The Washington Post reports:
A German couple who fled to Tennessee so they could homeschool their children was granted political asylum Tuesday by a U.S. immigration judge, according to the legal group that represented them….[The father, Uwe] Romeike says his family was persecuted for their evangelical Christian beliefs and for homeschooling their children in Germany, where school attendance is compulsory.
When the Romeikes wouldn’t comply with repeated orders to send the children to school, police came to their home one October morning in 2006 and took the children to school. German state constitutions require children to attend public or private schools and parents can face fines or prison time if they don’t comply….
The Home School Legal Defense Association, which represented the Romeikes, excerpts the ruling (which, according to the Post, is not immediately available to the public):
We can’t expect every country to follow our constitution,” said Judge Burman. “The world might be a better place if it did. However, the rights being violated here are basic human rights that no country has a right to violate.”Burman added, “Homeschoolers are a particular social group that the German government is trying to suppress. This family has a well-founded fear of persecution…therefore, they are eligible for asylum…and the court will grant asylum.”
In his ruling, Burman said that the scariest thing about this case was the motivation of the government. He noted it appeared that rather than being concerned about the welfare of the children, the government was trying to stamp out parallel societies—something the judge called “odd” and just plain “silly.” In his order the judge expressed concern that while Germany is a democratic country and is an ally, he noted that this particular policy of persecuting homeschoolers is “repellent to everything we believe as Americans.”
This seems quite odd to me, though I should say up front that I’m not an expert on asylum law. It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.
But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can’t do so in their home country? Everyone who wants to own a handgun, but can’t do so under his or her home country’s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country’s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country’s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).
I should note that my family and I did come here as refugees from the Soviet Union. But whether or not that policy was sound (and the fact that it helped me, and that I’m grateful that it did, doesn’t tell us that much about whether it was sound), it seems to me that asylum from a country where a vast range of human rights is pervasively denied is quite different from asylum where the right at stake is solely the right to home-school, important as that is for many people.
In any case, I’d love to hear more about this from people who are more knowledgeable than I am on asylum law and asylum policy. Thanks to Religion Clause for the pointer.
Dilan Esper says:
This sort of thing generally turns on protected classes. We know religion is one, and religious persecution is a ground for asylum. (Note, it is statutory– gun ownership, for instance, isn’t in the statute.)
The question is whether prohibiting homeschooling is religious persecution for purposes of asylum law.
January 27, 2010, 6:16 pmOren says:
Are you quite sure you don’t want insults hurled at the corrupt education system/teachers union alternating with posts about the evil of homeschooling?
January 27, 2010, 6:18 pmSasha Volokh says:
Dilan: But note, (just based on this excerpt) this seems to be based not on religious persecution but on particular-social-group persecution, where the “particular social group” is homeschoolers.
January 27, 2010, 6:22 pmArthurKirkland says:
Activist judge. By this “reasoning,” any citizen of Germany can jump to the United States by causing a child to play hooky, then petitioning the court in Tennessee (how many immigration judges could there by in Tennessee).
By this reasoning, we should open the Mexican border. I am not advocating such an approach, but it seems to be the logical progression from this decision.
January 27, 2010, 6:26 pmjosh bornstein says:
If you are German and want asylum here, maybe your easiest path would be to convert to Scientology. Since it’s treated (per my ex, who is a German lawyer) as a cult in Germany–but is a religion here–there should be no problem satisfying our govt’s requirements for asylum. Or am I missing something?
January 27, 2010, 6:30 pmAlast says:
However the desire to homeschool was (arguably) in this case based on a religious exercise. Presumably, another couple who wanted to similarly homeshool, but based on a non-religious reason, would have lost the asylum case.
Sounds like we just opened the floodgates from countries that don’t make religious accommodations — for example if France continues its course to ban the chadri in public, French Muslims will find a receptive ear in judge Burman.
January 27, 2010, 6:32 pmArthurKirkland says:
A law that prefers a religious applicant is a bad law.
January 27, 2010, 6:34 pmAlast says:
Eugene, you haven’t interfaced much with the fundie-nutjob home schoolers recently have you? Listen to some of them for long, and you’ll find that home schooling is, to them, no less a religious observation than communion.
January 27, 2010, 6:37 pmAnderson says:
I thought the relevant case was Pierce v. Society of Sisters – the state can’t require children to be educated in public schools.
January 27, 2010, 6:40 pmShelbyC says:
Not a fan of the German system, but home-schoolers are not a “social group”.
January 27, 2010, 6:42 pmShelbyC says:
Seems kind of difficult to say that it would be, any more than outlawing peyote would be.
January 27, 2010, 6:44 pmAnderson says:
Ah, I see that EV discussed Pierce in his linked post. Leaving aside whether Pierce is that narrow, it seems from the news item that Yoder may apply.
I think the reference to “require that all children of proper age attend *some* school” is broad enough that the state would have to explain why a “home school” did not suffice.
January 27, 2010, 6:45 pmAnderson says:
Cf. McReynolds in Meyer (the teaching-German case): “Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto.” That’s simply not correct, and smells of appellate fact-finding.
January 27, 2010, 6:49 pmArthurKirkland says:
More like an anti-social group?
January 27, 2010, 6:50 pmAnderson says:
… OT, Prof. Somin’s post on the D&D decision got much love in the NYT, including links to the thread and a quotation from a commenter —
– NOT however including my wonderful Sotomayor parody, an omission which leads me to vehemently agree with everyone who has ever condemned the liberal bias of the Times. Curse you, Gray Lady!
January 27, 2010, 6:54 pmMike says:
I’ve seen these guys on German TV in the past. Their main reason for homeschooling is that they don’t won’t their kids exposed to “evil Darwinism” and “sinfull sex-ed.”.
In Germany both is obligatory since radical Evangelicalism is a ridiculed minority, which nobody is taking seriously.
In the interview both parents seemed to be totaly out of touch with every day life.
