The United States Supreme Court has scheduled Romeike v. Holder for review conference February 21. The court is expected to rule on whether or not to take the case and issue its decision in its February 24 orders.

RomeikeThe Romeike family fled Germany and applied for asylum in America in order to homeschool their children freely. The Supreme Court could decide by the end of the month whether to take their case. Read more about the Romeike family.The Romeike family was granted asylum in 2010 by a federal immigration judge who found that Germany’s treatment of the family amounted to persecution. As evidence he cited state officials’ threats against homeschoolers in general to levy crushing fines, file criminal charges, and take away children, and against the Romeikes in particular for their sincere religious beliefs.

The Obama administration appealed and has subsequently opposed granting the family asylum protection. The 6th Circuit Court agreed with the Obama administration, saying that Germany was just enforcing its law.

After he initially declined to reply to the Romeikes’ original petition, the Supreme Court ordered U.S. Attorney General Eric Holder to respond.

In the response, Justice Department lawyers argued that Germany was not specifically persecuting homeschoolers, but enforcing laws that apply to everyone.

Germany has good reasons, they claimed, for not allowing homeschooling, and the German government’s desire to “promote socialization, pluralism, tolerance and democracy” outweighs the human right of parents to decide how their children are educated. The Justice Department lawyers cited the infamous 2006 Konrad decision of the European Court of Human Rights, which accepted Germany’s intolerance of homeschooling, as a reason the Supreme Court should not get involved.

Grave Injustice

HSLDA Founder and Chairman Michael Farris is the principal author of the Romeike brief. He said that the Supreme Court should hear the case primarily in order to right a grave injustice, but also because our own federal circuit courts are confused on the issue of what legal standard to use when determining at what point prosecution becomes persecution.

“The Supreme Court should intervene to settle the law in the federal circuits, which are in a state of chaos over how to decide when a foreign law is used to persecute people who act on the basis of their religion, like the Romeikes,” Farris said. “The Sixth Circuit’s decision perverted congressional intent of asylum law and used it as a sword against the Romeikes. This is an absurdity that we hope the Supreme Court will overturn.”

The Sixth Circuit panel of judges ruled in April 2012 that Germany’s prosecution and harsh treatment of homeschool parents was merely law enforcement action that applied “equally” to everyone and did not on its face target people protected by asylum law. In doing so, the court borrowed a legal standard articulated by the 1993 Supreme Court decision in Smith v. Employment Division.

The landmark Smith case changed the way the Supreme Court reviewed religious freedom cases. In Smith, the court ruled that it would not look at individual challenges to laws on religious grounds if the challenged law did not discriminate against a religious group on its face and the law was generally applicable—meaning that it applied to everyone. However, the Supreme Court used this standard in the context of reviewing domestic government entities. There is no indication the standard was ever intended to apply to judging whether foreign governments were persecuting their own people.


HSLDA Director for International Affairs Michael Donnelly also criticized the 6th Circuit ruling.

“It is appalling that three American judges ignored critical evidence from Germany’s own Supreme Court which explicitly states German states may treat religiously or philosophically motivated homeschooling parents unequally and harshly,” he said. “The recent story of the Wunderlich family, whose children were seized just because of homeschooling and who are now effectively imprisoned in Germany, demonstrates how important this issue is. The fact that our own government is unwilling to support asylum for these families is troubling.”

The right of parents to decide how their children are educated is enshrined as among the most fundamental human rights. Nearly a dozen major human rights documents and treaties, including the 1948 Universal Declaration on Human Rights, recognize how important the role of parental decision-making is in the education of children and that free governments must recognize and respect this important right.

The Berlin Declaration catalogs these treaties in detail.

Dark History

In a recent visit to Patrick Henry College, Thomas Schirrmacher, Ambassador for human rights and executive chair of the Theological Commission of the World Evangelical Alliance, and director of the International Institute for Religious Freedom, lectured on the issue of religious freedom. Based in Bonn, Germany, Professor Schirrmacher has been a longtime proponent of homeschooling freedom in Germany, writing and publishing several books on the subject. He explained that laws which depart from internationally recognized human rights standards are not a legitimate excuse for authorities to violate the rights of the people within their jurisdiction.

“The fact that the laws of a nation make something lawful doesn’t make it right,” he said. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.”

Schirrmacher, who has conducted extensive research on the issue, indicated that the effective ban on elective home education was introduced into German law by the National Socialist regime.

“In 1938 the National Socialists passed a law making it a criminal offense if parents did not send their children to their schools,” he said. “These laws were never changed after the war in order to allow for homeschooling which had been possible before. I believe German leaders should take action to protect the right of parents to educate their children at home.”

• • •

You Can Help

HSLDA is asking all homeschooling communities to keep the Romeike family in their thoughts and prayers. We are committed to defending the rights of parents and their families to enjoy home education without burdensome and unwarranted government intrusion. Homeschooling is an effective educational approach and one that all parents everywhere should have the right to choose. But there are voices calling for increased restrictions. HSLDA has been defending individual families and our entire movement for over 30 years. When you partner with HSLDA as a member or by supporting the Homeschool Freedom Fund you contribute to the resources we need to fight for your family, your freedom and for our whole movement. Consider joining today or making a contribution to the Homeschool Freedom Fund!