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S3641 Annotations |
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Cal. No. 1087 2005-2006 Regular Sessions I N S E N A T E March 23, 2005 ___________ printed to be committed to the Committee on Education -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the education law, in relation to home instruction THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph d of subdivision 2 of section 3210 of the educa- 2 tion law is amended to read as follows: 3 d. Exception. In applying the foregoing requirements a minor required 4 to attend upon full time day instruction by the provisions of THIS part 5 {one of this article} may be permitted to attend for a shorter school 6 day or for a shorter school year or for both, provided, in accordance 7 with the regulations of the state education department, the instruction 8 he OR SHE receives has been approved by the school authorities as being 9 substantially equivalent in amount and quality to that required by the |
Introduction: This bill has two parts. The first part amends paragraph 3210(2)(d) of the current Education Law by adding one sentence to it. The second part adds a new section (3229) to the Education Law. The new section is an edited copy of the current homeschooling regulation (CR100.10, issued by the State Education Department in 1988). The flaws in this bill are the result of the fact that the bill started with the current homeschooling regulation and ended up as an edited version of it. Highlighting of text in this document (e.g. boldfacing) is the result of these annotations and is not part of the original text of the bill or regulation. |
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10 provisions of THIS part {one of this article}. PROVIDED, HOWEVER, THAT 11 HOME INSTRUCTION OF A MINOR SHALL BE IN ACCORDANCE WITH SECTION THREE 12 THOUSAND TWO HUNDRED TWENTY-NINE OF THIS PART.1 13 S 2. The education law is amended by adding a new section 3229 to read 14 as follows: 15 S 3229. HOME INSTRUCTION. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, 16 TO THE EXTENT THAT ANY PROVISION OF THIS SECTION IS INCONSISTENT WITH 17 ANY OTHER STATE OR LOCAL LAW, RULE OR REGULATION, THE PROVISIONS OF THIS 18 SECTION SHALL GOVERN AND BE CONTROLLING. 1. NOTICE OF INTENTION TO 19 INSTRUCT AT HOME. A. EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH B OF THIS 20 SUBDIVISION, PARENTS OR OTHER PERSONS IN PARENTAL RELATION TO A STUDENT 21 OF COMPULSORY SCHOOL ATTENDANCE AGE SHALL ANNUALLY PROVIDE WRITTEN 22 NOTICE TO THE SUPERINTENDENT OF SCHOOLS OF THEIR SCHOOL DISTRICT OF 23 RESIDENCE OF THEIR INTENTION TO EDUCATE THEIR CHILD AT HOME BY JULY { } is old law to be omitted. S. 3641--A 1 FIRST OF EACH SCHOOL YEAR. THE SCHOOL YEAR BEGINS JULY FIRST AND ENDS 2 JUNE THIRTIETH FOR ALL PURPOSES WITHIN THIS SECTION. IN THE CASE OF THE 3 CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, THE SCHOOL DISTRICT OF 4 RESIDENCE FOR STUDENTS WHO, IF ENROLLED IN THE PUBLIC SCHOOLS, WOULD 5 ATTEND ELEMENTARY SCHOOL, INTERMEDIATE SCHOOL OR JUNIOR HIGH SCHOOL IN A 6 COMMUNITY SCHOOL DISTRICT, SHALL BE DEEMED TO BE THE COMMUNITY SCHOOL 7 DISTRICT IN WHICH THE PARENTS RESIDE. 8 B. PARENTS WHO DETERMINE TO COMMENCE HOME INSTRUCTION AFTER THE START 9 OF THE SCHOOL YEAR, OR WHO ESTABLISH RESIDENCE IN THE SCHOOL DISTRICT 10 AFTER THE START OF THE SCHOOL YEAR, SHALL PROVIDE WRITTEN NOTICE OF 11 THEIR INTENTION TO EDUCATE THEIR CHILD AT HOME WITHIN FOURTEEN DAYS 12 FOLLOWING THE COMMENCEMENT OF HOME INSTRUCTION WITHIN THE SCHOOL 13 DISTRICT. 14 2. ATTENDANCE REQUIREMENTS. EACH CHILD SHALL ATTEND UPON INSTRUCTION 15 AS FOLLOWS: THE SUBSTANTIAL EQUIVALENT OF ONE HUNDRED EIGHTY DAYS OF |
1. Attempt to take away State Ed Dept's regulatory power: This part of the bill amends paragraph 3210(2)(d) in order to take away the State Education Department's (SED's) power to issue regulations governing homeschoolers. This amendment was thought to be necessary because the current homeschooling regulation relies on this paragraph, 3210(2)(d), for the required legal authorization that SED officials needed in order to issue the regulation. (In other words, the SED couldn't issue the current regulation unless they found something in existing law that authorized them to do so, and they claimed that they found it here.) The problem is that 3210(2)(d) does