This post reviews Catherina Groeneveld, “Judicial Constructions of Compulsory Schooling in Germany.” M.A. Thesis, National University of Ireland, 2010.
Groeneveld, a reader of this blog, recently defended this thesis and graciously sent it to me for review. Its aim is to explain why German judges, despite a gradual softening of the German public toward homeschooling, continue to hand down decisions that condemn the practice.
She begins with a refreshing bit of autobiography. Back in the early 1990s, as a young South African mother, Groeneveld chanced upon an article about David and Micki Colfax, whose now-classic book Homeschooling for Excellence describes how they homeschooled their four boys, three of whom went to Harvard. Groeneveld was impressed and thought she might like to try homeschooling herself. Then she moved to Germany.
In Germany she found that NOBODY homeschooled, and if she raised the issue they looked at her like she was either crazy or pernicious. In the years since then public opinion has begun to change, and one even finds positive treatment of the practice occasionally in the media, but judges still consistently find homeschoolers guilty of breaking the law and issue fines or worse to them. Why?
To answer that question Groeneveld draws on two theoretical perspectives. First, she employs discursive analysis in the tradition of Gadamer to “deconstruct” the rhetoric judges use, showing that they are not being dispassionate dispensors of universal law but partisan representatives of historically particular points of view. Second, she looks to “critical psychological jurisprudence,” which foregrounds the (often unacknowledged) gender, race, class, and sexual orientation dynamics that often underlie legal theories and constructs.
Groeneveld begins with a historical orientation, canvassing the development of Germany’s compulsory education law from its Prussian origins to its expansion in the Weimar Republic, its further expansion under Hitler in 1938, and its increasingly strict interpretation in the postwar period. As I do not read German I had a lot of trouble understanding this section, for a lot of it hinges on the specific meaning of German words. The point I took from it is that in Germany the letter of the law, even under the Nazis, allowed for the possibility of exceptions to universal public schooling (especially for Nazi elite, some of whom had their kids tutored at home) but in the postwar period most German provinces have frowned on these possible loopholes. There is theoretical room for homeschooling, but most judges have not accepted it.
Why? To explain she describes the way Judge Croskey flip-flopped in California after his first decision in the In re Rachel L. case caused such severe outcry in California. I’m sure readers will recall how in 2008 after the Judge, quite correctly, pointed out that current California legal precedent did not allow homeschooling to be considered private schooling, across the nation tremendous pressure was put on the Court to change its decision. Judge Croskey did change his decision, saying in his subsequent ruling,
the most persuasive interpretation of the legislative history of the original statutory provisions supports the conclusion that a home school is not a private school. However, the most logical interpretation of subsequent legislative enactments and regulatory provisions supports the conclusion that a home school
can, in fact, fall within the private school exception to the general compulsory education law…Clinging to such precedent would undermine a practice that has been, if not actively encouraged, at least acknowledged and accepted by officials and the public for many years.
Groeneveld says that Croskey here is being hermeneutically sensitive–he knows what the law literally says, but he goes against what he knows because of the will of the people. German Judges too are ensconced in a hermeneutical context even though they don’t usually realize it. And this context, at least for now, is generally against homeschooling. The judges won’t start changing their decisions until that context changes.
And that context is beginning to change, argues Groeneveld. Homeschooling has only been on the public radar for about 10 years in Germany and already public opinion is softening, media is coming around, and a few academics are writing about it with sensitivity and openness. With so much movement on the issue in only a decade, Groeneveld speculates that perhaps “in twenty years time, the Bundesverfassungsgericht might be passing judgments in which the possibility of home education is acknowledged as a valid alternative.” (p. 30)
With this background in place Groeneveld embarks on an ambitious rhetorical analysis of two recent court decisions. Again, my lack of German competency made most of this impenetrable, but the point is that the decisions reveal exactly what Groeneveld has been arguing–that these judges are not making their decisions based on the letter of the law but on a complex tapestry of social and cultural beliefs.
I personally find this all very persuasive, but then I agreed with her already. I’m not a legal scholar, but I’ve never been persuaded by literalistic hermeneutical models such as those articulated by “strict constructionists” of our own Constitution or the more sophisticated “textualism” of Justice Scalia. As many commentators following Justic Scalia’s colorful career have pointed out, his decisions in many cases have not lined up with his espoused principles of textual interpretation. Why? Because his own personal beliefs play a bigger role in his own decisions than he often wishes to acknowledge.
We find exactly the same thing in Biblical interpretation. I’ve been enmeshed for my entire life in the world of conservative American Protestantism. The highest value there is in such communities is to be “Biblical.” But what the Bible teaches about a given subject differs from group to group and from generation to generation. Why? The Bible hasn’t changed. We have.
It makes perfect sense to me that the same dynamic is at play in Germany. So long as the vast majority of Germans find homeschooling an aberrant and socially dangerous activity, judges will read the law that way. But when public opinion changes, the law will too, even if the words of the law stay the same. That’s Groeneveld’s point, and I think she’s right.