DOJ Tells Supreme Court: Homeschool Persecution Not a Problem
The Romeike family fled Germany and applied for asylum in America in order to homeschool their children freely. The Supreme Court could decide by the end of the month whether to take their case. Read more about the Romeike family.
The United States Supreme Court has scheduled Romeike v. Holder for review conference February 21. It is expected that the court will rule on whether or not to take the case and issue its decision in its February 24 orders.
The Romeikes were granted asylum in 2010 by a federal immigration judge who found that Germany’s treatment of the family amounted to persecution. As evidence he cited state officials’ threats against homeschoolers in general to levy crushing fines, file criminal charges, and take away children, and against the Romeikes in particular for their sincere religious beliefs.
The Obama administration appealed and has subsequently opposed granting the family asylum protection. The 6th Circuit Court agreed with the Obama administration, saying that Germany was just enforcing its law.
After he initially declined to reply to the Romeikes’ original petition, the Supreme Court ordered U.S. Attorney General Eric Holder to respond. In the response, Department of Justice lawyers argued that Germany wasn’t persecuting homeschoolers, just enforcing laws that apply to everyone. Germany has good reasons, say the department’s lawyers, for not allowing homeschooling. Germany’s desire to “promote socialization, pluralism, tolerance and democracy” outweigh the human rights of parents to decide how their children are educated. The department’s lawyers pointed to the infamous European Court of Human Rights decision that accepted Germany’s intolerance of homeschooling as a reason the Supreme Court should not get involved.
HSLDA Founder and Chairman Michael Farris is the principle author of the brief. He said that the Supreme Court should hear the case primarily in order to right a grave injustice, but also because our own federal circuit courts are confused on the issue of what legal standard to use when determining if prosecution can become persecution.
“The Supreme Court should intervene to settle the law in the federal circuits, which are in a state of chaos over how to decide when a foreign law is used to persecute people who act on the basis of their religion, like the Romeikes,” Farris said. “The Sixth Circuit’s decision perverted congressional intent of asylum law and used it as a sword against the Romeikes. This is an absurdity that we hope the Supreme Court will overturn.”
The 6th Circuit panel of judges ruled in April 2012 that Germany’s prosecution and harsh treatment of homeschool parents was merely law enforcement action that applied “equally” to everyone and did not on its face target people protected by asylum law. The court lifted a legal standard articulated in a 1993 Supreme Court case called Smith v. Employment Division.
The landmark Smith case changed the way the Supreme Court reviewed religious freedom cases. In Smith, the court ruled that it would not look at individual challenges to laws on religious grounds if the challenged law did not discriminate against a religious group on its face and if the law was generally applicable—meaning that it applied to everyone. However, the Supreme Court used this standard in the context of reviewing domestic government entities. There is no indication the standard was ever intended to apply to judging whether foreign governments were persecuting their own people.
HSLDA Director for International Affairs Michael Donnelly was critical of the 6th Circuit ruling.
“It is appalling that three American judges ignored critical evidence from Germany’s own Supreme Court which explicitly states German states may treat religiously or philosophically motivated homeschooling parents unequally and harshly,” he said. “The recent story of the Wunderlich family, whose children were seized just because of homeschooling and who are now effectively imprisoned in Germany, demonstrates how important this issue is. The fact that our own government is unwilling to support asylum for these families is troubling.”
“The fact that our own government is unwilling to support asylum for these families is troubling.”
HSLDA Director of International Affairs
The right of parents to decide how their children are educated is enshrined as among the most fundamental human rights. Nearly a dozen major human rights documents and treaties, including the 1948 Universal Declaration on Human Rights, recognize how important the role of parental decision-making is in the education of children and that free governments must recognize and respect this important right.
The Berlin Declaration catalogs these treaties in detail.
In a recent visit to Patrick Henry College, Professor Thomas Schirrmacher, ambassador for human rights with the World Evangelical Alliance and director of the International Institute for Religious Freedom, lectured on the issue. Based in Bonn, Germany, Professor Schirrmacher has been a longtime proponent of homeschooling freedom in Germany, writing and publishing several books on the subject. He explained that laws which depart from internationally recognized human rights standards are not a legitimate excuse for authorities to violate the rights of the people within their jurisdiction.
“The fact that the laws of a nation make something lawful doesn’t make it right,” he said. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.”
Schirrmacher, who has conducted extensive research on the issue, indicated that the effective ban on elective home education was introduced by Hitler in 1938.
“In 1938 the National Socialists passed a law making it a criminal offense if parents did not send their children to their schools,” he said. “These laws were never changed after the war in order to allow for homeschooling which had been possible before. I believe German leaders should take action to protect the right of parents to educate their children at home.”
You Can Help
HSLDA is asking all homeschooling communities to keep the Romeike family in their thoughts and prayers. We are committed to defending the rights of parents and their families to enjoy home education without burdensome and unwarranted government intrusion. Homeschooling is an effective educational approach and one that all parents everywhere should have the right to choose. But there are voices calling for increased restrictions. HSLDA has been defending individual families and our entire movement for over 30 years. When you partner with HSLDA as a member or by supporting the Homeschool Freedom Fund you contribute to the resources we need to fight for your family, your freedom and for our whole movement. Consider joining today or making a contribution to the Homeschool Freedom Fund!
Read more here: http://www.hslda.org/hs/international/Germany/201402110.asp
New Zealand is no better. Our Country refused asylum to a German home educating family at the end of 2012. This family had been home educating in New Zealand for 5 years. They have now been forced to go back to Germany.
More information: https://hef.org.nz/2012/home-educating-german-family-fail-in-asylum-bid/
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From the Smiths:
Updated 2 February 2013: One year on (Craig Smith’s Health) page 7 click here
Needing help for your home schooling journey:
Here are a couple of links to get you started home schooling:
Information on getting started: https://hef.org.nz/getting-started-2/
Information on getting an exemption: https://hef.org.nz/exemptions/
This link is motivational: https://hef.org.nz/2012/home-schooling-what-is-it-all-about/
Exemption Form online: https://hef.org.nz/2012/home-schooling-exemption-form-now-online/