Misunderstandings of House Education Sub-Committee:
--- Part I, Art. 3 [Society, its Organization and Purposes] in the NH Constitution does not limit parents’ fundamental right to due process under the U.S. and N.H. Constitution:
all persons are afforded equal protection under the law;
all persons are presumed innocent until proven guilty;
all persons have the right not to incriminate themselves;
no person is required to present evidence to prove their innocence;
no person can be searched or seized without probably cause;
no person is required to present evidence that can be used against them in a court of law;
the state is required to present evidence to prove their guilt;
---There's a substantial difference between the 1990 "purpose statement" of RSA 193-A and the statement proposed in HB 1580.
1.) The "purpose statement" was enacted into chapter law in 1990 along with NH Home Education statute, RSA 193-A. It reads as follows:
279:2 Statement of Purpose. The general court recognizes, in the enactment of RSA 193-A as inserted by section 3 of this act, that it is the primary right and obligation of a parent to choose the appropriate educational alternative for a child under his care and supervision, as provided by law. One such alternative allows a parent to elect to educate a child at home as an alternative to attendance at a public or private school, in accordance with RSA 193-A. The general court further recognizes that home education is more individualized than instruction normally provided in the classroom setting.
2.) House Bill 1580:
I. It is the natural, fundamental right of parents to determine and direct the education of their children.
The 1990 “purpose” statement allows parents a very narrow and limited choice of educational alternatives -- specifically, those defined in statute. The statement in HB 1580 is much broader, recognizing that it is a parent's right to instruct his child. These statements are not the same.
HB 1580 is not redundant.
---House Attorney "takes no position" but advises against adding Constitutional language to statute as it will "create" problems. Adding Constitutional language to statute does not create problems. If contradictions exist between Constitutional language and statutes, these problems need immediate correction. Statute law must change to conform to the Constitution, the highest law in the land (state or federal). This is exactly why HB 1580 is necessary.
---Rep. Casey argued that Art. 3 of NH Constitution may limit certain natural rights. Yes, she is correct.
[Art.] 3. [Society, its Organization and Purposes.] When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.
---However, Constitutional due process rights are required before any natural right may be restricted or terminated. Due process protects individuals from arbitrary authority and guarantees fundamental fairness, justice and liberty.
---Parents who abuse or neglect their children are given due process in court before their parental rights are restricted or terminated. Truants are given due process in courts before any corrective action is taken. Yet homeschoolers are presumed guilty if they don't annually prove their innocence with assessments and evaluations. This presumption of guilt is backwards. Responsible parents should not be treated like criminals.
---The enumerated list of subjects in HB 1580 is not arbitrary. It was taken from the home education statute, RSA 193-A to indicate the level of commitment required by parents in order to fulfill their duty to instruct their children. This compulsory education list does not constrain parents, but clarifies their duty. It is not inconsistent with the ideology of this bill. Also, this statutory list can easily be amended to meet the concerns of the community as Art. 3 of the NH Constitution requires.
---The "lawful and honest employment" language in HB 1580 has its roots in the Ludlow Code of Laws of 1650 which was basic fundamental law of the New England colonies, representing the concern that all communities share for a well-educated populace.
This language still exists in statutory law in Connecticut.
---The language of HB 1580 is appropriate. Each section is concise with a very specific and very clear purpose. Parents, not the state, have the primary duty to instruct their children. HB 1580 exempts parents from compulsory attendance while restraining them with a compulsory education law.
---The current version of HB 1580 under consideration is the amended version, which eliminates section (9), which was an explicit exemption from the compulsory attendance law. This amended version is shorter and easier to follow, without any loss of functionality. 20 words in a Constitutional statement, plus another 50 words, which includes the list of subjects to be instructed.
Rep. Harvey: After pointing out that he down loaded ten pages of Supreme Court decisions which support the Constitutional language found in HB 1580, he points out one of the problems with adding this Constitutional language into statute is the direct contradiction between this Constitutional language in HB 1580 and RSA 193-A: 6 [Records; Evaluation]. He confirms that the current home education law contradicts the Constitution. He concludes that the committee can't introduce this controversial Constitutional language into statute until they have time to review the entire chapter of law. This is wrong. He does not understand that under Constitutional law, due process rights, supercede statutory law.
