Homeschooling Is A Human Right, But That Doesn’t Make It Immune To Regulation

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Homeschooling Is A Human Right, But That Doesn’t Make It Immune To Regulation, By Nicholas Bolzman

HA note: Nicholas Bolzman blogs at Looking for Overland, a joint blog project “authored by three friends who met at Patrick Henry College and then worked together at the Home School Legal Defense Association.” Nicholas Bolzman received his JD from Michigan State University College of Law last spring and is a graduate of Patrick Henry College.

In a recent post, Ryan made the case that homeschooling is not a human right and, as a result, state regulation of homeschooling (or even outright prohibition, as in Germany), does not amount to a violation of human rights. As much as I have been appreciating his examination of homeschooling culture, in this instance I disagree with his analysis. When I posted a truncated version of this on Facebook, he asked if I could expand it.

Ryan uses the example of the right to travel, which is a basic right, and contrasts that with the right to travel by horse, which is not a basic human right. He then equates homeschooling as the right to travel by horse, which is different, he argues, than the basic recognized right. In his argument, the former does not include the latter.

This analogy requires further examination. If the right to travel is a human right, then the exercise of that right (such as by horse, or by boat, or by car) would be likewise protected. Or, to use a parallel argument from American law, Ryan’s argument is like saying that since the First Amendment doesn’t mention blogging, government censorship would not violate the First Amendment.

Absent protections of specific methods of exercising rights, the abstract right does no one any good.

Ryan also included a discussion of Article 26 of the Universal Declaration of Human Rights, which he cited as authority for the child’s right to an education. However, his analysis only lightly brushed on part 3 of Article 26, which explicitly endorses the right of parents to direct their child’s education. Article 26 in its entirety reads:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

The context for this third provision is particularly interesting, especially given the question of homeschooling in Germany. Johannes Morsink, professor or of Political Philosophy at Drew University, explains the history of that very provision in his book The Universal Declaration of Human Rights: Origins, Drafting, and Intent:

Article 26 (on education) is one of the articles most clearly shaped by the experience of [WWII]. This article has three paragraphs, a nuts-and-bolts paragraph that is a standard constitutional item, a goal-and-purpose paragraph, and a paragraph that gives parents a prior right in deciding what kind of education their children shall have. The second and third paragraphs were put in the article as a way of condemning what Hitler had done to Germany’s youth and of making sure that it would never happen again….

The War Crimes Report that the Secretariat had drawn up for the Human Rights Commission explained to the delegates, as if they needed to be told, that “‘in order to make the German people amenable to their will and to prepare them psychologically for war,’ the Nazis reshaped the educational system and particularly the education and training of German youth, imposed a supervision of all cultural activities, and controlled dissemination of information and the expression of opinion within Germany as well as the movement of Intelligence of all kinds from and into Germany.” The second and third paragraphs of Article 26 were written in direct reaction and opposition to this Nazi abuse of state power. Paragraph 2 of the article states: “Education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”

The first draft of Article 26, paragraph 2 was placed on the drafting table by Bienenfeld of the World Jewish Congress because his organization felt that there was a need to spell out both the goals and the spirit of educational institutions so as to avoid all kind of brainwashing the Nazi state had engaged in. Article 26’s third paragraph was added for the same reasons. Both the Dutch and the Lebanese delegations submitted amendments about parental rights. It being the shortest one, the Lebanese amendment was adopted after a vigorous discussion. The defense again was that the Nazis had usurped the prerogative of parents when they demanded that all children enroll in poisoned state-controlled schools, the paragraph was especially necessary because the word “compulsory” had been used in the first paragraph. [internal citations omitted]

Citing Morsink, Harvard Law professor Mary Ann Glendon also made the same point in her book on the Universal Declaration.

Given this explicit wording and direct context to compulsory attendance laws, it is difficult to say that Article 26 does not permit parents to opt out of said compulsory attendance laws and seek alternative forms of providing for their children’s education.

Those alternative methods would include homeschooling.

Furthermore, similar wording identifying this prior right of parents appears in other human rights treaties. For example, the International Covenant on Civil and Political Rights, art 18(4), states that “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” The International Covenant on Economic, Social and Cultural Rights, art. 13(3) declares “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”

Even the oft-criticized Convention on the Rights of the Child, art. 29(2) cautions that no educational goals “shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”

All of these, while recognizing the authority of the state to set minimum standards, protect the rights of parents, either individually or collectively, to determine the methods of education for their children.

The government’s role is secondary—to ensure that the parents fulfill their obligation to the children; but the obligation (and corresponding ability) is first and foremost on the parents. In this sense, they resemble Blackstone’s description of parental responsibilities and rights in education.

The last duty of parents to their children is that of giving them an education suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes, it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children.

* * *

The power of parents over their children is derived from the former consideration, their duty: this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it. And upon this score the municipal laws of some nations have given a much larger authority to the parents than others. The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away. But the rigour of these laws was softened by subsequent constitutions; so that we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that “patria potestas in pietate debet, non in atrocitate, consistere.” But still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them, for his life.

Notice how both Blackstone and the human rights documents connect the parental power to parental responsibility, placing responsibility first. A failure of the responsibility can certainly lead to a forfeiture of the power, but that failure must be demonstrated before the forfeiture takes place.

Consequently, even though the right to select the education for one’s child is a human right inherent in parenthood, it is not absolute (a point parental rights advocates often miss, and I suspect, the larger point Ryan was trying to make in his original article).

No human right is absolute.

Free speech does not include libel, and it subject to neutral time, place, and manner restrictions. The consensus is that even life itself can be taken under the right circumstances, as demonstrated by the permission of the death penalty and abortion. Likewise, this parental right does not include the right to deprive a child of education (which should be self-evident, since the parental right stems from and is related to the child’s right to an education.).

As with other rights, it can be subjected to reasonable minimal regulation, as well as forfeited under certain circumstances.

But in those instances, the burden of proof is on the state to show why the interference with the parent-child relationship is necessary.

Absent that, the parental right wins.

Pirates, Bible Abiders, and The German Tea Party: What Germans Think

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Pirates, Bible Abiders, and The German Tea Party: What Germans Think, By Jennifer Stahl

HA note: The following is reprinted with permission from Jennifer Stahl’s blog Yeshua, Hineni. It was originally published on September 28, 2013 with the title, “German Homeschooling Cases – What do Germans think? What sort of political lobbying is going on?”

One of the things I get asked quite frequently is “What do those living in Germany think about parents who want to teach their children at home?” Also, “Is there as much hype in Germany about these cases like what we’re hearing in the US?” which is quickly followed by, “Is it just not in your news?

I’d like to try to share some of what I have seen and heard in response to those questions.

Germany has a completely different tradition:  compulsory education – which was introduced in Prussia almost 300 years ago, and applies to all children from the age of six forwards. Parents who disagree with the curriculum, may establish a private school if need be, as the state requirements for this are quite strict. Those who choose to teach their children at home do so illegally.
Spiegel:  Homeschooling: Bibel-Lehre statt Sexualkunde
[Homeschooling: Teaching the Bible instead of sex education]

 The German laws mandating public-school attendance date back to Germany’s first experiment with democracy in 1919, according to Hans Bruegelmann, an education professor at the University of Siegen.
…previously private education was only available to the elite, and that the public-school mandate was a clear political choice.
“…school is an embryonic democracy and will help to integrate children and young people coming from different backgrounds into the democratic culture,” …
US judge grants German homeschooling family asylum

 “At home, children only experience one segment of society, where they live, learn and grow up. They don’t get to see the broad spectrum, which our young citizens need to be exposed to,” said Bunselmeister-Lohr.
 More Families in Rural Areas Opting for Illegal Home Schooling

 I do not think that Germany should allow homeschooling. We already have a huge problem here with immigrants …especially women and children — being kept at home by their male relatives due to religion and cultures that they have brought with them and therefore those women and children cannot speak basic German and know virtually nothing of their rights or obligations in Germany.
Anti-Americanism, Homeschooling and Happy Housewives

 We are a family from Germany now living in New Zealand because we had to leave our country because of homeschooling…
In Germany we felt …persecuted …as the German government is not interested in Christian education anymore. We did homeschooling in Germany in a bilingual way so the children had no difficulties to move into an English speaking country. They passed the tests at a homeschool cooperated school very well, as well as all other native speakers. ..here in New Zealand …children are far more accepted in the society than in Germany. — Laurien Family, NZ
Readers’ Mixed Feelings About Germany’s Homeschooling Ban

 Parents have to take care that their children attend classes. If the parents fail to push their children to participate in the lessons,they are actively violating compulsory education laws…
Sohn schwänzte Schule: Mutter muss sechs Monate ins Gefängnis
[Son skipped school: mother has six months in jail]

Home-schooling fuels a heated debate in Germany. Families in favour of home-schooling say they are persecuted without cause. Critics point to the extreme religious views of some home-schoolers and question the safety of allowing children be educated without state oversight.
‘We have the power to take your kids away’

 “What I could imagine is for homeschooling to be allowed within narrow parameters, with students being frequently tested by authorities,” said Heinz-Peter Meidinger, head of the Deutsche Philologenverband, an association of German high school teachers. “What I would not welcome is when such students are the rule and not the exception.”
German Parents Wanting to Homeschool Turn to EU Court

Patrick Meinhardt, education speaker for the FDP notes, “I don’t want to start writing up a lot of new rules for homeschooling. I imagine that as long as some state control over the curriculum and teacher training remains, home schooling should not be restricted any more.”
In short, the FDP advocates using the laws on the books for private schools, in order to finally open the door to home-schooling in Germany. The other German parties, however, generally oppose homeschooling more out of…fear that the teachers and their materials will be substandard…
HOMESCHOOLING: VERBOTEN IN GERMANY STILL IN 2009

 Patrick Meinhardt also said: “Parents have a fundamental interest to be able to decide on what sort of education their children have.”
Erstmals Globale Konferenz zur Bildungsfreiheit – Homeschooling bald erlaubt? 
[First Global Conference on Freedom of Education –  Will Homeschooling be allowed soon?]

At the meeting talk education experts and practitioners of homeschooling from many countries, including the USA, Russia and Finland. Even the FDP Bundestag member Patrick Meinhardt , educational policy spokesman of the FDP will hold a keynote speech.
Berliner Konferenz zur Bildungsfreiheit 
[Berlin Conference on the Freedom of Education]

Perhaps the most significant formal accomplishment of the summit was the signing of the Berlin Declaration by home education leaders and human rights advocates from all over the planet.
The document outlines various human rights conventions and treaties protecting the fundamental right to choose home education while calling on rogue governments to end persecution and repression.
WND EXCLUSIVE Parents shed tears over homeschool-crackdown horrors

As far as political lobbying goes; it looks like there was some hope when the Piraten Partei (Pirate Party) was founded, that they would help legalize home education. This was voted down by 76% vote in the party. (source 1, source 2)

So, Hausunterricht.org (HA note: run by Jörg Großelümern, board member of HSLDA-affiliate Netzwerk Bildungsfreiheit) put together a note for German home educators to say who was the best choice to vote for just prior to the elections. The basics were that none of the available ruling parties with majority in Parliament could be worked with for various reasons.

