A Guest Post by Rachel Lazerus
Last year, Michael Farris, homeschool advocate and founder of the powerful Home School Legal Defense Association, was instrumental in blocking the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD), despite its complete irrelevancy to homeschooling issues. Senator Robert Menendez (D-NJ) is now bringing the treaty back to the Senate, hoping to ratify it in this current session. Last week, Michael Farris was a witness for the Senate Foreign Relations Committee, testifying on why he thinks this treaty would be bad for the U.S.
You probably didn’t watch Farris’s testimony last week, and his followers probably didn’t either. In fact, Michael Farris is banking on them not having seen it. You see, Michael Farris hopes they will accept his description of the hearing, of how mean and unbalanced it was, and how vicious the “Democrat” senators are. Farris hopes his followers will call their senators and demand that they vote no on the treaty. And of course, Farris hopes his followers will donate money to HSLDA in their outrage!
The problem is that Michael Farris’s description does not match up with reality. While Farris told his followers that the Democratic senators sought to “vilify and destroy” him, in actual fact many of Farris’s legal analyses were respectfully addressed and effectively countered by the other witnesses and the senators. Furthermore, Farris’s demeanor throughout the hearing was aggressive and at some points incredibly rude and disrespectful. And the “petty, silly, and personal attack” that Farris decries was, in fact, a response to Farris’s appeal to his own authority, one which he has used both here and previously to brush off criticism of his legal analysis.
In this post I will examine Farris’s description of the hearing, what actually happened, and some of the issues involved. I will look at Farris’s exchanges with Senators Boxer, Durbin, and Menendez, and contrast what actually took place with how Farris portrayed what took place in a fundraising letter he sent out to HSLDA members later that day. In my next post I will delve more into the legal issues at hand. I believe that this is an issue you should care deeply about, because the political power that Farris has is predicated on his position as leader of HSLDA, and his rejection of the UN Convention on the Rights of Persons with Disabilities (CRPD) is entirely consistent with the philosophies he’s built his political base around—and also because there are compelling reasons for the U.S. to sign the CRPD.
Of course, you don’t have to take my word for any of this. You can watch and read Farris’s testimony for yourself and judge whether or not my description is accurate. First, you can watch the Senate hearing here (or here). Second, you can read my own transcription, which I made while watching it, my curiosity piqued by Sarah Jones’ description (my transcription is not perfect and may have some flaws or typos). I was not able to transcribe the entire two-and-a-half hours of the panel, and therefore I have not included all of the arguments or debate on the CRPD, but I was able to cover all of Farris’s testimony, as well as his back-and-forth conversations with Senators Corker, Boxer, Durbin, Johnson, Menendez, and Coons.
Before I dissect Farris’s arguments and his back and forth with the various senators, I want to lay out some basic, noncontroversial, unchallenged facts about the Convention on the Rights of Persons with Disabilities (CRPD):
- The CRPD has already been ratified by over 130 countries around the world.
- The US has signed but not ratified the CRPD.
- Until the US ratifies the CRPD, no US representatives are able to take part in the Committee on the Rights of Persons with Disabilities, which monitors implementation. This limits US involvement in implementation of disability laws in other countries — of concern to US citizens traveling abroad — and in the interpretation of the treaty by the UN.
- Michael Farris is the most prominent voice opposing the ratification of the CRPD. Farris’s argument is that because there is no explicit mention of parents’ right to determine their children’s education, ratifying the treaty could potentially affect homeschooling. This is not in line with legal precedent of how the courts determine the US’s obligations under treaties such as these.
- Under debate currently in the Senate are a number of RUDs—reservations, understandings, and declarations—that the US may attach to its ratification of the treaty. While these are a common practice by the US and other countries, Farris is arguing that the only type of reservation he would accept is one invalidating the treaty.
- According to his opening testimony, Farris agrees with the emotional and political arguments in favor of ratification, but he believes that despite every assurance he has received to the contrary, ratifying the CRPD will change US law.
- If Farris had not decided to protest the CRPD, it is very likely it would have been ratified last December.