Rep. Casey: She states that she does not disagree with the ideology in HB 1580, which is summarized by the Constitutional language: "It is the natural, fundamental right of parents to determine and direct the education of their children." She incorrectly believes that these Constitutional rights of parents can be limited by Part I, Art. 3 of NH Constitution [Society; its organization and purposes] without due process. She ITL’d the bill due to “inappropriate language.”
Rep. Boehm: Mistakenly believes that the Constitutional language in HB 1580 [“It’s a natural, fundamental right…”] is already in chapter law and is therefore redundant. He also mistakenly worries that the enumeration of subjects would be a constraint upon parental liberty.
Rep. K.Shaw: Repeatedly tried to save the Constitutional language in HB 1580 [“It’s a natural, fundamental right…”]. However, she does not understand that under Constitutional law, due process rights supercede statutory law.
Rep. Hutchinson: Wants to elevate Constitutional language to statute to protect parents, but mistakenly believed that the Constitutional language in HB 1580 was redundant. She does not understand that under Constitutional law, due process rights supercede statutory law.
Transcript of 12:30 pm Feb. 9, 2010 HB 1580 Sub-committee session:
Rep. Casey (sub-committee chair), Rep. K.Shaw, Rep. Boehm, Rep. Harvey, Rep. Hutchinson and clerk (Ann) in attendance
Rep. Rous (committee chair) watching from across the room
Shaw: You can’t open the meeting until 12:30 pm because if someone wants to be here, that’s their right-to-know.
Harvey: Are there any printed copies of the bill?
Casey: No, you’re just going to have to work off your notes from the committee. Don’t worry, it’s all good. [N.B. Please vote OTP on HB 1210 to provide online access to all proposed amendments drafted by legislative services. Committee members need these amendments to make informed decisions.]
Casey: I will open this sub-committee meeting for HB 1580 relative to home schooling, sponsored by Rep. Ingbretson et al. Let me remind you where we are on this bill. Rep. Harvey asked me did we have a new version of this bill. At this point we do not. At this point now we passed an amendment which removed section (9)…the remaining changes to the bill are on the first part.
If you recall our previous conversations there were concerns with section (a) and with the “or” and “shall” and so on….and then the (I.) “It is the natural, fundamental right…”
Harvey: I did print this off. I presume this is the most recent version?
Casey: Not necessarily, but I’ll check with Ann. When we have an amended version, how long does it take for them to make those changes on the website?
Ann (clerk): It’s not updated.
Hutchinson: Didn’t we pass a second amendment which eliminated the whole bottom of it?
Casey: Yes.
Harvey: Yes, we did that too.
Hutchinson: So (9) was eliminated.
Casey: You are correct. Excuse me Rep. Hutchinson, I’m sorta focusing on the other part. That there were concerns about the truancy bill, that Nancy Stiles had brought up and that was removed as well, the whole bottom part…. except for the effective date.
Let’s start with (a)….Oh, thank you. [copies of the original bill are passed out to the sub-committee members and the editing process begins again.] Does everyone have a copy? Does anyone need my green pen to cross out what needs to be crossed out?
Actually, I’m going to go backwards. Let’s start with (I.). I did some research and talked to our House counsel because I had some concerns in the committee and I’m going to share them with you now and that doesn’t mean that you all have to agree with me. Here is my concern and I needed to verify it with House counsel.
(I.) “It is the natural, fundamental right…” is Constitutional language.
I. It is the natural, fundamental right of parents to determine and direct the education of their children.
The problem with adding it to a statute is that it has the potential for affecting other statutory law. This overrides, this language is overriding language, because it’s Constitutional language; it is appropriately placed in the Constitution, not in statute. Okay? House counsel took no position on the bill, but he made it clear to me that it would be a concern to add this kind of language to a statute because it affects other …
Boehm: But if it’s in the Constitution...Let me give you an example, I had a problem with legislation that came up a few weeks ago about where you can use deadly force. The Constitution is very clear on that, yet we had legislation that overrides what the Constitution said. So why can’t we repeat what’s in the Constitution?
Casey: It’s not specifically in the Constitution, except without Part I Art. 3 which limits it. In other words, this unlimited Constitutional language in a statute will cause problems with other statutes.
Harvey: I agree. I stated so the last time. It is stated so many times in the [court] rulings that…. this is true. It's not a good idea to put it in…
Casey: …in statute.
