Homeschooling Not a Fundamental Right, Justice Dept. Argues

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In a political asylum case involving a German family that fled to the United States to be able to homeschool their children, the U.S. Justice Department is arguing that the freedom to choose to educate one's own children is not a fundamental right. If the Romeike family, who are evangelical Christians, lose their case and are deported back to Germany, they could face fines, jail time, and their children could even be taken away from them.

Homeschooling is illegal in Germany. The Romeike's did not agree with some of what was taught to their children in the public schools, so they began homeschooling in violation of the law. After paying about $10,000 in fines and watching the police apprehend their children and take them to the public school, they sought political asylum in the United States and immigrated to Tennessee. The Home School Legal Defense Association helped them with the move and now represents them in court.

The Romeike's were granted political asylum by a federal district court judge in Tennessee. Political asylum is granted to refugees who can demonstrate that they are being persecuted for religious reason or because they belong to a "particular social group."

The U.S. government protested the judge's decision and appealed to an immigration appeals court, which ruled against the Romeike's. The case, Romeike v. Holder, is now in the Sixth Circuit Court of Appeals.

In a legal brief for the case, Justice Department lawyers argue that Germany did not violate the Romeike's human rights because the ban on homeschooling is a ban for all, not any specific group. Since German law does not prevent, for instance, only evangelical Christians from homeschooling, the Romeike's are not being persecuted for a religious reason, the Justice Department says.

In a blog post for HSLDA, Michael Farris, founder and chairman of the organization, takes exception to this line of legal reasoning, arguing that it ignores individual liberties.

The Justice Department is essentially saying that Germany has violated no one's rights because it banned homeschooling for all, Farris wrote, which means the Justice Department believes there is no fundamental right to homeschool.

"There are two major portions of constitutional rights of citizens – fundamental liberties and equal protection. The U.S. Attorney General has said this about homeschooling. There is no fundamental liberty to homeschool. So long as a government bans homeschooling broadly and equally, there is no violation of your rights. This is a view which gives some acknowledgement to the principle of equal protection but which entirely jettisons the concept of fundamental liberties."

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The Justice Dept. is also taking the position that the Romeike's do not meet the definition of a "particular social group" because their faith does not require them to homeschool. The problem with this argument, Farris believes, is that it does not recognize religious liberty as an individual right.

The Romeike's believe they are doing what is best for their children, based upon the teachings of their faith, by providing their children's education themselves and by preventing their children from being exposed to the public school system. For Farris, the freedom to homeschool is essential to freedom of thought – the right to believe what one wants to believe.

Most would find a problem, Farris points out, with forcing Jews to feed their children pork. He equates forcing students to take a particular course of education to force feeding the mind, rather than the body, on a religiously objectionable diet.

"Freedom for the mind and spirit is as important as freedom for the body and spirit," Farris wrote.

German homeschoolers are a persecuted social group in Germany, Farris contends, and in a free nation there should be a fundamental right to homeschool.

The Justice Department argues that governments may legitimately use its authority to force parents to send their kids to government sanctioned schools. Since it takes the position that Germany may do that, it follows that the administration believes it has the right to do that in the United States as well.

"It is important that Americans stand up for the rights of German homeschooling families," Farris concludes. "In so doing, we stand up for our own."