While Farris has characterized the pro-treaty side as being “Democrat” and “left”, this is not actually the case. The CRPD has bipartisan support in the Senate, with Democrats, Republicans, and Independents all being in favor of the treaty. While Farris noted that two of the witnesses were “sitting senators”, he neglected to note that both Mark Kirk (IL) and Kelly Ayotte (NH) are sitting Republican senators, or that the other pro-treaty witnesses included Tom Ridge, a Republican who served as Secretary of Homeland Security under President George W. Bush, and Richard Thornburgh, a Republican who served as Attorney General under President George H.W. Bush. The Americans with Disabilities Act, on which the CRPD is based, was signed in 1990 by President Bush and passed the House by a vote of 377 to 28 and the Senate with a vote of 91 to 6. Several of the at the committee hearing made note of the remarkably bipartisan nature of this bill, and made it clear that supporting the rights of the disabled and of veterans is neither a Democratic nor a Republican issue, but a human rights issue. Farris’s characterization of the treaty as a plot by “the left” is thus both fundamentally dishonest and a cheap ploy to get donations from people who dislike the “Democrat” party.
Barbara Boxer’s “Attack”
With this background, we now turn to the substance of Farris’s characterization of his interactions with three Senate Democratic committee members. Farris described his back-and-forth by Senator Boxer this way:
After we gave our introductory remarks, the personal attacks began. Senator Barbara Boxer (CA), the second most senior Democrat senator on the committee, asked me if HSLDA or ParentalRights.org has ever raised money during our battle against UN control over children and families with disabilities. Instead of asking her if she had ever raised money during her campaigns for U.S. Senate, or whether any of the pro-UNCRPD organizations raise money for their fight, I explained that HSLDA is funded by you, our members. ParentalRights.org is funded solely by donations.
Senator Boxer’s attack, however, was not really against me or HSLDA. It was against you, and every other homeschool family who has ever supported HSLDA because you believe in our mission to defend the God-given right of parents, not faceless bureaucrats, to care for and educate our children. Senator Boxer thinks that your membership in HSLDA and your support of our critical work to defend homeschooling, support widows and single parents through the Home School Foundation, and the work of ParentalRights.org to pass a constitutional amendment makes you an evil special interest that must be vilified and defeated.
Contrast this description with what was actually said during the two minutes that Senator Boxer spent addressing Farris. You can view the relevant video here or read the transcript as follows:
Boxer: “Now, Dr. Farris, you say that you’re speaking for the disabled, but your statements are directly contradicted by organizations that work every day, 24/7, to protect disabled kids, like the United States International Council on Disabilities who states, quote, ‘this treaty protects parental rights and highlights the important role of parents in raising children with disabilities.’ Unquote. And TASH, you know that organization, says quote, ‘nothing included in this treaty prevents parents from homeschooling. This treaty embraces the spirit of the Individuals with Disability Education Act, the Americans with Disabilities Act, and all disability non-discrimination legislation.’ But you, Dr. Farris, argue the opposite. You once even said, and I quote, ‘the definition of disability is not defined in the treaty and so my kids – my kid wears glasses, now they’re disabled. Now the UN can get control of them.’ Well, I have to say in my opinion, that is nonsense that if a child wears glasses [Boxer touches her own glasses], then the child is considered disabled. So I wonder what is behind your fight. And I just ask this question for the record. Have you ever tried to raise funds by telling parents this treaty will limit their ability to decide what is best for their children?”
Farris: “Senator, our organization is funded by membership dues, not by contributions.”
Boxer: “So you’ve never sent out an e-mail asking for funds to fight—”
Farris: “No, the Homeschooling Legal Defense Association, um, is associated also with a group called ParentalRights.org. Parentalrights.org has indeed sent out fundraising emails—”
Boxer: “Thank you very much.”
Farris: (overlapping) “But, Senator, the substantive answer is, the treaty doesn’t ban homeschooling. What the treaty does is shift the decision-making power from the parent to the government. That is what the meaning of the best interests standard is.”
Boxer: “Well, that is not something that I agree with, nor do any of the organizations.