NOT authorize the SED to regulate homeschooling in general. All it does is imply that the SED may regulate PART-TIME non-public educational programs. Therefore, the current regulation (which is applied to all homeschoolers and specifies only FULL-TIME instruction) is unauthorized. In other words, the SED has never had the legal power to regulate all homeschoolers as it does. Given that the current regulation has no legal authority, it doesn't make sense to pass a bill such as this one, which copies several of the regulation's unauthorized requirements and makes them legitimate by writing them into law. The effect of the bill is not to reduce the existing requirements, but to give some of those requirements legal authority where currently they have none. |
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16 INSTRUCTION SHALL BE PROVIDED EACH SCHOOL YEAR. THE CUMULATIVE HOURS OF 17 INSTRUCTION FOR GRADES ONE THROUGH SIX SHALL BE NINE HUNDRED HOURS PER 18 YEAR. THE CUMULATIVE HOURS OF INSTRUCTION FOR GRADES SEVEN THROUGH 19 TWELVE SHALL BE NINE HUNDRED NINETY HOURS PER YEAR. ABSENCES SHALL BE 20 PERMITTED ON THE SAME BASIS AS PROVIDED IN THE POLICY OF THE SCHOOL 21 DISTRICT FOR ITS OWN STUDENTS.2 RECORDS OF ATTENDANCE SHALL BE MAINTAINED 22 BY THE PARENT AND SHALL BE MADE AVAILABLE TO THE SCHOOL DISTRICT UPON 23 REQUEST. INSTRUCTION PROVIDED AT A SITE OTHER THAN THE PRIMARY RESIDENCE 24 OF THE PARENTS SHALL BE PROVIDED IN A BUILDING WHICH HAS NOT BEEN DETER- 25 MINED TO BE IN VIOLATION OF THE LOCAL BUILDING CODE. 26 3. ANNUAL ASSESSMENT. THE PARENT SHALL FILE AN ANNUAL ASSESSMENT IN 27 ACCORDANCE WITH THIS SUBDIVISION. THE ANNUAL ASSESSMENT SHALL INCLUDE 28 THE RESULTS OF A COMMERCIALLY PUBLISHED NORM-REFERENCED ACHIEVEMENT TEST 29 WHICH MEETS THE REQUIREMENTS OF PARAGRAPH A OF THIS SUBDIVISION, OR AN 30 ALTERNATIVE FORM OF EVALUATION WHICH MEETS THE REQUIREMENTS OF PARAGRAPH 31 B OF THIS SUBDIVISION. 32 A. COMMERCIALLY PUBLISHED NORM-REFERENCED ACHIEVEMENT TESTS. (1) THE 33 TEST SHALL BE SELECTED BY THE PARENT FROM ONE OF THE FOLLOWING: A 34 NATIONALLY-NORMED STANDARDIZED ACHIEVEMENT TEST, A STATE EDUCATION 35 DEPARTMENT TEST, OR ANOTHER TEST APPROVED BY THE STATE EDUCATION DEPART- 36 MENT. 37 (2) THE TEST SHALL BE ADMINISTERED IN ACCORDANCE WITH ONE OF THE 38 FOLLOWING OPTIONS, TO BE SELECTED BY THE PARENTS: 39 (I) AT THE PUBLIC SCHOOL, BY ITS PROFESSIONAL STAFF; 40 (II) AT A REGISTERED NONPUBLIC SCHOOL, BY ITS PROFESSIONAL STAFF, 41 PROVIDED THAT THE CONSENT OF THE CHIEF SCHOOL OFFICER OF THE NONPUBLIC 42 SCHOOL IS OBTAINED; 43 (III) AT A NONREGISTERED NONPUBLIC SCHOOL, BY ITS PROFESSIONAL STAFF, 44 PROVIDED THAT THE CONSENT OF THE CHIEF SCHOOL OFFICER OF THE NONPUBLIC 45 SCHOOL IS OBTAINED; OR 46 (IV) AT THE PARENTS' HOME OR AT ANY OTHER REASONABLE LOCATION, BY A |
2. Full-time attendance requirement is discriminatory: These sentences, especially the first two about hours of instruction, require full-time attendance, just as the public schools require. This contradicts paragraph 3210(2)(d) of the current Education Law (see the beginning of this bill), which states that non-public students may attend for a shorter amount of time under certain conditions. This discriminates against homeschoolers by singling them out for more strict attendance requirements than those applied to other non-public students. |
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47 NEW YORK STATE-CERTIFIED TEACHER OR BY ANOTHER QUALIFIED PERSON3. 48 (3) THE TEST SHALL BE SCORED BY THE PERSONS ADMINISTERING THE TEST OR 49 BY A TESTING SERVICE CHOSEN BY THE PARENT. 50 (4) THE TEST SHALL BE PROVIDED BY THE SCHOOL DISTRICT UPON REQUEST BY 51 THE PARENT, PROVIDED THAT THE COST OF ANY TESTING FACILITIES, TRANSPOR- 52 TATION, AND/OR PERSONNEL FOR TESTING CONDUCTED AT A LOCATION OTHER THAN 53 THE PUBLIC SCHOOL SHALL BE BORNE BY THE PARENT. 54 (5) IF A SCORE ON A TEST IS DETERMINED TO BE INADEQUATE, THE PROGRAM 55 SHALL BE PLACED ON PROBATION PURSUANT TO PARAGRAPH D OF THIS SUBDIVI- 56 SION. A STUDENT'S SCORE SHALL BE DEEMED ADEQUATE IF: THE STUDENT HAS A S. 3641--A |
