The Home School Court Report
Vol. XXIII
No. 3
Cover
May/June
2007

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By Michael P. Farris
- disclaimer -
Dark Shadows in Germany

I am writing this while waiting for a flight in Frankfurt. I have just finished a series of meetings in Germany with homeschool leaders, attorneys, and families.

In many ways, the homeschooling situation in Germany reflects our American past. However, in many other ways, I see dark shadows of the American future.

German law does not ban homeschooling. Rather, it allows for exceptions to compulsory public school attendance if the local school officials believe that there are “special circumstances” which warrant an excuse. School officials all across Germany have unilaterally decided that homeschooling does not qualify as a special circumstance. They seem especially resistant to requests for an exemption based on claims of conscience.

Kimberlee Bloom
Michael P. Farris, HSLDA Chairman of the Board & General Counsel
...
WHAT GERMANY REALLY
IS OPPOSING IS
PLURALISM AND
FREEDOM OF SPEECH
AND RELIGION.
...

The highest court in Germany has determined that there is nothing amiss with this determination. And in September of 2006, the European Court of Human Rights (ECHR) rejected an appeal of the German Federal Constitutional Court's ruling, saying that Germany was within its “margin of appreciation” (that is, the flexibility allowed to nations that have subjected themselves to the oversight of international tribunals) to enact this de facto ban on home instruction.

The ECHR did not focus on the fundamental failure that is inherent in this approach. International human rights law—with which Germany claims to comply—requires that all decisions that impact human rights are to be made according to the rule of law, not the whim of officials.

The most basic principles of due process require that decisions which impact protected liberties need to be made according to objective standards rather than the unbridled discretion of administrative officials.

In an unusual procedural response, the ECHR explained its rationale for rejecting a hearing on the merits of the case. The Court agreed that homeschooling was an exercise of protected parental liberties. It determined, however, that important societal concerns raised by the German courts overrode these liberties.

However, before reaching the question of this balance of liberties vs. governmental concerns, the ECHR should have considered the failure of Germany to comply with the rule of law. If homeschooling is to be banned, it should be done by the decision of the state legislatures, not at the whim of local administrative officials.

There is a second failure of human rights principles that is inherent in the German situation. Article 13 of the International Covenant on Economic, Social and Cultural Rights places each nation under a duty to

have respect for the liberty of parents . . . to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 1

Moreover, Article 2 of Protocol No. 1 of the European Convention on Human Rights provides that

In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.2

In light of these provisions, it is clear that alternative forms of education are to be implemented in legislation as a matter of right, not administrative largess.

International human rights law does allow a nation to impose reasonable rules of regulation for alternative forms of education. However, banning alternative education is not a “reasonable regulation.” If German law required specific courses to be studied, periodic examinations, specified hours of instruction, or the like, it is undoubted that this would be viewed by human rights tribunals as reasonable regulation. Again, allowing government officials to ban homeschooling cannot possibly be construed to be a reasonable form of regulation for it denies the exercise of the right in all cases whatsoever.

The European Court of Human Rights’ decision echoed the concern first raised by the German Constitutional Court, that home education would foster a dangerous tendency to create a “parallel society.” It was on this basis that the ECHR determined that Germany was within its “margin of appreciation.”

German homeschoolers told us that their political leaders and administrative officials repeatedly told them that if they allowed them to homeschool, then they would have to allow Islamic fundamentalist parents to homeschool as well. This poses an unacceptable danger to Germany, and indeed the rest of Europe.

However, the reality is that Islam already represents a parallel society in Germany—principally as a result of the hundreds of thousands of Turks who were invited into the nation as guest workers in the wake of the economic boom that followed the American-financed industrialization of post-war Germany. In many sectors of German cities, shariah law—not German law—prevails on a de facto basis on the streets. We received reports of Islamic academic experts who were invited into public schools to observe the chaos that has ensued from the refusal of Turkish students to conform to German educational discipline and instruction.

When a segment of society refuses the national law and sits in the public schools and mocks their education, that is truly a parallel society.

But this is not what most homeschoolers want. We do not want to be isolated in our own barricaded neighborhoods. We do not want a rule from a local patriarch.

We want a different form of education indeed—as is our right. But in other spheres of life we want to be integrated with our children in sports, church, and cultural activities.

One insightful German homeschool leader pointed out that the biggest parallel society in that nation is the one created by the public schools. As a result of 12 years of academic isolation on the basis of age, German teens are more loyal to the youth culture than they are to their families or their nation. Of course, the same can be said about the teens in any western nation, including the United States. Their age-based, peer-dependent parallel society dissents from and undermines the historic culture of nearly every nation.

But at the heart of the German arguments against a parallel society are the same arguments of political correctness that we see far too often in America. Our new politically correct society is coercive. If you criticize the faddish values of the left, you are blackballed or punished. If you dare to speak for clear standards of right and wrong, you are pummeled by forces of coercive tolerance—the mother of all oxymorons.

While speaking against parallel societies, what Germany really is opposing is pluralism and freedom of speech and religion. But again, it is not Germany alone.

America’s elite drink deeply from this same well. Our public schools coerce kindergarteners to receive homosexual propaganda. High school freshmen not only receive the propaganda but are forced to sign an agreement of confidentiality that they will promise not to tell their parents.

This is a worldwide phenomenon driven by the academic left. It is not tolerant. It is coercive. It does not embrace freedom of speech for all. Disfavored speech is drowned or punished. It does not embrace religious freedom or parental rights. It views those ideals as an archaic reminder of an unacceptably religious past.

We must stand with German homeschoolers. They struggle not only for their own liberty, but also for the right of every individual in western civilization to think differently and act differently from the coercive norms that are descending on the west like the edge of night.

Endnotes

1 United Nations, “International Covenant on Economic, Social and Cultural Rights,” January 1976.

2 Council of Europe, “Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms,” amended November 1998.