K.Shaw: I have a question. I have been told and I did not fact checked this myself and perhaps Ann could tell us, that this language exists in chapter law, as opposed to in statute. But I don’t know if that’s true.
Ann(clerk): Those are purpose statements. Education actually committee was the first about 25 years ago to start including purpose statements in statute, but before that they used to remain in chapter law. So you could put that in chapter law, so it would show the intent of the committee and not a formal statute. These are purpose statements, I can show you.
Casey: That would help. I think it’s very confusing to most representatives the difference between chapter law and statute law. And I would be included in that group of representatives.
Hutchinson: I’ve been emailing and talking on the phone to a number of home schooling parents, I was wondering if it would be acceptable to replace that statement with something that represents their true concerns. Parents may choose the educational methodology, tools, supplies and equipment that best fits the needs of the student. In that way, they’re free to do it their way. Maybe it needs rewording so that nothing in statute shall preclude that teacher from choosing whatever methodology, tools, supplies and equipment that best fits the needs of the student. That way they’d feel comfortable that the state is not dictating how they’re going to do it; when they’re going to do it.
Casey: Hold that thought for a second and let me allow Rep. Shaw to say something because she had something to say and then I’m going to respond to you and I’m going to ask you [Ann (clerk)] for a little help here and you’ll understand when I start. Okay?
K.Shaw: I was wondering if you know if there’s a statement similar to this in existing chapter law?
Ann (clerk): There probably is, but I’d need to look through the education law. But right here there is a section on post secondary ed; there’s a declaration of purpose; it’s a purpose statement; there are sub-sections. We originally one when we did a section on adequacy. This one is post-secondary ed and I can find more examples. It simply states that first paragraph that says this is our intent. The difference between chapter law and statutory is that chapter law reflects everything that was passed by the legislature within that session; it is the whole record of everything that you passed. Not everything goes into statute, for instance, if Londonderry has to have a special meeting, we’re not going to put that into statute or our statutes are going to be gigantic, but it will show up in chapter law. Everything goes into chapter law and from there only certain things go directly into statute. And that’s all the primary laws.
Casey: What is the criteria for what goes into statute and what goes into chapter law?
Ann (clerk): Statute is…
Casey: Just let me say this, this is my five minute university that really doesn’t pertain to the subject, but we ...
Ann: But you have to do it all the time otherwise you won’t get it all straight. It’s this big puzzle. You have your bill and then it just goes into chapter law. So everything you pass goes in. So statute is permanent law that we develop language on a permanent law, that always in here and we’ll always go to this master volume to change and correct. But chapter law may affect this, but for certain it will reflect all the work that you did that year.
Casey: Wow.
K.Shaw: Can I follow up on that?
Casey: Just feel free to just ask question at will for Ann, but keep it in mind that we want to be pretty timely here.
K.Shaw: Can I just follow up here?
Casey: Just remember that it’s a five-minute university here, not a fifty-minute university.
K.Shaw: So I guess my question is: if something like this already exists in chapter law, why would it be possibly so detrimental or chaotic to have it in statute?
Casey: Okay, the question that I would ask Ann in anticipation to yours is that if we put this in statute, does it go into chapter law or does it go into statute law?
Ann (clerk): It you put it in, it would go into both.
Casey: Okay. So the problem is that it’s going to go into both. So how do we just make sure that it goes into chapter law?
K.Shaw: …that’s with some amendments to it.
Ann (clerk): We’d have to draft it in a manner that it would only go into chapter law. What I would do is I would do a legislative review, and that will show you how that was done in the past. Anthony would be able to explain exactly how it was worded so it would go to chapter law. But what would happen is when you do the legislative history in the future, what you would do is look it up in statute and at the end of the statute there is these numbers, here, all this reflect that this line is the chapter law of 1973. Chapter law 533 of 1973 created all of that. So you’d go to that, 1973 Journal book, and you’d find the paragraph.
K.Shaw: Representative, that is not my intent to put it into chapter law, especially if it’s already there. My question is: if it’s already in chapter law, what is the harm in putting it into statute?
Casey: I don’t think it’s already in chapter law. This particular statement, I don’t think it is already in chapter law. Would you say?
Ann (clerk): I don’t know. No, no. I think this is new language.