There are very strict religious schools in Germany btw., but even these were considered “too liberal” by these fundamentalists.
January 27, 2010, 7:00 pmAnderson says:
I’ve seen these guys on German TV in the past. Their main reason for homeschooling is that they don’t won’t their kids exposed to “evil Darwinism” and “sinfull sex-ed.”.
Then the issue becomes whether Yoder, which addressed the state’s right to compel formal education past 8th grade, applies to homeschooling from K-8.
January 27, 2010, 7:07 pmzuch says:
The U.K. has been turning down asylum requests fro people from the U.S…..
Cheers,
January 27, 2010, 7:12 pmShelbyC says:
:-)
January 27, 2010, 7:13 pmJay says:
I assume this is a “particular social group” issue under the asylum statute. It comes up fairly often, in contexts such as gays from Muslim countries, people who witnessed drug lord violence in Colombia and are now in danger, or boys likely to be recruited into gangs in Honduras. There’s a fair amount of COA caselaw on the topic. AFAIK, there must be something immutable to make someone a member of a PSG. Since homeschooling is a choice, I have trouble seeing this basis for this decision. (Religious persecution is a separate basis for asylum, so there’s no need to debate whether one’s religion is “immutable” or not.) My guess is this gets quickly overturned by the BIA if DHS appeals. There are a lot of oddball IJs out there, although most err in favor of throwing everyone out.
January 27, 2010, 7:19 pmI don’t think most of the discussion about the contours of due process rights to homeschool, or whatever else, within the US is relevant.
Dilan Esper says:
What jay said. I assumed social group was a nonstarter because this is just an activity. But religion *might* work.
January 27, 2010, 7:25 pmArthurKirkland says:
Bright side department:
Five years ago, the asylum applications would have been converted into employment applications for the Department of Justice and simultaneously approved.
January 27, 2010, 7:28 pmwhit says:
“A law that prefers a religious applicant is a bad law”
Would it be equally protective of an atheist applicant, who was being persecuted for their (not)religious practices?
iow, if country fined or imprisoned atheists for not attending church or church schools, would the law equally apply?
if so, i’d say it’s not bad law, because it protects the religious AND the not-religious from persecution for their beliefs (or lack thereof)
January 27, 2010, 7:28 pmAnderson says:
I don’t think most of the discussion about the contours of due process rights to homeschool, or whatever else, within the US is relevant.
Why not? The 14th Am. protects persons, not citizens.
January 27, 2010, 7:40 pmArthurKirkland says:
I would have guessed, given prevailing winds, a tendency to avoid granting asylum to religious extremists.
It appears my guess would have been wrong, at least in Tennessee.
January 27, 2010, 7:42 pmChrisTS says:
Alast:
This was my first thought, as well. I’m sorry, this is a bad decision and a very bad one in light of the folks we turn away.
January 27, 2010, 7:43 pmBiolawguy says:
This essentially turns on how serious we want to take religious freedom.
Eugene’s analogy to SSM is flawed; when people are prosecuted for their sexual orientation (as I realize does sadly occur), then you can compare it to being prosecuted for following your faith’s approach to education. But if you’re merely lacking state assistance/blessing (i.e. state-recognized marriage), then it is incomparable.
It’s a similar flaw as when SSM is “compared” to consensual-adult polygamy and other consensual-adult crimes: with one group, everyone agrees there should be liberty for all and the only debate is on the extent of active promotion from the state; for other groups, it’s criminalized.
January 27, 2010, 7:49 pmJay says:
Anderson–But the 14th Amendment doesn’t protect anyone from foreign governments enforcing their own domestic laws. Immigration law is statutory, not constitutional (with the possible exception of some procedural DP issues).
January 27, 2010, 7:55 pmJay says:
Biolawguy–The key word is “persecuted,” not “prosecuted.” You’re not entitled to asylum just because another government prosecutes you for something (although that could be a sign of persecution).
January 27, 2010, 7:57 pmChrisTS says:
Biolawguy:
At the risk of being insensitive, might I ask what religion requires home schooling? I am not aware of any religion, as such, that requires children either (1) be educated at home or (b)be prevented from hearing about views to which the relgious elders object.
Of course, various religious groups have exercised such censorship over their members in the interests of indoctrination/purity. But is there a doctrinal requirement in any religion that requires either (1) or (2)?
January 27, 2010, 7:59 pmBiolawguy says:
Is unjust prosecution not a form of persecution? (I admittedly don’t know the legal standard, I was just arguing for what I thought would be a better analogy.)
January 27, 2010, 8:00 pmBiolawguy says:
Chris,
I’ve known some fundamentalist sects to interpret the bible with such a mandate, but I’ll grant you that in most cases it’s more a matter of folks believing it’s the best way to implement/apply their faith, rather than an intrinsic element thereof.
January 27, 2010, 8:02 pmArthurKirkland says:
Interesting point. Another applicant could claim a reading of Chrisianity entitling the believer to exercise dominion over a wicked person’s possessions, so that the Gospel might be better circulated, and complain that the damned German police come looking for him, invoking the law of the state, every time he takes the neighbor’s lawn ornaments and pawns them to purchase tracts in bulk.
Is the law requiring school attendance any less sensible than that forbidding theft of lawn jockeys?
January 27, 2010, 8:08 pmMojo Bison says:
Years ago in grad school, I was in a colloquium with one Bill Breeden –the very Bill Breeden who swiped the Poindexter sign off the street in Odon, IN and thus laid claim that he was the only person ever to spend time in jail relating to Iran-Contra. I remember him talking about raising his kids in the woods in the teepee and having to fight to home-school (teepee-school?) his kids. I can’t remember now if he said he was in Indiana or Kentucky at the time, but I do remember him saying he won his case. Alas, I am unsuccessful in finding the case in question. Might be worth a peek?