Instead, we’re referred to vote for the PBC.

(Which, actually, I’d never heard of. I feel slightly embarrassed by this fact.) (HA note: PBC is “The Party of Bible-abiding Christians,” or “Partei Bibeltreuer Christen, PBC),” a conservative evangelical minor political party in Germany.) They flat out said the CDU/CSU (“Christian Democratic Union of Germany” / “Christian Social Union of Bavaria”) were not workable.

For what it is worth, I didn’t even see the PBC being given a listing when votes were counted. Maybe they were listed under the all-encompassing “other”. I’m not certain.

A German home-schooling page on Facebook went another direction, suggesting the Alternative für Deutschland party.

Below is a screen capture from a German pro-homeschooling group, pushing for its supporters to vote for the AfD — Alternative für Deutschland — in this year’s election:

“Tomorrow is election day in Germany. The Alternative für Deutschland is the only party we can trust to give us any hope of a legal decision on homeschooling in Germany. In terms of training and education, we can expect them not to mindlessly parrot the sick collectivist consensus (on the legality of home education).”

A screen capture from a German pro-homeschooling group, pushing for its supporters to vote for the AfD — Alternative für Deutschland — in this year's election.
A screen capture from a German pro-homeschooling group, pushing for its supporters to vote for the AfD — Alternative für Deutschland — in this year’s election.

Now, I had been following some of the news on the AfD.

I had noted that they are quite similar to The Tea Party in the US, with the exception of being an actual political party, rather than a movement.

Apparently, I was not the only one who noticed this, as it was being discussed in almost every German newspaper that I perused. There were some other things that stood out to me, that caused the recommendation above, to cause me to have quite raised eyebrows and wide eyes. My hope was that they would not make the 5% threshold to get into Parliament, not because of their policy towards home-schooling, but due to their other political aims and leanings.

(For those who absolutely must know, I cannot vote in any of these elections. I can only express much interest and research as much as I like about these things.)

Its openly anti-euro message has prompted a debate in the governing Christian Democrat (CDU) party, for example – is silence the best policy or should the party’s pro-Deutschmark message be addressed head-on?
…The AfD usually gets 2-3% support in the opinion polls. If it can raise that to 5%, under the electoral laws of Germany it gets seats in the Bundestag (lower house), and in a coalition system, small parties then have power.
Germany’s new anti-euro AfD party causes political stir

Who reduces the AFD on their right-wing populism ignores the real ideological threat posed by that party…

The paleolibertarian calls for the submission of all areas of life to the market ideology. Social authorities such as the family and the church are there to protect the individual from the state, which is the enemy of paleolibertarian. The EU opposition of the AFD fits seamlessly into the philosophical ideas of fundamentalists. Anyone who wants to reduce the state to a minimum, of course, also rejects any form of a strong central government.
 Die Gefahr der neuen Partei ist nicht der Rechtspopulismus – Die deutsche Tea Party
[The danger of the new party is not the right-wing populism – The German Tea Party]

 Behind the scenes, a power struggle is raging between a liberal wing, to which many former members are from the FDP, and a conservative part, where the boundaries are quite fluently leaning towards right-wing populism. Questions over of whether gay marriage is right, whether the nuclear power making a comeback or whether individuals should have a right to “homeschooling.”..
Alternative für Deutschland – Wie die Wähler die AfD zur Protestpartei machen [The Alternative for Germany – How the voters make the AFD into protest party]

For those who do not know, there is a Fünf-Prozent-Hürde, or a Five Percent Hurdle that each political party must reach to enter into the German Parliament.  The AfD will have participated for the first time in federal elections this September. Emotions were high and everyone wondered how much wind would be in their sails. In the end, they won 4.7% of the vote. This doesn’t mean much in the way of Parliament, but it can mean something for some local elections.

I don’t really understand all of this, since my husband is extremely pacifist and isn’t big on history, politics or political parties. I haven’t seen enough of our friends or extended family to discuss politics in ages, and the last political book I have about German political parties (in English, mind you) was published in 2003. We have a few new parties since then and some of that information is quite outdated.

What I do know, though, from my experience in the United States, is that you always follow where people are saying to vote and examine that as far as you can to better understand where they fall politically and what sorts of other beliefs they hold.

All of this really leaves me scratching my head.

The more I find out about the people willing to suffer heavy fines or jail and what political parties they’re pushing, the more I feel like I’ve fallen down Alice’s rabbit hole.

The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language

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The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language, By Virgil T. Morant

Virgil T. Morant is a lawyer in northeastern Ohio. He practices civil litigation and criminal defense, as well as corporate law, and his work includes representation of clients in disputes over education and child custody. He is also a member of the International Law Section of the Cleveland Metropolitan Bar Association. His personal blog is Lasseter’s Lost Reef.

*****

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”  

That’s article 16(3) of the Universal Declaration of Human Rights, one part of the International Bill of Rights from the United Nations.  While one does not need an especially fertile imagination to think of a good many people whose disdain for the U.N. (or suspicion at the least) would give little consideration to the authority, and while ordinary people don’t typically go around citing U.N. resolutions, that statement transcends legal controversy or political debate: it states a principle that is widely shared.

It is not just a statement about the organization of society: it is an affirmation of how people generally feel about the dignity and centrality of home and family.  Indeed even many of those who likely would have no truck with the United Nations and no love for International Law virtually quote that article word for word every day when they’re arguing about matters of home and family, and probably most of them scarcely even realize it.  When we talk about rights, however precisely or imprecisely, we are talking about things that people feel very deeply about, things that give their lives meaning and purpose.

That quote right there about the family says it.

Now, in ordinary speech as well as the commonplace discourse of journalists and editorialists (“bloggers” too of course), any talk of rights is inevitably amorphous and indicative more of feelings and desires than it is of well-defined or cognizable rights.  So, frequently when someone says that a right has been violated, what he really means is that he has been offended in some way.  In everyday speech, and even in garden-variety “professional” commentary, that is fine—people who are talking casually or writing frequently will resort to such boilerplate, and there is little sense in crying about it—but, if we wish to step away from casual usage, we are likely best served by using the language of rights in two ways: (1) if the right is legally cognizable, then by reference to the authority that defines it or (2) if we are making a case for a right, then by setting out our definitions, argument, and authority.

In his recent article, R.L. Stollar—who graciously invited me to write my reply to him as a guest post—actually used precisely these methods in order to make the case that homeschooling was not a right.  Turning, however, to the authority he used and considering his argument, I have to disagree with his conclusion.

The chief authority Mr. Stollar uses is Article 26 of the Universal Declaration of Human Rights (UDHR).  After the prior sections of that article deal with an individual’s right to an education, what level of education should be mandatory, and some discussion of the social purposes of education, UDHR art. 26(3) states, “Parents have a prior right to choose the kind of education that shall be given to their children.”

As I noted in my comment to Mr. Stollar’s post, this language both gives a priority to parents in the determination of their children’s education and states it in terms of an act that is compelled: the children shall be educated, and the parents have the prior right to choose the kind of education.  Some portion of Mr.Stollar’s post got bound up in the notion that a human right cannot be controlling over another person, but the very language he quoted seems to dispel that by granting parents what it unambiguously calls a right to make determinations for other human beings (parents choosing for their children).

On top of this, it is not difficult to think of a number of other rights that involve and even require the cooperation, restraint, or compulsion of other human beings.  

I noted the right to counsel in criminal proceedings in my comment on his post.  How about also the right to reasonable working hours (UDHR art. 24), which places limits on how much an employer can demand of his employees and requires him to provide reasonable leave, or the right to one’s reputation (UDHR art. 12), which limits freedom of speech from, say, defamation?  These are just two examples.

Rights place obligations upon the state to vindicate them, but they also often entail a restraint on individual human beings as well as granting the capacity for one human being to impose restraint upon another (as in parents making decisions for their children) or to seek redress for a violation (as when one sues for defamation).

If we want to look to concrete authority to argue whether homeschooling is a right, by the way, why stop with the UDHR?

Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESC) make favorable reference to the “liberty of parents.”

They, together with the UDHR, belong to that International Bill of Human Rights mentioned above.  Consider the full language of ICESC art. 13 ¶ ¶ 3-4:

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Paragraph 3 states its “respect” for parental liberty in school choice—even choices besides public school—and paragraph 4 puts some teeth to this by forbidding the instrument from being interpreted to interfere with the individual’s liberty to establish educational institutions.  Make of that what you will.

If, then, what remains of the argument against homeschooling being a right comes down to the travel by horse analogy (see Mr. Stollar’s essay for this), then my response is:

Traveling by horse, if you have one, actually is a right, and it falls within the right to freedom of movement.  

Of course it is not a right to take someone else’s horse or to be given a horse, but the right to travel is one primarily cognizable in not being restrained from travel, and surely no state should have the right to stop you, under normal circumstances, from hopping on your horse and going where you will.  Just the same, if a parent has a right to determine his child’s type of education, and, if we are agreed that whatever form of homeschooling we are talking about is a legitimate type of education, then surely the parental right includes the right to school the child at home.

Of course, at some point in narrowing rights down to specific examples, it would become absurd to insist that they all be found in a United Nations convention. But a good many of the things we value as rights (in some proper sense of the word) are actually spelled out in writing in statutes and case law, which constitute an overwhelming number of words and pages.  If there is any uncertainty about whether something should be legally protected—such as the right to school one’s children at home—then off to court one goes, where lawyers will find the citations and make the arguments.

It’s all quite entertaining for pundits and ordinary people to complain about “rights” being violated, but rights don’t mean much of anything in a society of laws until their existence is tested and proven through law. 

Sometimes too, by the way, the universality of a norm is well demonstrated by the states that violate the norm against the greater consensus.  So, however the current business in Germany, for instance, shakes out, and whatever may be adjudicated in the Unites States or anywhere else, for my own part, I just cannot fathom educating one’s children at home as not being a right—or, if you prefer (but I think this is hair-splitting), as squarely fitting within the right to choose the education of one’s children.

We get emotional about our rights.  We get emotional about these homeschooling rights in particular, because, as with any human liberty, they are subject to abuse, and by “abuse” I mean to say the kinds of acts that take us squarely outside the realm of rights.  The abuses of homeschooling are famous in the portion of the blogosphere where I am writing now.  And then there is the hazy realm of, let’s call it, “indoctrination”: why, with some of the more scandalous examples of homeschooling, what sorts of things are they teaching those children!  A false history or poor science or just a pathological contempt for this segment of society or that or for society on the whole, perhaps?

