The Home School Court Report
No. 6

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by Michael P. Donnelly
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A first: Homeschooling on Agenda of Global Rights Conference

For the first time in its 50-year history, the World Congress on the Philosophy of Law and Social Philosophy, sponsored by Goethe University’s International Organization for Legal Rights and Social Philosophy (IVR), included homeschooling on the agenda of its biennial global conference. The conference was held this year in Frankfurt, Germany, at Goethe University, August 15–20, 2011.

Courtesy of Mike Donnelly
Dr. John Warwick Montgomery (center) organized a workshop for the World Congress on Philosophy of Law and Social Philosophy with presentations by Mike Donnelly and Thomas Schirrmacher.

The congress attracted nearly 1,000 academics and legal practitioners, including experts in human rights who presented papers. A special workshop organized by Dr. John Warwick Montgomery, noted Christian apologist and distinguished professor of philosophy and Christian thought at Patrick Henry College, included presentations by Dr. Thomas Schirrmacher, a German theologian and director of the International Institute for Religious Freedom, and Michael Donnelly, attorney and director for international affairs at Home School Legal Defense Association.

In his paper, The Justification of Homeschooling vis-a-vis the European Human Rights System, Montgomery said that homeschooling should be tolerated in every country:

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. While some governments may choose to regulate or oversee parents who choose this form of education, all governments should tolerate if not encourage it. That is why I thought it should be covered at this conference. I’m glad the organizers agreed with me.

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, the court has deferred to current societies’ prejudices and predilections in favor of secular and statist presumptions.

At the deepest level culturally, increasing secularism in modern society—particularly as manifested in Europe—poses special difficulties. The secular mindset can (as in the Konrad opinion) lead courts to an unconscious acceptance of politically correct notions of educational “integration.” Sadly, this also means that where constitutions and international human rights instruments are silent on an issue, the law will not appeal, as in the past, to the “higher law” as set out in the Holy Scriptures—the inalienable dignity of the human person, his family, and his personal decision-making, as John Locke derived these rights principally from biblical revelation—but will tend to defer to state power and bureaucracy, infused by prevailing pluralistic viewpoints. Where this occurs, the tragic result will be, not an increase in human rights protections but just the opposite. In that respect, the home schooling issue may serve as a litmus test to discerning jurists.

Courtesy of Mike Donnelly
L to R: Presenters John Calvert, Mike Donnelly, Dallas Miller, Angus Menuge, and John Warwick Montgomery take a break at the World Congress.

Schirrmacher, a professor of sociology, presented Compulsory Education—In Schools Only? Divergent Developments in Germany. He noted that homeschooling is virtually impossible in Germany because of an aggressive attempt by “legal and sociological machinery” to repress the practice while ignoring regular and rampant truancy among public school children. Schirrmacher argued that the country’s federal child protection law that allows the Jugendamt, Germany’s child protection service, to take children is being misused when applied to homeschoolers. “Parents who want something different are not to be placed on the same level as parents who are violent and let their children get into a bad state and who should be punished,” he argued.

Schirrmacher pointed out that compulsory education through school attendance has a long history in Germany, but the criminalization of homeschooling is a recent issue originating with the rise of national socialism.

Princes wanted all subjects to be good citizens and youth to be raised to be good soldiers. For the first time, as far as I can see, the principle of compulsory education is expressed in the Weimar School Regulations of 1919. Even though educational instruction at home was nevertheless able to have a niche existence, it is still the case that compulsory education as it developed did not serve the august democratic goals of equality and equal opportunity. Rather, it was a central and controlling element with which the state educated the population in accordance with its principles … National Socialism made use of the fact that in any case all children had to learn according to the manner the state prescribed, and thus it merely eliminated free alternatives in private and alternative schools as well as in home educational instruction.

Schirrmacher was highly critical of Germany’s use of criminal law to prosecute homeschooling parents.

Modern democratic Germany should not use criminal law against parents who homeschool. There is no doubt that the current enforcement approach of jail, high fines, and taking children from parents over education began with the national socialists.

