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.

The Romeike Family and Asylum: Why I Don’t Buy Into the Homeschool Persecution Excuse

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The Romeike Family and Asylum: Why I Don’t Buy Into the Homeschool Persecution Excuse, By Lana Hope

HA note: The following is reprinted with permission from Lana Hope’s blog Wide Open Ground. It was originally published on April 7, 2013.

*****

Just so you know, before you read this, I don’t think homeschooling should be illegal.

So there’s this family, the Romeike family, living in America under asylum — claiming to be under the threat of religious persecution from their home country Germany who does not allow them to homeschool. And now the US government says this family may get deported – because they weren’t exactly persecuted.

While the Religious Right is busy using this as a card to blame the Obama administration (which confused me since Obama was here in 2010 when the family was first granted asylum), HSLDA — Home School Legal Defense Association — is using the opportunity to stir up of fears of Americans losing their right to homeschool.

Focus on the Family spokesman and Truth Project founder Dr. Del Tackett yesterday declared his support for HSLDA’s efforts to defend the Romeike family. Tackett believes that the U.S. government is siding with the restrictive homeschooling laws in Germany and that this could have serious implications for American homeschoolers.

“[The U.S. government] doesn’t believe that parents have a right to educate their children,” Tackett said. “It is more in line with the National Education Association that homeschooling shouldn’t be allowed. It believes that the government can best educate ‘America’s children.’ It doesn’t want another worldview taught in this country. It wants America’s children to have one worldview and one worldview only.”

Notice the phrase “this could have serious implications for American homeschoolers.” To me, this sounds like someone is intentionally stirring up fear, and fear is what keeps HSLDA in business, an organization who is fighting to ensure that America does not sign the UN Convention on the Rights of a Child. Quoting HSLDA’s late director, “if children have rights, they could refuse to be home-schooled, plus it takes away parents’ rights to physically discipline their children.”

No, I don’t particularly trust HSLDA.

I can’t say if America will see the day that homeschooling is illegal (I see no evidence to lead me to believe this), but the significant part to me is that HSLDA and Focus on the Family have already made it clear that this is not about whether or not this family fits the requirement of an asylum case or much about this German family at all.

Instead, this is about politics and implications on our rights. This is about American homeschooling first and foremost, not the Romeike family. That’s why everyone is asked to sign the petition for the future of homeschooling that just happens to also involve the rights of a German family.

To me, that’s just a tacky way to build up more homeschool fears.

But Michael Farris, of HSLDA, made another political comment related to homeschooling rights. This is also about “religious” rights. Again, I quote HSLDA.

The U.S. government contended that the Romeikes’ case failed to show that there was any discrimination based on religion because, among other reasons, the Romeikes did not prove that all homeschoolers were religious, and that not all Christians believed they had to homeschool.

This argument demonstrates another form of dangerous “group think” by our own government. The central problem here is that the U.S. government does not understand that religious freedom is an individual right. One need not be a part of any church or other religious group to be able to make a religious freedom claim. Specifically, one doesn’t have to follow the dictates of a church to claim religious freedom—one should be able to follow the dictates of God Himself.

The United States Supreme Court has made it very clear in the past that religious freedom is an individual right. Yet our current government does not seem to understand this.

I admit I am still a little confused.

The US government already made it clear that this is not a religious issue.

Germany has not said that parents cannot teach their kids religion. Religion is even taught in school in Germany. So Farris sort of agrees for a minute, and then brings this back to God. In part, I agree — that parents should be allowed to hear from God about educational choices as long as it’s reasonable.

Simply put, by making this a religious issue, they are pounding in the religious persecution line, enforcing the poor-me stereotype that white first world Christians have it rough, and implanting fear that some day we will lose all our religious freedom, not just homeschool freedom (See Focus on the Family who is partnering with HSLDA in this, who has said that American Evangelicals are already being persecuted and will be more persecuted in my lifetime.)

Apparently the Supreme Court in Germany banned homeschooling (though exceptions are granted) because it, “counteract[s] the development of religious and philosophically motivated parallel societies.” This is what Mike Farris says about it:

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

As one who grew up in Farris’ so-called Joshua Generation, I had a chuckle at what Farris says. No, evangelical fundamental homeschooling will never be a significant force at any global or even national levels, and I doubt any government feels threatened by it. But I can tell you where the force does hit. Wacko religious ideas do harm homeschool children. They harmed me, and I can almost guarantee they are harming the Romeike children over it.

I don’t agree with Germany that homeschooling should be illegal over this (but I will give it to Germany that their schools do have a high quality education). But Farris makes me laugh if he still believes somehow that conservative homeschooling is going to overtake the world. Really, how?

On the more practical note: I know the Romeike family has already stirred things up in Germany and perhaps the German government will not work with them now (I don’t know either way), but nevertheless, Germany does allow exceptions for traveling families. In my homeschool group over in Asia, we had two homeschooling families from Germany — with German passports — in our homeschool group. They simply applied for a volunteer visa overseas, and they are contributing to another culture at the same time. And they go home to visit Germany, and the government has never told them they can’t go back overseas. Just an observation.

