Tolerated in America, Persecuted Abroad

Of all the foreign citizens seeking political asylum in the United States—individuals trying to escape war, genocide, or torture come readily to mind—those fighting for the right to educate their children at home might seem like a low priority for an already over-burdened Department of Homeland Security.

But in February federal immigration Judge Lawrence Burman granted Uwe and Hannelore Romeike and their five children asylum. Not only did it make the Romeikes probably the first family to be granted asylum in America on the basis of a determination to homeschool, but it also highlighted the severe conditions under which many homeschooling families live in Europe.

The Romeikes are from Germany, where homeschooling is illegal in most circumstances. But the family believes that it is their fundamental right to educate their children in accordance with their Christian values, and that those values were not being taught in German schools.

When the Romeikes began homeschooling their three school-aged children, German police officers showed up at their home to escort the children to school. After accruing more than $10,000 in fines and being threatened by the state with having their children taken away from them, the Romeikes sought help from an American homeschooling organization that helped them come to the United States.

In January, after waiting a year and a half, the Romeikes were granted asylum. In a tersely-worded decision, Judge Burman denounced the German policy against homeschooling, calling it “utterly repellent to everything we believe as Americans.”

The Romeike case is only one of the most recent and high-profile cases of persecution of homeschoolers. As home education continues to establish itself as a popular and in some cases preferable alternative to traditional public and private education, it also faces hostility from governments determined to wrest from parents their right and duty to educate their children.

Throughout most of history, children were educated at home. Beginning in the late 1600s, however, many Western countries began establishing compulsory education, which eroded the prevalence of home education. The last few decades have seen a resurgence in homeschooling, especially in the United States, Canada, Great Britain, New Zealand, and Australia. 

Homeschooling laws vary widely in Europe. It’s illegal in Greece, Spain, Holland, and Germany. Swedish parents wishing to homeschool their children must get permission from the government, and Austrian homeschoolers must take annual exams.

REPRESSIVE LAWS

As the Romeike case illustrates, Germany may have Europe’s most repressive homeschooling laws. But other European countries are coming down hard on parents who choose to educate their children at home.

The United Kingdom’s parliament is considering legislation that would create an intricate monitoring system for children educated at home, requiring their parents to apply annually for permission to homeschool from the local authority. The law would also allow local authorities to revoke a family’s registration to homeschool for a number of reasons, including a “failure to cooperate.”

In an interview, Roger Kiska, legal counsel with the Alliance Defense Fund (ADF) in Bratislava, Slovak Republic, says that there is a clear trend in Europe toward discouraging homeschooling and imposing state school education. “Parental rights are really at the forefront of European jurisprudence,” he says.

Kiska points to Sweden, where in March the socialist government began considering legislation that would allow home education only under “extraordinary circumstances.” The bill is expected to pass the Swedish parliament and will subject homeschooling families to fines and criminal charges.

Sweden has only approximately 100 homeschooled children, one of whom is seven-year-old Dominic Johansen, who in 2009 was seized by the state because his parents were teaching him at home.

Kiska, who litigates cases before the European Court of Human Rights and European national courts, represents the Johansen family and says that they were not breaking any laws because homeschooling is still legal in Sweden. But Dominic has been held by state authorities since June 2009, and his parents have been allowed to visit their son for just one hour every five weeks.

The United States has by far the world’s largest homeschooling population, estimated at approximately two million children, or 4 percent of the school-aged population. The Home Education Research Institute estimates that the American homeschooling population is growing 7 to 12 percent a year.

Homeschooling is legal nationwide, but regulation varies among states. According to the Home School Legal Defense Association (HSLDA), a nonprofit organization that advocates for homeschoolers, 10 states require no notice from homeschoolers; 15 states have “low regulation” (requiring only state notification from homeschooling parents); 20 states have “moderate regulation”; and six states have “high regulation,” including mandatory testing of homeschooled children. 

