Homeschoolers take asylum claims to the Supreme Court

A German homeschooling family seeking asylum in the United States will take its case to the Supreme Court, the Home School Legal Defense Assocation announced Monday.

A lower court ruled against Uwe and Hannalore Romeike in May. Their appeal for a re-hearing has now also been denied, leaving the Supreme Court as the family's last option in the US legal system. The federal court said there weren't grounds to re-hear the case, as the issues that the homeschooler's lawyers raised in the appeal had already been dealt with.

The lawyers defending the family disagree. They announced they will take the case to the Supreme Court because "we firmly believe that this family deserves the freedom that this country was founded on."

The Romeike's have become something of cause célèbre on the right. The case is seen as a defense of freedom and of parents' rights to educate their children. Legally, however, as the judge pointed out in the ruling rejecting the Romeike's claims, the case doesn't hinge on whether or not homeschooling is a right or a privilege. The legal question is whether or not homeschoolers in countries where homeschooling is illegal qualify for asylum in the United States, whether or not they should be considered a "particular social group" as defined by asylum law.

The Home School Legal Defense Association asked the Romeike's to come to the United States explicitly to challenge the law. The aim was to get homeschooling recognized as a grounds for asylum, and to put pressure on German courts and lawmakers, possibly embarrassing them, possibly stirring up some public sympathy for homeschoolers and getting the laws changed.

The organization has long lobbied for homeschoolers internationally, and helped organize a German counterpart to HSLDA in 2000. When homeschooling families lost high profile court cases in Germany in 2000 and in 2007, the American group worked to politically organize German homeschoolers, but also began looking for alternative defenses. It was in that context that the HSLDA approached the Romeike's with the idea of a legal battle in the US Federal Courts.

"We analyzed the legal battle for freedom in Germany and concluded that prospects were not promising," HSLDA lawyer Michael P. Donnelly wrote.

We knew that laws would have to be changed if there was to be freedom for German homeschoolers. This would require changing public opinion and getting the attention of legislators. Because there were so few homeschoolers in Germany, there was no way they could exert any kind of political influence. And in the face of the German Supreme Court decisions, we knew that officials would need heavy prompting to confront this issue.

In further developing the new strategy, Jim Mason, HSLDA Director of Litigation, suggested considering a political asylum case. He contacted former HSLDA Legal Assistant Will Humble, who was now actively practicing immigration law and who agreed to assist with the Romeike’s political asylum claim. Humble outlined the arguments that would have to be made for such a case, and HSLDA began to look for the right test case.

The first opportunity came in the form of a case that had started back in 2006 .... Our thought was that this test case, if successful, could pave the way for an American asylum claim as well as start the process for creating public awareness in Germany.

To date, this strategy hasn't been successful. The Romeike's case has received only the slightest media attention in Germany, and hasn't generated any groundswell of support for the country's few homeschoolers. The case was also not successful in court. In May, the judge ruled that the family had not met the legal burden of proving they were persecuted in Germany for being homeschoolers. He argued, further, that:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of 'parents and guardians to direct the upbringing and education of children under their control' does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The HSLDA will continue their fight, though. The deadline for an appeal to the Supreme Court is in October. Whether or not the court will hear the case is another question: only about 75 to 80 cases are heard annually out of the approximately 10,000 petitions.

If the court declines to hear the case, the Romeike's will be forced to leave the country. They could resettle in one of the many Western European countries where homeschooling is allowed, including Austria, Belgium, the Netherlands, Norway, and Switzerland.

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US federal court: Homeschoolers aren't persecuted in Germany

Homeschoolers are not a "particular social group" facing persecution in Germany, a federal appeals court has ruled, and homeschooling in a country where it's illegal is not grounds for asylum in the United States.

The ruling is a legal defeat for Uwe and Hannelore Romeike, a German homeschooling family, and the homeschooling activists who sought to use the case of Romeike v. Holder to get homeschoolers classified as a special, protected class.

The Romeikes have argued that they were being persecuted by the German government because they were homeschoolers; the Obama administration's Justice Department made the case that running afoul of the law does not amount to persecution, per se. In a ruling released yesterday, three federal judges unanimously agreed with the Obama administration.

