Michael P. Farris, J.D.

The right of parents to direct the education of their children is an essential attribute of a free people.  A nation cannot claim the label of a free nation if its youngest citizens and residents are coerced to attend a governmental school system in the name of creating a unified nation. 

Basic human rights documents which contain the generally accepted principles of human rights law are in full accord with this ideal of liberty.

While Article 26 of the UN Declaration of Human Rights stipulates that education shall be without cost and compulsory for all, it contains the unequivocal statement that “Parents have a prior right to choose the kind of education that shall be given to their children.”

The phrasing is important.  The right of parents to choose the education for their children is prior to the duty of the government to provide a public education system that is without cost and compulsory. 

Parental authority to choose a different educational path is superior to any power of the government to prescribe its formula for the education to be provided in its schools.

Article 18 of the UN Covenant on Civil and Political Rights declares:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

The United Nations International Covenant on Economic, Social, and Cultural Rights echoes this same theme in Article 13:

No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

The UN Convention on the Rights of the Child’s Article 29 contains a provision that closely follows the wording of the Covenant on Economic, Social, and Cultural Rights.

The European Convention on Human Rights contains similar language:

ARTICLE 2 (of the First Protocol)

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.

It is no legal novelty to suggest that the right of parents to direct the education of their children contained in the ECHR should be read in light of the principles of the Universal Declaration of Human Rights.  The preamble of the ECHR cites the UDHR saying “this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared.”

Thus, a proper reading of Article 2 of the First Protocol of the ECHR must include the guide-star principle contained in the UDHR: “Parents have a prior right to choose the kind of education that shall be given to their children.”

The principle of the prior parental right may be found in the language of the United States Supreme Court in 1925 in Pierce v. Society of Sisters.  This case arose because the State of Oregon had decided that it wanted children raised in unity.  True citizens would arise from a compulsory and uniform system of education. 

The American high court responded:

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. 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.

It is worth saying again.  In a free nation, the theory of children is this: The child is not the mere creature of the state.

In a case which arose in the midst of World War II, the American Supreme Court was required to answer another effort to compel uniformity among children.  The case involved children who, for reason of religious principle, refused to perform a compulsory salute to the American flag.  In West Virginia v. Barnette, the Court was careful to note that the principle of liberty of conscience was not exclusively available for those who reject governmental uniformity in education for religious reasons.  It is an attribute of a free people.  The Court described the inevitable clash between governmental use of educational institutions to compel uniformity with the principles of human liberty.

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Melissa Konrad was taken from her home by a caravan of armed agents of the German state.  She was held against her will because her parents persisted in providing her with her education at home.  Melissa’s educational progress through homeschooling was unassailable.  But the German government believes that children must be raised in the compulsory uniformity of the state’s school. 

The Konrad case worked its way through the German court system on behalf of Melissa’s parents and siblings.  Uniformity triumphed over parental rights.  All of this was done in the name of the best interests of the children. 

Finally, the case reached the European Court of Human Rights.  In its decision to declare the Konrad case inadmissible, the ECHR interpreted the provisions of Article 2 of its First Protocol as if it arose in a vacuum.  Rather than the clear principle of the prior right of parents contained in the Universal Declaration of Human Rights, the ECHR relied on the more modern assumption that governments may override parental decisions in the pursuit of uniformity.  After all, uniformity is what is good for children in the end. 

Germany was operating within its “margin of appreciation” by its complete ban on homeschooling, the ECHR determined.

While the international home education community loudly decried this decision, a significant critic of the German approach arose within the apparatus of the United Nations Human Rights Council.  The Special Rapporteur for the Human Rights Council on the Right of Education made the following observation about the German homeschooling situation:

Even though the Special Rapporteur is a strong advocate of public, free and compulsory education, it should be noted that education may not be reduced to mere school attendance and that educational processes should be strengthened to ensure that they always and primarily serve the best interests of the child. Distance learning methods and home schooling represent valid options which could be developed in certain circumstances, bearing in mind that parents have the right to choose the appropriate type of education for their children, as stipulated in article 13 of the International Covenant on Economic, Social and Cultural Rights. The promotion and development of a system of public, government-funded education should not entail the suppression of forms of education that do not require attendance at a school.

