European Court of Human Rights Homeschool Decision Wrong Again!
by Mike Donnelly • January 22, 2019
On January 10, 2019, the European Court of Human Rights (ECHR) handed down its long-awaited decision regarding the Wunderlichs, a German family persecuted by their government for homeschooling. The court ruled that German authorities did not violate the Wunderlichs’ rights when they seized their four children by force for testing and evaluation.The children were returned after three weeks in custody when authorities determined the children were well-educated and not isolated. The family, represented by ADF International and Home School Legal Defense Association, are appealing the lower panel of seven judges to the court’s 15-judge Grand Chamber.
Keeping Hope Alive
I was disappointed but not discouraged by the court’s ruling. Although Dirk Wunderlich had shared with me his doubts that the European Court would acknowledge that German officials had violated his family’s rights, I had still harbored hope we might gain some admission that the German authorities had overstepped their bounds.
As I worked with my fellow lawyers at ADF International to file the case we all agreed: How could anyone look at what had been done to this family and not say that their rights were violated?
But I was wrong.
In this latest case, the seven judges regurgitate previous bad and factually deficient decisions, including the 2006 Konrad ruling—which upheld Germany’s ban on “religiously or philosophically motivated” homeschooling.
The seven-judge panel at the ECHR again gave the German authorities the benefit of the doubt—or, in judicial terms, used the “margin of appreciation”—finding that the seizing of the Wunderlich children did not violate the family’s rights to family privacy and integrity.
Politics and Power
The margin of appreciation has been criticized as both inconsistent and excessively political by human rights scholars and legal theorists who watch the court. I wrote this article explaining why the court has been wrong in its legal reasoning, and in this article I analyze how the margin of appreciation is really an expression of the political reality of the court.
The continuing argument that homeschooling creates parallel societies and that children can only learn to be tolerant citizens by going to state schools is a pernicious fantasy in the minds of European elites.
Any serious observer would be able to see that these notions are contradicted by research and experience.
The real reason, often unstated, that homeschooling continues to be opposed is that elites fear losing control over the growing immigrant population. I have spoken with enough public officials in Europe to know that while they would never utter their reasons out loud for fear of saying something “politically incorrect,” the elites fear growing Muslim populations, especially in Germany.
The irony of Germany banning home education in the name of safeguarding democracy is so outrageous that it would be funny—were it not for the grave nature of the consequences of such misguided and totalitarian thinking. Because it is a highly influential member of the European community and viewed by many as a developed democracy, Germany’s policy on homeschooling continues to be used by other countries as a cover for their own repression of parental rights in education. This is why we cannot, and we will not, give up this important fight for freedom.
A Father’s Perspective
In the wake of the decision, Dirk Wunderlich asked me how “anyone reading the case in an unbiased way could ignore the serious violation of human rights that happened to our family?”
In his eyes, “the reasons put forward by the German authorities for taking my children adopted by the court were pretextual. The weight of the evidence clearly showed that the authorities took my children because of their bias against homeschooling and not because of concern for the safety of my children.”
“They returned the children to us after a short time,” he continued, “demonstrating the truth of the matter. For me it is a scandal that the ECHR has closed its eyes to this violation excusing Germany’s ongoing bad behavior towards parental rights and home education.”I agree with Dirk, of course. But by now we should have learned not to expect consistency from judges—especially when they are wading into the realm of overriding laws and decisions of national supreme courts. The truth is that the ECHR is anything but consistent—as the above articles point out.
Harbingers of Change
But in spite of this bad ruling, I observe evidence that public and even judicial perceptions about homeschooling within Germany may be changing.
Two major newspapers covering the Wunderlichs published sympathetic news stories, interviews, and opinion articles about their case—a sharp contrast from 10 years ago when media were uniformly negative about homeschooling. Global media have also noted that German homeschool policy is out of step with most democracies.
On the legal front, a German appeals court actually defied precedent by finding that it was not acceptable for social services to be given physical custody of a homeschooled child. Since Konrad there have been several law professors, human rights activists, and politicians who have called for a change to Germany’s policies that ban home education.
Establishing a Haven
No one should have to flee their homeland in order to homeschool. But it is estimated that some 10,000 people have emigrated from Germany in the last generation to escape harsh homeschooling policies. Some German parents continue to seek asylum in the United States, while others are relocating within Europe or to other, more homeschool-friendly countries.
HSLDA represents some of these families; and to us, these families deserve asylum. We hope that the United States will reverse its course as charted under the Obama administration to grant them asylum.
HSLDA previously requested former Attorney General Jeff Sessions to exercise his authority to do this, and we will renew our request with the new attorney general upon his confirmation.
As Judge Lawrence Burman wrote in his famous opinion granting asylum to the Romeike family in 2010: “We can’t expect every country to follow our constitution. 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.” The policy of persecuting home education, he said, is “repellent to everything we believe as Americans.”
Help Us Fight for Freedom
This is why we must fight for the freedom of all homeschooling families everywhere to the extent our resources allow. The right to choose homeschooling is a universal and fundamental right of all parents. States and countries may exercise their sovereign authority to regulate the practice; but to ban home education, especially as Germany does for those who are religiously or philosophically motivated, is a threat to all of our freedom and simply unacceptable.
We invite your prayers, thoughts and support as we move forward defending the Wunderlichs, and many others around the world. We can’t do this work alone. It takes a strong community to fight this battle. We count on your support as we stand for families like the Wunderlichs. Will you join us?
As HSLDA Founder Michael Farris has always said, “if we don’t defend these rights everywhere, we won’t have these rights anywhere.” We must stand up to injustice both in the United States and anywhere home education is threatened.
It is in our interest and it is the right thing to do.