Let’s don’t forget, though, even when children go to public schools, their primary role models remain their parents.  Even when children go through their rebellious phases, reckon themselves independent and free-thinking as adolescents will do, if they live in a home with parents, their parents are their principal models of how life is.  Their chief guides, even if the parents don’t know it or don’t want it.  No one can jack you up worse early in life than mom and dad, and nobody can guide and protect you better either.

The family is the natural and fundamental group unit of society.  

That’s not just legal jargon, and it’s not just amorphous “rights” language.  It’s the fundamental reality of parents and their children.

The Mutterpass: Motherhood, Healthcare, and Homeschooling in Germany

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The Mutterpass: Motherhood, Healthcare, and Homeschooling in Germany, By Jennifer Stahl

HA note: The following is reprinted with permission from Jennifer Stahl’s blog Yeshua, Hineni. It was originally published on September 26, 2013 with the title, “German Homeschooling Cases – Things to consider.”

One of the arguments that I keep hearing from family, friends and acquaintances in North America and other English-speaking areas of the world about home-schooling in Germany is: “Homeschooling should not be regulated! Parents have the right to educate their children as they see fit! Should officials be doing welfare checks on babies and toddlers to make sure that they are well cared for?”

I usually stammer a bit and try to explain that things are just so different here with German culture vs. American or Canadian culture. With the healthcare system that we have, women who are prenatal and postnatal are well cared for and children are seen as an investment and something that the entire “village” should protect.

It all starts when you get your first positive pregnancy test.

No, really. It does.

First, you get your pregnancy test at the apothecary. It will not be available elsewhere, because that is strictly behind-the-counter stuff. You’ll be advised by the nice people at the apothecary that if it is positive, to contact your OB/GYN, and if you don’t have one, to contact your Hausarzt (The General Practitioner that you’re seeing), and get a referral to a good OB/GYN.

You pop out the pregnancy test and without a doubt, it’s positive. You might take another, but it too is positive. “Well, we’re having a baby!”  Or, whatever variation of that which was said in your home.

The next step is simple.

You contact your Hausarzt for the referral to an OB/GYN, or, you contact your friends really quickly and find out who is the best in the area. Then, you call and say “(Appropriate time of day greeting here)! My name is ________ from __________; and I just took a pregnancy test and it’s positive. Last missed period was on ________.” And before you can say “OK,” they’ve already hauled out the appointment book and are squeezing you in right away.

When the appointment date arrives, you will be given the almighty “Mutterpass“.

This is a mother’s passport and will remain with you your entire pregnancy and through to your postnatal checkups. This is your copy of your medical records. All appointments will be logged here, your test results on any blood tests or other tests that need to be done, how you’re measuring, and all ultrasounds.

 The Mutterpass has information that contains all relevant data on the health of the mother, such as blood group; iron content in the blood, test results for hereditary – and infectious diseases (hepatitis B , HIV , rubella); the condition of the child — such as position, weight, size, etc. up to the birth;  and the expected date of birth. Even after the child is born, some important facts about the child, and the postpartum follow-up of the mother, (6-8 weeks after birth), is recorded in the Mutterpass. In an emergency, Doctors have all this information and are able to respond faster.
Wikipedia

The mother passport has 16 pages. Each (double) page deals with various aspects of the health of mother and child.
Familienplannung.de [Tons of information here, including what is found in the Mutterpass] See also: Rund ums Baby and this PDF, which have example pages of what is in the Mutterpass.

Due to the length of my post today, I did want to share TheLocal.de‘s wonderful series “Motherhood in the Fatherland”. I know that sharing these posts seems like a lot of reading. I tend to over-share in this area, so I’d rather spare those details and let Sabine walk you through the process. Sabine has a tendency to walk one through all the fun steps of culture shock while maintaining an “Oh, right, this is how this works.”

Prior to choosing where you will give birth, your next choice is what midwife will be attending you for all your postnatal and breastfeeding needs.

Once you’ve secured her (usually a her, or so I’ve been told), you will have a visit or two to get to know each other, fill out medical information and share who your doctor is so that they can work together. You’ll also hand over your insurance card so that s/he can be paid on time for all the hard work that will be done.

Usually the midwife visits only a few times over the course of a couple of months to assess whether or not your child is growing adequately, you’re bonding well, or if you have PPD or other complications. She will also work with your OB/GYN on doing examinations at home, at a time that things are still very delicate, and you won’t be wanting to sit in the car or on waiting room chairs. She’ll ensure that your uterus is, indeed, going back to normal size, that it is functioning as it should, and that things are healing nicely.

After giving birth, you’ll spend some time recuperating. Birth is hard, messy business and it takes a while to bounce back. Most mothers will be off of work for at least a few months, but usually an entire year, or longer.

Mothers in Germany will receive “Elterngeld“, which will basically help with those extra needs that crop up when you have a little one join your life.

Parental leave is rather generous, allowing fathers to even take as many as fourteen weeks off from work to help his wife or partner out. There have been a few recent news articles discussing the generous leave and stipends to stay at home that are given to new mothers:

“We have this expression, ‘rabenmutter’, which doesn’t even exist in other languages. ‘Ravenmother’. It means a bad mother and a woman who works is often considered a ‘rabenmutter’ in Germany.”
Is the German insult ‘Raven mothers’ holding back women at work?

The federal government passed a law late last year introducing a monthly childcare supplement of €100 to €150… which translates roughly to “money with which to care for someone.” It’s expected to cost the government €1.2 billion each year.
As of August, this supplement will be paid to parents of children aged three and under who are not in a state-subsidized daycare.
German childcare allowance raises questions about working moms

…women who are both underemployed and underpaid. German women work fewer hours than women in most other OECD countries (see chart). The gap in median pay is the third-widest in the club, after South Korea’s and Japan’s. That is partly because mothers stay at home. In 2008 just 18% of children under the age of three were in formal child care, against an OECD average of 30%.
German family policy – Pay to stay at home

…On average, a mother of one takes three years off, a mother of two up to seven years off and even then only goes back to work part-time…
With child care this good and affordable, what is it that’s keeping German mothers out of the workplace? …School often finishes at midday, it’s hard to find any job that fits this schedule.” … “There’s also a culture of mothers not working,” another mother added, “and those who do might get called a Rabenmutter.” That’s a raven mother – one who doesn’t care about her children.
The reluctant hausfrau: being a German mother

After having our first check-up with the pediatrician at the hospital of our choice, we learned rather quickly, that your children also get a copy of their medical records in an “U-heft” (Untersuchungsheft: children’s examination folder) which is also known as a “Gelbes Heft” (Yellow folder). This will house all copies of medical data from the child’s birth, through their eighteenth year. Like the Mutterpass, it is advised you take it and the Impfpass  [vaccination passport] along if you go on a trip anywhere, especially out of the country.

Prior to moving to Germany, in 2005, a law was passed in several Länder (German states) that made these check-ups legally binding, and prosecutable if you miss them.

Originally, there were ten checkups mandated, but this has changed in the last year or so with several additional check-ups added to the folder and us being told we will have additional appointments.

Children’s preventative checkups are to ensure that defects and diseases… especially those which endanger the normal physical and mental development of the child … are recognized quickly by a pediatrician, early enough to initiate appropriate therapy. At the same time studies are carried out to document cases of neglect , abandonment , child abuse or sexual abuse…
Wikipedia

Since the early seventies there were, in the Federal Republic of Germany, ten statutory checkups for children and adolescents, but not all parents were taking their children to these voluntary health checks.
Due to the appalling cases of child neglect – and child abuse…  Experts in child and youth services, child protection, physicians, doctors and many politicians began demanding federally regulated, legally mandatory, screenings for all German children.
Vorsorgeuntersuchungen

  “We have revised all mandatory checkups from the U1 to J2,” Hartmann said. The questionnaires that doctors will fill out with feedback from the parents, will in future, explore various risk factors [for example in the areas of exercise, nutrition, media consumption and parent-child interaction.]
Barmer und Kinderärzte starten neue Kindervorsorge­untersuchungen

We received the following letter in 2008:

Ladies and gentlemen, dear parents,
On the 1st of January 2008, the Hessian Child Health Protection Act came into force in Hessen. The pediatric check-ups (U1, U2, U3, U4, U5, U6, U7, U7a, U8, U9) have become mandatory by this law. To ensure that all check-ups, beginning with U4 have been conducted to U9, the …Hessian children’s care center based at the University Hospital of Frankfurt is responsible. . .
Hessisches Kindervorsorgezentrum

We ended up with three or four additional check-ups, leaving us with about fifteen or so before our children will be 18. So, double that, and we’ll be in the doctor’s office at least thirty-odd times in twenty years of being parents, barring illnesses that have us in more frequently.

One of the more frequent arguments I hear from my friends and acquaintances in the US are summed up very well by Hermana Linda at Why Not Train a Child?

My opinion is that parents are responsible for their children, the state is not. I do not believe that the state should take charge of children unless there is a dire circumstance such as obvious abuse. I do not believe that the state should be checking on children in order to make sure that they are not being abused. . .
It is just as easy, if not easier, to abuse a child before they reach school age. So, if we’re going to worry about school aged children being abused, why not worry about pre-school aged children being abused..?
Why Not Regulate Homeschoolers?

Well, as you can see, Germany doesn’t work like the United States or Canada. Nope, not at all.

Children are not only part of their family, but part of a wider, well-networked village.

Also unlike the United States, Germany has outlawed punitive discipline — you get the picture. Some areas are more granola than others, but, for the most part, Germany is very protective of mothers and children. It is also very proactive with health issues, and looking to stamp out and educate parents on how to prevent child abuse.

Germany has no separation of church and state like the United States, so it is expected that you will likely be religious, and additionally have the support network of your local church, synagogue or mosque.

If you do not, groups like CaritasDiakonie, and such are available to you, and you will be informed by your midwife about something like MOPS that is available from your local church, as well as about 100 different types of “Mommy and me” activities.

With the check-ups in place, there has been a decrease in reported abuse cases. Sadly, I cannot find these numbers at the moment, but I trust one of my German readers will know where I can find that again. I’d lost my laptop at the beginning of the year, which means I lost a vast mess of data from my old favorites, which included all of this.

I’ve had friends who argue, “With all these precautions, how could anyone educate at home?” — People do it all the time. Generally speaking, those people are either celebrities, government officials, parents who move frequently or parents of children with illnesses that necessitate schooling at home or in a hospital. It’s done every day.

I believe, if we could take care of the issue of curriculum and ensuring that parents are well supported, that education at home could be possible. My line of thinking is quite similar to what was blogged at Homeschooling’s Invisible Children today:

We do not want to do away with homeschooling… We would simply like to see convicted child abusers or sex offenders barred from homeschooling, light monitoring when families with a previous history of neglect or abuse begin homeschooling, and yearly academic assessments (via standardized test or portfolio review) to ensure that families who claim to be homeschooling are not doing so to hide abuse rather than to educate their children.