3. "Qualified" test administrator undefined, open to definition by government officials: This text is identical to the corresponding text in the current regulation, but in the regulation it is followed by this condition: "provided that the superintendent has consented to having said certified teacher or other person administer the test". This condition was omitted from the bill because there was a desire to remove the superintendent's power of consent over the test administrator and to give the parents free choice. But the bill fails to do that, because it specifies "another QUALIFIED person" but does not define what constitutes a qualified person. Therefore, government officials would be free to decide on a definition of "qualified". They could well decide on a definition that includes only certified teachers, thereby eliminating any choice other than government-approved test administrators. Then, if a family chose some other reasonably qualified person to administer a test, officials would be free to rule that the assessment does not comply with this law, and would then be required by the probation paragraph (see note 8 below) to put the family on probation. |
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1 COMPOSITE SCORE ABOVE THE TWENTY-THIRD PERCENTILE ON NATIONAL NORMS; OR 2 THE STUDENT'S SCORE REFLECTS ONE ACADEMIC YEAR OF GROWTH AS COMPARED TO 3 A TEST ADMINISTERED DURING OR SUBSEQUENT TO THE PRIOR SCHOOL YEAR. |
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4 B. ALTERNATIVE EVALUATION METHODS. AN ALTERNATIVE FORM OF EVALUATION 5 SHALL BE PERMITTED TO BE CHOSEN BY THE PARENT ONLY AS FOLLOWS: FOR 6 GRADES ONE THROUGH TWELVE, A WRITTEN NARRATIVE PREPARED BY A PERSON 7 SPECIFIED IN THIS PARAGRAPH.4 FOR THE PURPOSES OF THIS PARAGRAPH, THE |
4. Inattention to detail: This is an edited version of the text in the regulation, which specifies different
requirements "for grades one through three" and "for grades four through eight". Because the bill's obvious intent is to
allow written narrative assessments in all grades, it should have omitted all reference to grades here. But because it
specifies only grades 1-12 rather than K-12, it has the clearly ludicrous effect of prohibiting written narrative assessments
for kindergartners, in cases where parents choose to regard children of the youngest compulsory school age as kindergartners. |
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8 PERSON WHO PREPARES THE WRITTEN NARRATIVE SHALL BE A NEW YORK STATE-CER- 9 TIFIED TEACHER OR A HOME INSTRUCTION PEER GROUP REVIEW PANEL5 WHO HAS 10 INTERVIEWED THE CHILD AND REVIEWED A PORTFOLIO OF THE CHILD'S WORK. SUCH 11 PERSON OR PANEL SHALL CERTIFY EITHER THAT THE CHILD HAS MADE ADEQUATE 12 ACADEMIC PROGRESS OR THAT THE CHILD HAS FAILED TO MAKE ADEQUATE |
5. Parents' choice of annual assessor severely limited: The current homeschooling regulation and earlier
versions of this bill include three options for the person who writes the narrative assessment: a certified teacher,
peer review panel, "or other person". This allows parents to choose anyone, including themselves, as assessors. But
in 2005, this bill was amended, and those three words ("or other person") were deleted. This means that parents would
no longer be able to choose anyone other than a certified teacher or a peer review panel. Although the peer review
panel might seem to be a good option, there are problems here. First, a family might not be able to find anyone
appropriate to serve on such a panel. Second, government officials might decide to restrict what the term "home instruction
peer group review panel" means. They might impose requirements on panel members in order to control the assessment
process. |
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13 PROGRESS. IN THE EVENT THAT SUCH CHILD HAS FAILED TO MAKE ADEQUATE 14 PROGRESS, THE HOME INSTRUCTION PROGRAM SHALL BE PLACED ON PROBATION 15 PURSUANT TO PARAGRAPH D OF THIS SUBDIVISION.6 THE CERTIFIED TEACHER OR 16 PEER GROUP REVIEW PANEL SHALL BE CHOSEN BY THE PARENT. ANY RESULTING 17 COST SHALL BE BORNE BY THE PARENT. |
6. "Adequate academic progress" undefined, open to interpretation by government officials:
This sentence requires probation for children who fail to make adequate progress, but it doesn't define
what adequate progress is or how a child would fail to make adequate progress. One interpretation of this paragraph is that
adequate progress is determined by the written narrative. But that isn't the ONLY interpretation, because the paragraph does
not say that explicitly. The highlighted sentence here does not spell out specific, concrete actions that lead to probation.
