While the freedom of religion and the rights of parents are basic human rights enshrined in law, a brief filed in the Sixth Circuit of the United States Court of Appeals on June 26, 2013 by the US Justice Department suggests that educating children at home is not a basic human right. On the contrary, in the case of a German homeschooling family seeking political asylum in the United States, the right to homeschool can be denied in the interest of creating “an open pluralistic society.” In the case of Uwe Andreas Josef Romeike, et al, v Eric H. Holder, Jr. Attorney General, the Justice Department concluded that “Germany has no persecutory motive against religious minorities when enforcing the compulsory attendance statute,” rather, “teaching tolerance to children of all backgrounds helps to develop the ability to interact as a fully functioning citizen of Germany.”
Catholic World Report readers may recall the plight of the Romeikes, an evangelical Christian familythat sought political asylum in the United States in 2010 after being subjected to criminal prosecution for homeschooling their five children in their home in Germany. At the US immigration hearings in 2010, Uwe and Hannelore Romeike claimed that they needed asylum in the United States because under German law homeschooling families are subject to arrest, fines, and the forcible removal of their children.
In February 2011, after an investigation of the claims of the Romeike family, federal immigration Judge Lawrence Burman granted political asylum to the family. Denouncing the German government’s policy against homeschooling, Judge Burman called it “utterly repellent to everything we believe as Americans.”
However, Judge Burman’s decision to grant asylum to the Romeike family was overturned by the US Board of Immigration Appeals in 2012. The Romeike family appealed, bringing their case before a three-judge panel of the Sixth Circuit. Unfortunately, the Sixth Circuit Court issued a unanimous decision against the family’s plea for asylum on April 23, 2013. On May 28, Michael Farris, founder and chairman of the Home School Legal Defense Association—a non-profit advocacy organization established in 1993 to defend and advance the constitutional right of parents to direct the education of their children—filed an appeal to the Sixth Circuit. But the family’s case for asylum was further weakened by the court brief issued on June 26 by the US Department of Justice maintaining that German laws outlawing homeschooling do not constitute persecution. In fact, the Justice Department’s brief concluded that “there is no indication that the German officials, in enforcing the [anti-homeschooling] law, are motivated by anything other than law enforcement. These factors reflect appropriate administration of the law, not persecution.” For Eric Holder’s Justice Department, the rights of parents to educate their children must be subordinate to the German goal of forming a “pluralistic society.”
Taking sides with the German government against parents in the current homeschooling culture wars, the US Justice Department has argued that laws against homeschooling do not violate the family’s human rights. Drawing from international court rulings that parents may not violate a child’s right to an education on the basis of the parents’ convictions, the US Justice Department has agreed with the German government that “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.”
The Romeike family now faces deportation from the United States. And the German government has apparently been emboldened by the Obama administration’s support for their punitive homeschooling policies. On August 29, 2013, in a raid on another Christian homeschooling family’s residence near Darmstadt, Germany, a team of 20 police officers, social workers, and special agents forcibly removed all four of the children of Dirk and Petra Wunderlich. The children, ages 7 to 14, were removed from their parents’ home because the Wunderlichs continued to defy the German ban on homeschooling.
In an effort to help defend the Wunderlich family, the Home School Legal Defense Association obtained and translated the court documents that were used to authorize the use of force to seize the Wunderlich children. According to the HSLDA website, “the only legal grounds for removal were the family’s continuation of homeschooling their children. The papers contain no other allegations of abuse or neglect. Moreover, Germany has not even alleged educational neglect for failing to provide an adequate education. The law ignores the educational progress of the child; attendance—and not learning—is the object of the German law.”
HSLDA identified Judge Koenig, a Darmstadt family court judge, as having signed the order on August 28, 2013, authorizing the immediate seizure of Dirk and Petra Wunderlich’s children. Citing the parents’ failure to cooperate with the authorities and send the children to school, the judge authorized “the use of force against the children” if necessary, reasoning that such force might be required because the children most likely had “adopted the parents’ opinions regarding homeschooling” and that “no cooperation could be expected” from either the parents or the children.
Preventing the creation of a “parallel society”
That the Wunderlich children had “adopted the parents’ opinions,” as Judge Koenig concluded, is exactly what the German government is attempting to prevent with their draconian anti-homeschooling laws. In the German court’s view (excerpted in the June 26 Justice Department brief), the denial of the right to homeschool one’s children is justified by claims that the public has an interest in counteracting the development of religious or philosophically motivated “parallel societies.” The German court filing reads:
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. Integration does not only require that the majority of the population does not exclude religious 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.
To understand the origins of the German government’s decision to subordinate the rights of parents to the goals of the government, it is helpful to look at the history of the anti-homeschooling laws in Germany. In 2010, Aaron T. Martin, JD published an article titled “Homeschooling In Germany and the United States” in the Arizona Journal of International and Comparative Law, which provides an in-depth analysis of the historical situation of Germany in the 1930s that led to the adoption of compulsory school attendance laws—and formally outlawed homeschooling. Drawing from this history, in light of Germany’s recent attacks on homeschooling families, Martin, who is a graduate of the Catholic University of America and the University of Arizona School of Law, concludes that “strains of the nationalistic tendencies of Nazi Germany still infect parts of today’s German Republic.”
