Rep. Parison's latest amendment is extremely unclear and confusing.
The yellow highlights mark changes from the previous amendment. The full amendment is provided below.
Here is the most confusing section:
I. Failure to provide home education as required under this chapter shall not constitute abuse or neglect as defined in RSA 169-C or endangering the welfare of a child as defined in RSA 639:3. A parent may not be prosecuted for a violation under this chapter unless two warnings have been issued and probable cause exists to show a parent is knowingly violating a requirement under this chapter.
If he's trying to remove "abuse or neglect" and "endangering the welfare of a child" as offenses that can be charged against parents who have "failed to provide home education," then for what exactly are parents to be prosecuted? When the court finds these parents have "failed to provide home education," of what are these parents guilty?
Who prosecutes, under what statute - criminal or civil - for what exactly, in what court, and a finding of guilty means what?
If the statute is vague, either it leaves the door open to a court's interpretation in unknown numbers of ways, or, it is void for vagueness and unconstitutional.
As it stands, it is either poorly drafted, or intentionally left vague so that it could be interpreted liberally leaving the possibility that a parent could be sanctioned criminally under child endangerment or by DCYS, or whatever.
Courts will not allow parents to "fail to educate" their children and pay fines indefinitely.
Parking tickets can be issued and paid endlessly, but drunk driving and speeding tickets, which threaten the welfare of others, are not issued endlessly. Generally, the driver's license is revoked.
"Failing to educate" children will not be viewed favorably by the courts; children cannot be "parked" and forgotten while parents pay endless "fines."
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Rep. Parison, Hills. 3
February 3, 2011
2011-0181h
04/10
Draft Amendment to HB 301-FN
Amend the bill by replacing all after the enacting clause with the following:
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.
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 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.
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 within 30 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.
III. The parent shall notify the participating agent within 14 days of discontinuing a home education program. If home education under this chapter is resumed, the parent shall submit written notice of the resumption of home education to the participating agent.
III.V. The participating agent receiving notification under this section shall provide written acknowledgment of the notification to the parent within 14 days of receipt of the notification.
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. Failure to provide home education as required under this chapter shall not constitute abuse or neglect as defined in RSA 169-C or endangering the welfare of a child as defined in RSA 639:3. A parent may not be prosecuted for a violation under this chapter unless two warnings have been issued and probable cause exists to show a parent is knowingly violating a requirement under this chapter.
III. It shall be an affirmative defense to any state action alleging a violation 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.
III.V. No parent shall be found guilty of a violation under this chapter 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.
(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.
(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 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, 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, or
4 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.
5 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.
6 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.
7 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;
8 Effective Date. This act shall take effect upon its passage.
2011-0181h
AMENDED 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 failure to provide education shall not constitute neglect under the child protection act or endangering the welfare of a child under RSA 639:3.
