Summary: Michael P. Donnelly is Director of Global Outreach and Staff Attorney with the Home School Legal Defense Association (HSLDA). In this article he argues that the German Constitutional Court (FCC) and the European Court of Human Rights (ECtHR) have ignored the human right to home education by upholding the German ban of the practice.
As discussed in other articles (such as Doroshenko, 2014), Germany has almost completely banned the practice of home education. In Donnelly’s opinion, this ban is profoundly out-of-line with the country’s human rights commitments that are described in several treaties:
- The Universal Declaration of Human Rights (written in response to the atrocities of World War II) states that parents have the right to decide what kind of education their children shall receive. This includes the rights to provide for or exempt from religious or moral instruction.
- The International Covenant of Economic, Social, and Cultural Rights (ICESCR) recognizes that both individuals and bodies may form educational institutions.
- The International Covenant of Civil and Political Rights (ICCPR) recognizes that parents have a fundamental right to educate their children in conformity with their religious and philosophical beliefs.
- Article 2 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) strongly urges that the state respects the convictions of parents when it comes to their children’s education.
Despite these statutes, the German courts maintained the ban on home education by applying the legal model of proportionality. They argued that the state’s responsibility to educate its citizens is equal to the parents’ right to direct their children’s education. The European Court of Human Rights (ECtHR) upheld this reasoning. Proportionality, the balancing of rights and interests, is a very common legal model in Europe that uses a four step process to determine whether government interference is justified.
- Does the government have a legitimate goal behind their interference?
- Is the interference a suitable way to achieve that goal?
- Is this interference necessary? Is there possibly a less-intrusive but equally effective way to achieve the goal?
- Is the interference proportional? What is the value of the individual’s right compared to the value of the public interest?
In the case of Konrad (2003), the Federal Constitutional Court (FCC) of Germany denied a family the permission to home educate because, according to Germany’s basic law, society has an interest in counteracting the development of parallel societies and integrating minorities. The FCC also found that the German government was endowed with an equal interest in the education of children, arguing that even if home education could meet students’ academic needs there was no way for students to acquire the socialization needed for a tolerant society unless they attended the closely supervised and controlled system of state and private schools. Thus, the German court ruled that it must protect students from the potential negative consequences of home education. Rather than being concerned about children’s learning or well-being, Donnelly echoes the view of Spiegler (2015) that the homeschool ban may be more focused on the goal of maintaining cultural homogeneity, as demonstrated by the court’s concern about the development of parallel societies.
Using the four components of proportionality, Donnelly next gives his own take on the court’s ruling in favor of maintaining cultural homogeneity in the case of Konrad (2003). In terms of the legitimacy of this goal, Donnelly says that while parallel societies might harm the government’s ability to ensure the equal rights of all citizens, the forcing of uniformity is also bad because it goes against the democratic principle of pluralism (the ability of people with significant religious, cultural, linguistic, and philosophical differences to live together peacefully). Diversity in education is especially important for democracies due to the political nature of the government pushing for a standardized curriculum that determines what its citizens should know.
Is banning home education a suitable way to avoid the development of parallel societies? It could be, depending on the definitions utilized. However, we cannot assume that home educated students will automatically be less tolerant and thus more likely to develop into a parallel society, as the German courts believed. Donnelly cites several studies from the US to show that home educated and private schooled students were actually likely to be more politically tolerant than their public schooled peers.
Continuing with the third component of proportionality, Donnelly argues that the complete ban on home education is not necessary because there are many other countries in the world (including in Europe) that have legalized home education and do not worry about the development of parallel societies. Finally, regarding proportionality, Donnelly concludes that neither court rigorously examined the assumptions behind their conclusions nor the severity of the restrictions.
Appraisal: Donnelly here clearly explains the legal terminology and makes a good case that the German home education ban should not have passed the four step proportionality model if we assume that the court’s goal was to maintain cultural homogeneity. His arguments here add another voice to the already crowded field of scholars who for various reasons think the current situation in Germany is unwise. Doroshenko (2014) believes that a fundamental human right is at stake. Reimer (2010) thinks Germany’s laws, though legal and upheld by international courts, are nevertheless unreasonable and are out of step with modern Germany’s embrace of cultural diversity. Groeneveld (2010) finds room within the letter of German law for home education and hopes judges in the future will too. Spiegler (2009) argues more pragmatically that German fears of home educators creating parallel societies are likely overblown given how few families would likely choose the practice anyway, if rates in other European countries are any guide. Donnelly’s arguments add yet another hue to this colorful collection of scholarly critiques.
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