I believe that if the government could work with the families who are already schooling at home, they could come to some sort of agreement.

Well, that is my hope. We’ll see what is decided as more proceedings go through the court system, what is decided for the future of the German educational system.

I Love Homeschooling, But Homeschooling Is Not A Human Right

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I Love Homeschooling, But Homeschooling Is Not A Human Right, By R.L. Stollar

*****

Let’s get a few things out of the way first.

First, I generally enjoyed being homeschooled from K-12. Homeschooling is no panacea, but it was a generally positive experience for me personally. Second, I am all about human rights. Since studying human rights theories in high school and college for academic debate, I have desired to understand human rights, understand how to promote them, and defend others when their rights are being attacked.

Third and finally, I am not a fan of Germany’s almost-ban on homeschooling. (“Almost-ban” because Germany does, in fact, allow homeschooling for families of sick children or families that travel significantly.) As an American and a former homeschooler, it rubs me the wrong way.

But.

But Germany’s almost-ban on homeschooling is not a violation of the fundamental, human right to homeschool. Because there is no such human right. It does not exist.

There is no fundamental, human right to homeschool, peoples.

Now before you raise the pitchforks, throw the stones, and shout “Kill the beast!,” hear me out. And while you hear me out, re-read the three things I started with. When I say there is no fundamental, human right to homeschool, I say that as (1) a fan of homeschooling, (2) a human rights advocate, and (3) a critic of their almost-ban on homeschooling.

So put down those pitchforks and stones and save “Kill the beast” for a Disney movie and let’s talk about some basic human rights theory.

Defining Human Rights

Human rights are things — usually freedoms — that are guaranteed to you simply because you are a human. 

These rights assume that every human being — whether male, female, adult, child, gay, straight, black, white, and so forth — is a moral and rational being who deserves dignity and respect. Because of this, these rights are universal. Whether or not the government that you live under chooses to respect these rights, you still have them. They are indivisible.

There have been many articulations of rights people have — ranging from the Magna Carta to the Bill of Rights. Each of these articulations have dealt with different types of rights — natural, civil, and so forth. The concept of human rights arose after World War II and the Holocaust. When the United Nations was created in 1945, governments wanted to create a contract between each other to avoid similar international horrors in the future. The result of this was the UN’s Universal Declaration of Human Rights (UDHR) in 1948. It delineated thirty fundamental rights that people everywhere should be guaranteed.

You can read a simplified version of the thirty rights from the UDHR here, or the full text of the UDHR here. What you will observe in the declaration are universal concepts of ethics: no slavery, no torture, no unfair detainment, the right to privacy, freedom to move, freedom of expression, right to education, and so forth.

Classifying Human Rights

Now you might wonder, What qualifies a right to be a “human” right?

This is a highly debatable matter, and people everywhere — including human rights theorists — disagree on this all the time. But most people agree with either one of the following two key frameworks:

(1) International, high priority, and require robust justification

Human rights are both international and high-priority norms that require robust justifications that apply everywhere and support their high priority. They need to be so international and so high-priority so that they can actually be justified as binding on every nation everywhere in relationship to every single human being. They need to transcend cultural diversity and national sovereignty.

This is why in most human rights treaties and declarations you see abstract and universal concepts rather than precise particulars. We can all — theoretically — agree that freedom of speech is a human right. But what about the freedom to make porn? That is a very specific freedom that will not hold up against the standard of cultural diversity and national sovereignty. The more specific you get in defining a human right, the less binding it is.

(2) Universal, indivisible, interdependent, and interrelated

The four main standards for what are human rights are (1) universality (applies to all human beings), (2) indivisibility (inherent to human beings qua human beings), (3) interdependency (each right depends on the others), and (4) interrelatedness (each right enhances the other rights). Put together, this means that “all rights are equally important and necessary in creating a strong and healthy society.”

If a particular right is not as equally important and necessary as other rights in creating a strong and healthy society, then it is not a human right. It can be a civil right or a political good or a privilege, but it is not a human right.

Freedom of Movement Versus Freedom to Move By Horse

Let us look at a particular example: freedom of movement.

Freedom of movement is a human right.

What are some ways in which one could move? You could move by foot, by car, by train, by boat, by plane, by horse, and so many other ways.

Is travel by horse a human right?

No. Freedom of movement is a human right. But movement by horse is not a human right. Protecting the former is an international high priority. Protecting the latter is not. Furthermore, protecting movement by horse would be protecting a particular vehicle for achieving a general right, but not the general right itself.

It is the same with homeschooling.

The right to education and the right to educational freedom are both human rights, according to Article 26 of the UDHR:

Everyone has a right to education… Elementary education shall be compulsory… It shall promote understanding, tolerance and friendship among all nations, racial or religious groups… Parents have a prior right to choose the kind of education that shall be given to their children.

What are some ways in which one could educate or be educated? You could be educated by public schools, private schools, home schools, tutors, co-ops, and so many other ways.

Is education by homeschooling a human right?

Like travel by horse, homeschooling is not a human right. But like freedom of movement, educational freedom is.

Furthermore, you must keep in mind that human rights are inherent to individuals as individuals.

You cannot have a human right to another individual.

So while one can argue that homeschooling should be considered a parental right, it cannot be a human right because no individual has human rights to another person. You have the human right of movement, but not the human right to make another person move.

This is the inherent balance contained within Article 26: the right of a child to an education, and the right of a parent to follow his or her conscience regarding their child’s education. These need to be balanced. So if homeschooling has a potential to interfere with the human right to an education (of the child), then it cannot itself be a human right.

One can certainly argue that homeschooling is such an important vehicle for preserving the human right of educational freedom, that banning homeschooling is a violation of educational freedom. But educational freedom is the human right, not homeschooling.

Human Rights Inflation

To say homeschooling is the human right confuses and conflates categories.

But it does more than confuse and conflate. It also inflates. A vital aspect of human rights as international policy is that the list of human rights — as stated in treaties — has currency. In other words, the stated human rights actually mean something. So when one country violates them, other countries are rightly in an uproar. Violate freedom of religion and that is a big deal.

The more “rights” you add to the list of human rights, the less that list means.

It loses currency. Once you start adding things like “right to travel by bus,” “right to travel by car,” “right to travel by donkey,” “right to travel by cat,” it diminishes the impact and value of “right TO freely move from one place to another.”

This is called human rights inflation.

What HSLDA and other likeminded homeschool advocates are pushing for, this adding of homeschooling to the list of human rights, is guilty of that very thing.

They are contributing to human rights inflation. They are not alone, mind you. This is a problem that human rights theorists and politicians and international policy experts have wrestled with for years now. According to Foreign Affairs, there is “a gross inflation in the number of human rights treaties and nonbinding international instruments adopted by international organizations over the last several decades.” This is because “Human rights once enshrined the most basic principles of human freedom and dignity; today, they can include anything.”

Why this is a problem is succinctly expressed by the Spectator:

[When people translate] any and all grievances and demands into the language of ‘rights’, they are causing an inflation of the whole concept… The result is that at some point there will be a collapse of the whole system… If living in a one-bedroom flat is now to suffer a fundamental human-rights abuse, how [does one] get remotely exercised about the gassing of children or the desolation of whole nations?

Please Stop Calling Homeschooling a Human Right

As much as I value homeschooling and dislike Germany’s almost-ban on it, I consider it fundamentally irresponsible to set forth homeschooling as a human right. Just, no. No, no, no. I do not say this because I hate homeschooling. I would say this same thing about any number of other thinkers and advocates who set forth particular vehicles for achieving general rights as actual rights themselves. This does a disservice to rights language and only serves to undermine the vehicles one wants to protect.

If HSLDA and other likeminded homeschool advocates want to champion the actual human right of educational freedom, then by all means — go for it.

HSLDA, champion the Universal Declaration of Human Rights and Article 26.

Champion all aspects of that declaration and all aspects of that Article’s expressed human right, including compulsory education. Champion the child’s right to receive a good education. And also champion the parent’s right to direct what sort of education a child gets. But you cannot pick one part of a human right and then disregard the other parts.

Article 26 is about the right to education and the right to educational freedom. It is not about homeschooling.

Saying otherwise is how you play cultural warrior, not how you play human rights advocate.

Arguments For And Against Homeschooling In Germany

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Arguments For And Against Homeschooling In Germany, By Jennifer Stahl

HA note: The following is reprinted with permission from Jennifer Stahl’s blog Yeshua, Hineni. It was originally published on September 24, 2013 with the title, “German Homeschooling – Both sides of the issue.”

Today I would like to talk about the legalities of homeschooling. I would like to present the pro and contra views to the best of my abilities, as impartially as possible. I will play devil’s advocate for both sides, including putting views out there that even I do not believe, for the sake of arguing everything I’ve heard so far.

I will be quoting some news articles in this post. Do remember that these articles can be read in full in German, or you can run them through Google Translate. It’s not the best, but, it helps. I’m limited how much I am allowed to quote and translate by copyright law. In a way, this is a blessing and a curse.

To begin with the issue of home-schooling, we have to look at German Constitutional Law. You can find The Basic Rights in English here. You can find it in German here.

Secondly, we have to consider that each German state [Länder] is ruled by its own constitution, or, “Landesgesetz” and it also has to be considered.

Third for consideration, is the United Nations Universal Declaration of Human Rights, specifically Article 26:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

United Nations Universal Declaration of Human Rights.

Here is some information on German Compulsory Schooling Law:

…Basically, religious education is a compulsory subject with exceptions for independent denominational schools for which no religious instruction is provided …

…An exemption from sex education is not justified in most cases for reasons of faith… …parental rights are taken into account and parents are informed about the content and form of sex education with the opportunity to debate them. DAS: Freistellung vom Unterricht [The discussion of Sex Ed. becoming compulsory, can be found in this older N-TV article.]

…Different measures and judgments show that we are far away from an uniform approach towards truants in Germany. Again and again the courts and experts are consulted to assess current situations of home-schooled children…
A loss of custody for parents will be considered if the child is seriously neglected, is being abused physically or psychologically. . with very great sensitivity and empathy towards devout parents… Schulverweigerung aus religiösen Gründen [School Refusal on Religious Grounds]

One previous hearing at the European Court of Human Rights on home-schooling was Leuffen v. Germany in the early 1990s.

…The applicant is of the opinion that compulsory schooling of her son would violate her right to ensure his education in conformity with her religious and philosophical convictions as guaranteed by Article 2 of Protocol No. 1 (P1-2). However, the European Court of Human Rights has held that the convictions of parents must not conflict with the fundamental right of the child to education, the whole of Article 2 (Art. 2) being dominated by its first sentence (Campbell and Cosans judgment of 25 February 1982, Series A no 48, p. 16, par. 36). This means that parents may not refuse the right to education of a child on the basis of their convictions.

Leuffen v. Germany

The most recent, hearing at the European Court of Human Rights on home-schooling in Germany was Konrad and Others v. Germany.

