The Onslaught of International Law:
Can America Protect Parental Rights?
By Michael P. Farris
Human rights should not be viewed as being in conflict with the promotion of pluralism. At the core, any theory of human rights views the decisions of individuals for their own lives to be presumptively superior to governmental authority. Of course, there are limits to this theory, and not all things that are claimed to be a human right survive logical analysis. But there is something about the right of private judgment that is fundamental to the idea of human rights.
IF A NATION WANTED TO BAN
ALL PRIVATE EDUCATION
IN THE NAME OF THE PROMOTION
OF PLURALISM, THE REASONING OF
THE COURT STANDS CLEARLY
ON THE SIDE OF SUCH A MEASURE.
One of the most important applications of this right of private judgment, at least to the homeschooling community, is the right of parents to decide how their children should be educated. Parents should have a prior right to make such decisions that is superior to any claim of government.
Pluralism, properly defined, is a compatible goal with human rights. In an operational sense, pluralism means that people of different races, religions, and views should live together with mutual respect and as equal citizens.
A government may promote pluralism. But if pluralism and human rights are to mean anything, they must mean that a person may not be compelled to give up his or her individual views in the name of making a pluralistic society. In fact, coerced pluralism is a self-defeating objective.
This thought completely evaded the European Court of Human Rights in its September 12, 2006, decision that affirmed the power of the German government to ban home education. Parents who claimed both parental rights and religious freedom were rebuffed by the court in a shocking assertion of raw governmental power to indoctrinate children—all in the name of the promotion of pluralism.
This decision is devastating for the German homeschooling movement. We must take action as soon as possible to help these families escape the unacceptable tyranny that they now face. However, the decision was rendered just as this edition of the Court Report was going to press, and Home School Legal Defense Association has not had time to formulate specific plans to help our brothers and sisters in Germany.
We must recognize that this decision may have enormous implications for the American homeschooling movement as well.
I have written prior articles on the threat of international law and the need to explicitly define and protect parental rights in the text of the United States Constitution.1 For some time, I have believed that (1) international law would conclude that the right to homeschooling is unprotected; and (2) American courts would import this and other principles of international law to our own detriment.
We see in the European decision exactly what would happen in the United States if the United Nations Convention on the Rights of the Child were ratified by the Senate or employed by the federal courts as a measure of enforceable customary international law. In short, if the international law movement is not curtailed in the United States, American homeschooling will be banned.
The European decision was based in large part on a child’s supposed right to an education. American courts have never ruled that education is a constitutional right. There is a good reason for this. If it were so labeled, all aspects of our educational system would be run by the judiciary. Today, the judiciary rules the schools on the periphery. But if the idea of education as a constitutional right is ever successful, then we will see a flood of claims that demand particular kinds of education and particular levels of education spending determined by the judiciary.
By the way, Congressman Jesse Jackson, Jr. (D-IL), has introduced a constitutional amendment that declares the right to an education to be the constitutional right of every child.
The child’s right to an education was interpreted by the European Court of Human Rights to mean that every child has the “right” to attend the public schools to receive instruction for the promotion of “pluralism.”
But the court had a funny idea of what it means to have a right. Normally a right does not mean that you must take it if you don’t want it, but this is what the court determined. Moreover, it is antithetical to any reasonable theory of human rights to coerce children to receive instruction in pluralism.
The European court declared that the aim of their Convention for the Protection of Human Rights and Fundamental Freedoms includes “safeguarding pluralism in education which is essential for the preservation of the ‘democratic society’ . . . . In view of the power of the modern State, it is above all through State teaching that this aim must be realised . . . .”2
While the decision noted that some nations in the European Union allow for homeschooling, and while Germany allows for private institutional education, the court made it clear that such allowances are a matter of legislative grace and not founded in principles of protected human rights.
If a nation wanted to ban all private education in the name of the promotion of pluralism, the reasoning of the court stands clearly on the side of such a measure. After all, “the applicant parents were free to educate their children after school and at weekends,” the court said.
This is the exact opposite of what the United States Supreme Court said on the same matter in the famous case Pierce v. Society of Sisters (1925). The unanimous Court held that “the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
While we take comfort in this fact for the moment, there is no doubt that if the Pierce case were before the Court today, it would not receive a unanimous vote from the justices. At a minimum, Justice Scalia would vote against such an outcome based on his clear statements that parental rights are not enforceable. There is a substantial likelihood that other justices would join with him.
Moreover, the reason that parental rights cases are so often mishandled in lower courts is that our claims of parental rights are based upon Supreme Court decisions and not upon the actual text of the Constitution. There is enough fuzzy language in Supreme Court opinions to give lower courts the latitude they want to override parental rights in the name of the “good of the state.”
The European decision in Konrad v. Germany should serve as a wake-up call to American parents. The federal courts, including the Supreme Court, have already begun to use international theories of children’s rights in interpreting American law.
If we are going to protect parental rights by placing an amendment into the actual text of the Constitution—securing parental rights in black and white—we must do so now. We cannot wait until European law has overtaken us.
As I recently reflected on the current failure of the effort to gain an amendment to guard against same-sex marriage, something important finally dawned on me. I was one of the voices calling for a federal marriage amendment back in 1999. The answer we received from most pro-family leaders at the time was, “Come back when the problem is acute.”
Here is the problem with that approach.
What would an acute failure in the protection of parental rights look like? The government could enact an outrageous program invading the sphere of the family. The Supreme Court could change its views on the right of parents by adopting some combination of the views of Justice Scalia (parents’ rights are not protected but should be) and Hillary Clinton (parents’ rights should not trump the rights of children as represented in the UN Convention on the Rights of the Child). If something of this sort happened, it would mean that a significant portion of society had shifted in the wrong direction.
Constitutional amendments are successful only if the American public supports them by an overwhelming majority. If we wait until the problems are acute, we will have waited until public support for parental rights has dissipated—probably to the point that achieving victory is impossible.
Waiting ensures defeat.
James Madison was told that the immediate problems facing the nation were too severe to waste time on securing the Bill of Rights. After all, where were the current problems on any of these matters? But Madison knew that if he did not secure the Bill of Rights at the first available moment, the mood of society might well change and the opportunity would be lost forever.
We must have the practical political instincts of James Madison. Today is the day. We must secure parents’ rights as a protected right in the actual text of the Constitution of the United States.
Tomorrow may be too late. International law knocks at the door.
1See the Home School Court Report, “A Dangerous Path: Has America Abandoned Parental Rights?” (July/August 2006), “Parental Rights: Why Now Is the Time to Act” (March/April 2006), and “Judicial Tyranny Goes Global” (March/April 2005).
2Konrad and others v. Germany (2006). Go to www.echr.coe.int and select "Case-Law" to search for the text of the decision.