The Case of the German Homeschoolers

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?

  1. outstripp

    I’m in favor of deporting almost everyone.

  2. Crow

    I recognize the logic of the DoJ’s position here and the problematic precedent this may set. Consider other religious groups who might be granted aslyum on similar grounds and who may be less sympathetic to us than fellow Christians. Law cannot be made on the basis of one sympathetic case.

    At the same time, I have to ask myself, is there no intermediate remedy? Are asylum or deportation the only two available options here?

    I suspect we’ll need an immigration lawyer to answer the question, but: is there no provision of US law that will allow the expediting of a work visa for one or both parents such that the family will be allowed to stay for longer while they seek US citizenship, rather than turning the asylum process inside out? How long does acquiring any visa under the normal application process take for citizens of Allied, Western European nations?

  3. WeighWant

    Is there someone in the Justice Department who’s job is to wander the country, at random, looking for obscure reasons to spend tax dollars?  Did some private citizen who had a grandfather killed at Anzio make a complaint to the Governor?

    How do these cases even come up?  Is the country so small and the govermnent so large that this can be a routine occurance?    Who had the pointy stick up their you-know-where to decide this even merits attention, with all the crime going on elsewhere?   Is there dead time at Holder’s office so people need to ‘look busy’?  In other words, why do I know more about this small harmless family in Tennessee than I do about dead border patrol agents and ambassadors?

  4. Brandon Phelps

    I understand the difficulty of divining legitimate persecution worthy of asylum and acknowledge that a work visa and citizenship is the ideal way to go. This family is probably tired and huddled in the religious sense, no? I want more legal immigrants. Like Crow’s Nest, I have no idea what is involved in that but I’ll bet it isn’t a rosy process.

    As a religious homeschooling family, I completely understand the oppression going on here. Oppressing people for basically disallowing, or making it extremely hard, to teach your kids the dogma you hold, to teach them right and wrong by your God, by forcing them into public schools? Yeah, I would be livid. Secularists/leftists would certainly never allow their own kids to be forced into religious schools, right? Any definition of oppression that is limited to lost economic opportunity or slavery is rather soulless, no? I’m not saying DOJ holds to such a definition, but it certainly isn’t as robust as I’d like it.
  5. Joseph Eagar

    I admit, I feel that if Obama can use “prosecutorial discretion” to give favors to his coalition partners, he can give asylum to this one German homeschooler family.

  6. Larry3435

    Legally and logically the DOJ’s position is correct, but it is very hard to believe that the government’s selective enforcement of immigration law is not based on some animus against people who take a stand against whatever politically correct agenda gets peddled in government approved schools.  Of all the people who have entered the country illegally, these folks do not strike me as the top priority for deportation.  Maybe we could start with the violent felons, before we get to the truancy violators.

  7. jaWes (of TX)
    Crow’s Nest:  is there no provision of US law that will allow the expediting of a work visa for one or both parents such that the family will be allowed to stay for longer while they seek US citizenship, rather than turning the asylum process inside out? 

    This seems like the best path to me. Find another way to allow them to stay.

    Alternatively, it may be helpful to consider the case from the perspective of the children instead of the parents. The children are under threat of being forcibly removed from their home. They’re immutable characteristic is that they cannot change their parents’ belief that homeschooling is best. This too would probably be a big stretch to the asylum requirements as they are described here, but it still may be instructive to flesh it out from the kids’ perspective.

  8. KayBee

    I’d rather give folks like this asylum than folks like the Tsarnaev (sp?) family.

  9. Tuck

    “Germany is not out to smother any particular religious group or even all religious groups—its goal is a shared experience.”

    That’s a bit obtuse, I think.  The goal is in fact to smother the transmission of values that the state does not share from parent to child.  And the children will be taken away from the parents if they don’t comply.  The “shared experience” they’re trying to promote is a servile attitude.

    How one can think that’s not “oppression” mystifies me, unless, like the American leftists, you share the goal…

    So how is this case any different from that of the Pennsylvania Dutch, many of whom also fled Germany because they could not freely practice their religion,  for whom the American government offers all sorts of accomodations?

  10. Chris

    Wouldn’t this discussion be moot if the family had just moved to a sanctuary city – you know, an enlightened town which thumbs its nose at the jackbooted thugs from immigration and welcomes all?  

