The child is not the mere creature of the state

In heartbreaking news on the Busekros case yesterday, the Appeals Court in Germany upheld the decision of the lower court against the Busekros family. So, as it currently stands, Melissa is still held hostage by the German authorities, and her parents, Hubert and Gundrun, are allowed a one hour per week visitation at a government facility. This latest court ruling also demands that the parents undergo psychiatric testing, and there is a very real fear that their remaining five children will be taken away from them.
As I said in an earlier post, homeschooling is illegal in Germany. After this latest round of incredulous events, I thought about the struggle here in the United States with the right to homeschool. Dana at Principled Discovery reminded me that we weren’t in a much different position here 20 years ago, but we had the great benefit of favorable court decisions.

The famous words from Pierce v. Society of Sisters, 268 U.S. 510 (1925), would be helpful for the German judges to take to heart: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This landmark case held that the Oregon Compulsory Education Act that required attendance at public schools was unconstitutional under the Fourteenth Amendment. There have been a string of other courts cases which have solidified the rights of parents to homeschool their children.

An interesting note in the Pierce case is that it was the Ku Klux Klan that was behind the amendment to Oregon’s Compulsory Education Act which would have made it illegal for students to attend private schools. Of course, we know the strong ties during WWI between the KKK and the Nazis. It seems like the same types of people are intent on passing the same types of laws.

The head of the German Youth Welfare Office (Jugendamt) insists that the Busekros case is not about homeschooling. Their psychiatric evaluation of Melissa portrays her as “a highly disturbed girl who obediently and faithfully obeys the idealistic statements of her father and who describes the State as being despostic and ‘fascist-like’.” The biggest problem the Jugendamt appears to have with the Busekros family dynamics is, as they stated, that “Melissa demonstrates loyalty towards her father and unconditional solidarity with her family.”

Aha! So the German State has further indicted itself, and this is even worse than just saying homeschooling is illegal. They have just violated their own Basic Law (Grundgesetz). The Basic Law, by the way, is the constitution of Germany, and came into effect in 1949 after being ratified by all the German states (Lander) - with the exception of Bavaria, where not so coincidentally, the Busekros family resides.

Right off the bat, Article 1 of the Basic Law says “human dignity shall be inviolable.” Skip to the heart of the matter and read Article 4: “Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.” Saying so doesn’t make it so. It’s violable, all right. It says right there that everyone should have the freedom to say that their State is despotic and fascist!

Everything the Busekros lawyers need to back up their case is spelled out in the German constitution. Or they can look at similar wording in the U.N. Universal Declaration of Human Rights - which, I must point out, specifically addresses parental rights in education: Article 26(3) says “Parents have a prior right to choose the kind of education that shall be given to their children.” Prior rights means the parent’s right is prior to the state’s right.

So what in the world is wrong with these German judges?? I have no idea what German case law looks like, or what legal precedents are in their courts. Is this judicial tyranny? Is Germany still too “newborn” to stand up on it’s wobbly legs of democracy? Would their judges show enough wisdom and humility and look at some of our legal rulings? (At least look at them now, before the tide turns over on this side of the world).

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”
Justice McReynolds, Pierce v. Society of Sisters.