2011 SESSION
11-0827.1
04/03
AN ACT amending the home education statutes.
SPONSORS: Rep. Parison, Hills 3; Rep. Mirski, Graf 10; Rep. Sova, Graf 10; Sen. White, Dist 9; Sen. Carson, Dist 14
COMMITTEE: Education
ANALYSIS
This bill repeals and reenacts the home education statute and provides amended sections on the rights and duties of parents, notification and other procedural requirements, privacy, and due process. The bill also provides that the purposeful failure to provide home education shall constitute endangering the welfare of a child which shall be a violation for the first offense, and a class B misdemeanor for a second or subsequent offense. The bill also provides that failure to provide education shall not constitute neglect under the child protection act.
[Comment: This proposal is inequitable; public and private schools are not held to the same standard, nor are their teachers and administrators ever punished with $1200 fines and given criminal records for their failure to educate.]
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT amending the home education statutes.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Purpose. It is the natural and fundamental right and duty of parents to determine and direct the education of their children. The general court acknowledges that the primary and natural educator of a child is the family, and the general court respects the inalienable right and duty of parents to provide for the education of their children. Parents shall be free to provide this education in the manner and at the location of their choosing including their homes or in private schools or in schools recognized or established by their resident school district or by the state.
[Comment: the reference to “inalienable” rights is misleading. This bill describes what parents must do in order to be approved by the state, i.e. granted the privilege of home schooling their children, and under which conditions the state may rescind this privilege and find them guilty of a criminal offense.]
2 Home Education. RSA 193-A is repealed and reenacted to read as follows:
CHAPTER 193-A
HOME EDUCATION
193-A:1 Definitions. In this chapter:
I. “Child” means a child of compulsory attendance age as defined in RSA 193:1 and who is a resident of New Hampshire.
II. “Home education” means education directed by the parent or legal guardian of a child who is of compulsory school age as defined in RSA 193:1 and which may or may not be provided primarily in the home or by the parent.
III. “Literacy and self-sufficiency” means, at a minimum, basic reading, writing, and mathematics skills.
IV. “Nonpublic school” means any approved nonpublic school that has agreed to administer the relevant provisions of this chapter.
V. “Parent” means a parent, legal guardian, or other person having legal custody of a child.
VI. “Participating agent” means the superintendent of the resident school district or the principal of a nonpublic school.
VII. “Resident school district” means the school district in which the child resides.
193-A:2 Rights and Duties of Parents. It is the natural and fundamental right and duty of parents to direct the education of their children such that they become literate and self- sufficient commensurate with their age or ability.
[Comment: This is inequitable as public schools do not meet this standard, which is unconstitutional for vagueness. If a child doesn’t learn to read until age 9, is that child “illiterate” and unable to be provide for himself ? Unschoolers will need to remain underground.]
193-A:3 Notification and Other Procedural Requirements.
I. A parent may elect not to send a child to a public or nonpublic school in order that such parent may personally direct the child’s education. Such parent shall notify a participating agent of his or her decision to personally direct the child’s education in accordance with this section.
II. A parent shall submit written notification to the participating agent within 14 days of the date the child is withdrawn from a public or nonpublic school, or moves into the resident school district, or reaches compulsory attendance age pursuant to RSA 193:1. Notification shall include the name, address, and age of each child whose education is being personally directed by the parent pursuant to this chapter. No further notification shall be required unless home education is terminated for any period of time and subsequently resumed.
[Comment: Parents moving into a district over the summer or during the school year may inadvertently miss this arbitrary 14 day notification deadline, forfeit their “inalienable” right and be guilty of a criminal act.]
III. The parent shall notify the participating agent within 14 days if such child is no longer receiving home education pursuant to this chapter. If home education under this chapter is resumed, the parent shall submit written notice of the resumption of home education to the participating agent.
IV. The participating agent receiving notification under this section shall provide written acknowledgment of the notification within 14 days of receipt of the notification.
[Comment: Without a copy of this “acknowledgment” the parent’s program is not approved.]
193-A:4 Privacy. Records or information maintained by the participating agent or any other state agent under this chapter shall not be public records pursuant to RSA 91-A and shall not be released to any person or agency without the express written consent of the parent or legal guardian.
193-A:5 Due Process.
I. The superior court of the county in which the child resides shall have jurisdiction for an action relating to the failure of a parent or legal guardian to educate a child pursuant to this chapter.
II. Failure to provide home education as required under this chapter shall not constitute abuse or neglect as defined in RSA 169-C.
