Homeschooling Not a Fundamental Right Says Justice Department

Who has the greater right over the education of children: the parents or the State?

On January 26, 2010, a federal immigration judge granted the Romeikes political asylum, ruling they had a reasonable fear of persecution for their beliefs if they returned to their homeland. The judge also denounced the German policy, saying it was, “utterly repellent to everything we believe as Americans.” However, President Obama’s Justice Department disagreed. They argued that the family should be denied asylum based on their contention that governments may legitimately use its authority to force parents to send their kids to government-sanctioned schools.

 

In 2010, Uwe and Hannelore Romeike, who lived with their five children in the German state of Baden-Württemberg, were faced with a choice: abandon their Evangelical Christian religious beliefs or lose custody of their children. The Romeikes had withdrawn their children from German public schools in 2006, after becoming concerned that the educational material employed by the school was undermining the tenets of their Christian faith. After accruing the equivalent of $10,000 worth of fines and the forcible removal of their children from the home, they chose to flee their homeland and seek asylum in the United States. They believed our government was more respectful of religious liberties.

They soon discovered that was not the case.

On January 26, 2010, a federal immigration judge granted the Romeikes political asylum, ruling they had a reasonable fear of persecution for their beliefs if they returned to their homeland. The judge also denounced the German policy, saying it was, “utterly repellent to everything we believe as Americans.” However, President Obama’s Justice Department disagreed. They argued that the family should be denied asylum based on their contention that governments may legitimately use its authority to force parents to send their kids to government-sanctioned schools.

To better understand what Attorney-General Holder and his Justice Department are supporting, let’s look at the German policy. The parent-children relationship is defined in Art. 6 § 2 as follows:

The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.

And Art. 7 § 1 adds:

The entire school system shall be under the supervision of the state.

What this means for parents, as Franz Reimer explains, is that compulsory schooling is seen as an important duty for parents and children which leaves practically no room for parental choice. The parents’ right to care, says Reimer, is sometimes termed a right “within compulsory schooling, not against compulsory schooling.” The German government believes the law is necessary to “counteract the development of religious and philosophically motivated parallel societies.”

When the law was challenged by religious parents, the European Convention of Human Rights sided with the German government, saying “integration into and first experiences of society are important goals in primary-school education.” In other words, the State’s desire to socialize children to the society’s values trumps the parents rights to raise their children according to their own religious beliefs.

Even if the German state disagrees, being able to raise your children according to one’s religion should be considered a fundamental right in America. But as we have seen with the HHS mandate, the Obama administration believes that if a law can be applied to all people then it cannot possibly make exceptions for religious believers.

That is essentially what Justice Department lawyers are arguing in the legal brief for the case, Romeike v. Holder, which is currently in the Sixth Circuit Court of Appeals. They argue that Germany did not violate the Romeike’s human rights because the ban on homeschooling is a ban for all, not any specific group. Since German law does not prevent, for instance, only evangelical Christians from homeschooling, the Romeike’s are not being persecuted for a religious reason.

Mike Farris, founder of the Home School Legal Defense Asssocaition (HSLDA), the group that is defending the Romeikes, says:

There are two major portions of constitutional rights of citizens—fundamental liberties and equal protection. The U.S. Attorney General has said this about homeschooling. There is no fundamental liberty to homeschool. So long as a government bans homeschooling broadly and equally, there is no violation of your rights. This is a view which gives some acknowledgement to the principle of equal protection but which entirely jettisons the concept of fundamental liberties.

A second argument is revealing. The U.S. government contended that the Romeikes’ case failed to show that there was any discrimination based on religion because, among other reasons, the Romeikes did not prove that all homeschoolers were religious, and that not all Christians believed they had to homeschool.

This argument demonstrates another form of dangerous “group think” by our own government. The central problem here is that the U.S. government does not understand that religious freedom is an individual right. One need not be a part of any church or other religious group to be able to make a religious freedom claim. Specifically, one doesn’t have to follow the dictates of a church to claim religious freedom—one should be able to follow the dictates of God Himself.

The United States Supreme Court has made it very clear in the past that religious freedom is an individual right. Yet our current government does not seem to understand this. They only think of us as members of groups and factions. It is an extreme form of identity politics that directly threatens any understanding of individual liberty.

As Farris makes clear, this case is not just about a German family seeking asylum but about the parental rights of American families. The Obama administration believes that the rights of parents to educate our children is conditional on the government’s approval, a right that is not fundamental but exercised at the whim of our educational overlords.

“It is important that Americans stand up for the rights of German homeschooling families,” says Farris. “In so doing, we stand up for our own.”

This article first appeared on the Acton Institute’s Power Blog and is used with permission.