produce a definition that sounds a bit deeper than “simply being allowed to do anything one wants if they say their motivation is religious”
Of course, Europe isn’t exactly known for its robust First Amendment…
February 17th, 2013 | 1:29 pm
[i]Sorry homeschooling is a policy, not a right. It’s not parental rights, its parental responsibilities. Or to put it more simply, there’s a huge difference between your sofa and your kid[/i]
Perhaps then it is time to write the parents’ right to the upbringing of their children into the Constitution.
[i]Since kids are humans and members of society, they cannot be viewed as simple property of their parents.[/i]
This is a straw man.There is no need whatsoever to view children as property of their parents in order to consider it their right to raise their children as they see fit – and I haven’t seen anyone here arguing the former either.
[i]Since kids have limited capacity to manage their own interests, society has a responsibility to ensure that they are provided for until they achieve their own maturity.[/i]
Non sequitur.Your conclusion doesn’t follow from your premises. And, historically, that ‘responsibility’ has been seen as that of the parents, not to speak of the fact that you are being awfully presumptuous about state schooling being a means of ‘providing’ for their children.
[i]Most of the time the best way to do this is via their
[i]Sorry the community has a right to ensure children are educated.[/i]
No it does not. There is no such right given to ‘the community’ in the US Constitution. In any case, a ‘community’ is a cognitive abstraction that cannot have any rights assigned to it in the first place except by a performance of nonsensical mental gymnastics.
February 17th, 2013 | 6:41 pm
Boonton,
you write, “But I suspect like the US in that it would be a last resort meaning the couple has an opportunity to make their case that they are able to self-educate their children as well or better than the other options in Germany.”
That’s just the point, they do not get that opportunity, because neither to the German government nor to the parents is this an issue of the quality of the education the kids would receive either at school or at home. It is an issue of socialization. The government insists that ALL children living in Germany are socialized in an approved school environment where certain “social” subjects, such as sex ed etc, and certain principles, such as the moral equivalence of all lifestyle choices, etc., are taught. It is therefore not a question of whether the parents are qualified to teach their children; homeschooling is outlawed because it does not socialize in the same way.
February 18th, 2013 | 6:15 am
No it does not. There is no such right given to ‘the community’ in the US Constitution.
Speaking of which, this homeschooling ‘right’ does not exist at all in the Constitution. In contrast the state’s right to require education of children is embedded both in the police power the states have and the tenth amendment which gurantees that the states preserved their rights when they entered the Union.
Perhaps then it is time to write the parents’ right to the upbringing of their children into the Constitution.
No because no one really believes that. What you really believe is parents should do the upbrining of their kids provided they aren’t being abusive, provided they are providing for their kids’ needs, etc. There’s a very broad array of different types of parents we as a society tolerate, but it’s not infinite and shouldn’t be.
Contrast this with actual rights like religion and speech. These rights are not tied to a need to be at least a quarter of the way intelligent about things. You are free to use speech all you want to put out nonesense like claiming Obama’s not a US citizen. You are free to embrace Scientology or the most absurd and incoherent New Age sect. Fact is rights entail with them the right to be very, very stupid.
BTW, use markes to rather than [] to do italics on your posts.
February 20th, 2013 | 7:29 pm
It only makes sense that the U.S. Democratic party, whose reign of power depends upon the incurrence of a huge debt of gratitude to the teacher’s unions, would find it nearly impossible to be objective in its evaluation and support of homeschooling freedoms.
When the public discourse is controlled by powerful special interests we lose the ability (and even the will) to converse with one another. This is a tragedy.
You’d think that Germany, of all places, would have learned the lesson that government schools should be one choice among many.
February 21st, 2013 | 3:42 am
Trish wrote “You’d think that Germany, of all places, would have learned the lesson that government schools should be one choice among many.”
The German Constitution expressly guarantees the right to establish private schools (Grundgesetz, Article 7:4)
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