March
16, 2001
The Honorable John
R. Kuhl, Jr.
Chairman, Senate Education Committee
846-A Legislative Office Building
Albany, NY 12247
Re:
Home School Legislation
Dear Senator
Kuhl:
Home
School Legal Defense Association is a national organization which has as its
primary purpose the protection of the right of parents to teach their children
at home. We presently have over 69,000 members in all 50 states and the District
of Columbia, with over 2,200 member families in New York.
We
have received and reviewed a copy of your draft of a proposed bill codifying the
home school law of New York. We appreciate very much your willingness to sponsor
legislation which would remove the burdensome restrictions now imposed on home
schooling parents by the home instruction regulation, Section 100.10 of the
Regulations of the Commissioner of Education. New York is the most highly
regulated state in the nation in the area of home instruction. We also
appreciate your desire to receive our input regarding the provisions contained
in the initial draft of this legislation.
I
would delete section 1 relating to legislative intent. This language in the
current regulation has created some misunderstanding with public school
officials who believe that, despite the language of the regulation, they are
required to independently determine the competency of the instructor (parent)
and substantial equivalence of the instruction being provided at home.
Additionally, from a philosophical standpoint, many home schooling parents do
not agree that public school officials should exercise this degree of control
over private education. I don’t think this introductory language is necessary,
and it may be a stumbling block for some who would otherwise support this
legislation.
In
section 3, the bill says that this section will govern over any other law which
is inconsistent with these provisions. It does not state that home instruction
programs will not be subject to any rule or regulation of the Commissioner of
Education, State Education Department or Board of Regents. My concern is that
the Commissioner of Education may promulgate regulations which he does not
consider to be inconsistent with the statutory language which has been enacted.
I think it would be better to revise this language to say that home instruction
programs shall not be subject to any such rules or regulations.
Throughout
the bill I noticed that references are made to various paragraphs and
subdivisions which relate to Section 100.10 of the Regulations of the
Commissioner of Education. These designations should be revised to conform to
the way the new law will be codified.
On
page 4, lines 10 through 14, the bill lists the different achievement tests
which may be selected by the parent. Considering that this new law may not be
changed for a long time, we recommend that the specific names of standardized
tests not be listed. Instead, the language could read that the test selected by
the parent be “a nationally-normed standardized achievement test, a State
Education Department test, or another test approved by the State Education
Department.”
On
page 4, lines 21 through 24, the bill describes the testing option at a
non-registered nonpublic school. It requires that the local public school
superintendent consent to testing at this location. We do not believe the
consent of the local public school superintendent is necessary for a parent to
exercise this option. I note that your requirement of the consent of the
superintendent has been deleted if the testing is done in the parent’s home or
other location, so removing the superintendent’s consent at a non-registered
nonpublic school would be consistent with this.
On
page 5, lines 5 through 11, the bill says that a program is to be put on
probation unless the student scores above the 33rd percentile on the
achievement test. We believe the minimum score should be the 23rd
percentile, because this is the beginning of the average range of scores on
standardized achievement tests. I am enclosing a copy of a graph of group norms
published by The Psychological Corporation/Harcourt Brace Jovanovich, Inc.
indicating that the average range of scores is from the 23rd
percentile through the 76th percentile. As long as a student is
scoring within the average range, that student’s home instruction program
should not be placed on probation.
On
page 5, line 14, the alternative evaluation method is indicated for grades one
through eight, although there is a handwritten note indicating a change to
grades one through twelve. We agree that the latter, handwritten version is what
the law should be.
On
page 5, line 26 through page 6, line 4 of the bill, the language of the current
regulation is repeated regarding the resolution of disputes. It indicates that
the last appeal is to the Commissioner of Education. We believe there should be
an additional sentence at the end of this paragraph, indicating that parents
have the right of a de novo appeal to
a court of competent jurisdiction within 30 days of receipt of the
Commissioner’s decision. My understanding of current New York law is that
administrative decisions are only reversible by a court where the decision is
based upon fraud or other misconduct. In other words, there is a very limited
basis for an appeal from the decision of an administrative agency. We believe
parents should have the right of appeal to the courts and that the courts should
be able to consider the merits of the case by making findings of fact as well as
conclusions of law. I noticed also on page 6, lines 15 through 23, that the
final decision concerning a home instruction program on probation appears to be
made by the local board of education. Parents should have the same right of
appeals to the Commissioner and the courts in this circumstance as they do in
other disagreements with the school district.
On
page 6, line 24 through page 7, line 5, the bill authorizes home visits by the
local public school superintendent during the period of probation. We believe
these home visits would not accomplish more than the remediation plan already
being monitored by the school district. Additionally, such home visits have been
determined to be unconstitutional. This was the decision of the Massachusetts
Supreme Judicial Court in the case of Brunell v. Lynn Public Schools, 428 Mass. 512, 702 N.E. 2d 1182
(1998). This type of invasion of a family’s privacy should not be permitted in
the New York home school law.
Thank
you for considering our comments. Please let me know if we can be of any
additional assistance to you in drafting this legislation or assisting in its
passage.
Very truly yours,
Dewitt T. Black, III
DTB:npr