Wednesday, February 2, 2011

HB 595: Bill Review of Parent-Directed Instruction

HB 595

Parent-Directed Instruction

1. Summary

Ideally, parents should not need a law to make homeschooling legal, it always has been legal. Parents have been instructing their children for thousands of years. Under duress of a heated legislative battle, many NH parents unwittingly supported a home education law in 1990. They didn’t understand that the right to instruct their children was theirs all along. They were fooled into thinking homeschooling was not legal and then struggled to make it legal.

This mistake reversed over 200 years of legal precedent in NH and allowed the state, for the first time, to regulate parents instructing children in their own homes. In the early days of our state parents were expected to instruct their children. If a parent failed to instruct his child and he became “unruly,” he was apprenticed to a master, who was responsible for his instruction.

In 1871, when NH's first compulsory attendance law enacted, parents were explicitly exempted when they provided instruction to their children “at home.” The compulsory attendance law was written for those children who were not being instructed by their parents. The compulsory attendance law did not apply to children who were being instructed by their parents. The legislature never declared the instruction of children by their parents, or by private schools or tutors for that matter, to be illegal.

Over the last 20 years parents have fought to remove this burdensome home education law, which was drafted by out-of-state unregistered lobbyists. Currently parents are facing yet another legislative assault on their rights, again drafted by out-of-state unregistered lobbyists, HB 301. Given this continued interference, parents must make sure that their rights are recognized. NH parents need for a good law recognizing the natural right of parents to determine and direct the education of their children. HB 595 provides this recognition and establishes “parent-directed instruction.”

2. Repeals RSA 193-A, NH’s Unconstitutional Home Education Law

The home education law makes inequitable demands of parents instructing their children. A resolution was submitted to the House in 1992 asking for an Opinion of the Justices on the constitutional problems in the current home education law. This resolution was never submitted to the court and has been ignored by the House for the last 20 years.

1992 HB 1470 (Rep. Donnalee Lozeau)

Draft Resolution

Requesting an opinion of the Justices concerning the constitutionality of RSA-193-A.

Whereas, there is pending in the house, House Bill 1470-FN-LOCAL, "An act relative to the education of children;" and

Whereas, doubt has arisen as to the constitutionality of the provisions of said bill and the provisions of current RSA 193-A; and

Whereas, it is important that the question of the constitutionality of said provisions should be settled in advance of the enactment of HB 1470-FN-LOCAL; now, therefore, be it

Resolved by the House of Representatives:

That the Justices of the Supreme Court be respectfully requested to give their opinion on the following questions of law:

1 Would the procedural, record keeping, and evaluation requirements imposed upon local districts by RSA 193-A:5 and RSA 193-A:6 constitute an illegal state mandated expense according to Part I, Article 28-a of the New Hampshire Constitution?

2 Would current RSA 193-A violate the guarantee of equal protection under the law, as guaranteed by common law, and under the Fourteenth Amendment of the United States Constitution and Part I, Article 12 of the New Hampshire Constitution, in that home educators are subject to far more stringent requirements and sanctions than public and other private educators? Such requirements and sanctions include, but are not limited to the following:

(a) Nonpublic schools can qualify for certification for the purpose of the compulsory attendance requirement, without curriculum requirements, as provided by RSA 186:11, XXIX, whereas home educators must have a defined curriculum and obtain approval annually as required under current RSA 193-A:4.

(b) Public and private school education programs are not terminated when students fail, whereas home education programs may be terminated for this reason as provided in current RSA 193-A:7.

(c) Current law does not hold public or nonpublic schools accountable for the educational achievement of their students, nor does it enforce the use of evaluation mechanisms to determine the worth or utility of a particular education program. Under current RSA 193-A:6 third party evaluations can cause the termination of a home education program.

(d) Current law does not require public or nonpublic schools to maintain a portfolio of each student's work for a period of 2 years after the work is completed, but home educators are required to do so under current RSA 193-A:6.

3 In regard to question 2(a), would RSA 193-A:4 constitute, contrary to the common law principle of presumption of innocence, a presumption of guilt of educational neglect on the part of a home educator without probable cause, let alone beyond a reasonable doubt? Such a presumption is not made with respect to other private educators.

