Parents Versus Parens Patriae: the Troubling Legality of Germany's Homeschool Ban and a Textual Basis for Its Removal

• Jurisdiction: European Union
• Citation: Vol. 36 No. 1
• Publication year: 2022
• topic: Civil Rights,Constitutional Law,Family Law

Parents Versus Parens Patriae: The Troubling Legality of Germany's Homeschool Ban and a Textual Basis for Its Removal

Luke Julian

PARENTS VERSUS PARENS PATRIAE: THE TROUBLING LEGALITY OF GERMANY'S HOMESCHOOL BAN AND A TEXTUAL BASIS FOR ITS REMOVAL

ABSTRACT

The Romeikes, a family from Germany, sought to educate their children in accordance with their religious values. The family observed that no local schools educated children in alignment with their values. In response, the family sought an exemption from Germany's homeschooling ban. In a string of court cases, Germany refused to accommodate the family's request, finding that the parents' right to educate their children in alignment with their values was outweighed by the state's obligation to educate. With no recourse left in Germany, the parents petitioned the European Court of Human Rights to recognize their right to homeschool according to their values. In Konrad v. Germany, the European Court of Human Rights refused to recognize such a right, finding that Germany's homeschool ban was within the "margin in appreciation" given to countries for differences in education policy. This decision allowed Germany to pursue harsh enforcement actions against the Romeikes, like forcing them to send their children to public school. Ultimately, the Romeikes fled Germany and sought asylum in the United States. The European Court of Human Rights' decision is problematic because it departs from the plain meaning of the European Convention on Human Rights. The court's ruling is also dangerous because it allows governments unparalleled opportunities to indoctrinate future generations by forcing them to attend schools that teach values regulated by the government. The case's harsh results highlight the troubling legality of Germany's homeschooling ban. In response, this Comment offers both a textual basis for its removal under the European Convention on Human Rights and policy arguments supporting this result.

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TABLE OF CONTENTS

INTRODUCTION.............................................................................................202

I. REASONS FOR COMPARATIVE ANALYSIS...........................................204
II. VARIED APPROACHES TO HOMESCHOOLING POLICIES IN EUROPE .... 206

A. European Convention on Human Rights .................................. 210
B. Less Restrictive Approaches from Other European Countries . 211

III. THE ROMEIKES ..................................................................................212
IV. HOMESCHOOLING JURISPRUDENCE IN THE UNITED STATES..............217
V. HOMESCHOOLING IN THE UNITED STATES........................................225

CONCLUSION.................................................................................................227

INTRODUCTION

In August 2008, the Romeike family fled Germany and sought asylum in the United States.¹ The family had grown concerned as the public schools in their area taught values that conflicted with their religious teachings.² At first, the family sought an exemption from Germany's compulsory school attendance laws, which require children to attend a public school or a heavily regulated private school.³ After the German government refused, the family looked to the European Court of Human Rights (ECHR) to recognize their right to homeschool their children in accordance with their religious values.⁴ When the ECHR refused to recognize such a right, the Romeikes faced prohibitive fines, the prospect of the local police forcibly taking their children to public school, and the state's attempt to remove the Romeike children from their parents' custody.⁵ Faced with this dire situation, the family chose to seek asylum in the United States.⁶ So far, the United States has not granted the family's request for asylum.⁷

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In the United States, the outcome of the Romeike's case would have been decided differently under U.S. Supreme Court jurisprudence.⁸ Since the early twentieth century, the Supreme Court has made it clear that governments do not hold a monopoly on education and that both private and home schooling options are protected under the First Amendment's religious freedom guarantees.⁹ In the United Kingdom, the legal right to homeschooling has even stronger protections.¹⁰ The Education Act 1996 gives parents a statutory right to homeschool their children with only minimal oversight from the government.¹¹

The European Union features a wide variety of homeschooling regulatory systems from all-out bans, like Germany's, to Ireland, which explicitly guarantees the right to homeschool.¹²

The ECHR's decision in the Romeike case to review Germany's homeschooling ban with "the margin of appreciation" for local political decisions about education is problematic in two major ways.¹³ First, the ECHR's decision misinterprets the European Convention on Human Rights (Convention) by departing from the plain meaning of its religious freedom text and its specific protocols protecting parental rights over children's education. Second, the ECHR's position is dangerous because it allows governments unparalleled opportunities to influence and shape future generations and fails to appreciate the damage wrought by pressures from the majority culture. Consequently, this decision fails to give proper deference to both parental decisions and devout religious practice.

