Friday, January 22, 2010

Testimony at the HB 1580 Hearing.

Madam Chairman and members of this committee:

I am Doris Hohensee. I have been a resident of New Hampshire for 30 years and have instructed my children at home over the last 24 years. I’m here in support.

HB 1580 restores the traditional option for parents instructing their children at home, while leaving the existing home education law in place.

The bill restores the “presumption of innocence” for all parents, who instruct their children at home, which is consistent with the first laws of this state.

Under common law the right and duty of all parents is founded upon their ability and inclination to supply their children’s needs. When parents neglect their children, they forfeit these rights. The legal procedure for restricting or terminating these rights requires due process. Fundamental rights such as these may not be casually brushed aside with sweeping legislation.

A reference to the “duty of parent” can be found in education statutes dating back to 1871 and the first compulsory attendance law of N.H. This statute was G.L. 91:14 or The General Laws of New Hampshire, Chapter 91 regarding “Scholars,” Section 14, “Duty of parents, guardians, etc.” This title confirms that the “duty of parent” to instruct his child was a fundamental law of our state predating compulsory attendance or even public schools.

In 1919 Ellwood P. Cubberley, an influential educator in the field of educational administration, wrote a highly regarded book, Public Education in the United States in which he quotes George H. Martin, the historian of the Massachusetts public school system, who observed that the fundamental principle which underlies all education legislation is that:

“The obligation to furnish this education rests primarily upon the parent.” (p.18)

Martin added that

“The child is to be educated, not to advance his personal interests, but because the State will suffer if he is not educated. The State does not provide schools to relieve the parent, nor because it can educate better than the parent can, but because it can thereby better enforce the obligation which it imposes.” (p. 19)
Public schools were created for children whose parents neglected their duty to instruct them. Only then was the “parent of the community” required to step in to provide suitable education.

The earliest laws of our state provided procedures for “binding out” these neglected children. Children, who did not have “a regular and lawful occupation,” were bound out as apprentices to masters, who trained them in a trade, as well as instructed them to read and write. State law required overseers to insure that these contracts were fulfilled and all wrongs or injuries were redressed. As late as 1900 “paupers” were bound out until the age of twenty-one for males and eighteen for females under N.H. law.

When factory work provided children under sixteen with more than ample opportunity to learn a lawful and honest trade, a law was enacted to require school attendance during the time “when public schools are in session” to insure that these children also learned to read and write.

With the first compulsory attendance law in 1871, the duty of the parent to instruct his child was recognized. Under the section specifying the “Duty of Parents”, the law unequivocally allowed parents to instruct their children “at home,” exempting them from compulsory attendance, which at the time required 12 weeks per year from ages 8 to 14. There were no restrictions on home instruction. Parents were presumed to be responsible.

The legislative session of 1871 began on June 7th and ended on July 13th; it was a few weeks longer than previous sessions. The Nashua Telegraph reported in detail any significant action that took place in General Court. It noted the 1st, 2nd and 3rd reading of each and every bill and included a brief discussion of any debate that took place. There was no debate over this new “Act to Compel Children to Attend School.” The paper noted debates over various issues regarding the railroads and taxes, but there was absolutely no debate on this “Act to Compel Children to Attend School.” I carefully scanned miles of newspaper microfiche and searched the legislative archives; there was never any public outrage because this legislature never attempted to restrict the rights of parents to instruct their children at home in 1871. Thus, there was no reason for parents to object. It was only very recently…. with the passage of the home education law in 1990 that parents, myself include, were outraged as our rights were abridged.

In 1990 parents were led to believe that this debate to restrict their rights had come and gone long before their time. Many mistakenly assumed that this issue was discussed at length and resolved by the General Court based upon the existence of some expired regulations, called “Guidelines to Home Education,” that were written by the Department of Education without statutory authority. They assumed that this Court had ruled on the matter. But in fact, this debate has never taken place. In 1990 parents were intimidated by threats of even more stringent regulations if they didn’t compromise; and as we have seen compromise only leads to more compromise, never resolution. Parents have been assumed guilty of educational neglect unless they annually proved themselves innocent, for the last twenty years without benefit of a debate …. or due process of the law.

How things have changed since 1871.

If a child in a public school “does not demonstrate educational progress for age and ability at a level commensurate with his ability” as required under the home education law (RSA 193-A:6 III), is his family threatened with legal proceedings? Or is there a better, less confrontational approach taken to develop an individualized program or perhaps to suggest a leveling placement that might be more effective for this student?

Where is this less confrontational approach for home schoolers? Instead of regulations full of threats and punishments for failure to learn, why not offer to provide assistance to parents? Don’t we all want what is best for these children? Where is the cooperation? How can students be expected to learn under such an adversarial system with demands far in excess of what other non-public educators have to contend with.

Parents have the primary duty to instruct their children, not the state. The state through its public schools undertakes the care and control of children in the absence of their parents. Acting in place of the parent, or in loco parentis, involves a temporary delegation of parental power, not a permanent and involuntary derogation. During this time, the parent is free to limit the scope of the power delegated, direct the actions of the temporary caretaker of the child, demand accountability and terminate the delegation of power, if necessary.

This doctrine does not entail any power to override reasonable written instruction from a parent. There is no explanation for the rogue behavior of certain school administrators, such as the principal at Nashua High this year who held my daughter in his office and demanded that she act in opposition to my written instructions. My daughter repeatedly asked to call home. Her requests were denied. Had she assaulted someone on the way to the principal’s office, she would have been allowed a phone call.

Not getting his way, the principal dismissed her from school, in violation of board policy (Nashua BoE policy 3241), essentially suspending her from school, denying her an education as a punishment until she submitted to his wishes. This principal believes that my parental rights cease as soon as my daughter enters the school building…. without due process of law!

This principal, along with many other school administrators, confuse their limited authority with another legal doctrine, called parens patriae, which involves authority that is permanent and often used contrary to the expressed wishes of the parent. However, procedural due process is required before parental rights can be terminated. Legislation, no matter how well meaning, and this includes the current home education law, cannot restrict or terminate individual rights of a parent …. without due process. Even compulsory attendance cannot rightfully do this.

Members of this committee have the important task of protecting the rights of each and every citizen of this state. This includes protecting the rights of parents. This bill would recognize the rights of responsible parents who have the primary duty to educate their children.

Please give this bill your support. Help establish education laws that cooperate with responsible parents.

HB 1580 would restore the common law "presumption of innocence” for all parents who instruct their children at home.

Parents are tired of those who presume … without any evidence or due process of the law… that all parents are irresponsible.

On its face their presumption is illogical... as well as unconstitutional. A child wouldn't fall for their line: "Please be responsible, but don't ever expect us to treat you as such."

More research and information can be found on our blogspot:

Thank you.

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