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.