Attorney General Interprets Homeschool Law

SYLLABUS:

Re:

(1)

While responsibility for the enforcement of the statutory requirements pertaining to home study programs rests in large measure upon local school superintendents, a local school superintendent does not have the power to issue subpoenas, require the production of documents, or to otherwise require parents to affirmatively "produce evidence" of their continuing compliance with the law in the operation of home study programs. While the local school superintendent is free to "request" such materials and statements he has, so far as I am aware, no compulsory process which can be invoked to secure such information other than in connection with a pending legal proceeding.

(2)

Concerning the legality of a school system paying personnel for unused sick or personal leave, I am unaward of any extant constitution or statutory prohibition of making such payments as a part of an overall compensation plan, provided that specific peripheral statutory requirements, such as those pertaining to the maximum number of days of risk leave which can be accumulated, are not violated.

MICHAEL J. BOWERS, Attorney General

Prepared by: ALFRED L. EVANS, JR., Senior Assistant Attorney General

OPINION:

This is in response to your request for our legal assessment and views on six issues in two unrelated areas of our school laws. In specificity, the first five issues, relating to home study programs under O.C.G.A. § 20-2-690 (1984), are:

1. Enforcement of Section 20-2-690(c)(3). "Whether or not the Local Superintendent of a school district can require parents or guardians to produce evidence of a high school diploma or GED certificate when they propose to teach in a home study program and whether or not he may require the production of a college/university degree of any tutor used?" (Emphasis added.)

2. Enforcement of Section 20-2-690(c)(4). "Whether or not the Local Superintendent may require evidence that a home study program includes reading, language arts, mathematics, social studies and science?" (Emphasis added.)

3. Enforcement of Section 20-2-690(c)(5). "Whether or not the Local Superintendent may require evidence that a home study program is providing the equivalent of 180 days of education with each school day consisting of at least four and one-half school hours?" (Emphasis added.)

4. Enforcement of Section 20-2-690(c)(7). Who is to enforce this Section "with regard to testing"?

5. Enforcement of Section 20-2-690(c)(8). Who is to enforce this Section "with regard to annual progress and assessment"?

In addition to the above, you request our view on whether "it would be a legal expenditure of school funds to pay an employee for accumulated/unused sick leave or annual leave, i.e., payment for unused days in lieu of the employee taking those days"? Our response to all of the above proceeds seriatim.

I. Home Study Programs.

Following our Supreme Court's "void for vagueness" decision concerning the attempted application of Georgia's prior "compulsory school attendance" law to parents operating a home study program (arguably a "private school" since what constituted a private school was left undefined by the prior Act), see Roemhild v. State, 251 Ga. 569 (1983), the General Assembly enacted a new "compulsory school attendance" law. See Ga. Laws 1984, p. 1266 (O.C.G.A. §§ 20-2-690, et seq.). The new law was designed to give statutory recognition to the paramount right of parents to determine and control the education of their own children, whether through public or private schools, or through home study programs taught by the parents themselves (or by private tutors), while at the same time asserting the State's legitimate interest in seeing to it that parental election of non-public school options doesn't (through parental abuse or otherwise), lead to children being deprived of any bona fide educational program whatsoever. Thus, while an "at-home study program" taught by a child's parents (the focus of your concern) is a recognized and sanctioned alternative to traditional public or private school education, such a program, to comply with the new compulsory school attendance law, must meet certain specified statutory requirements. They are:

"(1) The parent, parents, or guardian must submit within 30 days after the establishment of a home study program and by September 1 annually thereafter a declaration of intent to utilize a home study program to the superintendent of schools of the local school district in which the home study program is located;

(2) The declaration shall include a list of the names and ages of the students who are enrolled in the home study program, the address where the home study program is located, and a statement of the 12 month period that is to be considered the school year for that home study program. Enrollment records and reports shall not be used for any purpose except providing necessary enrollment information, except with the permission of the parent or guardian of the child or pursuant to the subpoena of a court of competent jurisdiction;

(3) Parents or guardians may teach only their own children in the home study program provided the teaching parent or guardian possesses at least a high school diploma or the equivalent GED certificate, but the parents or guardians may employ a tutor who holds at least a baccalaureate college degree to teach such children;

(4) The home study program shall provide a basic academic educational program which includes, but is not limited to, reading, language arts, mathematics, social studies, and science;

(5) The home study program must provide instruction each 12 months to home study students equivalent to 180 school days of education with each school day consisting of at least four and one-half school hours unless the child is physically unable to comply with the above rules;

(6) Attendance records for the home study program shall be kept and shall be submitted at the end of each month to the superintendent of schools of the local school district in which the home study program is located. Attendance records and reports shall not be used for any purpose except providing necessary attendance information, except with the permission of the parent or guardian of the child or pursuant to the subpoena of a court of competent jurisdiction;

(7) Students in home study programs shall be subject to an appropriate nationally standardized testing program administered in consultation with a person trained in the administration and interpretation of norm reference tests to evaluate their educational progress at least every three years beginning at the end of the third grade and records of such tests and scores shall be retained but shall not be required to be submitted to public educational authorities; and

(8) The home study program instructor shall write an annual progress assessment report which shall include the instructor's individualized assessment of a student's academic progress in each of the subject areas specified in paragraph (4) of this subsection, and such progress report shall be retained by the parent, parents, or guardian of children in the home study program for a period of at least three years." O.C.G.A. § 20-2-690(c)(1-8).