January 27, 2010, 8:11 pmBiolawguy says:
“Is the law requiring school attendance any less sensible than that forbidding theft of lawn jockeys?”
Most forms of libertarian ideology have long drawn a qualitative distinction between state intrusion to prevent/punish violating certain fundamental rights of others, vs. for other purposes.
January 27, 2010, 8:12 pmChrisTS says:
Right. I think in our own nation we should be very cautious about what ‘a religion’ requires. But, when it comes to immigration decisions, I think we ought to be more considerate of the legal norms of the purportedly offending home system.
We send back to their home-states women who can show plausible evidence that they will be subjected to mutilation or abuse, or will be killed, because the local religions permit/require such treatment. Yet, in this decision, we reject the sovereign claims of a nation that insists only on a certain level of education for all children.
I know, I know: this is all terribly complicated. To be honest, I prefer the French and German concern for permitting the development of individual autonomy to our contorted and inconsistent U.S. obeisance to every [non-drug use related] claim of “it’s my religion, and I get to construct my child’s world so that s/he will never imagine otherwise.”
January 27, 2010, 8:14 pmArthurKirkland says:
Children have rights, too.
January 27, 2010, 8:14 pmOren says:
Because one judges the curriculum of the available public schools (and perhaps the private ones within one’s economic means) incompatible with the tenets of that religion.
Even those advocating the largest leeway be built in the law for religious accommodation (that is, far and above what the Free Exercise Clause requires), which is admittedly not me, would not ask for an exemption to the laws on theft.
Considerably, especially when you read Pierce together with Meyer and Yoder to codify a Constitutional liberty interest in raising your children according to your beliefs, even where they are in tension with the prevailing winds.
January 27, 2010, 8:15 pmBiolawguy says:
“Children have rights, too.”
If you’re suggesting that there is a right to not be homeschooled, then that goes much further than saying there’s not a right to homeschool.
January 27, 2010, 8:19 pmreadery says:
Should the U.S grant asylum to anyone who lives in a country with gun laws? With a constitutional monarchy or other non-republican form of government? With laws prohibiting drinking alcohol, gambling, fornication, or abortion? To countries with gay marriage? To countries without gay marriage? Where parents are allowed to hit their children? Where parents are prohibited from hitting their children?
January 27, 2010, 8:27 pmreadery says:
North Carolina decided the matter on purely statutory grounds — the law says that all children have to attend a school, but it never says anything about how big a school has to be. More than 1 pupil isn’t a requirement.
January 27, 2010, 8:31 pmPerseus says:
The cult of individual autonomy is merely liberal philosophy masquerading as neutrality.
January 27, 2010, 8:43 pmDr. Weevil says:
readery:
North Carolina is generally considered the most homeschool-friendly state in the union.
ChristTS:
I don’t know of any religion that directly requires home schooling, but a case can be made that some do so indirectly. I know the Amish have their own schools, which stop (I believe) at 8th grade. I’m guessing they’re not very gay-friendly, don’t teach Darwin or modern science at all, and would be considered shockingly inadequate by everyone posting here.
Still, if an Amish family lives too far from other Amish families to attend a multi-family school, I’m guessing they would be able to home school, and even to put the kids to work after 8th grade, rather than being forced to send their children to public school. “Too far from other Amish families” wouldn’t necessarily be all that far, either, what with driving buggies instead of cars.
Alast:
January 27, 2010, 9:06 pmHave you “interfaced” (an ugly word) with “fundie-nutjob home schoolers”, or are you just assuming you know all about them? I’ve taught a lot of home-schooled kids, some with very religious parents, and found them universally well-adjusted, hard-working, and intellectually curious. I taught at a very small classical 6-12 school — in North Carolina, as it happens — where half the kids had been home-schooled through 5th, 6th, or 8th grade. Parents’ political opinions ranged from very conservative to downright socialist, and religions were highly varied in sect and intensity. Some parents just thought they could do a better job than the public schools, and couldn’t afford the fancy prep schools. One child had been ‘unschooled’ through 6th grade by her hippie parents: unschooling is like home schooling, except that the child is left to study whatever she wants whenever she wants. Amazingly enough, it worked, at least with this kid, who knew more than most 7th-graders about most subjects. (Her spelling was abysmal, though. That’s one subject you’re not likely to pick up without some prodding.) When I see people making denigratory generalizations about home-schoolers and their parents, I tend to suspect ignorance and bigotry.
Alast says:
All homeschoolers are not fundie-nutjobs. Indeed, they are a minority of homeschoolers that I know. But they do exist, and they are nutjobs. And yes I have interfaced with them (I use that word intentionally because you can’t “talk” to them or even have a rational discussion with them… hence the word “interface”.) My brother and sister-in-law are a pair of those nuts — grade A prime.
January 27, 2010, 9:53 pmNickM says:
Besides the fact that you’re now stuck being a Scientologist?
Regarding EV’s abortion hypothetical, someone who claims a future intent to become pregnant and then to want an abortion would face no present danger of persecution (no abortion is then being sought, so there’s nothing to persecute her for at the time), thus failing to qualify for asylum, and even if she were already pregnant, she could have that abortion in the U.S. and then return to her home country, so she would need to show that she would be persecuted in that country for having had an abortion abroad. I imagine that certain Muslim societies might qualify, though I doubt anywhere else in the world would.
Nick
January 27, 2010, 10:10 pmKevin P. says:
You must be one of these tolerant and inclusive progressives.
January 27, 2010, 10:36 pmbearing says:
I thought U. S. rights to homeschool children had been won on free speech grounds, not on free exercise of religion grounds. I’m not sure whether that’s relevant or not, but nobody’s mentioned it here.
January 27, 2010, 10:43 pmTatil says:
Does anybody know whether Mexico allows home schooling? How about China? I doubt this would open the floodgates though. They will find ways to plug holes from countries with a lot of immigrants.