…the German courts pointed to the fact that the applicant parents were free to educate their children after school and at weekends. Therefore, the parents’ right to education in conformity with their religious convictions is not restricted in a disproportionate manner. Compulsory primary-school attendance does not deprive the applicant parents of their right to “exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents’ own religious or philosophical convictions”
Konrad and Others v. Germany.

I did find another set of legal proceedings from the Arizona Journal of International & Comparative Law, Vol. 27, No. 1; which references some of the issues here in Germany. It is a PDF that is 58 pages long. There is simply no way I can quote that. There’s some good information therein, and there’s some poor scholarship as well.

I also find a DVD on homeschooling called “Schulfrei“, and a couple books about homeschooling in Germany (in German) that are available to purchase. The first is: Homeschooling in Deutschland: Gesetze und Praxis eines umstrittenen Begriffs. The second is: Schulfrei: Vom Lernen ohne Grenzen.  The third, is Pädagogik mit beschränkter Haftung: Kritische Schultheorie. There may be more that I have not heard of, so if you are so inclined, just drop a comment below and I can update this with that information.

You may find German Home-schooling Websites here:

You will find information and support for German Home-schooling at the following sites: HSLDA, GHEC and HEDUA.

If you know of others, I’m happy to link them up here in the spirit of free information and people making up their own minds.

*****

…”The only thing I did not find good about homeschooling was that we had to hide ourselves… Otherwise, lessons at home have advantages.”

… “Most of the other homeschoolers I know are Christians like us. Almost all get an apprenticeship because they can not do A-Levels if they do not attend school.”

…”There is an assumption that one takes refuge in a parallel society that is fundamentalist and sectarian. But we really do want to integrate ourselves.
FAZ: Eine Homeschoolerin erzählt „Wir mussten uns verstecken“
 [A Homeschooler tells us, “We have to hide”]

PUR: Can parents teach at home because even the immense wealth of current knowledge about children being readily available? Or do you need a special training?

Klemens Lichter: It is said that today we live in the information age… the information is already available. What you need is the ability to filter this enormous amount of information and to evaluate and make sense to use to complete the task in each instance. . . the Nuremberg Funnel has outlived its usefulness.
Pur: Interview mit einem Homeschool-Vater
 
[Pur: An interview with a homeschool father]

Education at home is, in general, contrary to popular opinion so it is no small matter that it is unregulated. In countries where this form of education is generally accepted, there is support and help for parents who wish to home educate. Similarly, it is a fallacy to think that home schooling parents rejected some grand plan of the state on principle.

Of course, homeschooled children must pass state tests and acquire the appropriate legal qualifications recognized…
CDU in Kiel diskutierte über Schulunterricht zuhause und die Erziehungshoheit der Eltern
  [Stephan Ehmke, councilor and school policy spokesman of the CDU faction Council Kiel discussed home schooling and the education authority of the parents]

Even the children of the Wunderlich family should have a high level of education. The Office of Education has recently made a picture of their performance level. “The children have consequently a higher than average reading skills,” says Andreas Vogt, the lawyer for the family, “they have a high scientific knowledge, may very well work independently and have a high concentration skills.”
“Unsere Kinder gehören nicht dem Staat”

[Firstly,] there is an educationally oriented parenting, that is trying to change the German school system by homeschooling. …[Secondly, there are] education-oriented parents, who feel that the school no longer provides the knowledge they need to make their children happy… a frame-work that is worth living… pleasant surroundings, closely accompanied by adults who react responsibly and humanely…

… [Thirdly, there are] religiously motivated parents who say that due to religious reasons, they do not wish certain history, sex education and so on to be expected of their children. 
“Man muss die Schulpflicht etwas lockern” Erziehungswissenschaftler plädiert für kontrollierten Hausunterricht 
[“You need to loosen compulsory education up a bit.” Education researcher pleads for controlled home schooling ]

…compulsory education … ensures that – always on the basis of our constitution – education which is not subject to an ideology is possible. (Although, there are those who think there is a specific ideology behind the public school.) Were it not for compulsory education, our society would drift apart and strengthen ideological conflicts that are already available [creating flash-points].

…to abolish compulsory education in Germany would be a significantly greater injustice.
Die allgemeine Schulpflicht muss erhalten bleiben
 [Compulsory education must be maintained]

…Home-schooling means nothing other than children or youth are learning all necessary content they otherwise receive… from their parents…

…figures from the U.S. state there are now between two and three million children and young people who are homeschooled…

In Germany, there is a trend towards home-schooling, but there is a legal issue… in that compulsory education is tied to visiting a school building until age eighteen.
Neuer Trend des Homeschooling – Ist der Weg für Homeschooling in Deutschland bald frei?
 [New trend of Homeschooling – is the way for homeschooling ready to be paved?]

Critics like to point out that the compulsory education was an achievement of the Nazis – which is not entirely true, because it existed before, but it has only actually been punishable [with fees and jail time] since 1938. In other countries, you do not find such a rigorous focus on collective learning (with the exception of Bulgaria)…
FAZ: Hausunterricht-Verbot „Wie in einer Diktatur“
 [Homeschooling ban “as in a dictatorship”]

The fact that homeschooling is legal throughout Europe, while being stringently prohibited in places such as Germany… suggests that European Union policy makers are working so fast it may not even be clear to anyone how much authority the local and national authorities have. In addition, local and national authorities haven’t even had a chance to develop a good game plan. …20% of Germany’s citizens are of non-German descent… it’s hard to understand the concern with Christian parallel cultures unless a new “unity” is in the program.
Homeschoolers vs. the European Union

As a movement, home-schooling originated in the United States in the 70s. At this time, criticism of the public school system was in the foreground. The alternatives and liberals of old have, since the 80s and especially the 90s, been replaced by Christian fundamentalists who want to educate their children as unencumbered by problematic themes such as biology, where rejected themes such as the theory of evolution is to be taught.
Heise.de: Heimunterricht schafft die christliche Avantgarde
 
[Home schooling provides the Christian vanguard]

*****

What are the typical arguments for home-schoolers not using the available school systems nearby?

  • Believe that teaching is the only option for parents, sending children to school is sinful or neglectful.
  • Bad school system
  • Child is a genius and not being allowed to flower and advance
  • Child has medical issues and requires assistance to be mainstreamed, and is not being accommodated.
  • Chronic or Temporary illness
  • Mixing with unbelievers (religious standpoint of needing a parallel society of believer/unbeliever)
  • Ecumenicalism
  • Required classes that they disagree with philosophically (sexual education, evolution, world religion, folk stories, swim classes, gym classes, meals, meditation/prayer, religious holidays)
  • Push for Vaccination (or pressure because they are not vaccinated)
  • Peer-pressure/Bad influence
  • Bullying/Sexual harassment/Stalking
  • Dating Scene
  • Television, Radio, Internet and/or Movies being available in the classroom
  • Books they disagree with being on the required reading
  • Dress Code/Modesty reasons (includes ability or inability to wear religious items)
  • “”Alternative Lifestyles””
  • Perception that the government is wholly evil and out to turn children against their parents.
  • “other”.

If parents are allowed to educate at home, children can be put to their own pace, and based on their own strengths and weaknesses and one on one attention: flourish. They must not school for a set number of hours, or wait on other students to complete their tasks to move on. Every trip away from home is a “Field trip” – imagine all the things you could do if you plan it out for the education it can bring to your child(ren).

Bad influences are left out of the equation. Children do not have to be small missionaries before they solidly have their belief system engrained in their system. They also will not question about other religious beliefs or ancient religious beliefs, unless that is something the parents wish to cover.

Children do not have to be exposed to other cultures or belief systems before the parents are ready to discuss such a thing. In contrast, children can learn as much, or as little as parents want them to learn about religious beliefs in general. They will not be forced to take a religious class or ethics when home-schooled.

Children do not have to be taught about sex until subsequent children are born and they ask out of natural curiosity, pets or farm animals are to be had, or whatever age parents choose to tell them their beliefs about sex. LGBTQ or Intersex is something that is usually left off the table until children are taught about sex — unless parents believe this is a choice, and are then taught that it sinful and people who live that lifestyle are confused.

Parents who do not want to teach certain theories, such as evolution; do not have to.

In general, there is no peer-pressure, bad influences, bullying or dating going on in home-school groups or associations.

There is no arbitrary dress code when one home-schools. Children simply do as modeled and do not question it until they are closer towards leaving the home.

Dating is handled differently from family to family or group to group. Some allow it, some forbid it. Some arrange marriages and some only allow chaperoned “visits” with no alone time until the children are paired off for marriage. Some allow children to choose on their own how they will handle it.

If a child has a temporary or chronic illness, they can school themselves on their own schedule.

If children are gifted, they can pursue their own education at their own pace. If children have mental or physical impairments, accommodations can be made and are easier due to being on a one on one situation.

Children are free to go to church services every time the doors are open, and are able to have their curriculum peppered with as much or as little religious teaching as the parents are comfortable with.

There is no set “type” or curriculum for home-schooling. Parents are free to choose however they wish to school their children.

Children are allowed to listen to/view the music, internet and television or movies that parents approve of and nothing more.

*****

What are the typical arguments that are against homeschooling?

  • Parents are often not prepared to offer the best education possible.
  • Concerns about the rights and safety of the children
  • Free-agency of the children (aka: Groupthink – are children able to think for themselves?)
  • Concerns about curriculum
  • Placement testing – will it occur? Who will administer the tests?
  • Psychological  or Emotional health
  • Religious or Philosophical issues
  • Various forms of abuse
  • Worries over whether home-schoolers will be able to advance to university/college or relegated to apprenticeships and low-wage jobs. [Most children who are home-schooled do not receive a diploma on par with their learning abilities, simply because they are home-schooled.]
  • Social issues – will the children know what individuals are talking about if they’ve only been exposed to home-schooling society and their religious circles?
  • Whether or not home educated students will be afforded physical education or other courses that are generally offered in compulsory schooling

A lot of home-schoolers tend to have an unhealthy (in very few cases, a justified) fear of Child Protective Services and build it up as an evil institution filled with individuals bent on serving Satan, forgetting that there are also Christians working within the system. — How can we repair these broken lines of communication?

A “no true Scotsman” approach is prevalent where home-schoolers are faced with well documented cases of abuse or child death at the hands of home-educating parents.

No one wants to hear of it or acknowledge that it happens. Arguments are usually “They weren’t really home-schoolers” or “They were not associated with the HSLDA [or other umbrella of protection].” (See: Homeschooling’s Invisible childrenTo Break Down a ChildWhy not Train a Child?, Abuse and the HSLDAErica Parsons, etc.)

There are issues with punitive parenting methods that certain denominations of Christianity teach as necessary to drive sin out of children. These forms of physical and emotional discipline methods are illegal in Germany. (Yet, we know they were used amongst many home educators in the United States, and the Zwölf Stämme in Germany.)

