How S4767 Came To Be

History and Reasons

S4767 had its genesis a couple of years ago when the former LEAH president, Mr. Paul Matte, went to Senator Kuhl, Chair of the Senate Education Committee, and requested that he ask the Commissioner of Education to significantly relax the homeschool regulations, S100.10. Prior to this, Mr. Matte had worked with the Senator to try to get him to include some exclusionary language in the Compulsory Age expansion bill that the Senator was working on. This language, provided by HSLDA, would not only have excluded homeschoolers from the compulsory age expansion, but would also have exempted home educators from all compulsory attendance laws. Unfortunately, Senator Kuhl did not agree to include such language.

In any case, Senator Kuhl did write several times to Commissioner Mills requesting regulatory relief and the bottom line was that Commissioner Mills summarily refused to consider any such relaxation of the regulations. This refusal animated Senator Kuhl such that he decided to draft a bill. As his aide Peter Appleby told me: “We in the legislature only have two options. When the moral persuasion option fails, we make laws.” Indeed, Senator Kuhl told me himself that many legislators find it very frustrating to work with the Commissioner and the SED bureaucracy because, outside of passing laws, the NYS Constitution puts him beyond effective, direct accountability to the legislature. (He is hired by the Regents, which in turn are appointed, a few each year, by a joint session of the legislature, which is controlled by the Democrats, which in turn are largely controlled by the educational lobby. Because of this, he is even less accountable to the citizenry of New York.)

The first draft of S4767 in early 2001 was nothing more than a strawman, that is, a proposal designed to be changed, to be picked apart. For the strawman, Senator Kuhl had the legislative bill writers do a complete codification of the current regs. Senator Kuhl then invited input from all NYS homeschoolers. “Tell me what you don’t like about the regs and we will turn this draft into the bill that you want.” Senator Kuhl also tried to determine what was politically feasible in the current legislature, that is, the most reduction in homeschool requirements he could possibly get through both houses.

Senator Kuhl received input from many NYS homeschoolers, including LEAH, and the Home School Legal Defense Association, HSLDA, and others. (HSLDA does have between two and thee thousand member families in New York, whom they represent both as legal and legislative advocates.) However, because this first draft was nothing more than a recapitulation of the regs, it immediately left a bad taste in many people’s mouths, and set off alarms. Hence, some homeschoolers wanted nothing to do with the process, refused to cooperate, and provided no input.

In the spring of 2001, the current version emerged and was introduced as Senate Bill 4767. Mr. Matte and some of those close to him in this effort were not pleased with the end result and decided to oppose Senator Kuhl’s well-intentioned effort because they felt it didn’t go far enough. However, many LEAH families and other homeschoolers liked what they saw, thought it was an excellent step in the right direction, and supported it.

The Bottom Line: Senator Kuhl tried to persuade the Commissioner to relax the regulations and the Commissioner summarily refused. It is the professional political opinion of Senator Kuhl and his staff that S4767 is the best requirement-reduction bill that has a chance of getting passed into law. HSLDA would like more freedom, LEAH would like more freedom. Most homeschoolers would like more freedom. But at the end of the day, we are confronted with the need to use our best judgment and determine what is possible given the current political realities.

The resulting bill is a substantial improvement over the current regulations. It removes many paperwork requirements. It removes interactions with as well as the approval power of the superintendent over various phases of homeschooling. Each interaction and approval phase is an opportunity for the superintendent to abuse his authority and harass parents. It eliminates any need for testing if the parents so choose. It returns much control of the homeschooling process to the parents.

Other notes and observations:

The Packer decision (New York, 1948), even though it was a decision in favor of the plaintiff (Packer Collegiate), maintained that the State has the limited right to regulate private schooling. According to Myers v Nebraska, limited does not mean “least intrusive”, but rather “reasonable”. The decision in Packer was that that State had exceeded is “reasonable” right, not that it did not have any right. Thus, New York does have the right to regulate private education.

It has been suggested that NYS homeschoolers push to become classified as private schools. However, private schools are still subject to local superintendent approval, even the unregistered ones. The fact that unregistered schools are often left alone after the initial curriculum and equivalence assessments is helpful, but this is more of a case of benign neglect rather than limits on state power. It is hard for me to understand why NY homeschoolers would want to submit to curriculum and equivalence approval. That is truly going from the frying pan into the fire.

It has also been suggested that we seek to have the regulations declared unconstitutional. However, be careful what you wish for. Removing the regulations would expose NY homeschoolers to the onerous provisions of NYS education law (Section 3204), as affirmed by the Blackwelder (1988) decisions. That is, parents must demonstrate that they are providing a substantially equivalent education by competent teachers. The superintendent gets to decide and he can do home visits if he so chooses. The regulations provide an indirect, procedural way of satisfying that law’s requirements. S4767 would specifically amend Section 3204 and all other laws that are currently applied to home instruction (see inconsistency clause next).

The “inconsistency clause” in S4767 is standard language that is used when the legislature wants the provisions of a particular bill to completely govern, and wants to prevent any agency from modifying that law by adding regulations to it. According to Peter Appleby (Senate Education Committee staffer), this is ironclad language that has been tested in court. No state or local agency can add onto this bill. It overrides any conflicting laws. This even includes laws passed after S4767, unless they specifically address this issue. No “accidental changes” are permitted.

The “dispute section” of S4767 does not give the superintendent any power. LEAH’s legal counsel has assured us that while the superintendent can dispute anything he wants, under this bill he has no discretionary power to object because the bill gives him no power over homeschoolers. Indeed, it actually gives parents more power because now they have an appeal process, in addition to their right of due process in the courts, if the superintendent tries to assume power. This bill gives him none, and the inconsistency clause means he can’t add to it and assume power.

Should the State have intrusive power over private, family education? Absolutely not! Does the NYS Constitution give the State authority in this area? The Courts say yes, some dissenting voices say no.

The reality of our situation is that either the State has constitutional power it shouldn’t have, or it has usurped power that it doesn’t have. Either way, it exercises power over homeschooling families that we want back. The question is how do we get it back. HSLDA, the LEAH Board, and many LEAH families as well as other homeschoolers across New York believe that Senate Bill 4767 represents the best way to reclaim a big chunk of it.

Rich Stauter

President, NYS Loving Education At Home