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Date:
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1/18/2002 3:27:59 PM
Scott A. Woodruff, Esq., Staff Attorney of HSLDA
Maine--Proposed Revision to Chapter 130

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From the HSLDA E-lert Service...
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January 18, 2002

Dear Maine HSLDA Members and Friends,

I am enclosing copy of a letter I recently sent to Maine Department
of Education Commissioner J. Duke Albanese, discussing the
department's proposal of very significant changes to Chapter 130 of
the home school regulations and Home School Legal Defense
Association's reasons for opposing these changes.

On Friday, February 8, from 1:00 to 3:00 PM, the department of
education will hold a public hearing on the proposed changes to
Chapter 130 in Jewett Hall Auditorium, Room 156, at the University of
Maine at Augusta, University Drive, Augusta.

Please plan to attend the meeting to show that you oppose this
change. Perhaps if enough home schoolers show up to oppose the rule
change, it can be stopped and our rights protected. Please give
copies of this letter to all your home schooling friends, and urge
them to come to the hearing.

The department of education was embarrassed last year, when it came
to light that hundreds of home school applications were not decided
on within the required 60-day period. However, instead of shaping up
and trying to better comply with the law, it now appears the
department wants the right to delay decisions on home school
applications even longer. This cannot be tolerated. Families must be
able to home school with confidence and know that they will not be
subject to criminal prosecution or child neglect accusations simply
because the department fails to make a decision within 60 days.

Sincerely yours,

Scott A. Woodruff, Esq.

......................................................................

January 18, 2002

J. Duke Albanese
Commissioner
State of Maine
Department of Education
23 State House Station
Augusta, ME 04333-0023


RE: Proposed Revision to Chapter 130

Dear Commissioner Albanese,

On behalf of Maine members of Home School Legal Defense Association,
I object to the Department of Education's proposed revision of
Chapter 130, Maine Department of Regulations dealing with equivalent
instruction programs (home schooling).

A letter of proposed rulemaking dated January 14 failed to identify
the proposed revisions to Chapter 130 as a major substantive rule
change. The revisions the Department has proposed are major
substantive rule changes. Major substantive rule changes must, among
other things, be approved by the legislature before adoption.

We oppose the major substantive proposed revisions to Chapter 130 for
several reasons.

Chapter 130, Section 5C, states that an equivalent instruction
program may begin upon approval of the application or no later than
the 60-day period provided for commissioner approval. This provision
is intended to protect families against a slow bureaucracy. Even if
their application has not been acted upon within 60 days, they are
free to begin their equivalent instruction program. Under the
proposed revision to Section 6A of Chapter 130, however, the
commissioner is not required to decide whether or not to approve an
equivalent instruction program unless the family submits "a complete
application." The word "complete" is not defined. This leaves the
definition of "complete" totally within agency discretion, inviting
arbitrary, capricious, and inconsistent action. If, for whatever
reason, the commissioner decides the application is not "complete,"
he no longer has an obligation to make a decision within 60 days,
under the proposed revisions. Since the 60-day decision period does
not even start until a "complete" application is received, families
will not know if they can safely begin their equivalent instruction
program, in cases where the commissioner has not made a decision,
even after the expiration of 60 days. This subjects families to the
threat of criminal prosecution and child neglect proceedings. The
regulations must remain crystal clear that the commissioner must make
a decision within 60 days after receipt of an application, whether or
not it is "complete" in the judgment of the commissioner. If an
application is incomplete, this may be grounds to reject it, but it
cannot justify forcing a family to wonder if they are breaking the
law if they begin home instruction after 60 days of silence from the
commissioner's office.

The Department is subject to criticism for efforts to evade its duty
to make a decision within the 60-day period.

The proposed revision to Section 6A further inserts a new
qualification before an application is considered. It states, "In
order to be considered for approval, an application must include a
copy of the annual assessment..." The word "considered" is not
defined. We may assume that, under the revision, an application that
does not contain an assessment will not be considered. Does "not be
considered" mean that the commissioner will not make a decision, or
that the Commissioner will deny the application, or that the
Commissioner will take the position that the family cannot begin the
equivalent instruction program even after the expiration of 60 days
of silence? In the context of this regulation, the word "considered"
is highly ambiguous, and this ambiguity will hurt Maine home school
families.

There must be no pre-condition upon the commissioner's duty to
consider an application. Once an application is submitted, the
commissioner's duty to consider it is engaged. Failure to submit an
assessment may justify a decision to reject the application, but it
cannot justify a refusal to "consider" the application.

The final sentence of the proposed revision of Section 6A states:
"Failure to submit annual assessments for a prior school year may
result in the denial of an application for a subsequent school year."
The phrase "a prior school year" could easily be construed to mean
"any prior school year." If this were to happen, a family might have
their application denied in the present year on account of failure to
submit an assessment five years ago. This would be a flagrant
violation of basic due process rights and is profoundly unjust.

The proposed major substantive changes to Chapter 130, and in
particular Section 6, are ill advised and significantly in derogation
of the rights and liberties of Maine citizens. I urge the department
to withdraw its proposed rule making with regard to Chapter 130, or,
at a minimum, delete all proposed revisions to Section 6.

Sincerely yours,

Scott A. Woodruff, Esq.

CC: Buzz Kastuck
HSLDA Members in Maine

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