AG Eric Holder: Banning Homeschooling Does Not Violate Constitutional Rights?
“A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the dominant power in the government, whether this be a monarch, an aristocracy, or a majority of the existing generation; in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by a natural tendency to one over the body.”
– John Stuart Mill, “On Liberty”
“Wherever is found what is called a paternal government, there is found state education. It has been discovered that the best way to insure implicit obedience is to commence tyranny in the nursery.”
– Benjamin Disraeli, British Prime Minister (1874)
“Our schools have been scientifically designed to prevent over-education from happening. The average American [should be] content with their humble role in life, because they’re not tempted to think about any other role.”
– William T. Harris, U.S. Commissioner of Education, 1889
“We who are engaged in the sacred cause of education are entitled to look upon all parents as having given hostages to our cause.”
– Horace Mann, first secretary of education in the Commonwealth of Massachusetts
“The education of all children, from the moment that they can get along without a mother’s care, shall be in state institutions at state expense.”
– Karl Marx, “The Communist Manifesto”
February 11, 2013
German Homeschool Case May Impact U.S. Homeschool Freedom
Michael Farris, J.D., LL.M.
HSLDA Founder and Chairman
THE CASE SO FAR
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.
(Requires Adobe Acrobat Reader)
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.
No Homeschooling? No Problem.
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’ case 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.
In so doing, we stand up for our own.”
HSLDA Founder and Chairman
Targeting Individual Rights
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.
Eliminating the Right to Choose
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 educating the public about homeschooling, click here. If you are not an HSLDA member, join now! For more information about opportunities to support the work of HSLDA see the FAQ here.
STOP COMMON CORE CURRICULUM!
“In our dreams, people yield themselves with perfect docility to our molding hands. The present eduction conventions of intellectual and character education fade from their minds, and, unhampered by tradition, we work our own good will upon a grateful and responsive folk. We shall not try to make these people, or any of their children, into philosophers, or men of science. We have not to raise up from them authors, educators, poets or men of letters. We shall not search for great artists, painters, musicians nor lawyers, doctors, preachers, politicians, statesmen – of whom we have an ample supply. The task is simple. We will organize children and teach them in a perfect way the things their fathers and mothers are doing in an imperfect way.”
– John D. Rockefeller General Education Board (1906)
“That erroneous assumption is to the effect that the aim of public education is to fill the young of the species with knowledge and awaken their intelligence, and so make them fit to discharge the duties of citizenship in an enlightened and independent manner. Nothing could be further from the truth. The aim of public education is not to spread enlightenment at all, it is simply to reduce as many individuals as possible to the same safe level, to breed and train a standardized citizenry, to put down dissent and originality. That is its aim in the United States, whatever the pretensions of politicians, pedagogues and other such mountebanks, and that is its aim everywhere else.”
– H.L. Mencken
“We must create out of the younger generation a generation of Communists. We must turn children, who can be shaped like wax, into real, good Communists…. We must remove the children from the crude influence of their families. We must take them over and, to speak frankly, nationalize them. From the first days of their lives they will be under the healthy influence of Communist children’s nurseries and schools. There they will grow up to be real Communists.”
– Communist Party Education Workers Congress (1918)
“Freedom of thought in the middle ages was combated by the Inquisition, but the modern method is far more effective. Place the lives of children in their formative years, despite the convictions of their parents, under the intimate control of experts appointed by the state, force them then to attend schools where the higher aspirations of humanity are crushed out, and where the mind is filled with the materialism of the day, and it is difficult to see how even the remnants of liberty can subsist. Such a tyranny, supported as it is by a perverse technique used as the instrument in destroying human souls, is certainly far more dangerous than the crude tyrannies of the past, which despite their weapons of fire and sword permitted thought at least to be free. The truth is that the materialistic paternalism of the present day, if allowed to go on unchecked, will rapidly make of America one huge “Main Street,” where spiritual adventure will be discouraged and democracy will be regarded as consisting in the reduction of all mankind to the proportions of the narrowest and least gifted of the citizens. God grant that there may come a reaction, and that the great principles of Anglo-Saxon liberty may be rediscovered before it is too late!”
– J. Gresham Machen (1923)