As legalizing gay marriage damages heterosexual marriages, I think we should save them. :)
January 28, 2010, 12:09 amTatil says:
Why don’t we provide asylum to every woman from Saudi Arabia? The limitations in their lives over there sounds a lot tighter than just a restriction in home schooling. Even if the women are Muslim, the government is enforcing one particular interpretation, so isn’t this another form of religious persecution. By the way, I am not asking this as a snarky comment about the decision. I am really curious. I always thought “life in danger” was the main criteria for asylum.
January 28, 2010, 12:17 amArthurKirkland says:
The more I contemplate this decision, the more I would bet with an appellant (assuming immigration appeals adhere to standard appellate procedure).
January 28, 2010, 12:42 amJay says:
Tatil– There are a lot of Saudia Arabian women who probably could make colorable claims for sex-based asylum, but they would have to be here in order to seek it. Being persecuted doesn’t give you a right to a visa, much less to have the US gov’t ship you over here.
January 28, 2010, 12:55 amPersecution doesn’t have to include literal danger of death–being thrown in prison, or beaten up daily by the police, or made to live in a garbage dump b/c your ethnic group is untouchable and its village was burned down, might all suffice. But it does have to be an ongoing, chronic situation; not isolated incidents (and I’m not sure more modest legal disabilities, such as not allowing women to drive, would suffice).
Tatil says:
Jay, thanks for the information. I guess when I said “life in danger” I was including prisons and beatings as well.
Isn’t this one is comparable to many Saudi woman’s inability to leave home without a male chaperon? (Unless I am misinformed and that is just a myth.) How about clothing restrictions or the inability to socialize with the opposite sex? Are these less important than home schooling? I am pretty sure it is difficult for them to get here, but I’d think it would still increase the numbers asking for asylum tremendously.
Is it illegal to assist asylum seekers (who don’t have a valid visa) to get into the US?
January 28, 2010, 1:29 amTatil says:
I am not asking for legal advice, but if it is not illegal I can imagine charities doing this kind of work.
January 28, 2010, 1:30 amJay says:
Hm. I guess it depends on exactly what you mean. Being a coyote or snakehead (that is, driving in people in hidden compartments, or arranging for them to stowaway in cargo containers) is still just alien smuggling, even if you claim you thought they were all entitled to aslyum. Anyone can *seek* asylum, so that would be a pretty big hole. If you’re talking about rescuing people in the desert or on rafts off Florida, that’s probably an exception. In the middle, I’m not sure about, say, buying someone a ticket to the US with the expectation that (assuming they make it onto the plane) they’ll immediately seek asylum when they land and go through immigration. If there’s fraud (using a fake passport, lying, etc) involved then no, plus the immigrant is going to be barred from seeking asylum on that basis. If not, then it’s probably ok.
January 28, 2010, 3:19 amTatil says:
I
Interesting. Doesn’t that mean if you are refused a visa, you cannot seek asylum, as your only way into the country is through illegal means? One of the visa criteria I believe is your intent and means to return, and likely asylum seekers will fail that test. I gotta say that does not make sense to me.
January 28, 2010, 3:29 amDNJ says:
1. This decision is plainly wrong as a matter of asylum law. Germany’s actions clearly don’t amount to persecution – that requires a flagrant breach of human rights.
January 28, 2010, 4:24 am2. I think homeschoolers might well qualify as a particular social group, at least in countries like Britain that read the term widely (the US seems to generally take a more restrictive approach to it). The House of Lords has held that women in Pakistan who had offended against social mores or against whom there were imputations of sexual misconduct qualified as a particular social group: Islam v. Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal and Anor, ex parte Shah (Conjoined Actions) [1999] UKHL 20. Homeschoolers seem, if anything, a more well-defined group than this.
DNJ says:
Also, the Refugee Convention provides that people cannot be punished for illegally entering a country or using false documents if they are fleeing persecution.
January 28, 2010, 4:26 amKirk Lazarus says:
Yes, such as the right not to be indoctrinated by the State.
January 28, 2010, 6:10 amAnderson says:
I suppose it helps not to be a black Haitian fleeing Darwinism and seeking redress in American courts.
(Actually, there’s all too much natural selection going in Haiti lately, very flee-worthy.)
January 28, 2010, 7:37 amDanny says:
Arthur, do you know any homeschoolers. We live in Charleston, SC. Perhaps one of the worst, if not the worst school districts in the nation. Last I heard there were just as many non-religious homeschoolers in our district as were. Yes, more liberals and pagans are homeschooling these days. Can’t let their kids find out about the climategate emails.
January 28, 2010, 8:05 amyarrrrr says:
You apparently know nothing about the German education system…
January 28, 2010, 8:12 amM.E. says:
These folks are just HSLDA’s type. They love strict fundy Christian homeschoolers. The fact is that if these folks had really been pursuing educational freedom and not simply freedom to practice their religion, they would have gone to Texas, Illinois, or perhaps Missouri – states where educational freedom exists. In Tennessee there is no educational freedom, and the only people who are allowed to educate their children at home are people who have declared religious exceptions and who operate under an umbrella school (think distance learning academy) operated by a Church.
So, in my opinion, this is a freedom of religion issue, not an educational issue.
January 28, 2010, 8:22 amPhillip says:
It is both a religious and a political issue. The German reasoning for suppressing homeschooling is not related to education but to the social engineering aspect of their education system. They admittedly wish to shape the values of the children toward whatever ideals the state deems to be proper for “proper” citizens. If the state is trying to take your children by force and teach them against your religion or political views, then it as good a reason as any for political asylum. I don’t think this opens the floodgates to Mexico since political asylum doesn’t apply to economic situations. We did some good here U.S.A., let’s be happy in that.
January 28, 2010, 8:52 amTo Hayek With You says:
When the government comes to your home and drags your children off without your consent then that seems like a good enough reason to grant asylum to me… especially when they take them off to be indoctrinated by the central authorities.
