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2/11/2013 5:09:02 PM
Mike Farris--HSLDA
U.S. Attorney General: Homeschooling Not a Fundamental Right

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From the HSLDA E-lert Service...
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German Homeschool Case May Impact U.S. Homeschool Freedom

Uwe and Hannelore Romeike fled from Germany to the United States after
their family was vigorously prosecuted (fines, forcible removal of
their children, threats of jail and more) for homeschooling.
Initially, the Romeikes were granted political asylum, but the U.S.
government appealed that decision to the Board of Immigration Appeals.
That Board sided with the government. HSLDA then appealed to the Sixth
Circuit Court of Appeals--the federal court just below the Supreme
Court.

After finishing the final appellate brief last week, HSLDA Founder and
Chairman Michael Farris became convinced that the U.S. Attorney
General's argument revealed some very dangerous views of our own
government toward our freedom.

Sobering Thoughts from the Romeike Case

By Michael Farris, J.D., LL.M.
HSLDA Founder and Chairman

Having immersed myself for about eight days in writing a brief for the
Romeike family (a German homeschooling family who fled to the United
States for political asylum), I wanted to share some insights I gained
into the view of our own government toward the rights of homeschooling
parents in general.

You will benefit from some context.

The U.S. law of asylum allows a refugee to stay in the United States
permanently if he can show that he is being persecuted for one of
several specific reasons. Among these are persecution for religious
reasons and persecution of a "particular social group."

In most asylum cases, there is some guesswork necessary to figure out
the government's true motive--but not in this case. The Supreme Court
of Germany declared that the purpose of the German ban on
homeschooling was to "counteract the development of religious and
philosophically motivated parallel societies."

This sounds elegant, perhaps, but at its core it is a frightening
concept. This means that the German government wants to prohibit
people who think differently from the government (on religious or
philosophical grounds) from growing and developing into a force in
society.

It is thought control. It is belief control. It is totalitarianism
dressed up in politically correct lingo.

But my goal today is to not belabor the nature of German repression of
homeschooling, rather I seek to reveal the view of the United States
government to all of this.

The Romeikes' case is before the United States Court of Appeals for
the Sixth Circuit. The case for the government is officially in the
name of the Attorney General of the United States. The case is called
Romeike v. Holder. Thus, the brief filed by the U.S. Department of
Justice is filed on behalf of the attorney general himself--although
we can be reasonably certain he has not personally read it.
Nonetheless, it is a statement of the position of our government at a
very high level.

We argued that Germany is a party to many human rights treaties that
contain specific provisions that protect the right of parents to
provide an education that is different from the government schools.
Parents have the explicit right to give their children an education
according to their own philosophy.

While the United States government argued many things in their brief,
there are three specific arguments that you should know about.

First, they argued that there was no violation of anyone's protected
rights in a law that entirely bans homeschooling. There would only be
a problem if Germany banned homeschooling for some but permitted it
for others.

Now in reality, Germany does permit some people to homeschool, but it
is rare and in general Germany does ban homeschooling
broadly--although not completely. (Germany allows exemptions from
compulsory attendance for Gypsies and those whose jobs require
constant travel. Those who want to stay at home and teach their own
children are always denied.)

But, let's assess the position of the United States government on the
face of its argument: a nation violates no one's rights if it bans
homeschooling entirely.

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 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.

One final argument from Romeikes deserves our attention. One of the
grounds for asylum is if persecution is aimed at a "particular social
group." The definition of a "particular social group" requires a
showing of an "immutable" characteristic that cannot change or should
not be required to be changed. We contend that German homeschoolers
are a particular social group who are being persecuted by their
government.

The U.S. government says that Germany's ban on homeschooling does not
meet this standard because, of course, the family can change--they can
simply stop homeschooling and let their children go to the public
schools. After all, the U.S. government says, the children are only in
public schools 22-26 hours a week. After that the parents may teach
what they want.

There are two main problems with this argument. First, our government
does not understand that families like the Romeikes have two goals
when they chose homeschooling. There are things they want to teach and
there are things they want to avoid their children being taught in the
government schools.

Does anyone think that our government would say to Orthodox Jewish
parents, we can force your children to eat pork products for 22-26
hours per week because the rest of the time you can feed them kosher
food?

Freedom for the mind and spirit is as important as freedom for the
body and spirit.

This argument necessarily means that the United States government
believes that it would not violate your rights if our own government
banned homeschooling entirely. After all, you could teach your
children your own values after they have had 22-26 hours of public
school indoctrination aimed at counteracting religious and
philosophical views the government doesn't like.
The second problem with this argument goes back to the definition of
immutability. Immutable means a characteristic that cannot be changed
or "should not be required" to be changed.

No one contends that homeschooling is a characteristic that cannot be
changed. We simply contend that in a free nation it is a
characteristic that should not be required to be changed.

Germany has signed international treaties which proclaim that parental
rights are a prior right over any views of the government when it
comes to education. In fact, the movement for the adoption of these
treaties came in reaction to the world's horror at broad-ranging
attack on human rights that Germany perpetrated in the events
surrounding World War II. Nazi Germany believed that the children
belonged first to the state. The world community answered that and
said, no, parental rights are prior to those of the government.

When the United States government says that homeschooling is a mutable
choice--they are saying that it is a characteristic that a government
can legitimately coerce you to change. In other words, you have no
protected right to choose the education for your children. Our nation
could remove your ability to homeschool and your choice would be
mutable--since the government has the authority to force you to
implement their wishes.

The prospect for German homeschooling freedom is not bright. But we
should not reserve all of our concern for the views of the German
government. Our own government is attempting to send German
homeschoolers back to that land to face criminal prosecutions with
fines, jail sentences, and removal of custody of children.

We should understand that in these arguments by the U.S. government,
something important is being said about our own liberties as American
homeschoolers.

The Attorney General of the United States thinks that a law that bans
homeschooling entirely violates no fundamental liberties.
It is important that Americans stand up for the rights of German
homeschooling families. In so doing, we stand up for our own.

To make a tax-deductible gift to the Homeschool Freedom Fund, which
will fund litigation and public education, click here
http://www.hslda.org/elink.asp?id=17160 . If you are not an HSLDA
member, join now! http://www.hslda.org/elink.asp?id=17161 For more
information about opportunities to support the work of HSLDA see the
FAQ here. http://www.hslda.org/elink.asp?id=17162

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