HSLDA has reported on numerous cases in which the German government has essentially persecuted parents for their choice to homeschool. That is why, in 2008, HSLDA brought the first-ever homeschooling asylum case before a U.S. immigration judge for the Romeike family from Germany. The Romeikes were granted asylum in January 2010 by Judge Lawrence Burman, but the Obama administration has appealed the Romeikes’ victory. As of October 2011, the family was still waiting for a determination of the appeal.

HSLDA’s Mike Donnelly presented Creature of the State? Homeschooling, the Law, Human Rights, and Parental Autonomy at the world congress. He argued that homeschooling is a human right of the first order and that pluralism as practiced in most Western societies demands its acceptance. He disagreed with those, like Emory law professor and noted child rights advocate Martha Albertson-Fineman, who argue that homeschooling is a problem in a democracy and that the government should “require compulsory public education because only the government can assure the inculcation of values able to ensure the survival of a democratic society.”

The papers presented by Donnelly, Montgomery, and Schirrmacher will be published by a German publishing company and will be available in the coming months at the HSLDA Store.

Donnelly says that Albertson-Fineman’s argument is nonsense. “Those who make this argument conflate society with state. State and society are not necessarily—in fact are not usually—synonymous. Indeed, a government’s interest in expanding its power may very well be at odds with the people’s interest in freedom.”

For over a century, compulsory public education has been a “standard” in most developed societies. But as homeschooling is on the rise internationally, much of the same drama American homeschoolers experienced for decades is repeating itself. Parents in many of these countries—some formerly communist nations and hostile to any perceived threat to state supremacy—are fighting hard to secure the freedom to teach their own children. HSLDA is helping in these countries by offering research and advocacy to public-policy makers and encouragement to homeschoolers.

In Germany, however, it looks like the road will be longer than in other countries. State and federal legislators in the federal republic told Donnelly that most German policymakers are unwilling to credit research gained from America’s 40 years of experience with homeschooling and remain fearful that an American approach to homeschooling will create parallel societies.

“One state legislator was quite abrupt at a meeting I attended,” Donnelly says. “She was asking my host, ‘Why is this American here? This is Germany—we’re not like America.’ During the meeting this legislator told one homeschooling mom that she couldn’t possibly have enough time to properly educate or socialize her eight children.”

Germany, like much of Europe, views religion differently than the United States does. In Germany, religion is taught in public schools. However, Germany’s growing Muslim minority, resulting from the influx of Turkish immigrants since the 1960s, invokes fear on the part of “ethnic Germans.” One federal legislator who supports homeschooling in concept agreed that many public-policy makers share this fear of minority groups. This phenomenon helps explain the German Constitutional Court’s 2003 Konrad decision that the “interest of society in stamping out parallel societies” is justified so that “minority groups can be integrated,” taught “democratic values,” and learn how to live tolerantly with others. Such prescriptions, however, clash with human rights acknowledged by Germany in writing.

Educational freedom is a foundational right explicitly recognized by the United States Supreme Court since 1925, in Pierce v. Society of Sisters. The fundamental right of parents to direct the education and upbringing of their children has also been incorporated in international documents including the 1948 Universal Declaration of Human Rights, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.

Although sovereign nations need to address human rights and freedom issues within the context of their culture and laws, organizations like HSLDA that seek to influence public policy both domestically and internationally are needed to speak for the good of all homeschoolers and similarly situated groups.

“Homeschooling is a growing international movement,” Donnelly says. “Governments need to understand that homeschooling produces academically superior, socially well-adjusted, and productive citizens.” Conferences like IVR 2011 provide a means to get the facts into the hands of academics who can then bring that information back to their countries and use it to inform policymakers.

American homeschoolers are blessed with great freedom. It is important that we support those in other countries who are restricted by government policy from teaching their children at home. Technology now allows ideas to travel at the speed of light, which means that it serves the interest of all freedom-loving people to resist totalitarianism in education. By resisting these kinds of bad ideas abroad, we can help prevent them from gaining traction among public-policy makers.