And where did the silly notion that we ration our citizenships come from? It has been made very clear that no matter the will of the people, or the law of the land, we will have an open border because the party in power needs to import more voters.
BTW, I live in Tennessee and there are LOTS of non-religious homeschoolers.
January 28, 2010, 8:59 amParatrooperJJ says:
I would disagree that homeschooling is not a constitutional right. I think that how parents educate their children is a fundemental right in the US.
January 28, 2010, 9:03 amVirginia says:
To be honest, I prefer the French and German concern for permitting the development of individual autonomy to our contorted and inconsistent U.S. obeisance to every [non-drug use related] claim of “it’s my religion, and I get to construct my child’s world so that s/he will never imagine otherwise.”
How on earth does requiring all children to be educated in government-operated or government-regulated schools evince a “concern for permitting the development of individual autonomy”? It would seem more indicative of a concern for indoctrinating all children in the same politically-correct dogmas.
January 28, 2010, 9:15 amGeoff says:
Based on the comments in this forum, they may need protection in this country as well.
Their faith tells them to raise their kids in a certain way under certain educational influences. Germany doesn’t respect their rights as parents to raise them in this way. They would go to jail if they refused.
A country started by a group of Puritans coming over to avoid religious persecution should allow this.
January 28, 2010, 9:21 amCelebrim says:
I have friends who are home schooling who vary from college educated liberals that think they can do a better job teaching their kids than the public school system, to college educated religious conservatives that think they can do a better job teaching their kids. Most parents I know that are willing to take the burden of teaching their kids have well above average educations. In some ways, the homeschooling movement is almost reinventing education from scratch, as I know of ‘home schoolers’ who are sending their kids to the home of one of their best educated friends who is home schooling their own kid and creating what is essentially an old fashioned one room school house. Homeschools are now increasingly supported by homeschooling networks that pool teaching resources and distribute curicula, worksheets and even textbooks and provide extra-curicula and sporting activities for the home schoolers.
Homeschooling as a movement in the US is much more of a movement motivated by the complete failure of our public educational institutions from top to bottom, than it is about religion. Religion, social and political values that are felt to be endangered is part of it, but a far bigger part of it is just the general feeling that public schools have become both too dangerous and too inept to send your child off to waste their lives. Based on my experiences in the public school system, which include knife fights, drive by shootings, daily threats of and actual violence, total apathy by both students and teachers, and almost a complete lack of basic instruction, I have alot of sympathy for that. Some of my classes were pretty good (once my parents moved and I got into a good school), but most were a total waste and I got an education in 12 years that I probably could have gotten in 7 or 8.
January 28, 2010, 9:40 amRon W says:
Sounds like some of the commenters above don’t know many homeschoolers. I know several. None are doing it for religious reasons. They mostly do it for better education.
I had to homeschool my daughter due to minor health issues and a stupid state law. With severe asthma and migraine headaches she would miss a few days too many and not get credit for an intire semester. This is only about 10 days missed with no chance to make it up.
Now she is homeschooling her son because by the 4th grade he was so far ahead of his class he was bored in school. He is a highly intellegent child who did well in school and liked school up until he stopped being taught new material.
We have friends who homeschooled their kids up until high school. That was the limit of what mom felt she could teach. They had no problems fitting into school and are well ahead of their classes. They have a much more diverse education than their peers (such as falconry.) These parents made the correct decision for their kids. These are not religious fanatics.
January 28, 2010, 9:51 ampivey says:
On homeschooling,
On average, homeschoolers score 30 points higher on standardized tests than their public school counterparts. The quality of education has been proven to be superior. That’s one of the main reasons I homeschool – so my kids don’t grow up to be idiots. They also have a more vibrant social life than when they were enrolled at the public school, btw.
On Biblical education mandate,
Deuteronomy 6 the scripture where God instructs us how to educate our children. Look it up and you will find in incompatible with public schooling.
On homeschool legality,
When our nation was founded, compulsory schooling was not even on the radar. This did not even become an issue until 1842, when Mass. passed the first compulsory schooling laws. There were plenty of local schools before then, however and the literacy rates were higher at that time than public school advocates would have you believe. (see John Taylor Gatto’s Underground History of American education.) Education falls under the 10th amendment, you know the one that says:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
On the German case,
This family had a valid concern because the German gov. was talking about confiscating their children just because their family was different in it’s lifestyle choices. Germans really don’t seem to be able to tolerate those “parallel societies” (Gypsies, Jews, dissenters) very well. I would be very upset if my children were taken from me and taught homosexual practices and indoctrinated with atheist bullsh*t. Similarly, an atheist would be upset if us fundies were in control and abducted their kids to show them the “way”. Thankfully, the Bible says that no one can come to Father unless the Spirit draws him, so attempts to force anyone into Christian faith will not work.
I’m surprised at the lack of tolerance and the total ignorance demonstrated by the comments here. Public school education, what cha goin’ to do? Homeschool!
January 28, 2010, 9:53 amPolitical Observer says:
This seems quite odd to me, though I should say up front that I’m not an expert on asylum law. It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.
I am troubled by this statement because it ignores the history of the creation of the U.S. Constitution. First off, the founding fathers wrote the constitution as a limit on the role and power of the federal government. The document expressly spells out what the federal government is allowed to do. Second, the bill of rights, which some people chose to believe as the only rights accorded to the people, was a direct response to the concerns raised by the people that they wanted clear protection of certain rights so as to have them enumerated in the document. During the ratification debate the Federalist consistently maintained that the document limited the powers of the federal government to only those items clearly enumerated in the document. All other powers and rights belonged to the people. Finally, the 10th Amendment makes it very clear that other than those powers expressly provided for in the Constitution as residing with the federal government all other rights and powers are recognized to be held by the states and the people.
Based on this I would argue that if the constitution does not expressly grant to the federal government the right to control a parent’s decision to educate their children at home than that right is exclusively held by the parent and cannot be infringed upon by either the federal or state governments.