There are issues with spiritual abuse via cultish groups who advocate strictly patriarchal viewpoints that are clearly a part of the curse mentality taught in Genesis 3. This is very much against the Judeo-Christian spirit of the Grundgesetz, which clearly states that women are in equal standing with men. (Grundgesetz, Article 3,2: “Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.”)

There are issues with individuals who wish to teach philosophies that are against the better interest of Germany or society at large, such as White Supremacist, Neo-Nazi or other anti-semitic ideals.

Not all home-schoolers believe in or teach Judeo-Christian values. Many are Athiest, Agnostic, Humanists, Pagans, or of other religious belief systems. If they are allowed to school at home, who says what is/isn’t allowed, and how can we ensure that they are adequately socialized if they are not allowed into home-school umbrellas operated or attended by Christians?

If the government allows home-schooling for one religious group, it must allow home-schooling for everyone.

There is no set curriculum for home-schooling. There are also no placement tests for children who are educated at home, unless they are finally being re-entered into compulsory education. How can we ensure that parents are giving equal educational opportunities as public, private and religious schools?

Home-education is not accredited, how can society guarantee that children have the same ability as their peers to get high paying jobs, if they so wish? Does this mean that we will need to set up “umbrella” organizations that oversee curriculum that is accredited and treat home educators like private school satellites?

Theories that are seen as incompatible with the parent’s point of view are often not taught. How will the children know, understand or be able to discuss with their intellectual peers — theories such as evolution (micro, macro and everything in between) or “Big Bang”, Intelligent Design and Creationism on intellectual levels?

What about situations where there is clearly abuse going on? (Sexual, physical, emotional or spiritual?) How do we prevent that if there is no oversight?

Some children have physical, emotional or mental delays. If they are kept at home 90% of the time, who will suggest early intervention or help stave off massive delays if there is no oversight or interaction with their peer group?

Many home-school parents have a tendency to segregate themselves from non-home educating parents. How can we ensure that parents are getting enough social interaction so that they do not burn-out or experience emotional difficulties due to this isolation?

Some of these arguments are presented in German hereherehere and here; as well as elsewhere in newspaper opinion articles or comments to newspaper editors.

Now you’ve seen both sides. What are your thoughts on home-schooling in Germany?

“Diplomas Play No Role For Us”: The Case of the Wunderlichs

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“Diplomas Play No Role For Us”: The Case of the Wunderlichs, by Jennifer Stahl

HA note: The following is reprinted with permission from Jennifer Stahl’s blog Yeshua, Hineni. It was originally published on September 16, 2013 with the title, “German Homeschooling Case – The Wunderlichs.”

I’ve just finished getting myself caught up with the issue of sects in Germany who try to home-school and have had run ins with the law. Generally, but not always, the HSLDA has has been meddling in Germany with these issues rather than let people hash out the Constitutional law within the courts and appealing to the Constitutional Court in Karlsruhe.

For what it is worth, I was home-schooled from the sixth grade forward under the Home School Legal Defense Association umbrella. (1993-1999)

I do not believe in breaking the law to do whatever you want. You have to lobby to have the laws changed.

You have to argue, within the court system that Constitutional law is antiquated and argue that the law must be changed so that you can work within it; if that is what you truly believe.

However, in the last decade or so, many sects of Christian home-schoolers who have been pressing the issue have been doing many things to place their children in danger; giving sub-par education, little or no medical attention; living the life of isolationists — which has caused the government to be well within rights to be breathing down their necks or taking their children into foster care.

The problem here is, Germany looks at issues like this as if it were a family matter. It’s more than looking at it as a purely domestic matter that any German allies can weigh in on. This doesn’t concern other court systems in the EU, and the European Court of Human Rights has already weighed in on German Homeschooling cases. It doesn’t concern allies, such as the United States.

You also have to remember that while Germany’s treatment of groups with cultish or extremist sectarian beliefs  sometimes amount to “discrimination” in many of our allies eyes, its laws must be seen the context of its history and the fear of political as well as religious extremism. We are finding more and more, that people who do separate themselves out of society do tend to trend towards both religious and political extremism.

This does not at all exclude or include the cases that the HSLDA has been weighing in on.

With this in mind, you have to know that there are around 400 Homeschooling families in Germany if the HSLDA is to be believed. Schuzh says it is closer to 500 families. This also counts the Romeike Family, The Wunderlichs and the families of the Zwölf Stämme, which I have discussed before.

This blog, however, states the numbers are rather questionable:

How many Germans ignore German laws on compulsory education, can not be measured as most parents simply [home-school in secret] or emigrate in secret. Stefanie Mohsennia knows about 200 free-learning German families and speculates that there are currently over 1,000 families in Germany who do not send their children to school. “There are always more.” says Stefanie Mohsennia…Leben im Untergrund – Homeschooling-Familien in Deutschland [Living underground – Home-schooling families in Germany]

As far as what the European Human Rights Court has to say:

[The German Constitutional Court in Karlsruhe] refused to admit the applicant’s constitutional complaint because it had already dealt with the decisive constitutional issues in its settled case-law.

…[The EU Human Rights Court] notes that there exists a difference of treatment between the applicant’s children and…  children [who] were physically unfit …or… [whose] parents move around the country… 
… the Court finds that the above distinctions justifies a difference of treatment.
Konrad and Others v. Germany

Konrad v. Germany also makes it clear that Germany’s “Basic Law” guarantees “the right to establish private schools.” The state does therefore not have a monopoly on education, only the right to regulate it.
Locus Standi: International Human Rights and Home schooling

Yet, when the news did break in American papers about the Wunderlich family last year, and this year – everything became sensationalized, and suddenly there is a lot of fear-mongering and lies being spread about how the compulsory schooling laws came into place, and why they came into place in Germany. [To clarify: It has been repeated quite often that these laws came into place when the NSDAP was in power and we’re very “Nazi” for not repealing them.] It’s made me physically ill that this is being said over and over through right-leaning news, and therefore disseminated to other Christians.

I literally have relatives that are terrified that I am suddenly surrounded by an up and coming Fourth Reich.

Why don’t we have a look and see why?

“The education administration in future will also not recognize so-called homeschooling and act in proportionate measure considering the individual case and circumstances.””
WND: Government declares war on homeschooling parents (2006)

“A copy of the report justifying immediate seizure of the children was obtained by HSLDA. The reasons given for the seizure were that the children were ‘socially isolated,’ not in school and that there was a ‘flight risk,’ – none of which appear to be true,” the report said.

The family fled Germany because of a series of fines imposed for homeschooling and the concern that German authorities inside Germany would take custody of the children.
WND: French police grab 4 kids on German orders (2009)

Wunderlich said the Jugendamt “told me that the children must go to school.”
“We are very saddened by the way our country treats us,” he said. “Our nerves are black and short, and we are very tired by the pressure.
“I don’t understand my own country. What are we doing wrong? We are just doing what should be allowed to anyone.”
WND: State takes custody of children over socialization (2012)

Within days of the family registering their presence in Darmstadt, authorities initiated a criminal truancy case, and just months later city’s ‘Youth Welfare Office’ was granted legal custody of the children.
The Daily Mail UK: Armed Police turn up at family home wiht a battering ram to sieze their children after they defy Germany’s ban on homeschooling

After the children were taken, authorities “invited” the parents to a meeting with social workers. They were told they were not even being allowed an immediate court hearing on the status of the children.
WND: Police storm homeschool class, take children by force

Petra Wunderlich said her heart was shattered. “We are empty,” she said. “We need help. We are fighting but we need help.”
Life Site News: ‘We are empty’: Police storm German homeschooling family’s house, seize children

In an interview in Berlin last year, Dirk Wunderlich said he was prepared to go to jail rather than send his children to school. “But I’m not afraid of this,” he said. “I’m only sad for my family. I will go (to jail) laughing. You can do what you want, but my children will not go to school.”
CBN: German Officials Abduct Homeschooled Kids from Parents

…Failing to find employment, Mr.  Wunderlich last year had to bring the family back to their home country of Germany. Within days the “Youth Welfare Office” was granted legal custody of their children on the grounds of criminal truancy.
…The Wunderlich family’s experience foreshadows an ominous future for other German homeschooling families… and … raise concerns about the freedom of families in all free nations…
CrossMap: Government Seizes German Dirk and Petra Wunderlich’s Homeschooling Children—Whose Kids Are They?

 On their return, German authorities began a criminal truancy case against them and the children were placed in the custody of the Darmstadt Youth Welfare Office. Authorities found the children to be well treated… but seized the children’s passports to prevent the family from leaving the country.
CNA: German raid on home-schooling family draws condemnation

The court order allowed the police the use of force against both parents and children; it stated that the children had “adopted the parent’s opinions” regarding homeschooling, and that “no cooperation could be expected” from either the parents or the children.
Gatestone Institute: Europe: Treating Homeschoolers Like Terrorists

The Wunderlich’s lawyers will argue their case on the basis that the current education law is too vague. They are also arguing on the basis of the international treaties Germany has signed, since they appear to be violating those treaty obligations. HSLDA is helping support the Wunderlich’s lawyers… Although the Wunderlichs are hoping for a court date in September, they are still waiting.
The American Conservative: German Children Seized From Parents for Crime of Homeschooling

HSLDA lawyer Michael Donnelly said that when child protective systems in countries such as a Germany– which “claims to be a ‘liberal democracy’ committed to pluralism and human rights – allows for police raids to take children from otherwise good families who are providing a home education, liberty is at risk everywhere.”
WND: Homeschool case focal point for hate mail

What do the Wunderlichs think about this, themselves? Well, let’s hear it in their own words:

In 2005, our first child Machsejah reached the age of compulsory school attendance. We started home schooling from then on. At that time, war with the education agency began… A civil fine was levied. Then we were sued. We were found guilty of violating the compulsory school attendance statute and a monetary penalty was imposed. That was in 2008.
Interview with Dirk Wunderlich through the HEDUA Part 1

Our complete and no-holds-barred rejection of the institution of the school is reflected by exactly this argument. Even if public schools would align themselves with our beliefs and other educational ideas at the 100% level (without compromise whatsoever), we still would not send our children to school. The reason is that we are convinced that God’s intentions and plans for us cannot be realized within the artificial setting of school.
Interview with Dirk Wunderlich through the HEDUA Part 2

HEDUA also has articles herehereherehere, here and here that explain how the Wunderlich family sees their situation.

I do agree that there are issues with how certain sects of Christianity (and even Scientology) that homeschool are handled in Germany. We’ve seen how this plays out with the court cases involving the Zwölf Stämme. There are sometimes gaps in information between the courts, or the Jugendamt is sometimes slow to enforce the Schulpflicht or fines for not sending your children to school.

As far as the Wunderlich family goes, things are clearly not on the up and up. They were told by the state and each city seat that they’ve lived in that they can not continue to homeschool. They continued irregardless.

