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

Screen Shot 2013-09-17 at 1.49.33 PM

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.

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

Screen Shot 2013-09-17 at 1.49.33 PM

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

Screen Shot 2013-09-17 at 1.49.33 PM

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.