That is, it does not say, "If and only if such person certifies that such child has failed to make adequate progress, the home
instruction program shall be placed on probation." Instead, it refers to "the event that such child has failed to make adequate
progress" as an abstract concept, which the government would be free to interpret as it wants. So, government officials could
simply make an arbitrary ruling that a child did not make adequate progress, and would then be authorized (and required) to put
the family on probation. Combined with paragraph C about disputes and paragraph D about probation (see notes
7 and 9 below), this gives the government complete control over families who choose
written narrative assessments. |
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18 C. DISPUTES. IF A DISPUTE ARISES BETWEEN THE PARENTS AND THE SUPER- 19 INTENDENT OF SCHOOLS, INCLUDING DISPUTES OVER THE ADMINISTRATION OF THE 20 COMMERCIALLY PUBLISHED NORM-REFERENCED ACHIEVEMENT TEST OR THE USE OF 21 ALTERNATIVE EVALUATION METHODS, THE PARENTS MAY APPEAL TO THE BOARD OF 22 EDUCATION. IF THE PARENTS DISAGREE WITH THE DETERMINATION OF THE BOARD 23 OF EDUCATION, THE PARENTS MAY APPEAL TO THE COMMISSIONER WITHIN THIRTY 24 DAYS OF RECEIPT OF THE BOARD'S FINAL DETERMINATION.7 |
7. Numerous problems with paragraph covering dispute procedures: As discussed earlier in notes 3 and 6, the bill would allow government officials to put families on probation if they used a test administrator other than a government-approved person, or if they submitted a written narrative assessment. Naturally, this would cause disputes between families and superintendents. Disputes are covered by the paragraph highlighted here. There are a number of problems with this paragraph. First, it assumes that the superintendent's opinion is controlling unless the family appeals to the board of education. Second, school officials control the decisions regarding disputes; there is no impartial body involved. Third, no review procedures are specified, so school boards and the SED are free to dispose of disputes in any way they wish; they can simply rule against the family without any review at all. Other than filing an appeal, the family has no power or rights at all - not even any procedural rights to ensure that their case is heard. |
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25 D. PROBATION. (1) IF A CHILD'S ANNUAL ASSESSMENT FAILS TO COMPLY WITH 26 THE REQUIREMENTS OF THIS SUBDIVISION, THE HOME INSTRUCTION PROGRAM SHALL 27 BE PLACED ON PROBATION FOR A PERIOD OF UP TO TWO SCHOOL YEARS.8 THE 28 PARENT SHALL BE REQUIRED TO SUBMIT A PLAN OF REMEDIATION WHICH ADDRESSES 29 THE DEFICIENCIES IN THE CHILD'S ACHIEVEMENT, AND SEEKS TO REMEDY SUCH |
8. Requires probation if government officials decide a test administrator is not arbitrarily "qualified": In conjunction with paragraph A earlier in the bill (see note 3), this sentence directs government officials to put a family on probation if they use a test administrator who does not meet the government's arbitrary definition of a "qualified person". Once a family is on probation, government officials would have the sweeping powers discussed in the following note. |
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30 DEFICIENCIES. THE PLAN SHALL BE REVIEWED BY THE SCHOOL DISTRICT. THE 31 SCHOOL DISTRICT MAY REQUIRE THE PARENTS TO MAKE CHANGES IN THE PLAN 32 PRIOR TO ACCEPTANCE.9 33 (2) IF AFTER THE END OF ANY SEMESTER OF THE PROBATIONARY PERIOD, THE 34 CHILD PROGRESSES TO THE LEVEL SPECIFIED IN THE REMEDIATION PLAN, THEN 35 THE HOME INSTRUCTION PROGRAM SHALL BE REMOVED FROM PROBATION. IF THE 36 CHILD DOES NOT ATTAIN AT LEAST SEVENTY-FIVE PERCENT OF THE OBJECTIVES 37 SPECIFIED IN THE REMEDIATION PLAN AT THE END OF ANY GIVEN SEMESTER WITH- 38 IN THE PERIOD OF PROBATION, OR IF AFTER TWO YEARS ON PROBATION ONE 39 HUNDRED PERCENT OF THE OBJECTIVES OF THE REMEDIATION PLAN HAVE NOT BEEN |
