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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.

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