In contrast, the U.S. Supreme Court held that governments may not have a monopoly on the education of future generations.¹⁴ Furthermore, the Court recognized the deleterious effects of majoritarian pressure on minority groups as a compelling reason to exempt a religious minority from a state's compulsory education laws.¹⁵ This precedent reveals how U.S. jurisprudence on homeschooling respects both parental decisions and devout religious practice. This more respectful approach, adopted in other countries like the United

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Kingdom and France, should be the benchmark by which the ECHR evaluates future cases pertaining to homeschooling. The ECHR's current permissive attitude to harsher forms of regulation like Germany's homeschool ban leaves the ECHR complicit in severe enforcement actions like removing children from their parents on the basis of the parents' religious beliefs. A court meant to protect human rights should not be sanctioning the routine use of this harsh conduct. This uncomfortable result and other problematic circumstances highlighted in this Comment establish the troubling legality of Germany's homeschooling ban. In response to this problem, this Comment provides both a textual basis for its removal under the Convention and policy arguments in support of this result.

Part I outlines how a comparative analysis of Germany, the United States and other European countries will reveal the troubling nature of Germany's homeschool ban and places the Comment in the broader context of existing literature. Part II draws attention to the various provisions in the Convention that support a European right to homeschool and compares various European approaches to home-education regulation. Part III demonstrates the inhuman nature of Germany's homeschooling ban by following the Romeikes' plight from their first encounter with the German court system to their attempts to seek asylum in the United States. Part IV compares U.S. Supreme Court jurisprudence protecting the right to homeschool with the ECHR's approach in Konrad v. Germany.¹⁶ Additionally, Part IV provides a detailed look at the U.S. case Wisconsin v. Yoder to emphasize the troubling nature of Germany's homeschooling policy.¹⁷ Part V surveys various American approaches to homeschooling regulation to show how different states balance the right to homeschool against the need to ensure the education of their residents. Finally, the Conclusion discusses how the ECHR misinterpreted the Convention's plain language to arrive at its troubling decision, multiple textual bases and policy arguments supporting reversal, and a legal path to establish a right to homeschool across Europe.

I. REASONS FOR COMPARATIVE ANALYSIS

Debate within legal scholarship rages back and forth between those who support homeschooling and those who advocate for bans on homeschooling. Those who support homeschooling include Professors John Witte, Jr.¹⁸ and

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Ashley Berner.¹⁹ Professor John Witte, Jr. observed that compulsory public-school attendance grants governments unchecked influence over children, thereby opening the door for tyrannical abuses of power.²⁰ Professor Ashley Berner praised the pluralistic education polices of countries like the United Kingdom and Denmark, which allow homeschooling with little government oversight.²¹ In contrast, scholars like Professors Martha Fineman²² and James G. Dwyer²³ have stridently rejected homeschooling and have called for comprehensive bans on home education in the United States. Professor Martha Fineman argues that allowing parents to homeschool their children unjustly elevates parental interests above both the children's and society's interests.²⁴ Professor James G. Dwyer asserted that the parental relationship is a state-created right. Therefore, the state immorally harms children by giving parents the right to homeschool because homeschooling prevents children from being exposed to the values of mainstream society.²⁵

These perspectives all take a theoretical approach to examine the merits of home-education. In this Comment, theory will not take center stage. Instead, this Comment will take a practical look at how Germany (a country with a homeschooling ban), the United States (a country with a common law right to homeschool), and a few European countries like the United Kingdom (countries that provide a statutory right to homeschool) treat families who wish to homeschool their children for religious reasons. This Comment will also assess whether these polices extend or abrogate rights that these families are entitled to in their respective home...