January 28, 2010, 9:55 amFrank Meyer says:
The wording of the 10th amendment leaves it open for states to regulate, subsidize, and mandate school attendance by residents. That being said, I would move out of a state that required me to delegate my children’s education to a designated institution.
January 28, 2010, 10:03 amJay says:
“Also, the Refugee Convention provides that people cannot be punished for illegally entering a country or using false documents if they are fleeing persecution.”
I agree (and this may have been unclear in my earlier answer) that the fact someone is here illegally does not prevent them from seeking asylum–if a person was here legally, they wouldn’t need it. I think that immigration fraud, though, is one of the myriad ways to lose your eligibility for asylum, but maybe I’m wrong. It seems like using false documents to feel one’s own country, or to pass through some hostile way point, is different than using them to enter the country where one is claiming asylum.
January 28, 2010, 10:04 amJetty45 says:
You’ve missed the point. It’s not because of home-schooling – it’s because of Christian home-schooling.
January 28, 2010, 11:16 amBuford Gooch says:
So, all home schoolers are religious nuts? Seems to be the gist of the comments.
January 28, 2010, 2:01 pmDilan Esper says:
Folks, the law is quite clear that Congress has plenary power over immigration. So this isn’t an issue of a constitutional right to homeschool. Congress is entitled to deny immigration on the basis of a fundamental right. For instance, the McCarran-Walter Act prohibited communists from immigrating to the US. I don’t happen to think much of that law, but it was clearly constitutional under longstanding doctrine.
The issue, therefore, is whether persecution based on homeschooling falls within the various categories enumerated in the asylum statute, which qualify someone for political asylum. (One can also ask whether it falls within one of the treaties governing refugees, to the extent that such treaties can and should be used to interpret US asylum law.)
Thus, even if we assume homeschooling is a constitutional right, it still may be that homeschoolers are not considered a protected religious or social group under asylum law. The former is an interesting discussion, but the latter is the legal issue here.
January 28, 2010, 2:40 pmChuckles48 says:
I would note that there isn’t a general constitutional right to marriage, either. Yet we see a great deal of heat and light on that particular subject these days.
January 28, 2010, 2:56 pmPaul says:
Eugene, I don’t understand your argument that homeschooling isn’t constitutionally protected. Are you saying that we only have rights that are specifically granted to us in the Constitution. That’s not my reading of the text. The better question is, does the Constitution grant the power to Congress to prohibit homeschooling. I don’t think it does.
January 28, 2010, 3:10 pmKAB says:
Excuse me, but have you personally been to Germany to assess the situation? We are close friends with a family who fled from Germany to homeschool their children. Even 15-20 years ago when they left Germany, the “private” schools were regulated such that they had to choose their curriculum from several state-supported options.
We are a homeschooling family as well and we choose to do so for similar reasons. If you live in modern society (and no we don’t keep our children in closets like mushrooms contrary to wild stereotypes), you will be exposed to Darwinian theory and sex-ed by virtue of turning on the TV. It’s everywhere and can’t be avoided. What we wish to do is to pass on our perspective on these things.
My children know about Darwin, probably more than their public-schooled counterparts. They are exposed to the ideas in the Communist Manifesto. However we balance our studies with our religious beliefs… something that society-at-large seems to be deathly afraid of. IOW, we are not afraid of these ideas, but we choose to expose our children at a time that we believe is more appropriate for our children.
If you believe in individual liberty, should each of us be able to teach our children as we see fit.
As to granting asylum, I cannot speak for that, but I can tell you that my children belong to me. They do not belong to the state (yet). And as long as I am held accountable for them while they are under 18, I will not have a public school authority telling me that I hand over my rights to them as soon as my child enters a public school (yes, this happened and the lower courts backed it up).
Leave us alone. We’re testing ahead of the curve and living self-sufficient, self-governed lives. Why is that such a problem for people? You do what you want for your family but don’t tell me how to run mine!
January 28, 2010, 3:16 pmjames says:
I think Geoff made the best point – coming to this land in order to escape the liberals and protect the children was one of the main things the Puritans had in mind.
January 28, 2010, 4:00 pmMicha Elyi says:
Ha ha. Look who hasn’t “interfaced much.” Fundamentalist Christians don’t ‘observe’ communion. Also, take a look at the hippy leftist self-described freethinkers who began the modern homeschooling movement; now there’s a bunch of “fundie-nutjob” kooks with a “religious observation” – their militant atheism being its own kind of self-worshipping religion.
January 28, 2010, 5:08 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by erwiest: Volokh @volokhc: Asylum in the U.S. for German Homeschoolers? – http://bit.ly/cr6emi Exam q: pushing the asylum envelope too far?…
January 28, 2010, 8:15 pmThe Old Man says:
Wow…. I never thought that the quality of the comments on slashdot would surpass the ones here. They have in this instance. With a few exceptions, the tenor here has been downright childish and intolerant in regards to this topic.
January 28, 2010, 8:27 pmJennifer says:
I came over to read about the case as I have been following it for some time. Boy I agree with The Old Man…not much going on here except that the opinion of those that homeschool (fill in the blank). Are we dissenters? I find it interesting that towing the line and being part of the group continues to be the norm on this topic. As a homeschool mom for 17 years, I have followed all the news on homeschooling and have been worried as of late about my right to continue to do so because of the UN legislation on The Rights of The Child. Barbara Boxer has been pushing for us to agree to it.
Homeschooling may never be accepted and most likely will always be seen as “fundies” keeping the kiddies safe from Darwin, but I have always been thankful that it has been my right- my choice to teach my children. That seems to be the bottom line for what has been happening to parents in Germany vs. parents here in the States. I for one am grateful to be able to make decisions that I deem best for my children and thus far the state has permitted me to do so.