9. Gives districts unlimited power: This sentence gives school districts the power to impose ANY requirements they want on families. There are no restrictions on the changes that may be required. Such requirements could include mandated curriculum materials, frequent standardized tests, weekly or even daily reports, home visits, and anything else a district might want. On the subject of home visits, the bill omits part of the current regulation's probation paragraph which describes procedures for home visits, because there was a desire to remove the possibility of such visits. But that possibility is not removed, because the sentence highlighted here still authorizes any requirements at all, including home visits; and in fact, the bill would make the situation WORSE rather than better, because the regulation at least requires three days' written notice in advance of a home visit. |
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40 SATISFIED, THE SUPERINTENDENT OF SCHOOLS SHALL PROVIDE THE PARENTS WITH 41 NOTICE10 AND THE BOARD OF EDUCATION SHALL REVIEW THE DETERMINATION OF 42 NONCOMPLIANCE IN ACCORDANCE WITH THIS PARAGRAPH11, EXCEPT THAT CONSENT OF 43 THE PARENTS TO SUCH REVIEW SHALL NOT BE REQUIRED12. 44 S 3. This act shall take effect on the first of July next succeeding 45 the date on which it shall have become a law. |
10. Inadvertently eliminates procedural rights: In the current regulation, this clause reads: "the superintendent of schools shall provide the parents
with the notice specified in paragraph (5) of subdivision (c) of this section". Here, the bill omits paragraph (c)(5), and
so it also eliminates this clause's reference to that paragraph, because the bill's authors didn't want this clause to refer
to a nonexistent paragraph. But because this clause now only requires "notice" rather than specifying PROCEDURES for that
notice, it gives the parents fewer rights than the regulation does. In the regulation,
paragraph (c)(5) specifies procedures for notification and conduct of a non-compliance review. The
notice must be in writing and mailed to the parents at least 10 days before the next school board meeting, and it must inform
the parents that they can contest the non-compliance ruling before the board. In the bill, these procedures no longer exist
because paragraph (c)(5) was eliminated. Thus, the superintendent is not required to notify the parents of anything other
than his/her finding that the remediation plan has not been satisfied, nor is the superintendent required to provide that
notice in a timely manner. 11. Inadvertently eliminates procedural right to contest a non-compliance ruling: In the current regulation, this clause reads: "in accordance with such paragraph", that is, in accordance with paragraph (c)(5). As discussed in the previous note, the bill eliminates paragraph (c)(5) and the references to it here. The new clause, "in accordance with this paragraph", makes no sense, because this paragraph does not discuss procedures for a non-compliance review. In other words, there is nothing in this paragraph for the review to be in accordance WITH. And, aside from the fairly trivial fact that this clause makes no sense, the elimination of paragraph (c)(5)'s procedures has the very serious consequence that the parents are not guaranteed any right to appear before the school board to contest the superintendent's non-compliance ruling. Combined with the clause discussed in note 10, this means that the school board could review and affirm the superintendent's non-compliance ruling before the parents have even received notification of the superintendent's ruling. 12. Inattention to detail: This clause is identical to the corresponding clause in the current regulation, but it's another case in which the text here is rendered irrelevant and nonsensical by the elimination of paragraph (c)(5). In the regulation, this clause was included to make it clear that the parents have no choice about the non-compliance review (i.e. it's automatic) despite paragraph (c)(5)'s provision for the parents to choose or decline a review in other circumstances. In the bill, on the other hand, there is nothing anywhere that gives the parents a choice about non-compliance reviews. So, this exception to parents' consent doesn't make any sense - there is no right of consent in the first place, so this clause is now an irrelevant exception to nothing. |