Farris: (overlapping) “Well—”
Boxer: “Thank you very much.”
Farris lied when he categorized Boxer’s questioning as an attack on HSLDA families. Boxer was not attacking, or even coming close to attacking, any HSLDA family. She simply asked Farris a question—whether he was using his opposition to the CRPD as a fund-raising cash cow—that he was embarrassed to answer. She never used the words “evil special interest”—an interesting choice of words by Farris, given that he has done more than anyone else to turn homeschooling families into a special interest group. Perhaps Farris, flushed in his residual embarrassment after his performance, accidentally admitted his private categorization of HSLDA families.
What Senator Boxer was actually getting at was Farris’s practice of issuing bald-faced lies about the implications of the CRPD in order frighten homeschooling parents so as to raise money for his organizations. And the fact that Farris turned around and sent this letter out—including a P.S. asking for money (“Finally, even though Senator Boxer doesn’t want you supporting the battle against the UNCRPD and for U.S. sovereignty, you can donate if you wish”)—is an example of his inability to understand either what Senator Boxer was getting at or that what he is doing is fearmongering and wrong.
For the record, this very e-mail reveals that Farris is officially sending fundraising e-mails from HSLDA.org in order to fund “the battle against the UNCRPD and for U.S. sovereignty”—the exact thing he denied doing just hours earlier in front of the Senate Foreign Relations Committee, when he claimed that he only sent out such emails from ParentalRights.org. Senator Boxer was onto something. Farris is indeed making inflammatory and incorrect assertions about what happened in order to raise money. Ironically, his attack on Senator Boxer justifies her line of questioning.
Senator Durbin’s “Misunderstanding”
Next came Farris’s mischaracterization of Senator Durbin, the Democratic senator from Illinois. Here is Farris’s description of their interaction:
Next, Senator Dick Durbin (IL), another senior Democrat on the committee, falsely argued that HSLDA’s position is that the Americans with Disabilities Act (ADA) is the threat to homeschool freedom. The fact is that HSLDA strongly supports the ADA and other laws advancing the freedom and dignity of persons with disabilities which our democratically elected representatives have passed. What’s more, the UNCRPD would actually threaten parental rights which are enshrined in the IDEA [the Individuals with Disabilities Education Act]. I explained to him that it was the UNCRPD, not the ADA, which was the threat. He ignored me and persisted in stating that HSLDA believes the ADA was the threat. Logic teachers call this a straw man argument, which is used by people who do not wish to debate the merits of an issue.
Again, Farris’s recollection is simply incorrect. You can view the relevant video here, or read the transcript as follows:
Durbin: “I am just stopped cold with this argument by Mr. Farris that the Americans with Disabilities Act is going to put an end to homeschooling in America. Is that your position?”
Farris: “That’s not my position. My position is that the treaty changes the, the legal requirements in this country that it’s just not correct to say that there is no duty to change American law in accordance with the treaty. So, since I believe there will be required to be, uh, an implementation act that complies with the requirements of the treaty I think that at that point in time that’s when the problems will arise.
Durbin: “Mr. Farris—”
Farris: (overlapping) “Not under the ADA itself.”
Durbin: “Mr. Farris, the fact that the administration is not asking for an implementation act and made it clear that it’s not seeking it because the Americans with Disability Act already is controlling, and has been extensively litigated, sets disability standards in our country higher than any in the world, you don’t find that convincing.”
Farris: “That’s the same administration that’s prosecuting the homeschooling family to try to expel them from the United States who came here—”
Durbin: “Under the ADA? Under the Americans with Disabilities Act?”
Farris: “No, they came here under our law of asylum. But the question of the case is—that case is also pending before the Supreme Court, and the question is—”
Durbin: “Well, Let me just say Mr. Farris—”
Farris: “I guess you don’t want me to answer the question.” *flounces back in his seat*
Durbin: “I don’t think you can answer because you want to talk about something other than the American Disability Act or the convention on disabilities, and that’s what we’re here to discuss.”
Farris: “The convention with disabilities has a different legal standard than the ADA.”