Casey: It’s new language.
K.Shaw: I thought the first sentence was: “It is a natural, fundamental right…”
Ann (clerk): Oh my gosh… yes…
Mary Faiella (audience): I know the answer to what’s going on.
Rous: Excuse me, Ann, are you saying that chapter law is a temporary holding place until it’s made permanent in statute? It’s not some separate chapter law from statute?
Ann (clerk): There can be some separate chapter laws from statute.
Rous: For purpose statements only? Or other things as well?
Ann (clerk): A lot of times it’s purpose statements, but it can be both. It can be just a purpose statement that exists in chapter law. It depends upon how you write it up. So HB 210 would become chapter 533 and after chapter 533 there would be a statement, but it affects RSA 78 statute.
Rous: So we really don’t have an answer to Rep. Shaw’s question. We don’t know whether this statement exists in chapter law or not.
Ann (clerk): Well, this statement in particular right now, those words in the first part, because it’s highlighted, “It’s the natural, fundament right…,” that is not statutory language.
Rous: She’s being told that it already exists in chapter law. So does it exist already?
Casey: I don’t think you are being told that, are you?
K.Shaw: I have been told that.
Casey: By whom?
K.Shaw: By constituents.
Casey: It’s in chapter law? This very language? Why would they have in as new language?
K.Shaw: I don’t know, because I don’t know the relationship between chapter law and statute.
Harvey: I think somebody [from the public audience] wants to comment. Is that okay?
Casey: I would prefer to have our… it’s just us. How long would it take you to check it out?
Ann (clerk): I’ll go right now and then I’ll call and check it out.
Mary Faiella: [member of the audience, incorrectly states] I don’t think it’s verbatim, but it’s words to the effect of.
Casey: Is there any reason we would repeat it in statute law?
Mary Faiella: I….
Casey: Okay. That’s enough. Just something. Okay, wait. Rep. Harvey…..
Harvey: I’ve just looked it up….
Casey: That’s not statutory law.
Harvey: ….in the ten pages of rulings of the US court, the Supreme Court, which I downloaded say that parents have this right. If that’s the case, why would we have it in here [HB 1580] unless there was another motive to have it in. I would say that all we need to do is to look at RSA 193-A: 6 and we’ll see that this contradicts RSA 193-A: 6 [Records; Evaluations].
Casey: Could you…
Harvey: This is the kind of difficulty we’re going to get in if we start messing around with the sections of this bill.
Casey: Thank you. This is already in statutory law. So this…. actually it’s in chapter law under … in the purpose section.
K.Shaw: And I believe, if I can continue, that the intent was to move it from there or to leave it there, but to also have it in statute to further clarify…
Casey: But it doesn’t clarify anything. In my opinion I agree with Rep. Harvey. It [this Constitutional language] actually muddies the waters, not clearing it. Clearly there is another motive. I think that’s a good way of describing it. So, it’s already in chapter law, we already have RSA 193-A, to now add it to statutory law, brings us forward to the question that I posed to House counsel, who said if you put it now in another place it will confuse what is already settled law, including “the general court recognizes that it is the primary right…”
279:2 Statement of Purpose. The general court recognizes, in the enactment of RSA 193-A as inserted by section 3 of this act, that it is the primary right and obligation of a parent to choose the appropriate educational alternative for a child under his care and supervision, as provided by law. One such alternative allows a parent to elect to educate a child at home as an alternative to attendance at a public or private school, in accordance with RSA 193-A. The general court further recognizes that home education is more individualized than instruction normally provided in the classroom setting.
So we now have to decide whether or not it’s worth causing more issues, than less.
Boehm: But if that’s already in RSA 193-A; that law that we’re amending, it’s already in the purpose of the law.
Casey: Exactly.
Boehm: …. A lot of other laws have purpose, purpose to promote the economic well-being of its citizens. That’s purpose and that’s what this is purpose…
Casey: Just let me stop for a second, because I want to address to some extent. Thank you all for being here. And I do appreciate it. It’s an important issue for all of us and I fully aware of the passion and the work that you put into your efforts for home schooling your children and in particular I want to thank Mary for being so appropriate in providing that information so quickly. You obviously know your stuff and I do appreciate that very much. So thank you for adding to the sub-committee. And now we will continue on.
