Legal Commentary

Asylum in the U.S. for German Homeschoolers?

By Eugene Volokh

The Washington Post reports:

A German couple who fled to Tennessee so they could homeschool their children was granted political asylum Tuesday by a U.S. immigration judge, according to the legal group that represented them....

[The father, Uwe] Romeike says his family was persecuted for their evangelical Christian beliefs and for homeschooling their children in Germany, where school attendance is compulsory.

When the Romeikes wouldn?t comply with repeated orders to send the children to school, police came to their home one October morning in 2006 and took the children to school. German state constitutions require children to attend public or private schools and parents can face fines or prison time if they don?t comply....

The Home School Legal Defense Association, which represented the Romeikes, excerpts the ruling (which, according to the Post, is not immediately available to the public):

We can?t expect every country to follow our constitution,? said Judge Burman. ?The world might be a better place if it did. However, the rights being violated here are basic human rights that no country has a right to violate.?

Burman added, ?Homeschoolers are a particular social group that the German government is trying to suppress. This family has a well-founded fear of persecution?therefore, they are eligible for asylum?and the court will grant asylum.?

In his ruling, Burman said that the scariest thing about this case was the motivation of the government. He noted it appeared that rather than being concerned about the welfare of the children, the government was trying to stamp out parallel societies?something the judge called ?odd? and just plain ?silly.? In his order the judge expressed concern that while Germany is a democratic country and is an ally, he noted that this particular policy of persecuting homeschoolers is ?repellent to everything we believe as Americans.?

This seems quite odd to me, though I should say up front that I?m not an expert on asylum law. It?s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.

But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can?t do so in their home country? Everyone who wants to own a handgun, but can?t do so under his or her home country?s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country?s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country?s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).

I should note that my family and I did come here as refugees from the Soviet Union. But whether or not that policy was sound (and the fact that it helped me, and that I?m grateful that it did, doesn?t tell us that much about whether it was sound), it seems to me that asylum from a country where a vast range of human rights is pervasively denied is quite different from asylum where the right at stake is solely the right to home-school, important as that is for many people.

In any case, I?d love to hear more about this from people who are more knowledgeable than I am on asylum law and asylum policy. Thanks to Religion Clause for the pointer.

Full post as published by The Volokh Conspiracy on January 27, 2010 (boomark / email).