Durbin: “I can tell you—”
Farris: (overlapping) “There are numerous disability organizations that say so. I include their citations in my written testimony. I’m not the only one that says that. The CRPD committee agrees with me.”
Durbin: “And I would just say to you, Mr. Farris, that if we’re going to have a battle of the organizations supporting or not supporting this, I think we’re going to prevail. Because we have the mainstream disability organizations across America who are supporting the adoption of this convention on disabilities. And I—I just, I struggle with this notion that we are somehow going to stop this effort, this effort to extend the rights to the disabled around the world for fear of something which you can’t even clearly articulate when it comes to homeschooling. [...] This is not going to affect homeschooling, it’s very clear that it will not. And the Americans with Disabilities Act for twenty years has not affected homeschooling. I yield back my time.”
Far from “stating that HSLDA believes the ADA was the threat”, Durbin is very clear: because the US is already bound by the ADA, which holds the US to a higher standard than the CRPD would hold the US, there will be no changes required in US law should the US ratify the CRPD. As Farris originally got involved with this treaty obstensibly in order to prevent changes in homeschooling law, this is not an irrelevant point that Durbin is making.
(Farris actually talks quite a bit about the Romeikes, a German family that is trying to get asylum in the U.S. on the basis of Germany’s essential ban on homeschooling. I personally don’t see the relevance of the Romoike family to the CRPD, and connecting the two seems to fall under the slippery slope fallacy. You can read more about the Romeike family here, here, here, and here.)
It is also clear from the video and transcript that Farris is not exactly acting with the proper decorum expected in a senate hearing. He is rude, interrupts the senators multiple times, and, when frustrated, resorts to mouthing off. Once I got over my initial shock, I found myself full of questions. Personally, I was not homeschooled, nor have I ever participated in any type of moot court. Is this kind of display in this sort of formal setting considered acceptable for homeschooled students? For participants in moot court? Wouldn’t judges dock points for display of temper? Surely Farris knows that when giving testimony as an expert witness, it is advisable not to behave like a lawyer on “The Good Wife”?
But let us not let this distract us from Farris’s legal disrespect of Durbin’s very sound arguments. Durbin, a former trial lawyer, makes numerous strong legal points that poke holes in Farris’s flimsy argument. For example, a large part of Farris’s argument relies on the assumption that US law will need to change in order to accommodate the new treaty. As the treaty is non-self-executing, this would have to be accomplished with an Implementation Act passed by both Houses of Congress and signed by the President. However, as Durbin pointed out, this is not necessary in the case of the CRPD. This is corroborated by the UN website on the Treaty on Disabilities:
Except in the rare case that the laws in a country already conform fully to the requirements of the Convention, a State party will normally have to amend existing laws or introduce new laws in order to put the Convention into practice.
As Durbin states, the US is exactly that “rare case” that the laws already conform to the requirements of the Convention—because the Convention was based on our current disabilities law! Perhaps Farris should consider this an example of American exceptionalism in action?
It is also incredibly ironic that Farris describes Durbin as using a logical fallacy (“straw man argument”) when in fact a large part of part of Farris’s own argument against ratifying the CRPD relies on a logical fallacy–the slippery slope fallacy. See for example what Farris said in response to a question by Senator Menendez about whether or not Farris views this treaty as a “wedge issue” (you can also view the video here):
“I believe that, uh, this treaty would be the first in a—in a line of human rights treaties that would be coming before this treat—before this committee. The committee—the convention on the rights of the child—Senator McCain misspoke, I’m sure, earlier—we have not ratified that treaty. And so, I think that would be coming next. The convention on the elimination of all forms of discrimination against women, that would be coming after that. I think that, that this treaty is the first of many treaties that would be in this, in this range, that is what is intended by that comment.”
As Farris should be well aware, a slippery slope fallacy is often “used by people who do not wish to debate the merits of an issue.” Perhaps he would agree that it is used only by those who lack the ability to make more substantive arguments.