    Given they did not move to a sanctuary city, shouldn’t their legal strategy just be to move into Boston public housing next to O’s aunt, overstay their visa, and wait for the amnesty bill?

    Patheos is making valid points about precedent and the rule of law, but the sympathy factor on the right stems completely from “the law” being applied so selectively.  People who try to claim persecution – let’s have a discussion to check the validity of their claim and then go where the law leads us.  People who break the law either through illegal entry or overstaying their visa – at this point, what difference does it make?

  11. 9thDistrictNeighbor

    Many US homeschoolers also see this case as part of the administration’s (and the education establishment’s) efforts to completely control the education of our nation’s children…including mandatory preschool, nationalized dumbed-down curriculum, and overt instruction in secular “morality” championed by progressives. They argued there is no right to homeschool; that argument is very distressing.

  12. Matthew K. Tabor

    There was a Member’s Feed thread/petition about this weeks ago with some good discussion. Patheos misses the mark.

    The issue of education’s status, particularly whether it’s a civil right — or a human right as some have argued (I say no to both) — is central here. In this case it matters more than the religious freedom angle, which is actually an offshoot of how education is treated.

    When the US recognizes the unavailability of one’s preferred method of education or of access to a quality education (please, no digressions about how it’s folly to come to the US for a good education) as a denial of civil/human rights that warrants granting asylum, we open up an issue on a scale we’ve never seen before — and that we’re wholly unprepared to deal with.

    On a personal level, I feel terrible for this family and want them to be settled and happy. On a policy level, I’d deny their request.

  13. Skyler

    I’m very in favor of homeschooling, but this is not persecution and we can’t be responsible for the laws of other countries.  There is no law in Germany forbidding the family from augmenting the secular education with religious teachings at home.  At worst, the German government is simply taking time of the day from the children and teaching them.  This is hardly persecution.  

    I don’t think we can claim to export our laws to other nations, especially such sophisticated and admirable nations as Germany while at the same time we conquered Iraq and Afghanistan and installed Islamic republics that do not recognize women as equals, do not respect other religions, and, in Afghanistan, stone women for the crime of being raped.

  14. Nick Stuart

    The DOJ doesn’t seem to have the wherewithal to deport the Tsarnaevs,  Obama’s Aunt Zeituni and Uncle Onyango, and millions of illegals; but they can find and deport the Romeikes.

    My wife and I started homeschooling in a time and place when American homeschoolers were being hauled off in handcuffs. 

    My observation then and now is that the government finds it much more pleasing and pleasant to go after peaceable homeschoolers who just want to be left alone than take on knife-wielding crack-smoking truants, or bomb throwing Islamists apparently.

    And let’s have a round of applause for Michael Farris, founder of the HSLDA and their chief counsel in this case. Not a well-known name outside the narrow precinct of HSLDA members, he has been a tireless fighter for parents and parental rights.

  15. Nicegrizzly

    Ah, I knew there was more to this story than just the “Obama administration is persecuting this family because they homeschool” angle presented on Facebook.

  16. Matthew K. Tabor

    Yep — lots more to it. The discussion we’ve seen since the issue debuted has focused on religious freedom or homeschooling in ways that divorce both from the real issue in this case.

    Nicegrizzly: Ah, I knew there was more to this story than just the “Obama administration is persecuting this family because they homeschool” angle presented on Facebook. · in 2 minutes

  17. Merina Smith

    This isn’t answering the question, but they look like the family Von Trapp.  Do they sing?

  18. Matthew K. Tabor

    My guess is that daddy sings bass and mama sings tenor. ;)

    Merina Smith: This isn’t answering the question, but they look like the family Von Trapp.  Do they sing? · 0 minutes ago

  19. The Mugwump

    When has the Obama administration not practiced selective enforcement of the law?  You can bet that the underlying reasons for any DoJ decision are going to be political.  They always are. 

  20. katievs

    Not having looked into the case, lacking expertise, and granting that there may be good legal reasons for rejecting this application, I find the notion that “secular reasons” means “benign reasons” both risible and disturbing.

    Not-too distant history is replete with examples of those in power asserting a right and using coercive force to indoctrinate children according to its ideas.

    It is similarly replete with hostility to Christianity and Judaism. 

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