Hutchinson: I would like to use this bill as a vehicle to clean up many concerns. Rep. Harvey says repeatedly with good cause that there’s absolutely no documented record as to the progress in education that the children of home schooling children have. In evaluating that concern I think we can fix it pretty easily. Instead of having a list of people who can review test results, let’s have one. Let’s have the superintendent of the school district in which the child resides. They will review the testing materials and evaluate it. Now…
Casey: Can I stop you for just a second? I think there is every reason to have that conversation. In fact, I sat on the home school subcommittee that had that information. And when Ann gets back she can give you a history of the amount of times we’ve already had that conversation. That very conversation. Not only that conversation, but every other requirement, for portfolio review, program review, home schooling notification. Every one of those things has been vetted and revetted ad nauseum and we get nowhere. There’s a problem with… We’re here dealing with an essential ideology, not the details of the home school bill. The essential ideology that is promulgated in this bill is “It is the natural, fundamental right….” and the state oughtn’t to be involved in any way. If that wasn’t the ideology of this bill, line 20 section (9) wouldn’t have been included, nor would the “or” have been include in line 6 after section (a). So it’s obvious to me that we’re not here to revisit the home school statute. We’re only here to deal with this bill which deals with a basic ideology that parents get to do whatever they want to and they don’t have to follow any of the rules of attendance, in this particular case, it’s compulsory attendance. That’s the basis of the bill, it doesn’t matter whether that was his intention, Rep. Ingbretson wrote the bill. He has to stand by it and that’s how it reads. So we only need to decide whether or not we wish to have the ideology of the state be that “It’s the natural, fundamental rights of parents to determine and direct the education of their children,” which is already stated in chapter law and that they don’t have to follow any of the rules for compulsory attendance or the home school law because that’s also imbedded in there.
Hutchinson: One of the things that I hear from the home school community is where they feel government is very intrusive particularly is their ability to end the home schooling if the child wasn’t doing well and just take the child and put him in public school. And if that axe was eliminated, then there would be a great deal of comradeship I think between the school district and allowing the child to participate in some of the remedial programs and improving the child’s outcome.
Casey: Children already allowed to attend public schools.
Hutchinson: But the parents are very afraid that if there’s any inclination that the child is not doing well under their guidance that their home schooling program would be terminated by a third party. And that was the hold that the government had on them. It’s a double standard. In public schools if little Johnny is failing third grade, the public school doesn’t yank him out and put him in another school. They don’t take him from that teacher and say, teacher, you’re not doing a good job and give him to Mrs. Lovejoy over there. And so they feel, and the purpose, and I spoke with the sponsor, and it’s because they feel this government pressure that it’s a double standard. It’s not a level playing field from what we expect from our public schools. And if we could eliminate those things, while it doesn’t address this sentence specifically, I think this sentence would be addressed.
Casey: I absolutely agree with your assessment why homeschoolers feel … have concerns. We have a home school statute. Let me try to explain it. Look. The basic premise about whether or not parents have a right to home school their children to either the good or the detriment of their child is their right; that’s their basic premise; that’s an ideological base upon which they base everything; the Constitution requires two things, some things from us as legislators and as a state. It requires that we provide all children with some level of education; we’ve been through this language a million times. …
K.Shaw: ..opportunity for an adequate education.
Casey: Yeah. Now it’s an opportunity for an adequate education. The Constitutional language that it refers to is “cherish”…a public education or “cherish” an education. The question about parental rights is in the Constitution, but then it’s limited by the state’s rights to say all of your rights are in place unless we realize….. except for example, I can’t yell “fire” in a theatre. There are laws against that because even though I have a right to free speech, there’s a public good that is met by not allowing that type of free speech. So….those are the types of limiting factors, I’m sure Rep. Harvey could give many others. So we’re still on an ideological plane that if we break the mirror, then we’re in a whole new world where we don't have any authority to ask home school parents to notify the home school district that they’re going to be home schooling. The state has no authority to ask that home school parents at least provide us with whatever program they’re using to be reviewed by the superintendent. You can't have it both ways. I wish we could all hold hands and skip, but we don’t have that world. We have this tension between freedom and government. So it’s difficult.
Harvey: I would just like to say that perhaps all these things that are being said are correct and the statute should be changed, but to do it this way, to take one little section and make some changes to that when you’re not considering….
Casey: Yeah.
