| From the HSLDA E-lert Service: |
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| Date: From: Subject: | 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... ---------------------------------------------------------------------- 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 {{JoinAd}} ---------------------------------------------------------------------- The HSLDA E-lert Service is a service of: Home School Legal Defense Association P.O. 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