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September 16, 2011

HSLDA Responds to Criticism on Statement of Enrollment Issue

After we posted our articles “Don’t Trust the DPI Website!” and “Freedom at Stake in ‘Mandatory’ Online Filing,” we received some very pointed criticism. Our view that a parent’s failure to file a statement of enrollment did not cause a child to be truant was hotly contested, in particular. The criticism went so far as to say that HSLDA was causing a “threat.”

This criticism deserves to be taken seriously.

To help families decide for themselves who is right, we have broken the criticism down into what we have called “objections” and responded to each. (The first is rather lengthy; the others are much shorter.)

Objection 1: Homeschoolers who don’t file the statement of enrollment are truant.

HSLDA’s Response

We all agree that it is mandatory to obey the statement of enrollment law. But is it true that the failure of a public, private or homeschool to file a statement of enrollment makes the children truant?

The legal consequences for disobeying a law are often listed right within the law itself. But you can see below that the statement of enrollment law does not list any consequences for a person who disobeys. Wisconsin Statute 115.30(3) says, with phrase breaks added for quick reference:

Phrase 1 …. “On or before each October 15, each administrator of a public or private school system or a home-based private educational program shall submit, on forms provided by the department …

Phrase 2 .… “a statement of the enrollment on the 3rd Friday of September in the elementary and high school grades under his or her jurisdiction to the department…

Phrase 3 .… “which shall prepare such reports as will enable the public and private schools and home-based private educational programs to make projections regarding school buildings, teacher supply and funds required.

Phrase 4 …. “The administrator of each private school system and home-based private educational program…

Phrase 5 .… “shall indicate in his or her report whether the system or program meets all of the criteria under s. 118.165 (1).”

Is it possible that a consequence of disobeying this statute is that the children as to whom a statement should have been filed are truant?

All children are in the same boat on this issue because Phrase 1 says that all forms of education—public, private and homeschool—are bound to comply with the statement of enrollment mandates. So either all three groups of children are truant if no statement is filed, or no group is.

Our common sense tells us that an entire school full of children could not be truant just because a school administrator fails to file a statement. And our common sense is correct.

And since public and private school children can’t be truant just because the person who was supposed to file the form didn’t do it, neither can homeschooled children.

Common sense also tells us that the legislature would not make a statement of enrollment crucial for proving compliance with compulsory attendance, but then stipulate (in Phrases 1 and 2) that it be filed only within the three week window between September’s third Friday and October 15!

If it were truly crucial in proving compliance with compulsory attendance, the legislature would have said that the statement could be filed any time during the school year—since people change educational options all through the school year.

Now let’s look at Objection 1 in light of Wisconsin statutes and see how they shed light on the issue.

Wisconsin Statute 118.15(1)(a) says the parent of a child of compulsory age must make sure he attends school. A parent violating this law can be fined $500 or jailed for 30 days or both.

Since Wisconsin homeschooled children don’t really attend “school,” why are their parents not always violating this law? Because Wisconsin Statute 118.15(4) says that a homeschool program that meets five listed requirements is a substitute for school attendance.

So all that is necessary for a homeschool parent to be confident that their homeschool program is in compliance with compulsory attendance is to make sure they meet these five requirements: (1) their program is privately controlled; (2) its purpose is private education; (3) it provides 875 hours of instruction; (4) it provides sequential, progressive instruction in the required subjects; (5) it’s not a pretext for avoiding compulsory attendance.

Since the statement of enrollment is NOT listed as one of the five requirements for a lawful homeschool program, the failure of a parent to file it cannot make a child truant.

Let’s look at the issue from another statutory angle to see if we get the same result. Let’s look at Wisconsin’s definition of “truancy.” According to Wisconsin Statute 118.16(1)(c):

“ ’Truancy’ means any absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of s. 118.15.”

It says nothing at all about a statement of enrollment! Whether a child is truant has nothing to do with whether a statement of enrollment has been filed.

Finally, to cover all the bases, it is worthwhile to read the definition of “home-based private instructional program” in Wisconsin Statute 115.001(3g). It does not mention the statement of enrollment. A program can meet the official Wisconsin definition of homeschooling without filing a statement of enrollment.

The laws determine whether a child is truant—not public opinion, or common practice, or organizations or communities. And there is not a single Wisconsin statute, to our knowledge, that says filing a statement of enrollment is necessary to prevent truancy.

