Wednesday, February 2, 2011

Increased Freedom or Increased State Control?

National Home Education Legal Defense

Attorney Deborah G. Stevenson

Executive Director

P.O. Box 704, Southbury, CT 06488


Parents in New Hampshire Have a Choice: Increased Freedom or Increased State Control.

Parents in New Hampshire, as well as legislators, currently are struggling with the issue of whether to strengthen the right of parents to homeschool, and if so, how much state interference with that right is necessary, if at all.

There appears to be one faction that believes the state should intervene only when parents do not undertake their responsibilities; and another faction that believes that the state should intervene even when parent are undertaking their responsibilities. It also would appear that the content of two major homeschooling bills currently being proposed, HB 595 and HB 301, reflect these two opposing viewpoints.

While both bills have as their stated purpose reinforcing the rights of parents, the actual language used describe two divergent viewpoints. For example, the purpose section of HB 595 describes four main points: (1) that it is the “natural right and duty of parents to determine and direct the instruction of their children”; (2) that the “general court acknowledges the primary and natural instructor of the child is the parents”; (3) that the general court “guarantees the right and duty of parents to provide for the instruction”; and (4) that “parents shall be free to provide this instruction in the manner and location of their choosing, including…in other places where instruction can be given.”

The purpose section of HB 301 also describes four main points, but uses certain different terms to describe them: (1) that it is the “natural and fundamental right and duty of parents to determine and direct the education of their children”; (2) that the general court acknowledges that the primary and natural educator of the child is the family”; (3) that the general court respects the inalienable right and duty of parents to provide for the education of their children”; and (4) that “parents shall be free to provide this education in the manner and at the location of their choosing” including only in “their homes, or in private schools or in schools recognized or established by their resident school district or by the state”.

When the language differs, one must ask why, and what is the purpose of each? It is reasonable to infer that the language in HB 595, using terms as “instruction”, “instructor”, “guarantees”, and “other places” focuses on the ability of parents to actually provide the teaching of lessons to the child, emphasizes that the right will be absolutely ensured by the state, and provides that the teaching may occur in a wide variety of places. Similarly, it is reasonable to infer that the language in HB 301, using terms as “education”, “family”, “respects”, and the omission of “other places”, focuses on something other than the teaching of lessons; includes more than just parents; respects, but does not provide absolute assurance, that the state would uphold parental rights; and that education is to occur only in certain places and not others. Given these language differences, it is reasonable to infer that the purposes are distinctly different. While the overall goal might be similar: to preserve the rights of parents, clearly there are distinctions in what those rights are, and how they are to be preserved.

Review of the remainder of the text in the proposed bills also reveals clear distinctions.

HB 595 appears to impose three separate and distinct duties upon parents, all in the alternative. Parents are required either to: (1) instruct their children, (2) cause their children to be instructed, or (3) cause their children to attend public school. In other words, first and foremost, parents are required, by law, to instruct their own children. If parents are not instructing their own children, then parents are required, by law, to cause the children to be instructed by someone else, perhaps a tutor or a private school. If parents are not instructing their own child, and are not causing the child to be instructed, then, the parents are required, by law, to cause the child to attend the public school. This appears to be a very simple, straightforward mandate, not easily prone to misinterpretation.

HB 595 then details what is expected, or required, of parents who undertake their first obligation and instruct their own child. Of the more important provisions of the bill, HB 595 specifies that parents are “encouraged” to provide instruction in certain particular subjects, which would be listed in the statute. HB 595 does not require any particular curricular materials or methods of instruction to be used, and it does not require any evaluation of the child to determine the child’s progress. The bill simply defines "parent-directed instruction" as “instruction determined and directed by the parent or guardian of a child who is of compulsory school age.” The bill also does not subject parents to any penalties if the children are not achieving certain levels of progress in their studies. Essentially, HB 595 appears to leave decisions about how to teach the child, and the child’s achievement levels, solely up to the parents.