4 In regard to question 2(d), would RSA 193-A:6 violate Part I, Article 15 of the New Hampshire Constitution, in that it constitutes a requirement that a home educator maintain a file of evidence that could be used against him in a court of law?

5 Would RSA 193-A:5, I, violate Part I, Article 4 of the New Hampshire Constitution, in that it grants the Commissioner of Education final authority over what is to be taught to a child, possibly in contradiction of a parent's constitutional rights of conscience?

6 Would the requirement in current RSA 193-A:6, III, that a child "demonstrate educational progress for age and ability at a level commensurate with his ability" or the requirement in current RSA 193-A:7, I, that if there be "written and substantiated information that strongly implies that a home education program will not meet [certain] requirements," constitute, under common law, unenforceable vagueness, or violate the Fifth and the Fourteenth Amendments of the United States Constitution and deprive home educators of the right to provide home education without due process of law because the statute is unconstitutionally vague?

That the Clerk of the House of Representatives transmit copies of this resolution and copies of HB 1470-FN-LOCAL and the proposed amendment thereto to the Justices of the New Hampshire Supreme Court.

3. Permits Parent-Directed Instruction Programs

It is the primary responsibility and duty of parents, not the state, to instruct children in the manner and at the location of the parent’s choosing. This parent-directed instruction should be considered foremost in education law, specifically RSA 193:1, where it considers the “duty of parents.” All options, available to parents, such as public or private instruction, are secondary to the natural right and duty of the parent to provide instruction to his child.

It makes no difference whether it’s a parent, guardian, or person having legal custody of a child. Unless restricted by the court, all parents have the natural right and duty to determine and direct the instruction of their child.

Parents are not a minority. All parents have these rights and may exercise them at any time. Parents, who exercise these rights, must not be discriminated against based upon the number of parents, who may or may not be exercising these rights at any one time. These are universal rights of all parents.

4. Guarantees the Natural Right of Parents

Any legitimate authority that the state exercises over education originated from the people. We the people have certain inherent rights. We can delegate them to the state or we can take them back.

The right to instruct our children is not a privilege granted by the state upon request to a minority of parents, called homeschoolers, but the natural right of all parents.

5. Notification or Approval Should Not Be Required to Exercise One’s Duty to Instruct his own Child

While most parents are courteous and will be more than happy to notify the district regarding their plans for their children’s instruction, this should not be a legal requirement to do so. Only certain parents are being required to “notify” or seek state approval. Such laws are inequitable.

Equal treatment should be guaranteed to all parents. If parents of private school children do not have to notify the district of their instructional plans for their children, then parents instructing their children themselves should not have to provide notification either.

Incidentally, attendance registers submitted to the state from public and private schools do not list the names of the children in attendance. They only provide overall numbers of students per grade level.

6. “Compulsory Attendance” Upon Instruction Is Not “Compulsory Education”

Currently, only home educators have “compulsory education” requirements, demonstrating the academic progress of their children. All other educators need only satisfy “compulsory attendance” requirements, which mandate that a child attend instruction for 180 days of the year.

No requirements are placed upon parents or teachers of these students to demonstrate a certain level of academic progress under penalty of termination of their program. Only home educators must meet this standard. This is not equal treatment, which all parents are guaranteed by the constitution.

7. Eliminates Adversarial Relationships between Parents and Districts

Removing notification-based approvals and “affirmative defense” evaluations eliminates the adversarial relationship between parents and their district. This improves the academic opportunities for parent-instructed children. Parents will no longer fear negative repercussions should they seek assistance for their child in a particularly difficult subject. It is in everyone’s best interest to improve this relationship for the sake of the children.

8. Encourages the Interests of Literature and the Sciences, but Imposes No State Curriculum

HB 595 encourages, without requiring, that parents instruct their children using the subjects and virtues articulated in the NH Constitution, Pt. II, Art. 83. This imposes no state curriculum upon parents and their children. This places no inequitable requirements based upon the outcome of this instruction.