Harvey: …down the road there with the rest of the statute. You could mess this up so badly, no one knows what is going on. If you changed a little part of it, and actually changed the philosophy…
Casey: Right.
Harvey: …of the whole statute. So I think that until we’re willing to look at the whole statute and make sure that you don’t change something over here that would make it impossible for this part of it to work, then we shouldn’t be messing around with it.
Boehm: I haven’t talked to Paul on this at all, but to me I think some of the problem is, and I agree, section (I.) we can do away with because it’s already stated…
Casey: Uh-huh.
Boehm: … elsewhere.
Casey: Uh-hum.
Boehm: So I think one of the main problems is, reading the current bill, “A parent of an child ...” What if (b) was first [before section (a)]? It’s just that we’re not looking at the intention. Let’s put … raise home schooling and then it’s not an after thought.
I. It is the natural, fundamental right of parents to determine and direct the education of their children. A parent of any child at least 6 years of age and under 18 years of age:
(a) Shall raise such child in a lawful and honest field of employment and instruct such child or cause such child to be instructed in science, mathematics, language, government, health, reading, writing, spelling, and the history of the Constitutions of New Hampshire and the United States, and shall cause the child to be exposed to art and music; or
(b) Shall cause such child to attend the public school to which the child is assigned in the child’s resident district. Such child shall attend the public school to which the child is assigned full time when such school is in session unless:
Harvey: I don’t understand that.
Casey: I don’t either. These aren't listed by level of importance. Let me just… I think this was a bill that was brought forward with a particular ideology in place and I think I’m hearing from what you’re all saying is that there are problems with the bill. We're making a special effort to see if there’s something that might be appropriate to continue forward. I’m going to just say right now, at this point, I don’t think that there is anything in this bill that’s going to fix anything. I just don't. It takes away all of RSA 193-A, all of the home school laws. They have no requirement whatsoever to follow any of the home school laws as is indicated by formerly section (b) now (2), because they can either raise a child in a “lawful and honest field of employment” et cetera, et cetera, “or.” So we’ve got rid of this last statement. Also they’re a sort of belt and suspender system of saying the same thing. Now we’re going back to (a) which says it. I’m getting the sense of the committee that’s correct. If you don’t, stop me now.
Hutchinson: Well, I think that, I’m wondering if that first sentence (I.) "It’s a natural, fundamental right…" language is misplaced. I don’t think it belongs in compulsory attendance by pupil, because it’s specifically only dealing with attendance. I think, it's a philosophical statement, which is misplaced at this point under 193:1.
Casey: It's not a philosophical statement if their intend was to remove all requirements for adherence to 193-A. It makes a purpose statement to follow, and you have to look…. There she is. Oh, my gosh. Chapter and verse, exactly.
Thank you, Ann. Let’s just stop for a second.
Ann (clerk): I went back to 1990. It started out as a Senate bill…this was the statement of purpose right here in the chapter law. This is the House Journal. Everything from here goes into here. …..
http://www.gencourt.state.nh.us/legislation/1990/SB0373.html
279:2 Statement of Purpose. The general court recognizes, in the enactment of RSA 193-A as inserted by section 3 of this act, that it is the primary right and obligation of a parent to choose the appropriate educational alternative for a child under his care and supervision, as provided by law. One such alternative allows a parent to elect to educate a child at home as an alternative to attendance at a public or private school, in accordance with RSA 193-A. The general court further recognizes that home education is more individualized than instruction normally provided in the classroom setting.
Ann (clerk): If the author of HB1580 wanted the language under rights and duties within the statute. However, you can put it as a statement of purpose before this, if you amend, you can write this statement of purpose to have it only remain in chapter law. Or you can put another paragraph, you can amend it, put that in a statement of purpose. I have 193:1 …
Casey: How many things can we do, because I need to know.
Ann (clerk): One, we can keep it in chapter law.
Casey: Isn’t it already in chapter law?
Ann (clerk): It is from this section from 1990. It did not go into the statute although it’s referred to here, but the language is not in here.
Casey: A new version of the same purpose can be reiterated…
Ann (clerk): It can be amended.
Hutchinson: The statement of purpose in the law of 1990, does it repeat that sentence of this bill?
