J. Michael Smith, Esq.
Michael P. Farris, JD, LLM
Global Human Rights Conference Includes Homeschooling
For the first time in its 50-year history, the World Congress on the Philosophy of Law and Social Philosophy included homeschooling on the agenda of its biannual global conference. Held in Frankfurt, Germany at Goethe University August 15–20, the congress attracted nearly 1,000 academics and legal practitioners. Experts in human rights gave papers at a special workshop, organized by Dr. John Warwick Montgomery, noted Christian apologist and distinguished professor of philosophy and Christian thought at Patrick Henry College. The workshop included presentations by Dr. Thomas Schirrmacher, a German theologian and director of the International Institute for Religious Freedom, and by Michael Donnelly, attorney and director for international affairs at the Homeschool Legal Defense Association.
In his paper, “The Justification of Home Schooling 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 deferring to current societal prejudices and predilections in favor of secular and statist presumptions. He wrote:
“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.”
Schirrmacher, also 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 custody of children is being misused when applied to homeschoolers. “Parents,” he argues, “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.”
National Socialism Influence Continues
Schirrmacher points out that compulsory education through school attendance has a long history in Germany, but that the criminalization of homeschooling is a recent issue originating with the rise of national socialism. He wrote:
“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 the 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 where the German government persecutes homeschooling parents. That is why HSLDA brought the first-ever homeschool asylum case in 2008 for the Romeike family from Germany. The Romeikes were granted asylum in January, 2010 by immigration Judge Lawrence Burman, but the Obama administration has appealed the Romeikes’ victory. As of August 2011, the family was still waiting for a determination of the appeal.
Donnelly, who is also an adjunct professor of government at Patrick Henry College, presented “Creature of the State? Homeschooling, the Law, Human Rights, and Parental Autonomy.” 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 argued that homeschooling is a problem in a democracy that should “require compulsory public education because only the government can assure the inculcation of values able to ensure the survival of a democratic society.”
“Nonsense,” says Donnelly. “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 some of these countries, including former communist nations hostile to any threat to state supremacy, are fighting hard to secure the freedom to teach their own children. HSLDA is helping by offering research and advocacy to public policy makers and encouragement to homeschoolers in other countries. In Germany, however, it looks like it will be a longer road than other countries. State and federal legislators in the republic told Donnelly that most German policy makers 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.
Donnelly recounted: “One state legislator was quite short when she asked the host of a meeting I attended, ‘Why is this American here? This is Germany—we’re not like America.’ During the discussion about homeschooling the legislator told a homeschooling mom present that ‘there was no way she could possibly have enough time to properly educate or properly socialize her eight children.’ ”
Germany, like much of Europe, views religion differently than the United States. Unlike here, religion is taught in public schools. Germany’s growing Muslim minority, however, 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 this was a concern on the part of many public policy makers. This phenomenon helps explain the German Constitutional Court’s 2003 Konrad holding that the “interest of society in stamping out parallel societies” is justified so that “minority groups can be integrated,” taught “democratic values” and 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 since 1925 by the United States Supreme Court 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 other documents including the 1945 UN Declaration on 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 law, 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. Conferences like IVR 2011 are a place where ideas and information can be shared to ultimately seek to influence public policy.
“Homeschooling is a growing international movement. More parents are finding homeschooling as an alternative to failing public school systems,” said Donnelly. “Governments need to understand that homeschooling produces academically superior, socially well-adjusted and productive citizens.”
Conferences like IVR 2011 get the facts into the hands of academics who can then bring that information back to their countries and use it to inform policy makers so that decisions can be made—hopefully for the good of homeschooling parents. HSLDA has been advancing the cause of homeschooling since 1983 and hopes to help homeschoolers abroad by investing resources to fight these stereotypes in countries like Germany.
American homeschoolers are blessed with great freedom. It is important that we support the less fortunate who are restricted by government policy from teaching their children at home. Because technology allows ideas to travel at the speed of light, it serves the interest of all freedom-loving people to resist totalitarianism in education wherever and whenever necessary.
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 bookstore.