The Human Right of Home Education

Abstract

Homeschooling is legal and growing in many countries but is virtually forbidden by law in Germany and a few others. The European Court of Human Rights (ECtHR) has reviewed and upheld this ban. Is home education a human right? How do these courts employ their jurisprudence of proportionality to find banning home education does not violate relevant constitutional or human rights norms? Why does Germany forbid home education? Why does the ECtHR uphold Germany’s position? What does this divergence imply about the right of home education and the jurisprudence of these courts? If the promise of human rights is individual liberty then a system that justifies or endorses state control of education for the purpose of cultural conformity can be said to be far too statist for a free and democratic society. In this article, I argue that both the German Constitutional Court (FCC) and the ECtHR have adopted an approach to education rights that is profoundly mistaken. I conclude that home education is a right of parents and children that must be protected by every state. Nations that respect and protect the right of parents and children to home educate demonstrate a commitment to respecting human rights; nations that do not, such as Germany and Sweden need to take steps to correct their failure to protect this important human right.

Keywords:

• education
• home education
• homeschooling
• human rights
• proportionality

Notes

1. Ultimately the Romeikes claim for asylum was rejected by the U.S. Supreme Court although the family remain in the United States subject to an order of removal that has been indefinitely deferred. The author was an attorney representing the family.

2. By home education I mean elective home education where a parent for religious, philosophical, or pedagogical reasons prefers home education to education at a state or private institutional school. The FCC and the ECHR have made technical distinctions between parents who are motivated by reasons of conscience from those motivated by “practical” reasons of children’s medical conditions or parental job requirements.

3. Human Rights Committee, General Comment 22 (September 27, 1993). Para. 4 and 6.

4. For a more detailed and technical critique of the ECtHR use of the margin of appreciation in this context see: http://www.ghec2016.org/sites/default/files/thursday_farris_home_education_its_a_right_1.pdf. The presentation can be watched at: https://www.youtube.com/watch?v=FdZOqTnRdKo&index=19&list=PLlnNEcPjg5O6xvSd8FZD6KauzONXfSKE3 beginning at 25:44.

5. By way of disclosure, the author was an attorney in the case. The case was denied review by the FCC in 2013 and by the ECtHR in 2014. However, a second case challenging the removal of children from the Wunderlich family because of homeschooling is still pending at the court.

6. German Basic Law Article 6 §2. https://www.btg-bestellservice.de/pdf/80201000.pdf at 16.