HB 595 also contains provisions to eliminate from the Child Protection Act the failure to provide “proper education” as a basis of neglect, and includes in the truancy statute a provision indicating that no child in a parent-directed instruction program shall be deemed truant. In addition, HB 595 adds certain limitations on state action regarding neglect proceedings. For example, the bill provides that the state “shall not interfere with the natural right of a parent to instruct his or her child unless the state has probable cause to believe that a parent involved in a parent-directed instruction program is found to have neglected his or her child’s instruction.” It provides that if such probable cause is found, then the state may investigate to determine if there is sufficient evidence to proceed, and that the state shall only proceed in accordance with the Constitutional provisions for due process, a fair trial, and the presumption of innocence. It also provides that parents shall not be compelled to submit evidence to prove their innocence, that no negative inference may be made when parents do not submit evidence, and that the state must submit evidence proven beyond a reasonable doubt before parents may be found guilty of neglect. The bill adds that if parents are found guilty of neglect by failing to provide the child with parent-directed instruction, the state shall not remove the child from a parent’s custody based on any allegation or finding of neglect, and “only under extreme cases of neglecting a child’s instruction” may the court order the child to attend public school. It also provides that “all laws or rules adopted to regulate education shall be consistent with the equal protection provisions of the United States Constitution and the New Hampshire Constitution.”

On the other hand, HB 301 does not set forth separate and distinct duties of parents. HB 301, instead, provides that a parent “may elect not to send a child to a public or nonpublic school in order that the parent may personally direct the child’s education.” The manner in which this bill is worded leads to the reasonable inference that the state, first and foremost, remains in control of a child’s education, and the state is allowing the parents an exception to state control, but only under certain circumstances. HB 301 provides that parents “may elect not to send a child to public or nonpublic school” but only if such parent “shall notify a participating agent of his or her decision to personally direct the child’s education in accordance with this section.” That section of the bill goes on to say that the parent “shall submit written notification to the participating agent”, [the bill defines “participating agent” as “the superintendent of the resident school district or the principal of a nonpublic school”], within 14 days of the date the child is withdrawn from a public or nonpublic school, or moves in the school district, or reaches compulsory attendance age…” The bill also specifies that if “the home education is terminated for any period of time and subsequently resumed”, notification again is required, at termination and at resumption. The bill also specifies, “the participating agent receiving notification under this section shall provide written acknowledgment of the notification within 14 days of receipt of the notification.” The bill appears also to presume that the school district and the state will keep records but that “records or information maintained by the participating agent or any state agent under this chapter shall not be public records…and shall not be released to any person or agency without the express written consent of the parent or legal guardian.” The bill defines “home education” as “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.”

HB 301 also contains a section concerning due process. Instead of providing increased Constitutional protections for parents, however, HB 301 appears to provide that parents may be criminally sanctioned for failure to abide by the law. [At this writing, there has been some suggestion that this section will be amended, but the analysis is undertaken on the basis of the originally drafted bill, since the amendment is unavailable to the general public.] The bill does so by first stating that “failure to provide home education as required under this chapter shall not constitute abuse or neglect as defined in RSA 169-C”. The bill then states, however, “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.” It would appear by that language, then, that while “failure to provide home education” shall not constitute abuse or neglect, nonetheless, by implication it may constitute a violation of other statutes, which are not specifically noted. It would appear also by that language, that the violation of the law would consist not only of failure to provide the home education, but also failure of the child to progress at certain designated levels commensurate with the child’s age or ability. HB 301 defines “literacy and self-sufficiency” as “at a minimum, basic reading, writing, and mathematics skills.” Insertion of the phrase, “at a minimum” would appear to leave it open for further interpretation as to what else could constitute “literacy and self-sufficiency”.

Furthermore, HB 301 does not appear to include any provision in this section regarding the presumption of innocence. In fact, in this case, if an allegation is made, the parent is placed in the position of presenting an affirmative defense to the allegation by proving the progress of the child. Moreover, the proponents of this bill chose not to insert into it any reference to requiring the state to prove its case against the parents by a reasonable doubt. It is reasonable to infer that the state may be able to prove its case only by the preponderance of the evidence, a lesser standard of proof. In addition, in a criminal prosecution, it is possible that the state may be able to obtain discovery from a parent, thus, requiring a parent to provide evidence of the home education and the progress of the child.