Writing for the court, Judge Jeffrey S. Sutton wrote:

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground. [....]  

The Romeikes have not met this burden. The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.

According to US law, five groups of people are eligible for asylum if they are being targeted by their home governments because they belong to one of those categories: race, religion, nationality, political opinion, or belonging to a "particular social" group. The last is not defined by the law, and has been only vaguely defined by the courts. The Romeike's lawyers were attempting to argue that homeschoolers should be considered such a "particular social group," negatively targeted in Germany.

The court rejected that argument, finding that the German law was not directed at homeschoolers, to suppress or oppress them, but is a law of general applicability.

According to Sutton (a George W. Bush appointee), the Romeikes needed to prove one of number of things. Either they had to prove that Germany's compulsory education law was designed specifically, "on its face," to persecute the particular social group, homeschoolers, or they had to prove that the law is selectively enforced to punish a particular social group (i.e., homeschoolers), or they had to prove that the law is, in practice, only applicable to that group.

Even assuming that homeschoolers are to be taken as a particular social group, and so in principle eligible for asylum, the Romeikes did not present evidence that "the compulsory school attendance law is selectively applied to homeschoolers" or that "homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law."

In this ruling, the court affirmed that parents do have the Constitution-protected right to "to direct the upbringing and education of children under their control," an issue that had raised concerns among US homeschoolers. The court found, though, that that is not legal grounds for asylum:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of “parents and guardians to direct the upbringing and education of children under their control" does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The court cited Samuel Alito, now a conservative Supreme Court Justice, to support this argument. In the 1993 case of Fatin v. INS, where a woman wanted asylum from Iran on the grounds she was upperclass, educated, a feminist and a not a Muslim, Alito wrote,

the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world’s population would qualify for asylum in this country -- and it seems most unlikely that Congress intended such a result

Alito could get the chance to revisit that argument, as the Romeikes' lawyers hope to take this case to the Supreme Court. Michael Farris, chairman of the Home School Legal Defense Fund that recruited the Romeikes from Germany and is representing, said the group will file an appeal.

Whether or not the court is interested in hearing this case is another question.

For now, Germans who want to move to the US to homeschool their children will have to apply for immigrant visas, rather than apply for asylum.

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Judges seem skeptical of homeschoolers' persecution claims

The three judges set to decide whether a German homeschooling family qualifies for asylum in the United States seemed skeptical during a court hearing Tuesday in Cincinnati, Ohio, according to news reports.

Uwe and Hannelore Romeike are arguing that homeschoolers ought to be considered a "particular social group" persecuted by countries that have laws requiring all children attend public or state-approved private schools. According to U.S. law, people persecuted because they belong to a "particular social group" are granted asylum. The law does not define the term, but federal courts have generally interpreted it as meaning a group that has some immutable characteristic. A lower court found that the family could not be considered religious or political refugees. If the Romeikes lose the appeal, they will not be required to return to Germany, but they will have to leave the U.S.

One of the three judges who will decide the case asked pointedly whether any German law is targeted at homeschoolers specifically, or if the law is not rather of general applicability. He also said that it's entirely possible for children to attend a public school and still receive additional private training from their parents, the Associated Press reported.

"Germany is not forbidding home-schooling ... It's not like saying you can't teach them at home in the evenings," said Judge Jeffrey S. Sutton, a George W. Bush administration appointee.

A second judge said that ruling in the Romeike's favor would mean "opening the door" to many, many asylum seekers. The judge speculated that such a precedent would possibly mean anyone in any country being punished under a law not supported by the United States would be entitled to refugee status.

The third judge on the panel said that Germany's rules about mandatory education do not seem designed to suppress Christianity or oppress homeschoolers, but to integrate minorities into society and teach tolerance.

Michael Farris, the Romeike's lawyer and the head of the homeschool organization that encouraged the family to emigrate to America when they were facing legal trouble at home, rejected the idea that public schools might be socially valuable by teaching tolerance. He said, "If that's tolerance, it's tolerance unknown in a free society," according to the Baptist Press.

After the 38 minutes of oral arguments and judges' questions, the Baptist Press' reporter concluded that "the judges suggested that they may not grant asylum, arguing that mistreatment by the German government is not tantamount to persecution and not necessarily a ground for allowing the family to remain in America."