They’ve come out openly laughing in the face of the government. They’ve said that they’re happy to go to jail and lose custody of their children so that they can create a separatist faith movement and parallel society from their own home.

They’ve moved from city to city, and when that wasn’t working; they left the country. This raises questions. I don’t know what all questions this raises, but it certainly leaves holes in information that can lead one to many conclusions, of which, I am not ready to make any.

All the news articles I’ve read in English (from Fox, The Blaze, World Net Daily, CBN, World Mag and others) so far show very clearly that the authors know next to nothing about Germany, German law, German society at large, or the German educational system and its history. Instead, they’re happy to perpetuate myths and simply assume the police is this evil entity, because surely the HSLDA would not lie.

The information that I can find says that the court has found “The welfare of children is at risk. The children have not been receiving the education that would have been age-expected.”  This is enough to create concern in a nation full of over-acheivers who look for everyone to at least meet age-expected educational goals.

This sets a whole lot of questions flying. I do not know what to make of that. Does this mean that the children are now learning above their age grade, or that they are falling behind? I do not know.

Let’s see how the German news is handling this:

… the parents refuse any school system: “There is, however, compulsory education, the parents can not escape.” It does not mean just education, but also about social interaction and involvement that allows other world views to be heard. The children have been placed in a juvenile facility after a confirmed judicial decision by the Higher Regional Court in Frankfurt am Main. All attempts at discussion to reach an amicable agreement with the parents, during the summer holidays have been unsuccessful.
Idea: Jugendamt nimmt Christen die Kinder weg [Child Protective Services take Christian children away]

 …“Diplomas play no role for us. Our goal is heaven.” “Our family belongs to no specific Christian denomination, we are simply believers.” Dirk [Wunderlich] attended the Kreis Bergstraße’s Odenwald school, and he emphasizes the importance of Jesus Christ for himself and his family…
Echo: Schulpflicht: Jugendamt verteidigt Trennung von ElternSorgerecht – Vier Kinder aus Wembach werden schrittweise auf Schulbesuch vorbereitet  [Compulsory education: Youth Office defends separation of parents from children. Custody – Four children from Wembach to be gradually prepared for school]

Side note here: The Odenwaldschule [where Dirk Wunderlich attended] was known for a huge scandal that went down where the children were being sexually abused by some of the teachers. There was also mentioned of physical discipline being carried out. (It’s mentioned here in German, but not in the English Wikipedia article. You can find more here, here and here.) 

This is not insinuating anything about the family, but giving additional information that is not readily knowable to people who do not live in this area.

I know others who went to this school and nothing ever happened to them, and they are just as shocked as the rest of us that anything happened there.  As far as the education at the school goes, it was one of the best in the area.

…Parents are of the Christian faith and have hermetically sealed off their children from the outside world. They will have also refused to let the children be taught at a state-recognized private Christian school, reports the “Hessischer Rundfunk”…

…Evangelical Christians fight especially hard for the right to homeschool. They want their children to be kept away from worldly influences and try to educate them in their strict faith-driven world view…
Spiegel:  Schulverweigerer in Hessen: Polizei holt Kinder aus streng religiöser Familie [Truants in Hessen: Police bring children from a strictly religious family]

“If and when the children return to their parents, it is still unclear,” says Frank Horneff. In fact, the family will have to wait a while until a decision on their possible reunification. The District Court of Darmstadt intends to have the parents in for a hearing at the end of September.
Die Welt: Behandelt, “als wäre ich ein Terrorist” [Treated “as if I were a terrorist”]

For the time being, this is the only news coming out, other than from Der Blaue Brief which is linked to the HSLDA and other homeschool groups in Germany.

However, I do want to point out some very integral things that are not much discussed when it concerns Christian sects that wish to homeschool here in Germany. There are passages in Scripture that suggest that Christians are to take an unassuming, blameless lifestyle wherever we find ourselves; unless that government is causing them to break commandments in the Bible. Especially concerning our witness to those who do not believe as we do.

It is my full belief that breaking the law to do something you are convicted to do — especially something that is not commanded  by G-d explicitly in the Bible — is a terribly bad idea. 

Frequently moving around to escape the law, leaving the country when the court catches up to you, and hiding your children from the world is terribly suspicious, and not something the Bible commands.

Meddling in another country’s affairs to subvert the government (speaking of the HSLDA here, which is an American Homeschool Legal Defense Association), is also not a really good idea.

Especially when the Human Rights Courts of the EU have already twice made a ruling on similar cases, and the Constitutional Court of said country you are meddling in said “No, this is not happening and here is why.”

On the heels of the Wunderlich case, we have issues with abuses that have been uncovered by the Zwölf Stämme. My question here is: what kind of parenting methods are going on in the Wunderlich home that we might maybe need know about? (Remember, Corporal Punishment is illegal in Germany and has been for over a decade.)  Also, why is the HSLDA so very invested in Germany, and constantly sending funds back and forth to keep the courts here spinning?

Why are Americans being called upon to support these families, and why is the HSLDA lying about what is happening?

What exactly are they helping to hide, besides these families squirreling away their children and teaching them that the government is out to steal and destroy their souls?  Why are these families so afraid of the readily available Christian education?

There are so many questions here, many, which I feel will not be further answered until we hear more from the different court cases as they go forward.

I’m sorry that the families have been separated, but I can see where this is something that had to take place considering how blatantly the Wunderlichs are in their defiance of German law, and how happy they are to make themselves out as martyrs.  I hope that the children can see their parents, but I pray that we do not find out that there has been any physical or psychological abuse going on as we’ve heard from a few other homeschool groups. (As mentioned in the documentary above, and in the case with the Zwölf Stämmen)

There don’t seem to be very many answers to this issue at the moment.

Asylum For Homeschoolers, And Whether The Pilgrims Would Get Asylum Today

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Asylum For Homeschoolers, And Whether The Pilgrims Would Get Asylum Today, By Nicholas Bolzman

HA note: Nicholas Bolzman blogs at Looking for Overland, a joint blog project “authored by three friends who met at Patrick Henry College and then worked together at the Home School Legal Defense Association.” This essay was originally published on May 20, 2013 and is reprinted with his permission. Nicholas Bolzman received his JD from Michigan State University College of Law last spring and is a graduate of Patrick Henry College. Also by Nicholas on HA: “A Game of Online Telephone: Homeschooling, Asylum, and the Attorney General”.

Last [May] the Sixth Circuit Court of Appeals affirmed the Board of Immigration Appeals denial of asylum for the Romeike family. You can read the opinion here. HSLDA, who is handling the case, is promising to appeal.

I’ve blogged about this case previously, but this new opinion is worth a few additional observations.

First, for anyone tempted to blame this decision on a liberal bench or an Obama agenda, none of the judges were Obama appointees. Judge Sutton, who wrote the opinion, and Judge Rogers, who wrote the concurrence, were both appointed by George W. Bush. Judge Sutton, in particular, was initially too conservative for the Democratic controlled Senate and his appointment was blocked for two years. The third judge, Judge Gilman, is a Clinton appointee who was confirmed by the Senate on a 98-1 vote. In this case, all three judges agreed that the family did not qualify for asylum status.

And in a somewhat odd twist, based on my reading of dozens of asylum cases, the family would likely have had a greater chance of success with a more liberal bench.

The conservative strict constructionist model does not have as much flexibility for this sort of case. So this outcome cannot be attributed to any liberal animus or agenda. It was simply a matter of applying facts to law, and these three judges were not persuaded.

Second, the court is abundantly clear that it is not addressing the issue of homeschooling rights under United States law or the United States Constitution:

Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not.

* * *

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim—a well-founded fear of persecution on account of a protected ground.

Here, the court is undeniably legally correct.

The case is not about whether the family is entitled to homeschool here but rather whether their treatment by Germany is such that they can obtain status as refugees here. That is a high standard, as not every inconvenience, or even illegal action, creates refugees. It is also a completely different question than what types of government action our Constitution protects us from. This case cannot be used as a precedent to undermine domestic homeschooling rights. If anything, it is further proof that the courts recognize those rights. The Romeike family does not face deportation because they are homeschooling, they face deportation because the court has determined that they are not eligible for the status they sought.

Third, as hinted at above, the court got the law right. The issue was whether the Romeike family feared persecution on account of their religious beliefs or social group membership by the German government if they returned. The court did not reach the question of whether homeschooling is a “particular social group,” but instead denied asylum because it determined that the family had not shown sufficient bad motives on the part of the German government. Again, refugee status is a high standard that all applicants must prove. For asylum to be granted, the treatment must be really bad — something nonsensical, silly, or even inconvenient or illegal is not sufficient.

That’s the law as Congress wrote it, and no matter how much we may want it otherwise, the court can not and should not change it.

Because of this, the whole complaint that the Obama administration doesn’t recognize individual rights or refuses to recognize persecution that applies to an entire country misses the mark. While this complaint is valid, the problem stems not from the Obama administration, or with the reviewing judges and is certainly not unique to this case. Instead, it is a problem inherent in our asylum law as adopted by Congress in 1980. And homeschoolers are just the most recent group to discover this difficulty.

Over the last few decades, Iranian women, Chinese parents fleeing the one-child policy, and even Chinese pastors have run into the exact same problem.

The fact that a government does not single people out for persecution can be a disqualifying fact for those fleeing persecution. Unless we want judges to rewrite the laws, this is the standard. And it’s true that the Pilgrims would probably not get asylum under today’s immigration laws. But that is a problem with the laws, not the judges, the Attorney General, or the President.

Fourth and finally, this case reveals the restrictive nature of our immigration system. For many around the world, and apparently for this family, a desire to come to the United States legally is not enough to obtain legal status. Unless the applicant has a family member here or an employer willing to sponsor them, there is virtually no line to enter for admission. The Romeike family has to resort to asylum because they apparently cannot just apply for entry (they entered on an 90 day temporary visa in 2008 and have been permitted to stay pending the outcome of their case). So, to all the conservative commentators out there, yes, this family did do everything right. But the reality of our immigration system is that even doing everything right still often leads to deportation.

And that is a problem with the law, not with the administration.

A Game of Online Telephone: Homeschooling, Asylum, and the Attorney General

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A Game of Online Telephone: Homeschooling, Asylum, and the Attorney General, By Nicholas Bolzman

HA note: Nicholas Bolzman blogs at Looking for Overland, a joint blog project “authored by three friends who met at Patrick Henry College and then worked together at the Home School Legal Defense Association.” This essay was originally published on February 26, 2013 and is reprinted with his permission. Nicholas Bolzman received his JD from Michigan State University College of Law last spring and is a graduate of Patrick Henry College.

Dear homeschooling community:

Despite what you may have heard, the arguments presented by the Department Justice in the case involving German homeschoolers do not pose a direct threat to your homeschooling freedoms.