Casey: ”The general court recognizes, in the enactment of RSA 193-A as inserted by section 3 of this act, that it is the primary right and obligation of a parent to choose the appropriate educational alternative for a child under his care and supervision, as provided by law.”
Now, I just want you to just listen to that and think about what it says.
“I. It is the natural, fundamental right of parents to determine and direct the education of their children.”
It’s almost identical.
Hutchinson: I think it is. Now how to we elevate the chapter law from 1990 into statute?
Boehm: Make it a purpose.
Ann (clerk): All you have to do is to amend it to a statement of purpose.
Hutchinson: Why don’t we?
Ann (clerk): But it still exists there?
Harvey: is that our mission?
Casey: I don’t think that’s our mission, exactly. It is the will of the sub-committee if you feel that’s appropriate. I would say to you that you must do this in…
Hutchinson: Why don’t we put it here?
Ann (clerk): But it still exists. It sits there; it exists. It already is in existence.
Hutchinson: But it’s not referenced in the statute.
Ann (clerk): It is.
Casey: It is referenced in the statute. That’s why Mary was able to access this….
K.Shaw: It’s page 611 in your red book at the bottom on the right-hand column.
Ann (clerk): One of the reasons we don’t put the statement of purpose in every single statute, in every committee in every bill, the volumes would fill the room.
Boehm: Other statutes in this book say statement of purpose.
Ann (clerk): Some do, but I’m explaining that why you don’t do it for every single one. Some do and some don’t.
Casey: But it is already referenced in chapter law.
Hutchinson: I think there’s a need for it in statute because it’s not evident. We should elevate it to statute.
Casey: It is already. Well, I think that is what our House Attorney advised against.
Hutchinson: Really?
Casey: Yes. He did.
Hutchinson: Why?
Casey: Well, I didn’t really… that’s not true. Let me clarify that. As it’s written, he advised against leaving the language. I did not ask him the question as to whether if we moved it to a statement of purpose for that particular compulsory attendance. Okay? If we raised it to statute. We already have it in chapter law. So I did not ask that specific question. I asked him what’s the deal with this language? And he said it’s a problem to put it there like that. That would cause problems.
Hutchinson: What is the chapter law reference?
Casey: If you look at page 611. It’s 1990, 279:2 effective July 1, 1991. Yes, under “purpose.” And so you would look at this volume, for the 1989 session. You would go to 279:2. You would be able to find it. It’s already in statute.
Harvey: It’s interesting because the definition for the purpose takes just as much space in law as stating what the purpose is.
Casey: This is just a "belt and suspender" situation. When you get calls about concerns about home schooling, from the home schooling community, I meant to thank you for all your letters. I have read every one of them. Emails I should say….It’s a belt and suspender situation, we already have the language in chapter law. I’m going to ask for a vote and you decide what you want to do. But this is just a belt and suspender situation. I think it’s a duplicate.
Harvey: When are we going to ask for a vote?
Casey: Pretty soon, because we’ve been at this….
Harvey: Does that mean we’re voting on the total bill?
Casey: What a sub-committee does, … we look at the bill, ask for comments and recommendations. We make motions and we vote as a sub-committee and then present it to the committee as a whole and let them vote on the recommendation. OTP or ITL; if we make an amendment, we present that at the full committee. But that is our job here today is to have that conversation with each other.
Harvey: I think we’ve pretty well decided (I.) is already covered in the purpose statement of RSA 193-A. But let me just say, I’ve gone through this, each one of the sections, and I find numerous places where it’s going to confuse the matter and until we are willing to introduce more problems and more confusion into the law, I think these other issues should be settled. For example, section (a) "raise a child in lawful and honest employment and instruction"
Casey: No, "and instruct." The language is what it is.
Harvey: The language needs to be clearer. It should be crystal clear if we’re going to put it into statute. This is not crystal clear. I could go on with other places.
Casey: I’m going to ask the committee here for a straw vote. Is there anybody who thinks we should keep section (a) in the statute?
Boehm: I don’t think so with the “or.” I think we’re trying to do here is to elevate home schooling…
Casey: But we’re in compulsory attendance? They’re just so many problems with this. Okay, so I’m trying to influence the vote. I asked for a straw vote, so does anybody think that section (a) appropriately placed here and the language is sufficiently clear to make it easier for all of us to understand compulsory education for our children? I’m not seeing hands. Just yes or no?