Unfortunately, the ECHR’s determination in the Konrad matter has emboldened other nations to take steps to pursue draconian regulation of home education or in other cases to ban it all together in language neatly lifted straight from the statutory law of Germany.

On June 16, 2009, the Swedish government announced its proposed new school law.  It forthrightly bans home education except for “extraordinary circumstances.”  The proposal also declares that there is no need for the law to offer the possibility of homeschooling because of religious or philosophical reasons in the family.  Analysis of the preparatory language by the Swedish group Rohus reveals that acceptable forms of “extraordinary circumstances” to justify a grant of permission for home education include geographical difficulties, children with special medical conditions, and foreign families residing in Sweden on a short-term basis. 

Also in June of 2009, the English home education community was shocked to receive an official report which has been accepted by the Education Ministry from an investigator named Graham Badman.

His core premise is that the current education law does not properly balance the rights of parents and the rights of children.

However, he reaches this conclusion on a faulty basis.  Most significantly, he fails to fully and accurately describe the current legal framework that governs home education.  He avoids any discussion of the power of local education officials to intervene with the force of law in a situation where they have found a home education program to be unsuitable. 

The Badman Report:

• Failed to give a full, fair, and accurate description of the current law governing home education in England.  The system has a comprehensive system of checks and balances. 

• Inaccurately claimed (by this failure of complete disclosure) that local education officials are limited to informal methods of seeking remediation.  In actuality, they possess effective and powerful tools to protect children.

• Inaccurately claimed that English homeschoolers were governed by the most liberal laws among peer nations.

• Proposed a method of compulsory home interrogations of children that violates the Human Rights Act of 1998 and Article 8 of the ECHR.  This method has been held to be an unconstitutional invasion of family privacy in the United States.

• Proposed a method of home interrogations as a means of evaluation of the suitability of home education which fails the four standards for proper assessment: validity, reliability, impact, and practicability.

• Urges that English homeschoolers be required to comply with Article 29 of the UNCRC, which imposes a regime of compelled indoctrination in controversial values.

Swiss parents have also raised concerns about invasive new proposals in that nation that would seriously impact home education if fully implemented.

American homeschoolers were startled by a February 2008 decision of the California Court of Appeal.  It declared that homeschooling was illegal in that state and no parental constitutional right was violated by such a ban.

What this decision had in common with the Swedish proposal, the German law, the decision of the ECHR, and the Badman Report, was this: All of these anti-homeschool policies and decisions are premised on naked assertions that lack a demonstrable factual foundation. 

Government officials—whether in the judiciary, parliament, or educational ministry—simply assume that they understand the needs of children in the context of home education without bothering to fully investigate the facts.

Homeschooling advocates and friends of liberty did not allow the California decision of February to go unchallenged.  I wrote the constitutional argument contained in a Motion for Rehearing that was submitted to the same court that issued this startling anti-parent, anti-homeschooling decision.  A colleague of mine wrote the statutory analysis.  To our great surprise, the Court granted our motion for rehearing. 

At this point, the Court offered to receive input from a wide variety of advocacy organizations through the process of submission of amicus briefs. 

These briefs, one of which I authored, made the case that homeschooling was a highly successful form of education—academically and socially.  There is no evidence that the social development of children requires attendance in an institutional setting.  Moreover, there is substantial evidence that the academic progress of children is superior in home education over any form of institutional instruction. 

I offer three conclusions:

1. Any decision that severely regulates or bans home education in the name of doing what is best for children is contrary to all of the facts.  Valid research demonstrates that home education is highly successful in producing literate, well-adjusted, capable citizens who are fully competent to compete and relate with other members of society.

2. Any decision that severely regulates or bans home education is contrary to the established standards of human rights.  Parents have the prior right to choose the form of education for their children.

3. Any nation that severely restricts the ability of parents to choose alternative forms of education, including home education, in the name of creating national unity, cannot call itself a free nation.  Freedom necessarily requires the individual to have the liberty to think differently and believe differently than programs instituted by the current rulers of any nation.  Educational freedom is the cornerstone for all freedom of thought and conscience.