The Romeikes also had the option of moving to another country in the EU and applying for a Green card to America like everyone else. Of course, they also had the option of applying for asylum, but they did run the risk that sooner or later, someone was going to say, “Hey, you are from a very first world country with a really great education system with religious private schools as an option too. You are not persecuted for your faith.”

The Romeikes’ lawyer and Farris keep pointing out that the German government will remove the Romeike kids if the family returns. But that’s only if they don’t send their kids to school. It’s not complicated.

Tribes from Burma and Syria — whose immediate lives are threatened — those are the lives who are endangered, and those are who should get the asylum spots.

Of course, after living over in Asia, I do have a soft spot for immigration, I admit. (Granted, that’s why I’m not in politics and instead work in humanitarian aid, lol.) And I’m not really into deporting people. They are here now. Nevertheless, I don’t think they should get an aslyum spot.

One closing thought I had after reading an article over at Homeschool Anonymous. Brittany writes that as a homeschool kid she was terrifed of public school. I can’t help but relate this to the unhealthy fears that the Romieke family is implanting in their kids by telling them that their “schools taught witchcraft based on a game.” (I had to laugh since my mother told me witchcraft stories to keep me from asking to go to sleepovers.) Perhaps these kind of ideas is the very reason Germany decided to make homescooling, for the most part, illegal.

You know, I get Germany a lot more than I understand the conservative ideas I grew up hearing.

A Quick and Dirty Primer on HSLDA

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A Quick and Dirty Primer on HSLDA, By Kathryn Brightbill

Kathryn Brightbill blogs at The Life and Opinions of Kathryn Elizabeth, Person.

Did you find your way to Homeschoolers Anonymous because of the press coverage of the Wunderlich and Twelve Tribes cases in Germany? Or did the Romeike case in the United States send you hunting for more info on this HSLDA group that keeps showing up in news stories?

Then this story is for you.

It is in no way meant to be exhaustive, just to provide basic information for people who did not grow up in the homeschooling world and are unfamiliar with HSLDA’s activism.

Early Days

HSLDA was founded by Michael Farris in 1983. At that time, homeschooling as a movement was in its infancy, and because parents were concerned about the legality, the idea of a legal defense and advocacy organization dedicated to homeschooling was an attractive one.

Throughout the 1980s and 1990s, HSLDA was involved in liberalizing the homeschooling laws in states across the US, mobilizing homeschoolers to bombard their legislators with phone calls, telegrams in the early days, faxes, and emails. During this time period most of the restrictions and regulations on homeschooling were removed so that in many states there is now minimal oversight of homeschooling families to ensure that children are receiving an education.

In 1991, HSLDA went international with the formation of HSLDA Canada.

A turning point came in 1994 when HSLDA used the power of its network of homeschooling parents to fight against H.R. 6, a federal bill that said that non-public schools applying for federal funds must have teachers certified in the subject matter in which they teach. For reasons that are not entirely clear since the bill was about non-public schools that received federal money—an issue completely unrelated to homeschooling, HSLDA decided that H.R. 6 meant that the federal government would require homeschoolers to be certified teachers. Although many other homeschool leaders disagreed with HSLDA’s analysis and did not see any threat to homeschooling in the bill, nevertheless, HSLDA mobilized tens of thousands of homeschoolers to contact congress and in the process discovered just how powerful a political network they had built.

HSLDA Branches Out: Non-homeschool-related activities

When you are an organization that is run by conservative members of the religious right (Farris was an attorney with Concerned Women for America who fought against the Equal Rights Amendment, former HSLDA attorney Doug Phillips is the son of Constitution Party presidential candidate and former Nixon administration member Howard Phillips, to give a few examples), and you have built a powerful grassroots network that will do your bidding, the temptation to limit your work to homeschooling is evidently too great to resist.

Coming on the heels of the H.R. 6 fight in 1994, HSLDA touts their involvement in killing the US ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a human rights treaty.

The only UN member states that have not ratified CEDAW are Iran, Palau, Somalia, South Sudan, Sudan, Tonga, and the United States.

In 1995, HSLDA took a case in Virginia, In re Brianna, where the parents were charged with neglect for refusing to vaccinate their child. HSLDA successfully argued that the parents should be given a religious exemption from providing childhood vaccinations to their child. HSLDA’s timeline of events does not indicate that this case had any connection to homeschooling.

In a case where the only relationship to homeschooling was that the party involved was a former homeschooler, HSLDA and Michael Farris took on the case of Michael New, a soldier who refused to wear a UN beret as part of United Nations peacekeeping actions. In a 1995 Court Report cover story, the case was described as, “Michael New v. the New World Order,” a reference to fundamentalist Christian beliefs about the End Times and the United Nations as ushering in a one world government that would lead to the rise of the antichrist.

In 1997, a constitutional amendment drafted by HSLDA, the “American Sovereignty Amendment, H.J.R. 83,” was introduced by Congresswoman Helen Chenoweth (R-ID). The amendment, which did not go anywhere, would have changed the Constitution so that treaties were no longer on the same level as the US Constitution. The text of the amendment is not available online, but it is evident from HSLDA’s own description that it would have had significant effects on the United States’ ability to meet its treaty obligations.

