In a case that calls to mind Melissa Harris Perry’s recent opinionating on MSNBC about children and their relationship to their families and to the community (“We have to break through the kind of private idea that kids belong to their parents, or that kids belong to their families, and recognize that kids belong to whole communities”), the Obama administration is trying to deport a German family, now resident in Tennessee, that sought refuge in the United States for the purpose of homeschooling their six children. Homeschooling is against the law in Germany and can result in fines, jail time, and the removal of children from their families.
The case has conjured an assortment of responses, ranging from the more benign “of course they should be allowed to stay; they’re harmless” to the more hostile “if they were a little darker and had crossed the border illegally, they’d be given driver’s licenses and voter registration cards”. But the case isn’t quite the no-brainer it appears to be.
In 2010, Judge Lawrence O. Burman granted asylum to the Romeikes, a devout Christian family, on the grounds that their desire to homeschool is one of the “basic human rights that no country has the right to violate.” But the Board of Immigration Appeals overturned Burman’s ruling, arguing that German homeschoolers are not a persecuted group and thus not eligible for asylum. According to a piece up on Patheos, the US Attorney’s decision can be explained as follows:
The Board of Immigration Appeals needed to answer these questions: (1) Have the Romeikes suffered persecution? (2) If they did suffer persecution, was it because of their religion? (3) Alternatively, if they did suffer persecution, was it because of their membership in a particular social group? The Board of Immigration Appeals answered no to all these questions. First, it wasn’t persecution because the anti-homeschooling law was one of general application (not meant to target a specific group, but rather something that applied evenly across the board). Next, because there were secular reasons for the compulsory attendance law, even if it had been deemed persecution it wouldn’t have been persecution suffered because of their religion. Finally, the Board of Immigration Appeals found that German homeschoolers are not a particular social group within the meaning of the act. To be a social group, there must be “social visibility” and “particularity.” Homeschoolers are simply too “amorphous” to constitute a social group eligible for protection under the asylum law.
The decision has now been appealed to the 6th Circuit.
There is a broad consensus within the conservative universe on the side of the Romeikes, whose case has been taken up by the Home School Legal Defense Association (HSLDA). The case has touched a popular chord, with over 100,000 people signing an HSLDA petition placed on the White House website on the Romeike’s behalf. But does it hold up?
The Patheos article says no. The religious freedom argument, they say, does not apply because
asylum law does not depend on American constitutional rights. Just because you have a right under the American constitution, that does not mean you will receive asylum because your home country does not recognize that right. A prime example is the right to free speech. European countries tend to have a much narrower range of protections for speech, strongly limiting hate speech. Germany, for instance, forbids anyone from advocating for the Nazi party. Such a law would not survive a constitutional challenge in the United States. However, you cannot receive asylum in the United States if you are a Nazi sympathizer in Germany. This is because such a law would not be seen as “persecution” within the meaning of the asylum statute.
…the 6th Circuit should not see the compulsory attendance law as an attack on religious liberty. Germany is not out to smother any particular religious group or even all religious groups—its goal is a shared experience. In light of the problems Germany has had with the large number of Turkish immigrants not assimilating, it’s not difficult to see that the Romeike’s have just found themselves at odds with a law of general application. After all, under our own 1st amendment jurisprudence, laws of general applicability are not seen as violations of religious liberty.
Patheos also argues that the case could set a dangerous precedent:
If homeschooling were sufficient to grant you asylum in the U.S., what other laws of general applicability in other countries could get you asylum here? Remember my Nazi advocacy example? That would be the tip of the iceberg. What about countries where private tun ownership is barred? or countries where wearing the burka in public is banned? This would mean a complete transformation in the way the Department of Justice handles asylum cases.
The HSLDA’s alternative argument, that the family is being persecuted because they are members of a particular social group, also does not bear scrutiny, according to Patheos:
[S]ocial groups must share “immutable characteristics.” “Immutable characteristics” is a term typically found in Equal Protection law and commonly refers to things like race or gender. HSLDA and its ilk has fought against expanding Equal Protection to include other characteristics such as sexual orientation, but now—since it suits them—they would like this phrase to be broadened to include “homeschooling,” because homeschooling is “fundamental to [asylum-seekers’] individual identities or consciences.” The Department of Justice rightly contends that homeschooling is not an immutable characteristic because you can simply stop homeschooling.
An addendum to the Patheos piece makes the point that Germany is the only country in Europe that bans homeschooling. If the Romeikes want to homeschool, they can do so anywhere in Europe other than Germany and avoid persecution.
Where do you stand on this? Technically speaking, it appears the HSLDA is asking the US government to bend the rules on this family’s behalf. Should it?