September 27, 2010

Favorable Opinion from Attorney General

On March 9, 2010, the attorney general of Alabama issued a favorable opinion regarding the compulsory school attendance age for students enrolled in a church school. This affects the vast majority of families conducting home instruction because they do so through enrollment of their children in a church school.

As previously reported in the September/October 2009 issue of The Home School Court Report, on May 18, 2009, Governor Bob Riley signed into law Senate Bill 334, raising the compulsory school attendance age from 16 to 17 years old. Senator Arthur Orr (3rd District), the bill’s sponsor, included language intended to exempt students who had been enrolled in a church school prior to their 16th birthday. However, a plain reading of the new law indicated that the exemption was only available so long as the student’s parent or guardian filed a church school enrollment form with the local public school superintendent. HSLDA reasoned that if the student had to be enrolled in the church school in order to qualify for the exemption, it was no exemption at all. The student had to stay in school until age 17.

The attorney general’s opinion is different from that of HSLDA’s. Without taking into account the statutory language requiring the filing of a church school enrollment form for students who are 16, the opinion states that students who enroll in the church school prior to age 16 do not have to continue in school beyond that age. Following are excerpts from the opinion:

Accordingly, a church-schooled student is exempt from the mandatory school attendance age of 17—if he or she were previously attending a church school before attaining his or her 16th birthday. If that prerequisite is met, there is no legal impediment under this section for such a student to withdraw from school prior to attaining 17 years of age….

Specifically, a student must be attending a church school prior to the student’s 16th birthday before that church-schooled student can properly withdraw from school before reaching the mandatory attendance age. In other words, one cannot transfer to a church school and then immediately qualify to withdraw from school before one reaches 17 years of age. The student must have attended the church school before his or her 16th birthday before he or she can then qualify to withdraw under the exception.

Read the entire opinion online.

While the attorney general’s opinion is great news, HSLDA was concerned that the opinion did not even mention the effect of the language in the statute stating that a 16-year-old church school student was exempt from attendance, “provided such child complies with enrollment and reporting procedure specified in Section 16-28-7.” This requires the filing of a church school enrollment form with the local superintendent. Because of this concern, HSLDA Senior Counsel Dewitt Black wrote the Office of the Attorney General and asked that the statutory language requiring the filing of the church school enrollment form be considered in the opinion. Courts are not bound by state attorney generals' opinions, so we did not want to rely on this opinion and then end up defending our member families against truancy charges because they did not continue enrollment of their 16-year-old child in a church school. Unfortunately, in a letter dated July 13, 2010, the attorney general declined our request to consider the other statutory language, stating that only certain public officials could make such a request.

Although we are not completely confident that the courts of Alabama would interpret the new law the same as the attorney general, the attorney general’s opinion is the interpretation that is most favorable to homeschoolers. For this reason, we are going to support it and will assert it against any truant officer, social worker, or prosecutor who challenges the withdrawal of a 16-year-old child from a church school. It is unlikely that any truancy charges will be filed against a family relying on this opinion.

The exemption for 16-year-olds enrolled in a church school does not extend to children being taught by a private tutor. These children must continue to be instructed until age 17 unless they have completed high school graduation requirements for public schools.