Senator Menendez’s “Dismissal”
This leads us to discuss Senator Menendez’ questions. Although Menendez’s questioning of Farris lasted over eight minutes (you can view the full video here), Farris seems to have only remembered a brief snippet of the exchange (which you can watch here). In Farris’s own words:
And finally, near the end of the hearing, Senate Foreign Relations Committee Chairman Bob Menendez (NJ) said, by way of dismissing HSLDA’s legal arguments about how the UNCRPD is binding under international law, “I appreciate that you have an LLM from London which is as I understand from a distance learning course….” The room packed with supporters of the treaty burst out in rude and loud laughter, forcing Chairman Menendez to gavel the room to order.
Again, while this was a personal attack aimed at me intended to sideline my arguments, Chairman Menendez was admitting that he had no response to HSLDA’s arguments about the dangers of the UNCRPD and international law. He showed that he will resort to petty, silly, and personal attacks rather than substance.
Let me first say that I find it repugnant for anyone, regardless of where they obtained their education, to dismiss anyone else solely on the basis of their education. It is a sad truth that access to education is not equally distributed across the world, and very often access is limited to people who are already relatively privileged in money, time, and social status. Distance learning courses and degrees can be used to change this: in fact, it is very likely that due to Article 24 of the CRPD, on educational rights of persons with disabilities, would lead to the increasing availability of distance-learning courses and degrees such that “persons with disabilities are not excluded from the general education system on the basis of disability.”
However, I do not believe that this was an attempt by Senator Menendez to attack Farris in order to distract from “substance.” Rather, I believe that Senator Menendez’s comment about Farris’s degree is justified by Farris’s earlier attempt at credentialism and, in yet another logical fallacy, an appeal from authority.
In his opening statement, Farris said to the committee (view the video here):
Turning to the issue of homeschooling, uh, I’ve been criticized by many in the press for, uh, fearmongering on this topic. But I have never seen anyone write a legal analysis. It’s just simply conclusions, just assertions that I have incorrectly analyzed the lawness. I have an LLM in International Law from the University of London, I have coached six—excuse me, seven—national championship moot court teams that debate constitutional law, I have written the legal analysis and I dare anyone to read my legal analysis and answer it with legal analysis, not conjecture and raw assertion.
Farris is the one who introduced his credentials—the only person testifying to do so, and in my opinion a rather gauche move—as his authority for making this legal argument. Farris, while mentioning that he did receive his LLM from the University of London, notably did not include the fact that it was from the distance-learning program, leading the casual viewer to believe that Farris attended the University of London in-person, rather than through the distance-learning program.
In fact, this is something of a pattern for Farris. His bios on both HSLDA.org and ParentalRights.org mention the LLM from the University of London but do not indicate that it was a distance learning program. He also represented himself this way to a reporter from the Boston Globe:
Farris, meanwhile, stood by his assertion that he understood the treaty better than Republican supporters such as Thornburgh. Farris, a graduate of Gonzaga University School of Law, said he has better legal training when it comes to treaties.
“I have an LLM in international law from the University of London,” Farris said, referring to a postgraduate degree that is similar to a master’s program. Asked for details, Farris said he didn’t go to London for the degree; it came in a “distance learning” course and culminated in a proctored exam at a local community college.
“He is just flat wrong,” Farris said of Thornburgh’s sworn testimony that the treaty won’t change US law. “If he wrote that on an international law exam, at any law school, he would fail.”
Farris is misrepresenting himself and his law degree in public all the time, and yet he uses this misrepresented law degree as the authority backing his legal opinions. Does Farris believe that there is a distinction between “University of London” and “University of London, distance learning program”? If not, why does he continually forget to mention the type of program he went through?
In short, I believe that contrary to Farris’s account, Menendez was not making fun of Farris’s degree at all. He was instead making fun of Farris’s appeal to authority. If Farris was honest about the provenance of his degree, if he did not so frequently use it as a justification for his legal theory, then Farris would not be able to be so easily and frequently embarrassed by anyone pointing out the actual program he attended. And if Farris’s legal arguments were stronger, he would not need to resort to the fallacies of credentialism and appeals from authority at all—which is, by the way, yet another fallacy.