The statement of enrollment does not CAUSE enrollment—it simply reports it.

There could be some circumstances when a family might feel it is to their advantage to file a statement of enrollment even at a time when it is not actually due. It would be appropriate to seek individualized guidance in this situation.

Objection 2: Homeschoolers who start homeschooling after September’s third Friday are truant if they don’t file the statement of enrollment.

HSLDA’s response

In our response to Objection 1, we fully explained why the failure to file the statement of enrollment cannot make a child truant. This also answers Objection 2.

And of course a statement of enrollment filed outside the mandatory 3-week window (September’s third Friday to October 15) would not carry any more weight than one filed within it.

Objection 3: HSLDA should not counsel people to file a paper version of the statement of enrollment—they might be red flagged.

HSLDA’s response

We do not “counsel” families to use the paper form for the statement of enrollment. We inform families that they have a right to use the paper form if they wish, and we make a blank form available.

It’s up to each family to decide whether to submit their annual statement via paper or online. There are pros and cons either way. But it’s totally out of line to say that every statement MUST be filed online.

When the legislature enacted the statute which says that the statement of enrollment must be filed on a “form” supplied by the Department of Public Instruction, they meant what everyone meant way back then by the word “form”: a real, paper, physical form. They did not mean a computer program operating over the internet.

While you may hear people talk about “forms” that operate online, that is a figure of speech. It’s not the kind of actual, literal form the legislature intended when they wrote the law. It’s a computer program that shares similarities with forms.

Last year the DPI threatened a number of families who exercised their right to file their statement on a paper form. After HSLDA wrote a firm letter, the DPI took no further action. Experience shows the fear of some sort of “red flag” is not justified.

Objection 4: It would be unwise for families to refuse to list their children’s gender and their school district of residence on the statement of enrollment.

HSLDA’s Response

This criticism says that if families start refusing to list gender and district of residence, it might cause bad things to happen.

I doubt it. One of the fastest ways to lose your rights is to act as if you have already lost them. Exercising one’s rights in an appropriate, respectful way, on the other hand, tends to make those rights more secure in the long run.

More importantly, as the Wisconsin Parents Association (WPA) wrote last summer, submitting more than is required could actually tend to cause requirements to increase in the long run. We agree.

The WPA wrote: “Complying with more than the minimum requirement of the law … encourages public officials to increase requirements and exceed their legal authority.”

Objection 5: If the Wisconsin Department of Public Instruction returns or rejects a statement of enrollment, the children are truant.

HSLDA’s Response

As explained under our response to Objection 1, a statement of enrollment form is not necessary to prove one is in compliance with compulsory attendance. Our response to that objection answers this objection as well.

Once a family has filed a proper and timely statement of enrollment, their responsibility in that matter is finished. It is essentially irrelevant for the family’s own purposes what the DPI does with the statement after that.

It is a good idea when filing a paper statement to use a postal return receipt request. This should give you proof that your statement was received in the unlikely event it is ever needed.

And of course if the DPI returns a form for a legitimate reason, that should be handled appropriately.

Last year the DPI sent back to a number of families’ statements of enrollment that were properly completed. No one was ever charged with truancy.

Objection 6: If families exercise their rights, as explained by HSLDA, court cases will be filed that will lead to an increased level of homeschool regulation.

HSLDA’s Response

Historically, court cases have sometimes been important vehicles for the advancement of liberty. In Michigan, a court case in which HSLDA provided representation finally established the legality of homeschooling in 1993. In California, homeschooling was finally established as legal through a court case in 2008 in which HSLDA was involved.

A sure way to lose freedom is to act like you've already lost it.

If you think that court cases are always a bad thing, ask the homeschool kids who were arrested for violating a daytime curfew as they stepped from their bus into their community college. HSLDA filed suit. The town settled and changed its policy.

Or ask the young lady who was strip searched, after which her rights were vindicated through an HSLDA lawsuit. Or ask the family whom HSLDA successfully defended after school officials demanded to come into their home to observe home instruction.

And I could go on. We do not agree with the prediction that there will be court cases on the topics in question. Nor do we agree with the prediction that if a court case arises, it would lead to greater regulation.

Based on our 28 years of experience defending families in court, we reject the idea that homeschoolers often lose in court. Families with HSLDA representation have a very good track record of winning. Just this past March we obtained a complete dismissal of a truancy court case against a New Jersey member family.

