National Home Education Legal Defense
Attorney Deborah G. Stevenson
Executive Director
P.O. Box 704, Southbury, CT 06488
2/3/2011
Changes are Made to the Text of HB 301, But Not to its Intent, and Possibly Not to its Effect
It is the nature of drafting legislation that changes to language and amendments almost always are made before any bill becomes final. Often, the amendments are minimal; sometimes they are substantive. When looking at amendments, the most important question is: how do the amendments affect the overall intent of the bill? With that in mind, the following comments are offered regarding the most recent amendments to HB 301.
First of note is the language immediately below the title HB 301. It states, “Bill Draft Amendment – (not final).” If the document distributed is only a draft, then, how is anyone to assess what actually will be voted on by the legislators? In addition, does the phrase, “(not final)” mean that even if the document is no longer a draft that it is not the final amendment that will be proposed? These are questions that should be posed to the proponents of the amendment.
As for the changes in the language within the document, the first was made in the definitions section. Originally in HB 301, “literacy and self-sufficiency” was defined as meaning “at a minimum, basic reading, writing, and mathematics skills.” That was amended to eliminate the phrase, “at a minimum”. The bill also retains another provision indicating it is the duty of parents “to direct the education of their children such that they become literate and self-sufficient commensurate with their age or ability.
Certain changes also are made to the notification and procedural requirements section of HB 301in the draft amendment. Eliminated is the provision that notification shall be made within 14 days of a parent’s decision “to personally direct the child’s education in accordance with this section”. Still remaining is the provision to provide notification that the parent will be educating the child “in accordance with this section”, and that notification is to take place upon making the decision to “personally direct the child’s education” and each time the “home education is terminated for any period of time and subsequently resumed.” Unstated is what is to occur to a parent should the parent, for whatever reason, does not provide that notification. It is reasonable to infer that if the parent does not provide the notification, they could be found in violation of this section.
The “due process” section of HB 301 also is changed in the draft amendment. It is unclear, however, why the proponents eliminate the section stating that 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”, when the proponents retain the following section that a parent may be prosecuted if “probable cause exists to show a parent is knowingly violating a requirement under this chapter.” One can reasonably infer that if a parent is “prosecuted” for a “violating a requirement under this chapter”, the “prosecution” necessarily would take place in the superior court. The elimination of reference to the superior court in the bill, therefore, appears to be meaningless.
The proponents also made a change to the “affirmative defense” section of the bill. It originally read, “It shall be an affirmative defense to any state action alleging a 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.” The proponents have eliminated the phrase, “failure to provide an education”, and replaced it with the phrase, “a violation”. Under this change, “if the evidence demonstrates that a child is progressing towards literacy and self-sufficiency commensurate with the child’s age or ability”, “it shall be an affirmative defense to any state action allegation a violation under this chapter or any other allegation relating to the education of a child”. Similarly, the proponents have changed the following sentence, “No parent shall be prosecuted for failing to provide home education to a child if any of the following circumstances exist:…” Gone is the phrase “prosecuted for failing to provide home education to a child”, and instead the sentence reads, “No parent shall be found guilty of a violation under this chapter if any of the following circumstances exist…” In essence, under the bill, parents still may be “prosecuted” for a “violation” under this chapter or for any other allegation relating to the education of a child, if the child is not “progressing towards literacy and self-sufficiency. In fact, before the changes were made, it would appear that the “prosecution” could take place only for a “failure to provide an education” under this chapter, whereas, with the changes, it would appear that any violation may be sufficient to trigger “prosecution”, notwithstanding the fact that parents could raise the “affirmative defenses” enumerated in the bill.
Originally, HB 301 also contained a provision inserting a new paragraph into a separate criminal statute, RSA 639:3 defining a person “guilty of endangering the welfare of a child” to be a person “engaged in providing home education to a child” and “purposely fail[ing] to provide such education for the child.” That amendment eliminates that section entirely. It also eliminates the section stating, “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.” It is unclear, however, if a parent may not be found guilty of neglect for a violation of this chapter, but the parent, nonetheless, may be “prosecuted”, a term traditionally used in the criminal context, and may assert the “affirmative defenses” listed, also a term traditionally used in the criminal context, will a court construe the provisions of this bill allowing “prosecution” to be construed in such a way that parent necessarily will be found to be “endangering the welfare of a child”?
Finally, the proponents also have add a provision 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…” It is reasonable to infer from this addition that this section applies to the home education of a child in some manner. It is also reasonable to infer that the proponents intend that a child of a parent who provides home education in violation of this chapter may be deemed habitually truant, or, that such a child may be considered to be without proper parental control. If the child is considered to be without parental control, it would appear that the parent may be considered neglectful.
Furthermore, while certain changes have been made within the text of the bill, it does not guarantee the rights of parents to direct the education of their child, and it does not include any provision that parents will be treated equally in accordance with Constitutional principles. In fact, it appears that the overall intent of HB 301 remains intact. The individual freedom and inherent right of parents to direct the instruction of a child takes a backseat to the interest and direction of the state. HB 301, despite the changes, still imposes state oversight and control over parents, encouraging them to obtain evidence of their child’s progress in accordance with arbitrary standards set forth by the state, and allows for “prosecution” of parents.