January 28, 2010, 9:11 pmTweets that mention The Volokh Conspiracy » Blog Archive » Asylum in the U.S. for German Homeschoolers? -- Topsy.com says:
[...] This post was mentioned on Twitter by Margelit Hoffman, Edward Wiest, Yonit de Metz, BurkeanMama, Chuck Bearden and others. Chuck Bearden said: German homeschoolers granted asylum in the US; thoughts from @VolokhC http://is.gd/7dDE6 #HomeSchooling [...]
January 28, 2010, 11:54 pmStephen says:
Seems to me that the homeschooling issue in this case is a holdover of German fascism. Hitler’s public school law (oddly still on the books), if I’m not mistaken, is the legal basis of the persecution in Germany. We give asylum for persecution on many bases. Like you mentioned at the beginning, Eugene, you were a refugee from totalitarianism as well.
January 29, 2010, 12:47 amAnd other posters have brought up a very salient point: the Constitution doesn’t have to provide a right to homeschool, because it is a document limiting government power, not telling us which rights we have. We (people or states) have all of those which are not specifically enumerated. And when the states take too many away, we vote with our feet and move to a state that is doing a better job (which is why I homeschool and live in Texas!).
Greg Hunt says:
More like an anti-socialist group.
January 29, 2010, 1:23 amSergey says:
Eugene, it seems you confusing constitutionally protected rights of American citizen with the most basic human rights, which no national government is allowed to violate. Gun ownership is constitutionally protected in USA, but not in majority of european contries; abortion rights are not even explicitly protected by US Constitution, and there are still controversies if they should. The judge in this case was careful to make this distinction, and he was right. This is the case not only of religious discrimination, but of brutal religious persecution, and so a perfect case for granting asylum under existing law.
January 29, 2010, 4:38 amSergey says:
This, indeed, raise the following question: why european human rights bodies are silent about this Hitlerian law? Now Europe ostensibly has its constitution, too. What worth this montruosity has, if it can not protect against such persecution?
January 29, 2010, 4:49 ampedro says:
The immigration courts have not recognized battered women as a protected social group but they recognize ‘parents who can’t homeschool’ as a protected social group? I’m not smart or this doesn’t make a lot of sense. Probably both.
I’m not arguing that parents should not be protected but there are other classes of people in much more severe life-or-death danger that the courts so-far refuse to provide relief to.
-P
January 29, 2010, 8:35 amhttp://www.whoneedslawyers.com
JK says:
Sergey
In September 2006, the European Court of Human Rights ruled that Germany’s mandatory school attendance policy, along with the corresponding ban on homeschooling, is compatible with both European law and the European Convention on Human Rights.
The current mandatory school attendance laws in the different German states were by the way all written after the second world war.
But if you allude to who invented the mandatory school attendance in Germany first, then I have to disappoint you again. It is much older than Hitler. The first German states introduce such laws in the 17. century, Prussia in the early 18. century. The idea behind it was that every child has a right to an education. At that time parents often didn’t send their children to school because they need them as workers for example on their farms. And they often didn’t see why children need to learn the ability to read and write. The tradition behind the current laws is that every child has the right to an education and that the best way to ensure that right is to guarantee that they all visit a school. The only exception this rule makes is for children who travel a lot and don’t have a steady home, like for example circus children because it is impossible for them to visit constantly the same school.
January 29, 2010, 8:59 amSergey says:
I know that it was a Prussian law, but in 1936 Hitler made it all-German law. Prussia traditionally was the most bureaucratic and totalitarian of all German lands, bur the rest of the country was more liberal, and some lands were very liberal (Frankfurt, for example, or Bavaria).
January 29, 2010, 1:36 pmDilan Esper says:
Eugene, it seems you confusing constitutionally protected rights of American citizen with the most basic human rights, which no national government is allowed to violate. Gun ownership is constitutionally protected in USA, but not in majority of european contries; abortion rights are not even explicitly protected by US Constitution, and there are still controversies if they should. The judge in this case was careful to make this distinction, and he was right. This is the case not only of religious discrimination, but of brutal religious persecution, and so a perfect case for granting asylum under existing law.
I am open to the argument that this constitutes religious persecution (even though I have a very low opinion of homeschooling parents, whether of the left or right variety), but “brutal” religious persecution goes way too far. There are countries in this world where, for instance, practicing Christianity or defaming Islam or meeting in an unregistered church or mosque or synagogue can get you thrown in jail, thrown in a reeducation camp, or tortured and beaten.
This is not that. This is a reasonably democratic country taking a position that many reasonably democratic countries take, which is that the shared benefit of minimum education standards and a standardized curriculum requires that children be enrolled in a regulated educational institution. That clearly imposes a cost on devout religious believers who believe either that God called them to homeschool their children or that their children should not be exposed to ideas that might cause them to reject their religion. Hence why I am open to the claim that this constitutes persecution on the basis of religious belief.
But I would save the adjective “brutal” for the more direct suppression of the free exercise of religion that is, unfortunately, found in many countries.
January 29, 2010, 1:51 pmKim du Toit says:
The religious angle of homeschooling is a red herring, both here in the Comments and in society as a whole. This also applies to the tiresome discussions about “socialization” and other talking points of the education establishment.
At the heart of this lies the simple question: does the State have a right to force parents to educate their children in a manner or in a curriculum which the parents find abhorrent? In other words: are children the property of the parents, or of the State?
In Germany, that answer is clear: the State owns the children. In the United States, the answer is: depending on which state you live in (which is entirely proper, and in keeping with our federalist heritage). Unsurprisingly, New York regulates homeschoolers to the nth degree, whereas Texas doesn’t set any “standards” — to quote just two easy examples.
What we do know, after all the slurs about homeschooling are dispensed with, is that homeschooled kids have lower dropout rates in college, a higher grade point average, and are less likely to get involved in illegal activities in the five years after high-school age.
Why would a conscientious parent NOT want these outcomes for their kids?