(As a side note, Farris complained on his Facebook account after the hearing that “they attacked me personally for ‘fear-mongering,’ misrepresentation, fund-raising, political motives, and having earned an LLM through distance learning.” As I listened to the video of the entire conference, I kept count: the only reference to ‘fearmongering’ made during this Senate hearing was the above reference made by Farris himself. That said, I myself prefer to interpret this as Farris accusing himself of fearmongering.)
Perhaps it’s because he was so embarrassed with the jibe about his degree, but Farris does not seem to have understood any of Menendez’s actual legal points, some of which will be discussed in my next post. As a matter of fact, Menendez actually states Farris’s position more clearly than Farris is able to articulate it: “you argue that the treaty creates obligations others do not see, and then you suggest that the United States must follow your interpretation as in terms of ratifying the treaty.” In short, Menendez does engage with Farris’ legal arguments and legal reasoning.
Menendez goes on to say:
“I think that where we have a fundamental disagreement here, is that under the Constitution, the President and the Senate determine our obligations under international treaties and therefore the reservations, understandings, and declarations are the resolution and consent—are what are binding.”
Farris is welcome to all the opinions he likes—that’s his Constitutional right as an American. But his opinion of legal theory is not considered binding. The Senate determines the boundaries of the reservations attached to the treaty—this is its Constitutional duty under Article II, Section 2. In Farris’s attempt to protect the United States from encroachments on its sovereignty by the UN, he seems to be ignoring the parts of the Constitution which guarantee the American people freedom from him.
But don’t just let Senators Boxer, Durbin, and Menendez convince you that Farris’s arguments are ridiculous. I may not have a law degree, but I’m willing to do a little bit of legwork when it comes to research. Farris claims again and again that his opponents have attacked his motives or his degrees rather than attacking his actual evidence—a claim that is false, as we have seen. Farris also continually pads his arguments with citations from other legal scholars, using these experts as a buoy to support his claim that his interpretation of the CRPD is the correct one. In my next post, I will do what Farris urges—but what I don’t think he actually expects anyone to do. I will read the experts he cites to back up his interpretation—and I will do so in their original context.
Call Your Senators!
If you live in one of these states, please call your senator and ask them to ratify the Convention on the Rights of Persons with Disabilities (CRPD). As long as the US refuses to ratify the CRPD, we look silly and backward and provide other nations with an excuse for refusing to sign the treaty or refusing to implement it. We need to lead by example, and ratifying the UN Convention on the Rights of Persons with Disabilities is part of setting that example.
HSLDA has helpfully provided an app on their website which will provide you with contact information for each of your representatives in Congress. I use it here as a wonderful information source, and I express my sincerest thanks to the good folks at HSLDA who make participatory democracy possible.
Sen. Bob Corker (TN) – (202) 224-3344
Sen. Thad Cochran (MS) – (202) 224-5054
Sen. Rob Portman (OH) – (202) 224-3353
Sen. Tom Coburn (OK) – (202) 224-5754
Sen. Jeff Flake (AZ) – (202) 224-4521
Sen. Johnny Isakson (GA) – (202) 224-3643
Sen. Saxby Chambliss (GA) – (202) 224-3521
Sen. Debra Fischer (NE) – (202) 224-6551
Sen. Ron Johnson (WI) – (202) 224-5323
Sen. Michael Johanns (NE) – (202) 224-4224
Sen. Roy Blunt (MO) – (202) 224-5721
Sen. Lamar Alexander (TN) – (202) 224-4944
Sen. Dan Coats (IN) – (202) 224-5623
Sen. John Boozman (AR) – (202) 224-4843
And if you appreciate the effort Senators Boxer, Durbin, and Menendez put into dismantling the arguments of Farris, call them and tell them so.
Sen. Barbara Boxer (CA) – (202) 224-3553
Sen. Dick Durbin (IL) – (202) 224-2152
Sen. Bob Menendez (NJ) – (202) 224-4744
Let’s get involved and get this treaty ratified.
Rachel Lazerus received her MPP from the Harris School of Public Policy at the University of Chicago in 2012. She is currently researching comparative methods of reporting homeschooling achievement.