Many US court rulings have affirmed the right of parents to homeschool their children. But the US is not immune to judicial attacks on the right to homeschool. In an infamous 2008 ruling, a panel of the Second District Court of Appeals ruled that California parents “do not have the constitutional right to homeschool their children,” that homeschooling children would be subject to fines, and that “willful failure to comply with such an order may be punished by a fine for civil contempt.”

Homeschooling, per the court’s decision, would be allowed only if it involved full-time, state-credentialed tutors, a standard most homeschool families do not meet. The decision predictably caused an immediate and passionate backlash among California’s approximately 170,000 homeschooling families and their allies. The decision generated political pushback from both sides of the aisle, as Republican Governor Arnold Schwarzenegger and Democratic Attorney General Jerry Brown backed homeschoolers.

The court reversed itself later that year, stating, “Based on our review of the law, parents are allowed to qualify as a private school and to teach their children in their own homes as long as the children’s educational opportunities are being met.”

GROWING ACCEPTANCE IN THE US

The court’s reversal may reflect the increased general acceptance of homeschooling in America. In 1985, the Gallup Organization found that 73 percent of Americans opposed homeschooling. Sixteen years later, in 2001, just 54 percent opposed it.

That number has likely dropped much further over the last decade, as evidence continues to show that homeschoolers regularly outperform their peers in academic achievement and college preparation.

An August 2009 study, the first major study on homeschooling in more than 10 years, drew on 15 independent testing services and included nearly 12,000 high school students from all 50 states. It found that homeschooled children scored on average in the 80th percentile or above on all subjects compared to their public school peers. Interestingly, the study found that achievement gaps that are well established in public schools between girls and boys and among students from different races and income groups were not evident among homeschoolers.

Once in college, homeschoolers perform as well as public school students. In a 2004 review of existing literature published in the Journal of College Admissions, Dr. Paul Jones and Dr. Gene Gloeckner found that homeschoolers’ grade point averages in their first year of college were not statistically different from those of public school students.

The researchers then conducted their own empirical study and found that “[t]he academic performance analyses indicate that home school graduates are as ready for college as traditional high school graduates and that they perform as well on national college assessment tests as traditional high school graduates.”

As perhaps the best indication of preparedness, homeschoolers have matriculated at more than 900 colleges and universities, and most colleges and universities now have formal application processes for homeschoolers.

The perception of homeschooled children as socially isolated and ill-prepared for life after school is obsolete. Some states, like Maine and New Mexico, have laws that permit homeschooling families to take advantage of public school resources such as sports teams, bands, and art classes.

And most homeschooled children are well prepared for life after school. A recent longitudinal study found that homeschooled Canadians were more socially engaged (measured by the number of organized activities they participated in per week), had higher incomes, were less likely to be on welfare and were happier compared to the overall Canadian population. Perhaps most significantly, the study found that “almost all of the homeschoolers—96 percent—thought homeschooling had prepared them well for life.”

A US Department of Education survey also sheds light on the reasons families choose to homeschool. Among the most common reasons were “concern about the environment of other schools” (85 percent), “dissatisfaction with academic instruction at other schools” (68 percent), and a preference “to provide religious and moral instruction” (72 percent).

Perhaps the most common reason families choose to homeschool is that curriculums at public and private schools conflict with their values on the teaching of religion and sexual issues. As Uwe Romeike told Time about his family’s decision to homeschool in Germany, “The curriculum goes against our Christian values. German schools use textbooks that force inappropriate subject matter onto young children and tell stories with characters that promote profanity and disrespect.”

Many Christians homeschool because they believe parents are entrusted with the main responsibility for teaching their children. For Catholics, education enables children to recognize, accept, and pursue their vocation. Cardinal Francis Arinze, prefect of the Congregation for Divine Worship and Discipline of the Sacraments, has said, “The primary educators of children are parents. The child is the child of the parent first, and the parents are the first to answer to God for their children.”

The 1983 Code of Canon Law contains numerous references to the primacy of parents in determining how their children are educated.

