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October 14, 2014

State Prosecutes in Spite of Constitution

Mike Donnelly
HSLDA Director of Global Outreach

Staff Attorney Mike Donnelly is HSLDA’s director of international relations. Read more >>

Two Irish families who rejected the onerous registration procedures created by a national agency have been prosecuted in court, demonstrating why even an explicit constitutional right to homeschool needs defending.

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The Republic of Ireland is one of the few countries with a constitution that explicitly guarantees the right of parents to educate their children at home. If that is the case, why have there been reports of two Irish families in court in recent months fighting for the right to homeschool freely? Dan Arnold and his wife Maureen were in the Irish news this past week as the second homeschool couple summoned to court in as many months. The Irish news reported that the family have suffered “fourteen months of incessant pressure and stress” as a result of what Arnold says are illegal proceedings to force him to apply to a national registry.

Dan told me that “the process has been unnecessarily confrontational, and it’s really a turf battle over who gets to decide how children in Ireland are educated—parents or the government. The Irish homeschool law has been deficient from the beginning, and now that the authorities are actually enforcing it people can see how heavy-handed the law is. In my opinion, the current law, the Education (Welfare) Act 2000, is badly written, discriminatory against home-education, contrary to the state's constitution, and severely deficient in many respects.”

“It needs not re-writing, but replacing with a statute that avoids each of these fatal flaws, and by one which is supportive of home education rather than seemingly distrustful of it,” he added. “It puts the decision in the hands of bureaucrats, subjecting parents to an application process that includes interview scenarios that can often be intrusive and distressing to children or parents. Many of us are asking, ‘Why should we have to apply to the government for permission to exercise what is our constitutional right?’.”

Arnold continued: “The Irish people are long-suffering and law-abiding. But there comes a point when the government oversteps its boundaries and needs to be opposed. For home educators in Ireland, I believe that time has come. We need a new law that respects the fundamental right of parents as outlined in the Irish Constitution.”

Cautionary Tale

The story of Irish homeschoolers is a warning to all home-educating parents in Western democracies. Before the year 2000 Irish parents who homeschooled did so with the assurance that they were exercising a constitutionally protected right.

Article 42 (1) of the Irish Constitution says:

“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.” 42(2) that “Parents shall be free to provide this education in their homes or in private schools or in schools recognized or established by the State.”

In 2000 this all changed when the Irish Legislature decided to require parents to apply in order to be placed on the national register. HSLDA tried to assist Irish home educators at the time and encouraged them to oppose mandatory home visits. Although mandatory home visits were not required (they still occur frequently), the law passed, instituting a national registry. So began the national home education bureaucracy in Ireland which, as is natural for bureaucracies, grew, gobbling up freedom and liberty along the way until now when some parents, frustrated and tired of the increasing regulatory scheme, have decided to oppose it.

In the first few years after the new law passed, many parents ignored it, continuing to homeschool. Some families submitted to the application process, finding that government agents would interview parents, sometimes children, and review curriculum and even the proposed educational environment. It only took a few years, however, before an agency was assigned the task of overseeing the register. And then new staff at the agency began to figure out what they were supposed to do and obtained increasing resources to do it. Over time the agency has become increasingly aggressive. Additionally concerning is the fact the oversight agency was transferred from the department of education and placed under the national social welfare agency. For a “right” that is explicitly guaranteed in the Irish Constitution, the process has the feel of a mere “privilege” for which one must seek government approval.

Growing Opposition

Since 2010 noticeably more families have objected to the intrusiveness of the process. HSLDA has counseled several of them. In some cases concerns were resolved without court involvement. But in 2012, HSLDA worked with one family who objected to the registration process on religious grounds. After months of negotiations the family was given what amounted to an ultimatum. They were warned that if they didn’t submit the application for registration they would be summoned to court. Because the family’s conscience would not allow them to submit to what they considered government approval and oversight of their children’s education, they chose to leave the republic of Ireland.

At this same time the cases of Monica and Eddie O’Neil and Dan and Maureen Arnold were making their way into the Irish court system and have now made their way into the news. Some Irish homeschoolers have suggested that registering isn’t such a big deal. That if you just go along with the state process everything will be fine. And while it is a matter for each family to decide based on their own convictions, I sympathize with Eddie, Monica, Dan, Maureen and others who are wary and unwilling to submit to the creeping curtailment of their liberty. These families, and others, have cause to be suspicious of a burgeoning government bureaucracy that seems to be motivated by the idea that it’s their job to oversee parents. Even if the government is permitted to regulate, as it is in Ireland by the constitution, it ought to do so in a way that is least burdensome.

Unfortunately, the Irish Legislature has expressed little concern. For home-educating communities in other countries, this situation is instructive and reflects a trend in Western governments. The trend is for governments to seek entry into the daily decision-making of families and to substitute its judgment for that of parents. This trend is also reflected by more and more international treaties such as the UN Convention on the Rights of the Child and others.

The question is this—in a free society, what level of government interference is too much? For the O’Neils and Arnolds, the Irish homeschool law has become too much. The Irish Legislature, who created this process in the first place, should step in and fix the problem. Dan Arnold agrees. But this time, he says, they ought to include effective participation by home-educators themselves, something apparently lacking last time around. This is a warning to other homeschooling communities to be vigilant because even rights that are written down in a constitution may not be safe.

Protect Your Family

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