Jul 16, 2013

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.