In the Declaration on Christian Education, Gravissimum Educationis, Vatican Council II reminds parents of their natural law right and obligation to educate their children. It states, “Since parents have given children their life, they are bound by the most serious obligation to educate their offspring and therefore must be recognized as the primary and principal educators.”

In Familiaris Consortio, Pope John Paul II acknowledged the right and duty of parents to provide for the education of their children, calling the right “essential,” “irreplaceable and inalienable and therefore incapable of being entirely delegated to others or usurped by others.”

Roger Kiska says homeschooling’s growing popularity in Europe has many causes. “Bullying is a big issue in schools in Europe. Families are leaving their homes in Germany and going to Austria or other countries because they feel that’s the only way they can raise their children properly without being persecuted by the government. [Increased interest in homeschooling] is founded on the bad environment in the classrooms [and on the] very bad curriculums being taught.”

Kiska says that in many countries students aren’t allowed to “opt-out” of classes they or their parents find objectionable. In March, ADF filed a lawsuit with the European Court of Human Rights on behalf of 305 Spanish parents and children challenging compulsory anti-Christian education in Spain’s public and private schools. The lawsuit was issued after more than 54,000 parents registered complaints with Spain’s government and sought unsuccessfully to have their children removed.

The classes promote a leftist view of social issues such as sexuality and abortion. Materials recommended through the program are extremely hostile to the Catholic Church and many contain highly sexual imagery.

Conditions are clearly better in the United States. But despite homeschooling benefits (for example, a 2008 Heritage Foundation report found that homeschoolers save taxpayers between $4.4 billion and $9.9 billion in instructional costs each year), hostility still exists.

America’s largest and most powerful teachers union, the National Education Association (NEA), opposes homeschooling. Its charter states that “home schooling programs based on parental choice cannot provide the student with a comprehensive education experience…. Instruction should be by persons who are licensed by the appropriate state education licensure agency, and a curriculum approved by the state department of education should be used.” The NEA also believes that homeschooled students should not be allowed to participate in extracurricular activities in public schools.

THE OBAMA ADMINISTRATION’S VIEW

Many governments have bound themselves to international law through ratification of international instruments that place severe limitations on parents’ right to control their children’s education. A German court ruling that parents could lose custody of their children if they homeschooled was upheld by the European Court of Human Rights in 2007.

Article 13 of the United Nations Convention on the Rights of the Child (UNCRC) states that parents could be subject to prosecution for any attempt to prevent their children from interacting with material they considered unacceptable. In 1995, the United Kingdom was deemed out of compliance with the convention because it allowed parents to take children out of public school sex education classes without consulting the child. And Kiska notes that the UNCRC was cited when Dominic Johansen was taken away from his family in Sweden.

Although the US has not ratified the UNCRC, some American judges, who have shown a willingness to cite foreign law in their decisions, have ruled that it is nevertheless binding on American parents.

Susan Rice, US ambassador to the United Nations, has said that the Obama administration is discussing whether to seek ratification of the UNCRC. And the US agency for Immigration and Customs Enforcement (ICE) has lodged an appeal of the judge’s grant of asylum to the Romeikes.

In its appeal, ICE called homeschoolers too “amorphous” to be a “particular social group” and stated that “US law has recognized the broad power of the state to compel school attendance and regulate curriculum and teacher certification” as well as the “authority to prohibit or regulate homeschooling.” ICE criticized Judge Burman for “improvidently disregard[ing]” the decision of the European Court of Human Rights in granting asylum to the Romeikes.

“What happens in Europe is a big factor in what happens in the US,” says Kiska. “There are activist judges on the various state courts and even on the US Supreme Court who enjoy citing international case law to support their points when they can’t find American law. So it’s a dangerous trend.”

That trend prompted ADF to open an office in Europe, with Kiska as its legal counsel, a year and a half ago. “We decided that if we are not waging a legal battle here in Europe then we’ve left a big door open for [American judges] to import really bad law to the United States.”

At a time when the US increasingly resembles Europe in its government’s determination to seize vital industries, the prospect of a government more and more willing to look to Europe to inform its education policy ought to concern not just homeschooling families but all Americans.