Objection 7: If families exercise their rights, as explained by HSLDA, a legislative bill will be filed to increase the level of homeschool regulation.

HSLDA’s Response

Bad bills occasionally get filed in various states regardless of what homeschoolers do. But in every state but Arkansas, homeschoolers have defeated every bill that would have restricted their freedom to homeschool.

In fact, there is a strong trend for homeschool laws to gradually improve across the country.

There is no reason to think homeschoolers in Wisconsin would be any less successful in legislative efforts.

The surest way to lose your rights is to act like you have already lost them. The respectful, appropriate use of one’s rights is actually a sensible way to protect them.

Objection 8: HSLDA is an “outside” group of agitators, and therefore their views are less valid.

HSLDA’s response

In 31 years of practicing law, I’ve never been called an “agitator.”

I did not bring up these issues just for the heck of it. But I don’t like it when a government agency makes homeschool mothers and fathers feel afraid for no good reason.

The DPI was telling families that their children are not enrolled in a homeschool program until the PI-1206 form is filed. They were bringing up the specter of truancy to families who did not do exactly what they wanted on the statement of enrollment.

It made good sense to read the law to see if these rather frightening statements had a valid basis.

And I found that they did not. The statutes are simple and straightforward: a statement of enrollment does not cause enrollment—it simply reports it. A child cannot be truant simply because an adult does not file a statement.

I brought this to the DPI’s attention with a letter and asked them to correct several statements on their website. I got the message out to families that they did not need to be afraid.

I will leave to your judgment whether this made me an “agitator.”

Over 1,000 families in Wisconsin are members of HSLDA. With this level of support, it is not credible to call HSLDA an “outside” organization.

The lawyers at HSLDA have more experience than anyone in assisting homeschool families with legal issues and defending them in court. Helping homeschool families for 28 years gives us at least a little bit of credibility—even if our office is not in Wisconsin.

Over 80,000 families across the nation currently place their confidence in us to help them in a professional manner if a government agency threatens their homeschool program. We hope we continue to be worthy of that trust.

Objection 9: Even if filing a statement of enrollment is not required when starting a homeschool program after September’s third Friday, it is still a good idea to do it to prevent being charged with truancy.

HSLDA’s Response

The best way to tell the public school that you are moving your child from the public school to homeschooling—to head off an unjustified truancy charge--is to send them a simple letter. HSLDA has a form for this purpose on the members-only section of our website.

While it’s possible that a statement of enrollment might serve the same purpose in this context as a letter of withdrawal, it is not ideal. In the first place, the statute creating the statement of enrollment contains no hint that its purpose is to provide notice of withdrawal to public schools.

Furthermore, the statement of enrollment never even lists a child's name! Nor is it required to list grade or gender. Without identifying a child's name, etc., using the statement of enrollment as a substitute for a withdrawal notice leaves room for error or confusion. School staff might guess the child's name since the parents' names are listed on the statement of enrollment. But one hates to leave something as important as this to guesswork.

Finally, the statute does not require the DPI to send a copy of every individual statement of enrollment to the local school. It is their general practice to do so, but it is questionable whether families should place all their eggs in one basket by assuming the DPI will follow through.

Here is a cautionary tale on point. This week we assisted a west-central Wisconsin member who was told by a well-intentioned friend that she should not start homeschooling until she filed her form and the DPI acknowledged it, because (the friend said) that otherwise her son would be truant. The mom followed this advice. The DPI acknowledged her statement of enrollment on May 24th.

Despite this, within a few days, the school began sending emails asking why she had withdrawn her son. On the first day of school this fall, the school resumed its campaign and called the mom claiming that her son was truant and wanting to know when he would be back. “We need something on file saying why he’s not here.”

And they continued to call. Even the principal called—twice. Finally, the woman who would have been her son's teacher induced a would-be fellow student to visit the alleged truant at home and ask him why he wasn’t in school and when he would be back.

This mom received incorrect guidance at the outset. She endured some unnecessary vexation because of it. She is now an HSLDA member. We have urged her to file our letter of withdrawal. That should be the end of it.

Objection 10: HSLDA should not challenge the DPI through a court case or the legislature.

HSLDA’s Response

HSLDA has never suggested initiating a court or legislative challenge on any of these issues.