III. It shall be an affirmative defense to any state action alleging failure to provide an education under this chapter or any other allegation relating to the education of a child if the evidence demonstrates that a child is progressing towards literacy and self-sufficiency commensurate with the child’s age or ability.
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
IV. No parent shall be prosecuted for failing to provide home education to a child if any of the following circumstances exist:
(a) Composite results from an age-or ability-appropriate, nationally normed
standardized academic achievement or aptitude test showing the child at or above the fifteenth percentile. An appropriate test shall include a test that is within a 2-year grade range of the child when compared to public school students of the same age.
[Comment: Parents are still being held to a higher standard than public schools. This is not equal treatment.]
(b) A letter from a credentialed teacher stating that the child is making progress towards literacy and self-sufficiency commensurate with the child’s age or ability. The letter shall include a brief statement of facts on which the teacher relied in making the determination.
[Comment: A “credentialed” teacher is not defined, but is just another way of requiring a state approved education degree or teaching certification. Private schools are not given this requirement.]
(c) Educational materials showing that the child is progressing towards literacy and self-sufficiency commensurate with the child’s age or ability.
(d) Other relevant evidence showing that the child is progressing towards literacy and self-sufficiency commensurate with the child’s age or ability.
3 New Paragraph; Endangering the Welfare of a Child or Incompetent. Amend RSA 639:3 by inserting after paragraph I the following new paragraph:
I-a. A person is guilty of endangering the welfare of a child or incompetent if the person is engaged in providing home education to a child as defined in RSA 193-A and purposely fails to provide such education for the child.
[Comment: As far as courts are concerned, any curriculum that doesn’t meet state standards will be construed as “purposely” failing to provide an education. The curriculum establishes the parent’s intent; a lack of curriculum establishes criminal intent. Unschoolers will need to remain underground.]
4 Endangering the Welfare of a Child or Incompetent. Amend RSA 639:3, V to read as follows:
V. A person who endangers the welfare of a child or incompetent by violating paragraph III of this section is guilty of a class B felony. A person who endangers the welfare of a child or incompetent by violating paragraph I-a of this section is guilty of a violation for the first offense and a class B misdemeanor for a second or subsequent offense. All other violations of this section are misdemeanors.
[Comment: Courts won’t take what they’ll view as the equivalence of “truancy” seriously. They won’t want to waste court time with a higher standard of evidence as used in criminal cases. Courts will assume that whatever the state or the districts claim to be valid evidence for lack of any other standard. Parents will be proving their innocence of the “crime” of educational neglect, which is no longer just a civil violation.]
5 Child Protection Act; Definitions. Amend RSA 169-C:3, XIX(b) to read as follows:
(b) Who is without proper parental care or control, subsistence, [education as required bylaw] or other care or control necessary for his or her physical, mental, or emotional health, when it is established that his or her health has suffered or is very likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian, or custodian, and provided that a child who is deemed habitually truant as defined in RSA 189:35-a may, in the presence of other relevant factors, be considered to be without proper parental control; or
6 Cooperative School Districts; Costs of Capital Outlay. Amend RSA 195:7, II to read as follows:
II. Home education pupils who do not receive services from the cooperative school district [, except an evaluation pursuant to RSA 193-A:6, II,] shall not be included in the average daily membership relative to apportionment formulas.
7 Cooperative School Districts; Procedure for Formation. Amend RSA 195:18, III(e) to read as follows:
(e) The method of apportioning the operating expenses of the cooperative school district among the several preexisting districts and the time and manner of payment of such shares. Home education pupils who do not receive services from the cooperative school district [, except an evaluation pursuant to RSA 193-A:6, II] shall not be included in the average daily membership relative to apportionment formulas.
8 Cooperative School Districts; Procedure for Formation. Amend RSA 195:18, III(g) to read as follows:
(g) The method of apportioning the capital expenses of the cooperative school district among the several preexisting districts, which need not be the same as the method for apportioning operating expenses, and the time and manner of payment of such shares. Capital expenses shall include the costs of acquiring land and buildings for school purposes, including property owned by a preexisting district; the construction, furnishing, and equipping of school buildings and facilities; and the payment of the principal and interest of any indebtedness which is incurred to pay for the same or which is assumed by the cooperative school district. Home education pupils who do not receive services from the cooperative school district [, except an evaluation pursuant to RSA 193-A:6, II,] shall not be included in the average daily membership relative to apportionment formulas.
9 Compulsory School Attendance. Amend RSA 193:1, I(f)(2) to read as follows:
(2) Documenting the completion of a home school program at the high school level by submitting a certificate or letter to the [department of education] participating agent as defined in RSA 193-A:1, VI;
10 Effective Date. This act shall take effect upon its passage.
