“The state has an equal interest in the education of children.”
—German Federal Constitutional Court, Konrad, 2003
“The child is not the mere creature of the state.”
—United States Supreme Court, Pierce v. Society of Sisters, 1925
The German high court believes that children belong to the state. But the United States Supreme Court affirms that children are free individuals under the care and tutelage of their parents. Which is it?
Europe’s highest human rights tribunal and pseudo-supreme court, the European Court of Human Rights (ECHR), has been going down the German road for several decades—even as most European countries have recognized the right of parents to home educate their children as a right worth protecting. HSLDA and ADF International are making an attempt to turn the court around.
In April, the two organizations along with German attorneys filed two applications with the ECHR, alleging that German authorities have violated numerous protected human rights of the Wunderlich and Schaum families by not allowing them to educate their children at home. The Wunderlichs’ application additionally claims that Germany interfered with their right to free movement and family integrity by preventing them from leaving the country with their children.
We hope that these applications will lead to a change in direction for the court. However, it can take years for the Strasbourg-based court to review applications, since it receives tens of thousands each year.
Hope for Improvement
Roger Kiska, senior counsel for ADF International, was guardedly optimistic.
“We included arguments that we think are compelling,” Kiska says. “The court has so far been unwilling to recognize home education, and we think the fact that more and more countries are recognizing home education might give the court an opportunity to re-evaluate its position. The Wunderlichs have been treated terribly by the local authorities in Germany, and in large part because the German higher courts have allowed it.”
Mike Donnelly, HSLDA’s Director of Global Outreach, said that so far the court has been on the wrong side. He sees home education as one aspect of the fundamental right of parents to direct the education and upbringing of their children. The notion that homeschooling threatens democracy is backwards.
“What really threatens democracy,” he said, “is the German authorities’ attempt to stamp out ‘parallel societies.’ A pluralistic democracy must accept families who have different ideas about how to educate their children. Home education has proven its value to the point that a complete ban ought to be an obvious violation of human rights. So no, we don’t plan to stop fighting for these families.”
The Schaum parents were criminally convicted for not sending their children to school, and they have been fighting these convictions for years. Their most recent appeal to the German Federal Constitutional Court, decided in November 2014, felt like déjà vu of a similar case (Konrad) that eventually ended in the ECHR. The court’s 2006 ruling stated that Germany was allowed to ban homeschooling because the ban didn’t violate parental rights—and because education was a state function anyway.
“Now, the German court uses the ideas it advanced in Konrad about homeschooling and ‘parallel societies’ to allow for this kind of harsh treatment of families,” explained Donnelly. “I understand the court’s reluctance to get ahead of the federal states on matters of education, but to rule that the state has an interest equal to that of the parents in raising children is a huge and unnecessary blunder. The homeschooling movement in Germany is small, so they don’t have the kind of political clout that American homeschoolers do to preserve and protect this freedom. We hope these court battles will get the attention of German statesmen and prompt them to recognize the need for legislative reform.”
Dirk Wunderlich also hopes for policy change: “We are Germans. Why should we have to leave our home in order to do home education?” he wonders.
In spite of these cases and dozens of others, homeschooling is growing in Germany. Recent years have shown perceptible changes in German society, as media and law professors are beginning to soften their own previously hostile attitudes towards homeschooling. These are precursors to change in the law and the general attitude of society. Despite this progress, it may be fair to say that Germany is still 40 to 50 years behind the United States in tolerating home education. A positive ruling for the Wunderlichs and Schaums at the ECHR would pave the way for greater acceptance of German parents’ right to homeschool their children and impact support for home education worldwide