Over the last few weeks I’ve watch as, in a game of online telephone, this story has evolved from HSLDA’s Mike Farris’ musings, to the question of whether domestic homeschooling rises or falls with this case to, finally, “Holder vs. home schooling.”

Unfortunately, in the hysteria, the actual issue at stake seems to have been lost.

As a brief background on the case, in January of 2010, an Immigration Judge granted asylum to the family. The Department of Homeland Security appealed that decision to the Board of Immigration Appeals, which reversed the Immigration Judge in May of 2012. The family has now appealed to the Sixth Circuit Court of Appeals and is awaiting a decision. Once that decision is made, the losing side can request the Supreme Court for review.

Three primary issues need to be remembered as we think about this case.

First, the dispute is not really about constitutional rights.

Yes, parental rights are considered a fundamental constitutional right here in the United States, but that is largely beside the point. Since the German state is not bound by our Constitution, whether it has “violated” it or whether its actions would be permitted if conducted by a US political entity is immaterial. Germany, as a sovereign political entity, has the authority to make the laws governing German citizens.

Asylum, in a general sense, is inherently a check on sovereignty. And it must be couched in such terms. More than a mere preference, it is a statement that the oppressing state acted in an illegitimate manner toward its citizens. This transfers the debate about homeschooling from one of US Constitutional rights (which are largely irrelevant to asylum claims) to one of international human rights.

As I’ve written before, there is support for parental choice in education being a peremptory human right. That, and not domestic constitutional rights language, is where the debate lies. This case does have the potential to make a large impact on the status of parental rights in the international sphere, and for that reason I’m hopeful that the family wins. But even if the family loses, Eric Holder won’t be sending out SWAT teams to round up US homeschooling families.

Second, the litigation is not concentrated on whether the homeschooling family is wanted, is desirable, or would otherwise make a positive contribution to the nation.

It is not about whether the family should or can homeschool here. The government is not attempting to deport them because they homeschool. Instead, the question is whether Germany’s denial of the family’s right to homeschool makes them a “refugee.” If it does not, they do not have legal immigration status and, like all others without status, they would be required to leave or find some other way to obtain status.

To qualify as a refugee the family must show that they are someone “who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA 101(a)(42)(B); 8 USC § 1101(a)(42)(B).

This definition is easily broken into two parts, the treatment part (persecution) and the prosecutor’s motivation (“on account of…”). Even if “persecution”–which Congress never bothered to define–is shown, only certain types of persecution make one eligible for asylum. The persecuting government must be doing the persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The litigation before the Sixth Circuit includes parts of both elements.

First, the government is making the case that Germany’s treatment of the family does not amount to persecution. Under the legal standard, not every form of mistreatment constitutes persecution. It must reach a certain level of seriousness–often including physical beatings or threats of death. However, it can also include economic coercion. For the German family, even the initial Immigration Judge who granted asylum did not find that they had suffered past persecution. However, he did find that they had a well-founded fear of future persecution based on Germany’s treatment of homeschoolers in general.

But persecution aside, the family also has to show that they were targeted on “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Race, nationality, and political opinion are not even being argued, so the only two arguments the family is using are religion and membership in a particular social group. Religion is tricky, since while the law does interfere with their religions beliefs, it is a general law that does not single them out or in any other way target them. Social group is the other argument, but that term is so loosely defined and unclear that there is little hope to avoid litigation when asserting it.

That German homeschoolers are a particular social group is certainly a strong argument, but it is not one that asylum law has previously recognized, so it should not be surprising that DOJ would resist.

And asylum claims against general laws are often unsuccessful, the most notorious example being the BIA’s 1989 holding that those fleeing China’s one-child policy were not eligible for asylum (in 1996 the asylum definition was specifically amended to fix this). Conscientious objectors to a general draft law have also been denied. The rationale here is that states have authority to pass laws that apply to everyone, and absent something extreme, enforcing that law is not persecution on account of one of the protected grounds.

So, although one can characterize the government’s motivations in continuing the litigation as opposition to homeschooling, it is just as easy to interpret it as a strict adherence to our immigration laws. And isn’t that something conservatives want?

Third, it is dangerous to impose personal motivations on the attorneys or departments based on their positions.

If this approach were viable, then the following conclusions must also be drawn:

  • That the Bush administration, and specifically Attorney General Ashcroft, supported child soldiers in Uganda (asylum granted by Third Circuit, but DOJ litigated against, 2003).
  • That the Bush Administration somehow wanted the death of Edgar Chocoy, the Guatemalan teen who escaped a gang with a price on his head, made it to the United States, and claimed asylum. His claim was denied and he was returned to Guatemala. He was shot to death one week later.

And that is only a small sample of the asylum cases either denied or objected to by the US government over the past thirty years. DHS/DOJ routinely denies or opposes asylum claims from those who believe they are going back to situations much worse than the German family. That is their job.

Please don’t get me wrong. Germany is violating peremptory human rights in its denial of homeschooling freedoms, and the family should be granted asylum. But the mere fact that the attorneys at DOJ oppose what they see as an expansion of asylum law–as they routinely oppose situations much worse than this–is no grounds to vilify them.

If anything, the litigation calls into question whether our asylum law is too strict.

Pray For All The Children Of The Twelve Tribes — Part Two

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Pray For All The Children Of The Twelve Tribes — Part Two, By Jennifer Stahl

HA note: The following is reprinted with permission from Jennifer Stahl’s blog Yeshua, Hineni. It was originally published on September 14, 2013 with the title, “The Twelve Tribes group in Germany Part Two.”

< Part One

*****

Before beginning with this article, please see:

As far as I know, not much of this has made it out into American news as of yet.

It is the so often maligned and often-criticized private broadcaster RTL, which has significantly contributed to the liberation of… children from the …Twelve Tribes sect.
…At the beginning of the week, the television report documented “The sect ’12 tribes’: They preach peace, torturing their own children” …this was the first time the beating allegations against the controversial faith community were brought to light.
W&V: Sekten-Film deckt auf: Wie RTL dem Jugendamt Beine macht [Sect film uncovered: How RTL hurried up the Child Protective Services]

The sect was founded in the 70s by a small group in the U.S.. It is named after the twelve tribes of Israel, according to the Hebrew Bible or the “Tanakh” YHWH  (the proper name of God in the Tanakh) called the chosen people of Israel. Worldwide, there are probably 2,000 members.
Mittlebayerische: Zwölf Stämme: Noch keine Entscheidung [Twelve Tribes: Still no decision]

..A large proportion of children have been placed in foster families, the elder children in youth welfare institutions. Four infants were brought to the police together with their mothers from the sect. They are now living in mother-child facilities…
Focus: Nach völliger Isolation – Sekte Zwölf Stämme: Wie geht es den Kindern jetzt? [After full isolation – 12 Tribes Sect – How are the children now?]

The court heard about the loss of custody of ten children. … Starting next week, the proceedings for the remaining children will be heard at the district court in Nördlingen.Süddeutsche Zeitung: Gericht hört Eltern An (Court hears parent’s testimony)

 The court has removed the children from parental custody, largely due to previous findings, “the specific danger that there would be a considerable damage to the children if they would remain in care with their parents.”
The “Twelve Tribes” are represented particularly in the U.S.. Therefore, the courts are also examining the English-language parenting manual of the sect.
Der Spiegel:  “Zwölf Stämme”: Verfahren gegen Christen-Sekte beginnen

 Lehnberger stated that at the hearing also drafted the 146 page comprehensive education manual of the Twelve Tribes in English, as it plays a instrumental role in the case. A witness for ideological matters [Biblical matters], a representative of the Catholic Church was interviewed on Friday afternoon as well.
… The meetings of the District Court Ansbach are not public.
Augsburger Allgemeine: Zwölf Stämme-Aussteiger”Kriegen sie die Kinder wieder, setzen sie sich ab“ [Ex Twelve Tribes Members: If they ever get their children again, they’ll dissappear.] – This one goes on to say that the hearing for the other parents will begin on Wednesday.

 Director Gudrun Lehnberger said on Friday night that the court of Ansbach did not want to visit the  decision on custody again. The hearings lasted for late into Friday evening for the parents. On Monday morning, more details are expected to shared with the public.

In Ansbach, six former members of the sect were also heard by video feed from a secret location. Due to issues [with the Twelve Tribes], these six individuals have remained living in secrecy…
Nordbayern: Prügelvorwürfe um “Zwölf Stämme”: Verhandlungsausgang offen

 “I think the authorities would prefer to let the issue disappear in the drawer, because otherwise their own failings would have been visible,” said the ex-members to FOCUS. “They all looked the other way.”
Focus: „Alle haben weggeschaut“ Schwere Vorwürfe von ehemaligem Zwölf-Stämme-Mitglied  [“Everyone looked the other way” – Serious Accusations from former 12 Tribes Member]

 The district court Nördlingen have seventeen preceedings ahead… Despite the urgency of this family matter, normal operating procedures of the Court must go on.

The “Twelve Tribes” have criticized the provisional court’s decision on partial withdrawal of parental custody. On the homepage of the Community in Klosterzimmern and Wörnitz the police action is referred to as “children robbed by the state”. Because of the abuse allegations, prosecution is looking at proceedings against members of the sect. An initial investigation on this issue had been set a few weeks ago.
N24:  Sorgerechtsprozesse begonnen Die “Zwölf Stämme” und der “Kinderraub”

On the Internet, the faith community expresses their educational practices… There it is clearly stated: “Yes, we beat our children.” He continued: “We love our children and they are precious and wonderful to us. Because we love them, we beat their butts.”
Focus: Erziehung bei „Zwölf Stämmen“Sekte: „Weil wir sie lieben, schlagen wir unsere Kinder“ (Child-rearing by the Twelve Tribes Sect – “We hit our children because we love them”)

“All parents demand the abolition of judicial decisions,” said District Court Director Gudrun Lehnberger. In the coming week, the case will formally begin with the other children at the district court Nördlingen.
Die Welt: Sekte verteidigt Prügel als Zeichen der Liebe (The sect defended beatings as a sign of love)

[Reporter:] What determines how much a child is changed by [beatings]?
Dietmayer: It depends on how much emotional resources a child has, so how mentally stable he or she is. For many kids, this triggers one psychologically, which in turn may later lead to a variety of psychiatric disorders. And that can happen even if the child is beaten only once.
Augsberger Allgemeine: Zwölf Stämme – Kinderpsychiaterin: Schläge schaden einem Kind massiv (Twelve Tribes: Child Psychologist says “Beating damages children greatly”)

If you would like to know more about how damaging and evil this group truly is, you can hear it from former members directly, here. Please note that this is a site that is primarily in English for former members that speak English. I’m looking around for other resources. It seems that the German site for the Zwölf Stämme has now been suspended.

If I hear any more come next week, I’ll update again.  I hope that those of you who are fasting on Yom Kippur have an easy and light fast, and are sealed for another year.  For us, it is a difficult day of prayer with these recent revelations.

*****

To be continued.