Boehm: I think it adds more than….
Casey: You think it should stay?
K.Shaw: Not as a yes or no question. I need a yeah, but…
Casey: You think it should stay in some form?
K.Shaw: I think it could stay in some form and be appropriate.
Casey: For this particular compulsory … okay, I’ll need to hear your thoughts on that.
Harvey: Take out what's in this bill now that says that this has to happen. The current 193-A….
Casey: None, no…. Let’s ….Does anybody think it should be "or"?
Hutchinson: No.
Casey: Okay, so that needs to go away. We’re all in agreement that "or" part goes away. But you’re saying that you think you have language that would be clearer?
K.Shaw: Well, I’m not saying that I have language.
Casey: Well, do you think that we need to fix this bill with clearer language?
K.Shaw: That would be my preference, but I think I’m clearly in the minority.
Casey: I know. So you think so, but you’re not giving me the language.
K.Shaw: I didn’t know that it would be called for.
Casey: Okay. I'm the sub-committee chair. I need recommendations that go back to the committee. So, I’m not trying to put you on the sport, but I’m saying that you don’t like this, if you have any suggestions for something better, I’m just open to hear them just as the rest of the sub-committee.
Hutchinson: I would go with elevating the chapter law into a statute, but I would not put it under the compulsory attendance. I would put it as part of the definition right at the beginning of the home schooling chapter.
Casey: We’re not being asked to do that. This is the bill we’re dealing with. Next term, if you’re brought back, bring in a bill that does that, but I just don’t think it’s appropriate for us to go off onto another statute.
Boehm: My problem with (a) is the same problem I have with the bullying law that is coming out. It’s enumerating thing and we shouldn’t be enumerating, because that enumeration is going to change and change and change.
Casey: Can I just say, I’ve said it in committee, if Rep. Ingbretson believes that “It’s the natural, fundamental right …” for parents to direct the education of their children, between 6 and 18 years of age, why in the world would he then direct them to do it in this way with his language? Either he believes they can do whatever they want, in whatever way they want to, or he doesn’t. I’m having trouble understanding….
Hutchinson: I don’t like anything else in the bill except the first sentence "It’s the natural, fundamental right…."
Casey: I understand. I stand by my statement, we're either going to have it ...
Boehm: My problem with section (a) puts more constraints on homeschoolers because it says they have to do all of this instruction and maybe they don't.
Casey: Now we're back to ideology. This is an ideological bill, and the ideology is that the parent has every fundamental right, which I'm NOT disagreeing with...I’m just saying that it’s a little odd that the next section say that you “shall” do all these things, exactly the way we stipulate it in this bill. It’s a little… there’s a conundrum, wrapped in a mystery surrounded by….. I'm struggling with this bill.
Hutchinson: I think we need to ITL the bill.
Casey : If you have a motion in that regard, I would take that.
K.Shaw: I have a question. Am I reading the committee correctly in that nobody wants to leave the statement (I.)"It’s the natural, fundamental right…." language and then take out section (a)?
Hutchinson: If you take that out, then there’s nothing left of the bill.
Boehm: Right. That’s the whole bill.
Hutchinson: There’s just one sentence of it or not.
Boehm: We can put in the purpose statement, but it's already in law. I don't like the enumeration anything. We’re telling parents that if your child doesn’t go to public school, this is what you have to teach your child in. That's putting more on them.
Casey: It's counter intuitive to the first statement [on natural, fundamental rights].
Boehm: Right. It’s the natural, fundamental right… you have to teach science; you have to teach math; ….
Harvey: Unless you instruct them in some "honest and lawful employment," then you don’t have to do it.
Casey: Prostitution is right out!
Boehm: Gambling is legal in some states and in some states it’s not. But the enumeration is causing more problems.
Casey: We've beaten this poor horse to death! It’s up to you. I will entertain a motion at this point.
Hutchinson: I move to ITL the bill.
Harvey: I second that.
Hutchinson: But I hope to rise another day to fix the problem.
Casey: I'll be with you on that one!
The committee votes 4-1 to ITL the bill. [K.Shaw votes in opposition].
Casey: Let me just say to the home schooling community today, that we don’t intent to limit what you do beyond what's already in chapter law; however it's the inappropriate to move forward due to the language in the bill.
Close the session at 1:20 pm.