HB 301 also frames this portion of the bill by stating that there are certain exceptions to prosecution of parents for failure to provide home education. By framing the bill in that manner, one reasonably could infer that the “norm” is prosecution of parents. The bill states, “no parent shall be prosecuted for failing to provide home education 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” [defining an “appropriate test” as one that “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.”];

(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”, stating the facts upon which the teacher relied;

(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.”

One reasonably could infer from this language that not only is prosecution the norm, but also that a parent who wants to avoid prosecution for “failure to provide home education” would be wise to obtain those documents listed. Therefore, this bill seemingly encourages parents to the take steps necessary to obtain those documents, in order not only to avoid prosecution, but also to prove their innocence should prosecution occur. In addition, it is a reasonable inference that one would need to provide this information to a state official of some kind, in some manner, at some point in time, simply to avoid such prosecution. How, when, or where that would occur is unclear.

In addition, immediately following this section in the bill, there is a new paragraph that subjects homeschool parents to criminal sanctions. This portion of the bill amends RSA693:3, the Endangering the Welfare of a Child statute, by adding two sections defining the crime and imposing criminal sanctions against parents. In the first section, labeled as section “I-a”, a person who is “guilty of endangering the welfare of a child or incompetent” is defined as a person “engaged in providing home education to a child as defined in RSA 193-A and purposely fails to provide such education to a child.” In the second section, the penalty for that crime is described, as follows: “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.”

This is very different from the provisions in HB 595. In HB 595, homeschool parents are not subject to criminal sanctions. Under HB 595, homeschool parents who fail to instruct their child, or who fail to cause the child to be instructed, are subject to due process procedures in court which may result in a judicial decision that the child must return to public or private school, but the parents are not criminally sanctioned. In addition, in HB 595, the due process procedures are specific in that they provide for the presumption of innocence of the parents until proven guilty by the state beyond a reasonable doubt, and they provide that parents are not required to submit evidence proving their innocence, just as any other defendant, even in a criminal context, is not required to submit evidence to prove his innocence.

Under HB 301, however, there appears to be no provision regarding the presumption of innocence, and no reference to proof beyond a reasonable doubt, no reference to other Constitutional rights of the parents, and no reference to whether or not parents face potential loss of custody of their child based on any finding of neglect. In HB 301, in fact, under the “affirmative defense” section, parents likely would be required to submit evidence that their child “is progressing towards literacy and self-sufficiency”, or that one of the other “exceptions” apply, in order for the parents to prove their innocence. If they do not provide such evidence, they risk, at the very least, being found guilty and having a criminal record. In addition, even if the parents were providing home education but they had no evidence that the child “is progressing towards literacy and self-sufficiency”, under HB 301, those parents could be found guilty of endangering the welfare of a child and have a criminal record.

There are also certain other provisions of HB 301 that are notable. One such provision is the amendment of the Child Protection Act. As does HB 595, HB 301 eliminates “proper education” as a basis of neglect, but HB 301 omits any provision stating that a child who is receiving parent-direction instruction may not be considered truant. Instead, it adds a provision that says 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”. All of the provisions of both bills need careful consideration in the current debate.

It is easy to become involved in bickering over words and phrases in any proposed bill. The key is to look at the overall intent of the legislation and whether the component parts of the bill serve to implement that intent. Looking at the intent of these two bills, it becomes apparent that one bill, HB 595, is attempting to reassert the individual freedom and inherent right of parents to direct the upbringing and instruction of their own children through legislative guarantees, reference to Constitutional provisions, and the imposition of three clear choices for parents, including a legal remedy for the state to compel parents to send their child to public school if the parents fail to undertake their right and obligation to instruct their child or cause the child to be instructed. Similarly, it becomes apparent that the other bill, HB 301, is attempting to acknowledge and show respect for the rights of parents, while simultaneously maintaining state oversight and control over them, encouraging parents to obtain evidence of the child’s progress to avoid prosecution, and imposing new criminal sanctions on parents for failure to provide home education.

Under these circumstances, parents in New Hampshire, and legislators, must carefully consider which of these two clearly distinct choices are best: increased freedom for parents, or increased state control? The choice is yours.