The starting point, of course, is the question of what the Act itself has to say about enforcement mechanisms. It is noted that § 20-2-690, provides in subsection (e) that:

"The State Board of Education shall devise, adopt and make available to local superintendents of schools, who shall in turn make available to administrators of private schools and parents or guardians with children in home study programs such printed forms and procedures as may be reasonably necessary to carry out efficiently the reporting provisions of this Code section, but such printed forms and procedures shall not be inconsistent with or exceed the requirements of this Code section." (emphasis added).

This section is consequently limited in application to the "reporting provisions" of the Code section, and would not apply to the particular "non-reporting" requisites with which you are primarily concerned (i.e., 3, 4, 5, 7 and 8).

Looking at the next following Code section, O.C.G.A. § 20-2-690.1(a), it seems clear that to comply with our new "compulsory school attendance" law through a "home study program", parents must operate the program in conformity with the above stated legal requirements. In the words of this Code section:

"Every parent . . . shall enroll or send such child or children to a public school, a private school, or a home study program that meets the requirements for a public school, a private school, or a home study program under such penalty for noncompliance with this subsection as is provided in Chapter 11 of Title 15 . . ." (emphasis added).

It is clear on the face of this statutory language that at least one available enforcement mechanism is that provided by Chapter 11 of Title 15, which deals with juvenile proceedings. Turning to that body of law we find that the term "deprived child" as it relates to the jurisdiction of the juvenile court under O.C.G.A. § 15-11-5, includes a child who is:

"without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals;" O.C.G.A. § 15-11-2(8) (emphasis added).

The authority of a local county or city school superintendent to initiate juvenile court proceedings (as well as other available judicial proceedings) is expressly provided for by the new "compulsory school attendance" law. See, O.C.G.A. § 20-2-690.1(c), and O.C.G.A. § 20-2-694 [which relates to the duties of both school superintendents and local boards of education to secure enforcement of the "compulsory school attendance" law in cooperation with other state and county agencies].

A second enforcement mechanism respecting compliance with the statutory requisites pertaining to home study programs is the attendant penal provision contained in O.C.G.A. § 20-2-690.1(b). Under this provision the operation of a home study provision in violation of the statutory requisites is a misdemeanor punishable by fine not to exceed $100, or imprisonment not to exceed 30 days, or both, at the discretion of the court having jurisdiction. Thus, in addition to initiating a juvenile court proceeding under Chapter 11 of Title 15, a local school superintendent could, if he believes the situation so warrants, file an affidavit for an arrest warrant with appropriate local law enforcement agencies. See, e.g., O.C.G.A. § 20-2-690.1(c). In my opinion, the provisions of this last mentioned code section would in the event of known violations also authorize the filing of civil actions for injunctive relief in the superior courts in order to compel compliance.

In reviewing what the law authorizes by way of enforcement procedures under the new "compulsory school attendance" law in the context of home study programs, I cannot find, on the other hand, any grant of authority to a local school superintendent, under either this Act or any other statute, to "require parents or guardians to produce evidence" of a home study program's compliance with the requisites mentioned in these first three inquiries. I know of no statutory power of a superintendent to issue subpoenas or notices to produce such information outside the confines of pending judicial proceedings. This is not to suggest that it would be in any way inappropriate or improper for a superintendent to request documentation or other evidence of parental compliance with the particulars you mention, but simply a conclusion of the absence of any power to "compel" the parent "to produce evidence" in the matter.

Moving to your fourth and fifth questions, i.e., "who shall enforce" Sections 20-2-690(c)(7) and (8) with regard to testing and annual progress assessment reports, the answer to your question of "who shall enforce" these provisions is seemingly answered by O.C.G.A. §§ 20-2-690.1(c) and 20-2-694, which place enforcement responsibility generally in the hands of local school superintendents and in the case of the latter code section in the local board of education as well. In the case of these last two matters (testing, progress and assessment), however, it would appear that the authority of these local school officials is limited to ascertaining whether or not the tests and progress assessment reports are in fact made, the language of these two sections indicating that the records and scores of such tests and the progress assessment reports "shall not be required to be submitted to public educational authorities" but are instead to be retained by the parents of the children engaged in a home study program. See, O.C.G.A. §§ 20-2-690(c)(7) and (8). Again we have a situation where while perfectly appropriate for the local school superintendent to periodically remind parents operating home study programs of these requisites of compliance and to ask for general information as to whether the tests and progress assessments have been made as required, the superintendents' enforcement powers (short of juvenile or other legal proceedings) is rather limited.

II. Payment for Accumulated/Unused Sick or Annual Leave.

Moving to your question concerning the legality of expending school funds to pay an employee for accumulated but unused sick or annual leave...

In sum, it is my unofficial opinion that while responsibility for the enforcement of the statutory requirements pertaining to home study programs rests in large measure upon local school superintendents, a local school superintendent does not have the power to issue subpoenas, require the production of documents, or to otherwise require parents to affirmatively "produce evidence" of their continuing compliance with the law in the operation of home study programs. While the local school superintendent is free to "request" such materials and statements he has, so far as I am aware, no compulsory process which can be invoked to secure such information other than in connection with a pending legal proceeding.

In connection with your second inquiry, concerning the legality of a school system paying personnel for unused sick or personal leave, I am unaware of any extant constitutional or statutory prohibition of making such payments as a part of an overall compensation plan, provided that specific peripheral statutory requirements, such as those pertaining to the maximum number of days of sick leave which can be accumulated, are not violated.

In the hope that the foregoing is responsive to your inquiries, I am,

Sincerely,


MICHAEL J. BOWERS
Attorney General

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