HB 595 is less restrictive than HB 301. It proposes no requirement to inequitably demonstrate academic progress; it requires no “affirmative defense” shifting the burden of proof upon parents; and it makes no demand upon the acquisition of the assessments should the parent-directed instruction be called into question.

9. Highest Due Process Protection

HB 595 places jurisdiction with the Superior Court. It guarantees due process and does not conflate this issue with an “affirmative defense.” It carefully delineates a parent’s right to due process and all the constitutional protections that that implies. It specifies that the burden of proof will be “beyond a reasonable doubt” which provides the highest level of protection to the parent.

HB 595 exempts parent-directed instruction from charges of educational neglect and from truancy laws. Parent-directed instruction does not have any compulsory attendance requirements. It is exempt.

No criminal charges will be placed upon parents under HB 595. If a parent fails to instruct his child, then the compulsory attendance law provides the parent with academic alternatives for the child’s instruction. The state will not mandate the use any particular alternative method of instruction. It is the parent’s duty to make this determination. It is a straightforward matter and not one that requires great deal of controversy and certainly not criminal charges.

10. Helps Children with Learning Disabilities

There are no arbitrary and inequitable hurdles in this bill for children with learning disabilities. Children who score at or below the 15th percentile will not cause their parents to be charged with “failure to educate.” All children deserve the opportunity to be instructed by a caring parent, not just those who are apt learners.

11. Helps Parents Who Use Innovative Approaches to Learning

HB 595 does not adversely affect unschoolers with their unconventional approach to learning. Unschooling provides a very effective method of showing children how to direct their own learning under the mentorship of their parents. Innovation in learning should not be compromised by arbitrary and inequitable state requirements.

12. Helps Parents Who Believe that Learning is “Better Late Than Early”

For some children it can be advantageous to provide certain instruction later in the child’s development. This allows the child’s brain to fully develop and the child is not stigmatized by early failed attempts at mastery. Such children learn later in life, but often enjoy the process of learning more as they were not forced before their bodies were physically capable of processing the information. Remarkably enough these children often perform just as well as early learners quite soon after their instruction begins. Without “affirmative defense” evaluations and the worry over criminalization, parents can make choices that are in the best interest of their child, not the state.

13. NH is Currently One of the Most Heavily Regulated States for Homeschooling

Consider that 10 states have no regulation on home instruction (AK, CT, ID, IL, IN, MI, MO, NJ, OK, TX); 13 states only require notification (AL, AZ, CA, KS, KY, MS, MT, NE, NV, NM, UT, WI, WY). Given the size of CA and TX, that's nearly half of the country where home instruction has no state regulation. These children aren't falling into an educational abyss.

The problem is that NH is surrounded by states (MA, NY, PA, RI and VT) with very burdensome regulations. Flipping a state from burdensome to freedom oriented isn't easy, but it's especially difficult in New England.

Should the natural right of parents to instruct their children be recognized once again in NH in keeping with our tradition? Or are parents basically untrustworthy, sinful creatures as certain sectarian and exclusive homeschooling groups posit, who need constant regulation by an elite who know best what constitutes a proper education for everyone else’s child? This is the fundamental question: freedom for parents or increased state control.

14. This Proposal was Developed Openly by NH Parents

HB 595 was developed by parents belonging to the NH Homeschool Defense League . It is the only non-sectarian inclusive statewide politically active homeschooling group in New Hampshire.

NH Parents First and NH Families for Education support HB 595.

NH Homeschool Defense league did not shut out anyone during the process of developing this bill. The proposal was developed online. The process was open and transparent. Copies of this proposal were offered to those drafting HB 301 at all times.

By contrast, HB 301 was drafted by out-of-state unregistered lobbyists. Parents asked repeatedly for copies of this proposal but were told that copies were unavailable, despite the fact that these unregistered, yet self-admitted lobbyists were already lobbying NH legislators for their support.

15. Conclusion

HB 595 restores the rights of all parents, which were abridged and compromised in 1990. It allows all parents, including those who have remained underground for 20 years while confronted with an equitable law, to openly instruct their children.