U.S. Supreme Court Denies German Homeschoolers’ Appeal

This post is being published on both Law Meets Gospel and Indiana Education Law Blog.

The United States Supreme Court has rejected a petition filed by a German family seeking asylum based on what they characterize as religious persecution in their home country. The Romeike family began homeschooling their children because they feared the public school’s curriculum would influence their children in a way that contradicted their Christian values. This violated a 1938 compulsory-attendance law in Germany that the Romeikes argued was originally driven by animus toward faith-based homeschoolers.

While the Romeikes initially were granted asylum based on provisions of U.S. immigration law that provide visa waivers to people who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A), that status was later revoked on appeal. The Romeikes, who live in Tennessee, appealed that decision. The Sixth Circuit affirmed  in May 2013 in a decision by Judge Jeffrey Sutton.

When the Romeikes departed Germany with their five children (they now have six), they owed roughly $9,000 in fines for violating mandatory-schooling laws. At one point, the police escorted their children to school. According to the Sixth Circuit, that didn’t amount to persecution because the law was applied generally.

In 1993 then-Judge Samuel Alito explained what persecution entailes: “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.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). Similarly, the Sixth Circuit emphasized, “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 Sixth Circuit’s decision focused on the fact that Germany’s law is generally applicable. Generally speaking, being punished for violating a generally applicable criminal law is not persecution. There are exceptions. For instance, if the government selectively enforces the generally applicable law. Or a law that no one would break unless they had protected reasons for doing so.

In this case, Germany prosecutes all parents who do not send their children to school, whether the decision is based on religious or secular reasons. The only evidence supporting selective enforcement drew a distinction between homeschoolers and parents of truant students. Germany has also granted some exemptions to children who are incapable of going to school or to children whose parents’ occupations require them to move constantly. These were not enough for the Sixth Circuit to reverse.

On the question of the statute’s motivation in 1938, the Court concluded that there was nothing to suggest religiously motivated homeschoolers existed at the time. Further, nothing was introduced to show the history of the law.

The involvement of a homeschooling family combines with recent Obama-administration immigration policies to make this case a rather hot topic. In 2011 the administration gave prosecutors broad power to pursue only high-priority cases. The policy allows the Department of Homeland Security to choose which deportation proceedings to pursue. Over 125,000 signatures have been added to a petition to the administration seeking relief for the Romeikes.

Judge Sutton’s opinion made clear that if the Romeikes lived in the United States and sought to homeschool their children, “they would have had a lot of legal authority to work with in countering the prosecution.” It cited Wisconsin v. Yoder, 406 U.S. 205,213–14 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534–35 (1925); and Meyer v. Nebraska,262 U.S. 390, 400-01 (1923). These cases support ’ constitutional protections of parents’ rights “to direct the upbringing and education of children under their control.”

Michael Farris of the Home School Legal Defense Association represented the Romeikes. The Alliance Defending Freedom filed an amicus brief supporting their petition to the Supreme Court.

UPDATE: The day after the Supreme Court denied their petition for relief, the Department of Homeland Security reportedly informed the Romeikes that they are now on “indefinite deferred status,” so they can remain unless additional reason to deport them arises, like a criminal violation. More here.

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