That is exactly what the Justice Department lawyers are arguing.

In court, the Obama administration representative said the German law "is not a great law." But that's not the same as persecution, he said, and isn't grounds for considering those in violation of that law a protected, "particular social group."

Farris, for his part, was holding out hope on Tuesday afternoon that the judges would decide in favor of the homeschoolers. In a statement he said "tough questions were asked on both sides, and it's hard to predict the outcome," but "God can intervene."

The German homeschoolers have may supports on the American right -- including Glenn Beck and Mike Huckabee -- who are hoping for divine help. As Hannelore Romeike noted outside the courthouse after the hearing, "there are so many people praying for us."

In addition to prayers, supporters have also organized social media campaigns calling attention to the case and accusing the Obama administration of siding with Nazis and harboring Latin American criminal immigrants while deporting good homeschooling Christians. To date, more than 120,000 people have signed a petition stating that the "Romeikes hope for the same freedom our forefathers sought. Please grant the privilege of liberty to the Romeike family."

According to the Home School Legal Defense Association, the federal courtroom overflowed with supporters during the hearing. The Associated Press put the number of supporters in attendance at about 50 or 60.

It could be several months before the appeals court judges rule on Romeike vs. Holder.

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Hitler wins: the disjunction of law & politics in Romeike v. Holder

The definition of a very vague legal term is at the center of oral arguments being heard today in a federal appeals court in Cincinnati, Ohio. That term is "particular social group."

In US law, that is one of five named groups of people eligible for asylum -- and the most ill-defined. The other categories are race, religion, nationality, and political opinions. If someone can demonstrate they are being persecuted or that they fear being persecuted on those grounds, they can be granted refugee status in America. People also have the right to asylum if they're being persecuted because they belong to a "particular social group," but what that means, who that applies to, is a matter of a legal dispute. In the case in court today, the question is whether or not homeschoolers count as a "particular social group" and should be granted asylum if they come to the US from a country where homeschooling isn't legal, such as Germany.

The political agitation coming out of this court case bears only the slightest relation to the legal issue, though.

The activists who care about this case, Romeike vs. Holder, don't appear to be at all interested in the legal issue at the heart of the case. They are, though, very interested in the way public perception of the case allows them to agitate against the Obama administration and for homeschooling.

The Romeike family has become a cause célèbre on the American right.

Uwe and Hannalore Romeike left southwest Germany in 2008, facing mounting fines for their refusal to send their children to either a public or private school. At the behest of the Home School Legal Defense Association, a non-profit committed to advocating for the rights of parents to homeschool, the Romeike's travelled to the US on tourist visas and then applied for asylum, claiming they were being persecuted in Germany for their religious belief that they should homeschool. The family does not belong to nor affiliate with any religious organization, but cited numerous Bible verses that they say instruct them to educate their own children, despite their lack of official credentials to do so.

The couple also claimed the German education system was teaching their children all sorts of things that they were opposed to, including witchcraft, though they didn't offer any evidence to support those claims.

Uwe Romeike told the authorities, "God requires me and my wife to educate our children at home ourselves."

In 2010, a federal judge ruled that the family was indeed a "particular social group" -- i.e., homeschoolers -- being persecuted in Germany, and thus could be considered to have the right to asylum in America.

The Romeike's lawyers also argued they were being discriminated against because of their political opinions and religious beliefs, but the court didn't accept those arguments. The family had no history of political activity. They certainly were religious, but the law they were accused of violating had no religious component to it, and didn't qualify, legally, as amounting to religious persecution. The judge wrote, however, that the family was being attacked by the German government because the German government, "for some unknown reason," wants to suppress the particular social group that is home schoolers. Their request for asylum was granted.

Then, a year ago, the immigration appeals board overturned the court's decision. The board ruled the Romeike's were not legally entitled to the status of refugees, as homeschoolers do not constitute a protected class, since they are a diverse group, amorphous. The main legal standards for establishing a group as a "particular social group," established by the precedent of court rulings, require the Romeike's lawyers prove that homeschoolers are a group with immutable characteristics. This means they have to make the case that being a homeschooler involves "a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed." There are also other interpretations of what this term means that have been used by the courts, as is outlined in a Boston College International and Comparative Law Review article that strongly supports the Romeike's asylum case. The extensive legal issues involved in this case are further argued by one of the HSLDA lawyers in a long blog post here.