Martin points out that the policies forbidding parents to homeschool their children in Germany today were originally implemented by Adolph Hitler in 1938. Recognizing the importance of affecting impressionable children, Hitler’s educational aspirations for the Third Reich had state values at their core. State-sponsored education was an important means to assure that the fledgling Nazi government could dispense its propaganda and thus gain the support of the people.
The Nazi era of German culture involved not only the burning of books and the controlling of the curriculum in Germany’s schools, it also included the regimentation of the country’s culture. Controlling the culture of Germany’s social institutions—including the religious institutions, the media, the economy, the schools, and the family—Hitler outlined his program for German education in Mein Kampf, saying that education was not so much about gaining knowledge, but about “building bodies which are physically healthy to the core.” Exalting the power of the state over children, Hitler told parents that “your child belongs to us already…What are you? You will pass on. Your descendants however now stand in the new camp. In a short time they will know nothing else but this new community.”
Martin suggests that with its new nationalistic focus, the Nazi revolution dramatically changed the nature of German education: “Education left the boundaries of traditional classroom instruction that existed under the Weimar Republic, and instead focused on extracurricular activities.” The Hitler Youth was the key to the new culture as it sought to train the German student “physically, intellectually, and morally in the spirit of National Socialism.” Participation in the Hitler Youth was compulsory and parents could be imprisoned if their children were not part of the organization. Pope Emeritus Benedict XVI recalls these days in Salt of the Earth (Ignatius Press, 1997), his 1996 interview with journalist Peter Seewald. Following his 14th birthday, the young Joseph Ratzinger was conscripted into the Hitler Youth, as membership was required by law for all 14-year-old German boys beginning in 1941. Refusing to sign up for the Hitler Youth would mean being sent to a youth “reeducation camp,” akin to a concentration camp.
Martin writes that on May 1, 1937, Hitler made clear that the state was taking de facto custody of Germany’s children: “This new Reich will give its youth to no one, but will itself take youth and give to youth its own education and its own upbringing.” By 1938, Nazi law was in effect and specifically outlawed homeschooling under Reichsschulpflichtgesetz, the first general regulation in the German Reich. There were no exceptions allowed and criminal consequences were in place for those who persisted in homeschooling their children. The threat of parental punishment was enough to dissuade German families from homeschooling—until the 1980s, when a few German parents made an attempt to educate their children in their homes. Martin describes one case in which Helmut Stucher, an accountant, removed his children from the public school because he thought that the curriculum was “incompatible with his Christian belief and moral values.” This action led Stucher through several years of legal disputes, fines, loss of child custody, and a five-day prison sentence. After nine years, Stucher was given full custody of his children.
Following the unification of Germany in 1990, the Republic took strides to create a common and comprehensive educational system. The new unified German government brought its education laws into conformity with the federalist organization of Basic Law. Martin points out that the federal government controls the overarching educational policies ostensibly because the public need for education to be coordinated and harmonized throughout the country has led to an emphasis on the implementation of federal policies. The German government has successfully maintained before courts that this centralized education structure is necessary to protect its particular form of government. Martin points to the 2006 Konrad v Germany case, which held that it was within Germany’s power to require compulsory attendance in government-run schools over and against the parents’ challenge on religious freedom grounds. Martin also points out that decisions of German courts against homeschoolers, such as the Konrad decision, have been appealed to the European Court of Human Rights to no avail. In that case, the European Court of Human Rights maintained that Germany was within its “margin of appreciation.” Insisting on the need to “avoid the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society,” German officials continue to deny the rights of families to homeschool their children.
Even expatriated American citizens can become ensnared in Germany’s anti-homeschooling policies. Martin points to a case in 2008 which involved a former United States military member who was in living in Germany with his wife and children while working for a German company reviewing military contracts. He and his wife had homeschooled their children for several years. In October of 2008, the family received a summons to go to court and answer to charges that they were homeschooling. The family was advised that if they did not appear, they could be fined up to $31,000. The mother and children returned to the United States immediately, and the father remained in Germany to fight the legal battle.
The continuing debate
While Aaron Martin argues that “any infringement on parental rights to homeschool is inconsistent with the principles of a robust liberal political democracy,” there are some notable supporters of a robust liberal political democracy who have spoken out publicly in support of Germany’s ban on homeschooling. Ayaan Hirsi Ali, currently a fellow with the Future of Diplomacy Project at the Belfer Center for Science and International Affairs at Harvard University, argues in her book Nomad: From Islam to America: A Personal Journey Through the Clash of Civilizations (Free Press, 2010) that the German ban on homeschooling can be helpful in assimilating immigrants. According to Hirsi Ali, “Islam poses a long-term threat to Western institutions because Muslim immigrants in the West settle in enclaves and refuse to integrate physically, psychologically, or politically.” For Hirsi Ali this is a threat to liberal democracy because these immigrants “carry their tribal culture with them—they homeschool their children or they establish private religious schools, they follow Sharia instead of the civil law, and they abuse public welfare benefits.”
