Public Hearing -- Tuesday February 8th -- All Day Schedule

Public Hearing on Tuesday, February 8th.

Representatives Hall in the State House in Concord (Exit 14 off Rt. 93)

It is extremely important for parents to attend these hearings even if they do not wish to speak. Indicate your support or opposition on the committee sign-up sheets for these bills.

Those, who wish to speak, should fill out a pink card at the hearing. Given the tight schedule, the committee may have to schedule a follow up hearing to listen to all the testimony.

You can also let the House Education Committee members know what you think about these bills. by contacting them individually. Contact information to email or phone House Education Committee members.

10:30 am ---> HB 545 –sponsor Rep. Bates

· Repeals DoE rulemaking authority for RSA 193-A.

· Eliminates HEAC.

HB 545: Eliminating the HEAC is good, but eliminating DOE rulemaking opens Pandora's box. This bill eliminates open public discussion of the rules and eliminates review by the BOE and JLCAR; in its place there will be district disparity, litigation and court rulings to define our current inequitable home education law. If DOE rulemaking is bad, then eliminate it for everyone, not just homeschoolers. Equal treatment for all.

Increases the likelihood of litigation as hostile districts will misinterpret the law just like they did in the 1980’s and parents will have no recourse.

The BoE and the JLCAR committee provides the oversight to DoE rules.

Better to have oversight for the rules than chaos at the district level implementing this inequitable Compulsory Education law.

1:00 pm ---> HB 301-FN -- sponsor Rep. Parison

· Criminalizes homeschoolers

· Retains the regulatory framework of RSA 193-A (Compulsory Education)

HB 301: Provides an inequitable playing field for parents and insufficient direction to the court. By requiring notification there is no respect of the parent's natural right to instruct. Also, there should be a presumption of innocence for homeschooling parents, not guilty until proven innocent. The result of this unconstitutional proposal will be court rule as judges will not tolerate "no termination" for repetitive failure to educate.

2:00 pm ---> HB 595 -- sponsor Rep. L. Jones

· Repeals RSA 193-A (Compulsory Education)

· Recognizes Parent-Directed Instruction (Compulsory Attendance)

HB 595: Provides an equal playing field for parents and clear direction to the court. Termination is simple and straightforward when a parent fails to instruct his child. There is no need for an "affirmative defense" or the pretense of "privacy" as the child is not subject to invasive scrutiny to determine the level of his enlightenment. The burden of proof is on the state to prove that the parent is not providing any instruction.

3:00 pm ---> HB 631-FN-L -- sponsor Rep. Maltz

· Repeals mandatory Kindergarten.

Hundreds of parents and teachers may come to testify on this bill.

Comparison of 2011 Amended Legislative Proposals

Comparison of 2011 Proposals
	Parent-Directed Instruction HB 595	Home Education HB 301
Sponsors (* home schoolers)	*Rep. Laura Jones *Rep. Andrew Manuse Rep. Seth Cohn Rep. Al Baldasaro Rep. Carol Vita Rep. Harry Accornero Rep. Kevin Avard Rep. Stephen Palmer Rep. Tyler Simpson	*Rep. Jim Parison Rep. Paul Mirski Rep. Charles Sova
	Sen. Jim Forsythe Sen. Ray White Sen. Jim Luther	Sen. Ray White Sen. Sharon Carson
Constitutional	Yes	No
Parental duty to instruct child	Recognizes “parental-directed” instruction	State approval required to initiate “home education” program -------------------------------- Notification & Acknowledgement procedure to obtain approval
Compulsory education	Not required Equitable Duty to instruct similar to public and private schools	Required Inequitable Exceeds public or private school requirement Proof of educational progress can be required of parents
Compulsory attendance law	Not applicable to parents instructing their children Parent-Directed Instruction	No change
Subject listed	Subjects provided to “encourage” instruction as designated in NH Const. Pt. II Art. 83, not to restrict parents to any particular curriculum or methodology. It provides reassurance that parents understand the broad scope of their undertaking.	Subjects required: reading, writing and mathematics.
Home Education law	Repeals	Amends
Due Process	Innocent until proven guilty	Requires “affirmative defense” compromising due process -------------------------------- Parent is guilty until proven innocent
Inequitable requirements	None	Parents held to a higher standard than public or private school teachers, including criminal prosecution -------------------------------- Requires “affirmative defense”; parent is guilty until proven innocent -------------------------------- Specifies ways to demonstrate “progress towards literacy and self-sufficiency commensurate with the child’s age or ability”: -------------------------------- 1. 15th percentile on standardized achievement test -------------------------------- 2. Letter from “credentialed” teacher -------------------------------- 3. Educational materials -------------------------------- 4. Other relevant evidence
Jurisdiction	Superior Court	Superior Court implied by repeated use of the term “prosecution,” which most commonly is used in criminal law
	Civil law	Criminal law
Burden of Proof	Highest standard: Beyond a Reasonable Doubt Reasonably close to 100%	None specified
Discovery		Parents have to provide their affirmative defense in advance of the proceedings
Charges	Violation	Violation, after two warnings
Fines	None	Up to $250 for 1st offense; Up to $1000 for 2nd offense
Termination of program	Failure to instruct results in termination and parent chooses public or private school alternative.	Never terminated; without judicial remedy additional charges may be added to protect the child, such as “Endangerment” or “Neglect”
Endangering the Welfare of a Child or Incompetent	Not applicable under civil law.	Applicable under criminal prosecution for “failure to educate” or “knowingly” violates a provision in the law, such as “notification” -------------------------------- Any curriculum that doesn’t meet state standards can be construed as “knowingly” failing to provide an education. A curriculum establishes intent; a lack of curriculum establishes criminal intent. -------------------------------- Unschoolers will need to remain underground.
Truancy	Exempt	Exempt
Child Protection: Educational neglect	Exempt	Exempt, but charges may be used to find judicial remedy
Privacy	No need to disclose private information	Explicit privacy, which is moot under “affirmative defense”
DOE Rulemaking	Allows Prevents district misinterpretation and rule by court decree	Eliminated Will result In increased litigation and require more frequent legislative remedy
Statement of Purpose	It is the natural right and duty of parents to determine and direct the instruction of their children for their education.	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 instructor of a child is the parents, and the general court guarantees the right and duty of parents to provide for the instruction 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 instruction 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 or in other places where instruction can be given.	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.
Unschoolers And Learning Disabled Children	No problem	Unless parents can “prove their innocence,” they are guilty of a criminal offense. Will need to remain underground
Underground Families	No Problem	Unless parents can “prove their innocence,” they are guilty of a criminal offense. Will need to remain underground.

HB 301: Proposed Amendment #2

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."

__._,_.___

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.

Changes Made to HB 301, But Not to its Intent, and Possibly Not to its Effect

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.