None of that shows up in the popular arguments being about this case, however.

Instead, the HSLDA is promoting arguments like this:

That comparison has been picked up and repeated by those who strongly support homeschooling and strongly oppose Obama and, generally, American liberalism. For example, a self-described "homeschooling guru" blogger writes,

the Obama Administration, while disregarding millions of illegal immigrants and Mexican drug lords sneaking over the Southern borders, dismissed the judge’s argument and immediately set their sights on an innocuous homeschooling family from Germany .... This case should be on the radar screen of every parent who values the freedom to raise and educate our children without government interference.

A FOX News story opened with the same comparison between "good" immigrants and the bad ones: "While the White House and many lawmakers push to grant legal status to immigrants who crossed the border illegally, the Romeike family thought they followed the rules -- but now face deportation."

None of this has anything to do with the case, in reality. The merits of the case -- on which the case will be debated and will be decided -- have not the slightest relationship to the question of immigration reform or general immigration policy. The politics of immigration aren't at issue in the federal appeals court.

The case has even less to do with Nazism, but the political agitators have been very aggressive in associating Germany's education law to that dark period of German history, making the hand-wavy argument that either this family should get asylum in America or the Nazis win. Though public education has existed in Germany since Luther, and was law long before Nazis took charge, people defending the Romeike's right to be seen as persecuted refugees repeat claims that German education policy is, at bottom, a Nazi policy.

As HSLDA head Michael Farris put it,

the German government wants to prohibit people who think differently from the government (on religious or philosophical grounds) from growing and developing into a force in society. It is thought control. 

It is belief control. It is totalitarianism dressed up in politically correct lingo. 

In the same vein, HSLDA has argued people should speak up in support of the Romeike's because:

While Dietrich Bonhoeffer's face may not symbolize principled opposition to growing government encroachment on the freedom of religion to everyone, that's what it communicates to Christian conservatives in America today.

Nor are the ad hitlerum arguments always so subtle.

A Neo-Calvinist homeschooler wrote that in this case, the US Attorney General is taking the side of Nazism in federal court. The homeschooling father writes:

This may be a glowing example of the argumentum ad hitlerium fallacy, but consider the facts. Adolf Hitler will be one of Eric Holder’s witnesses for the prosecution against the Romeikes. This is a human rights contest where the prosecution will posthumously call Adolf Hitler to testify on their behalf whenever German law is invoked, and the German Supreme Court’s upholding of these Nazi laws is the primary witness in Eric Holder’s case against the Romeikes.

No facts are actually involved in that paragraph. But details of how and why German education policy developed aren't relevant to rhetorical excess, nor to the political argument for homeschooling and against government generally. And anyway, no one who is making this argument-by-free-association seems to have bothered to investigate why Germans tolerate and even avidly support the ban on homeschooling.

It's enough, politically, to shout "Hilter!"

Or, as a columnist at the right-leaning Washington Times wrote, "small-minded and grasping totalitarianism .... It sounds like they aren’t really big on religious or philosophical diversity over there."

Even if it were what it seemed like or sounded like to those who think loose comparisons to Hitler serve as evidence of totalitarian intent, that wouldn't be relevant to this court case being heard in Ohio today. The decision won't be based on anything having to do with Hitler. Or immigration. Or any of the political conflicts being actively aggravated by homeschooling advocates in loose connection to the Romeike case.

The court case isn't about any of these things.

But then maybe that's the point, because HSLDA can lose this appeal and still advance its cause and rally its base with all this rhetoric and agitation that's only tangentially connected to the court case purportedly arousing it. Getting people up in arms can serve a purpose. And people are unlikely to strong emotional reactions to debates over the definition of "particular social group" in a US asylum law passed in 1980. The politics of this and the legal case in the courts are, when one looks at them, only barely related. The two discourses never quite intersect, even when they're presented as being (and necessarily, for the sake of the politics) entirely the same.

This is what's really crazy about the public debates about politically sensitive court cases -- knowing the facts of the case and legal issues being debated doesn't really turn out to be particularly relevant to the social groups who really, passionately care.

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