Hirsi Ali may be correct that the tremendous increases in Muslim immigration to Germany have contributed to the recent attempts by the German government to eradicate homeschooling in the name of cultural and educational homogeneity. Martin, however, argues that Germany’s decision to outlaw homeschooling seems to be less of a reasoned approach to educational policy and more of a return to a bygone German era. He believes that Germany may in fact change its policies if there is a “homeschooling revolution” in that country. The “homeschooling revolution may require much time and a gradual conversion of public opinion, a revolution of conscience,” he argues.
While the United States has accepted homeschooling in various forms, the negative response to Germany’s asylum-seeking family by the Obama administration’s Justice Department sends an unsettling message to this nation’s more than two million homeschooling families. There have already been threats to end the practice of homeschooling in some states. In 2008, the state of California attempted to nearly eliminate homeschooling by requiring a teaching credential that would have effectively ended the homeschooling of more than 166,000 children in the state. Under pressure from California citizens—along with support for homeschooling families from Gov. Arnold Schwarzenegger—the court reversed its decision, allowing parents in the state to legally homeschool their children even if they lack a teaching credential.
To guard against such policy changes, the Home School Legal Defense Association remains vigilant, advocating on Capitol Hill by tracking federal legislation that affects homeschooling and parental rights. The groups works to defeat or amend harmful bills, and seeks to proactively introduce legislation to protect and preserve family freedoms. At the state level, the advocacy group assists individual states in drafting language to improve their homeschool legal environment and fight harmful legislation. HSLDA also advocates in the media by presenting articulate and knowledgeable spokespersons on the subject of homeschooling. In addition, it advocates for the movement by commissioning and presenting research on the progress of homeschooling.
In a July 9, 2013 FrontPage Magazine interview, HSLDA’s Michael Farris emphasized Eric Holder’s Justice Department’s role in denying in the political asylum case of the Romeike family, stating: “Attorney General Holder is trying to seek dismissal of this case because he believes that targeting specific groups in the name of tolerance is within the normal legitimate functions of government. This cannot be the ultimate position of the United States without denying the essence of our commitment to liberty.” Drawing upon international court rulings which claim that parents may not refuse the right to the education of their children on the basis of the parents’ convictions, including their religious convictions, Holder’s Justice Department appears committed to using the international courts to diminish the religious freedom and parental rights currently enjoyed by US Citizens.
Teachers’ unions against homeschooling
Teachers’ unions have long supported policies that make it harder for families to homeschool their children. In 2012 the National Education Association, the nation’s largest teachers’ union, published the following statement: “The NEA believes that homeschooling programs based on parental choice cannot provide the student with a comprehensive education experience…Instruction should be by persons who are licensed by the appropriate state education licensure agency, and a curriculum approved by the state department of education.” The NEA also maintains that homeschooled children should not be allowed to participate in extracurricular activities in public schools.
Teachers’ unions at the state level have also played an important role in attempting to end homeschooling. In 2006, in a homeschooling case that was brought before the California Court of Appeal for the Second Appellate District, the court asked the state’s superintendent of public instruction, the California State Board of Education, the Los Angeles School District, the California Teachers Association, and the Los Angeles teachers’ union for their opinion on homeschooling. In this case, the original ruling concluded that parents who educate their children at home could be criminally liable under California law.
Earlier this year in Virginia, E.W. Jackson, the Republican candidate for lieutenant governor, was criticized by educators there for his announcement that if elected he would push for a constitutional amendment supporting equal resources for homeschoolers. Meg Gruber, president of the Virginia Education Association, called Jackson’s proposal a “reckless agenda that would be a major blow to public schools.”
The resistance from teachers’ unions continues despite the fact that the College Board, which administers the SAT, found that homeschooled test-takers averaged 72 points or 7 percent higher than the national average. A National Home Education Research Institute commissioned report in 2011 revealed that homeschooled children typically score 15 to 30 percentile points above public school students on academic achievement tests.
In 2011, the World Congress on the Philosophy of Law and Social Philosophy included homeschooling on the agenda of its biannual global conference in Frankfurt, Germany. One of the papers presented at the conference by Dr. John Warwick Montgomery, distinguished professor of philosophy and Christian thought at Patrick Henry College, concluded: “The right of parents a priori to the state to make decisions about how and where their children are educated is a natural right and one that is founded on the basis of Holy Scripture.” At the conference, Dr. Montgomery argued that the European Court of Human Rights has missed important opportunities to correctly apply human rights law to the conflict over homeschooling, instead deferring to current societal prejudices and predilections in favor of secular and statist presumptions.
Dr. Montgomery knows that what happens in Europe can have a significant influence on what happens in the United States. There are already judges at the state and federal levels who cite international case law to support their decisions. The decision to support Germany’s right to require school attendance by the European Court of Human Rights, coupled with the decision by Attorney General Eric Holder’s Department of Justice to side with Germany’s anti-homeschooling laws, demands that homeschooling families in the United States remain resolute in their continued fight for the freedom to teach their own children.