By 2003, HSLDA decided to organize young homeschool students into Generation Joshua to create a generation of young, politically active kids who could provide the manpower on the ground in conservative political campaigns. Generation Joshua was designed to build a second generation of kids to carry forth the culture war battles of their parents.

In 2004, despite the fact that it has not even the slimmest connection to homeschooling, HSLDA backed a constitutional amendment to ban both same-sex marriage and civil unions.

Another way that HSLDA expanded their reach beyond homeschooling was with the 2007 launch of ParentalRights.org, an advocacy organization devoted to expanding parental rights free from government interference. This includes advocating for a Parental Rights Amendment that would subject all laws relating to parental decisions on the upbringing, care, and education of their children to the highest level of judicial scrutiny, a standard that is extremely difficult to overcome, and which would remove almost all legal protections from children.

HSLDA was also instrumental in blocking United States ratification of the UN Convention on the Rights of Persons with Disabilities, despite the fact that the treaty mirrors the Americans with Disabilities Act.

On the treaty front, HSLDA has also led the fight against the ratification of the UN Convention on the Rights of the Child. Among their objections to the treaty is that it would prevent minors from being sentenced to life in prison—something that the international community agrees is unacceptable but that the US still practices. They also object to the fact that the convention uses the best interest of the child standard in determining matters involving children, even though the best interest of the child standard is the guiding standard in American family law already. Furthermore, they oppose the idea that children should have a right to be heard in decisions relating to their interests.

The only countries that have not ratified the UN Convention on the Rights of the Child are Somalia, South Sudan, and the United States. HSLDA bears much of the responsibility for America’s failure to ratify the treaty.

HSLDA and Abuse

Starting from 1992 on, HSLDA’s timeline lists their involvement in an increasing number of cases where homeschool families were accused of child abuse unrelated to homeschooling itself. Further, HSLDA’s timeline credits their work with member families in defeating Virginia Senate Bill 621, a bill that did not involve homeschooling but rather the standard of proof in child abuse investigations.

They also brag on their timeline about their role in killing a 1997 bill in New Hampshire that would have defined isolation of children as a form of abuse, because they believe it could apply to homeschoolers. This certainly suggests that HSLDA believes that some homeschool parents isolate their children to the point that a bill designed to protect children from abuse would apply, and thinks this is okay.

This is particularly relevant given the accusations against the Wunderlich family—HSLDA says that the family wasn’t abusive, but HSLDA doesn’t think that extreme isolation is abuse.

In his 1996 novel, Anonymous Tip, a story intended to dramatize the position that Child Protective Services are a threat to families, Michael Farris repeatedly has his protagonists insist that spankings that leave bruises are not necessarily evidence of abuse.

For more on HSLDA’s handling of child abuse cases, see Libby Anne’s extensive documentation on HSLDA and abuse, including their fight against child abuse reporting, the time they called a man who caged his children a “hero”, and their opposition to Florida’s proposed law that would have defined leaving bruises and welts on children as abuse.

This is not to say that HSLDA supports child abuse. As Libby Anne explains, it is entirely possible to abhor abuse while still taking actions that end up protecting abusers.

Michael Farris’ other non-homeschooling activism

An overview of HSLDA would be incomplete without noting at least some of Michael Farris’ other activism during his time with HSLDA. In addition to an unsuccessful 1994 run for Lt. Governor of Virginia, Farris was the founder of the Madison Project, a political action committee that bundles small donations in support of right wing candidates. Furthermore, his support of right wing candidates extended to backing John Ashcroft for President in 1998 and Mike Huckabee in 2008 (chastising other leaders of the right for not backing Huckabee sooner), and has mobilized Generation Joshua in support of Ken Cucinelli’s run for governor of Virginia.

As already mentioned, before founding HSLDA, Farris worked with Concerned Women For America in fighting against the Equal Rights Amendment that would have guaranteed equal constitutional rights for women. Also in the early 1980s, he worked with the Moral Majority in Washington state to try to get sex education materials removed from libraries.

Farris has also taken to fighting other broader culture war issues after the founding of HSLDA. Writing an amicus brief on behalf of Patrick Henry College in the Hollingsworth v. Perry (Prop. 8) United States Supreme Court case, he argued that if the government recognized marriage between two people of the same sex it would make it harder for Patrick Henry College to continue with their current (discriminatory) policies.

More recently, he spoke at the founding meeting of Trail Life, USA, the scouting group that was formed as an alternative to the Boy Scouts after the Boy Scouts stopped kicking gay kids out of the Scouts. The head of the Trail Life organization has gone on record stating that he believes that parents accepting their gay children is a form of child abuse. Farris, for his part, seems to agree with the head of Trail Life that gay children should be subjected to reparative therapy, a form of therapy condemned by every major psychiatric organization because it is psychologically harmful to the point of being abusive.

In Conclusion

While HSLDA may have started as a homeschooling advocacy organization, over time they have shifted and expanded their focus, fighting against international treaties, expanded child abuse legislation, and fighting for broader religious right causes. They are an organization founded and led by religious right activists who treat homeschooling as yet another front in the ongoing culture wars.