January 29, 2010, 2:10 pmJK says:
Sergey
Other German states has such a law even before Prussia including some in the south. And the Weimar Republic has also a mandatory school attendance policy and even before then it existed in the whole of Germany.
By the way have you heard the term Reductio ad Hitlerum? That is exactly what you are doing and without a good reason because the only thing he didn’t do is change a law which was already centuries old and had a long tradition in Germany.
http://en.wikipedia.org/wiki/Reductio_ad_Hitlerum
But I guess you also think painting, owning dogs, anti-smoking campaigns and the autobahn are EVIL because Hitler liked those things.
January 29, 2010, 2:44 pmJK says:
In September 2006, the European Court of Human Rights ruled that Germany’s mandatory school attendance policy, along with the corresponding ban on homeschooling, is compatible with both European law and the European Convention on Human Rights.
http://en.wikipedia.org/wiki/Homeschooling_in_Germany
“In a landmark legal case commenced in 2003 at the European Court of Human Rights a homeschooling parent couple argued on behalf of their children that Germany’s compulsory school attendance endangered their children’s religious upbringing, promoted teaching inconsistent with their Christian faith – especially the German State’s mandates relating to sex education in the schools – and contravened the declaration in the Charter of Fundamental Rights of the European Union that “the State shall respect the right of parents to ensure education and teaching is in conformity with their own religious and philosophical convictions”. In September 2006 the European Court of Human Rights upheld the German ban on homeschooling, stating “parents may not refuse… [compulsory schooling] on the basis of their convictions”, and adding that the right to education “calls for regulation by the State”. The European Court took the position that the plaintiffs were the children, not their parents, and declared “children are unable to foresee the consequences of their parents’ decision for home education because of their young age…. Schools represent society, and it is in the children’s interest to become part of that society. The parents’ right to educate does not go as far as to deprive their children of that experience.” The European Court endorsed a “carefully reasoned” decision of the German court concerning “the general interest of society to avoid the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society.”
January 29, 2010, 2:52 pmChrisTS says:
Perseus:
No doubt the ‘cult of autonomy’ is a liberal one, but it need not masquerade as neutrality. This is why I prefer the French (I still think German, as well, in this context, but I won’t argue it) openness in declaring that the state is secular and is committed to promoting individual autonomy. They are not pretending to be neutral (we are).
January 29, 2010, 7:16 pmChrisTS says:
Virginia says:
If the aim of the French government were simply what you suggest, your conclusion would be supportable. However, the French believe religion is to be regarded with some suspicion, as tending towards just the indocrtination you fear from the state.
This is partly a result of their history and partly a result of their philosophical roots. They have, so to speak, a more robust conception of autonomy than we [officially] do.
January 29, 2010, 7:21 pmArthurKirkland says:
Brutal? A requirement to send children to school?
I hope the decision is appealed, and that these parents are not rewarded, by being permitted to jump the immigration line, for their foolishness.
January 30, 2010, 7:42 pmPhil says:
This discussion shows that typical anti-American prejudices in Europe are totally right. Once again the Americans behave arrogant, considering theirselves as the ideal democracy. A state that shows totalitarian tendencies e.g. with its intelligences wants to blame a Europe state for religious persecution. Many Europeans think that the US are fanatically and ridiculously Christian and this case only lets us think we’re right.
We Germans have our system and it is good for stopping indoctrination and totalitarism. You might think that your system is better and it’s your right to think so, but it is unacceptable to insult the German system just because it doesn’t fit with your fanatic ideology.
And this is by far one of the most stupid things I’ve ever heard an American to say:
“We can’t expect every country to follow our constitution (…)The world might be a better place if it did.” (Judge Burman)
Actually, the whole of Europe is laughing about the US-system which is considered to be savage and by far not as tolerant and modern as the European ones are.
February 1, 2010, 4:21 amUlrich says:
Hello,
I am German and I can tell you something. I am dispised when I read here in part. I agree with Phil, the USA has made itself the laughing stock of the planet hereby.
It would be nice if people would look up some history books and some facts. The whole thing of schooling in Germany or it forfront goes back to Martin Luther, you know the guy who was bringing up the point of *REFORMATION*.
The first mandatory school in Germany was opened up in 1492.
On Sergery — possibly you should read the law Hitler and the NSDAP was installing in Germany. It was a little bit else than the one been drawn up by the *Weimar Republik* — now that was the time between the emperor time and Hitler.
Do you know what the difference was? Now Hitler was allowing home schooling under special circumstances which was not allowed at the time of Weimar and after the Nazi time.
On the case of schooling, that is not falling under federal law, but every state has it’s own laws – quite equal to the USA. Now we have 16 different constitutions on the case of schooling.
On Kim du Toit — ** At the heart of this lies the simple question: does the State have a right to force parents to educate their children in a manner or in a curriculum which the parents find abhorrent? In other words: are children the property of the parents, or of the State?
In Germany, that answer is clear: the State owns the children. …. **
Now where did you get this BS from? In the Germany the answer is, nobody owns the children. They own themself if there will be someone who own them at all — depending how you use that wording.
If you are a typical US American, I am very happy I am none. I don’t own my child and I can tell you something, our nation don’t own it, too. The USA seem to be a pathetical nation where people own other people by your wording.
Now in Germany we make sure that noone, and that includes the state, own another person.
But that seem to be above the possible worldview of some here. But before you bash others you should look upo your own face in the mirror.
Do you know, in Germany we had some saying: *Am deutschen Wesen soll die Welt genesen.* Now we made sure it did, outcome was first WWI, than WWII and the holocaust.
Now the wording by that judge can be translated more or less ny: *Am amerikanischen Wesen soll die Welt genesen.*
“We can’t expect every country to follow our constitution (…)The world might be a better place if it did.” (Judge Burman)
Possibly you should google the above words in German, possibly you will understand how laughable the USA has become hereby.
Ulrich
February 1, 2010, 3:23 pm