Decision No. 13,118

(February 28, 1994)

Matthew Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners, residents of Port Byron Central School District ("the district"), appeal the district's determination that their son, while receiving home-schooling, must be given standardized tests. The appeal is dismissed.

Petitioners' son, Nathan, a twelve year old student at the sixth grade level, has been educated at home since December 1991. On June 14, 1993, petitioners met with the superintendent of the district to discuss standardized testing for Nathan. On June 22, 1993, petitioners met with the district's testing coordinator to review the district's standardized test materials. On July 29, 1993, petitioners wrote to the district, advising the district that they would not administer standardized tests to Nathan. They stated that in lieu of such tests, they would provide the district with a narrative assessment of Nathan's progress.

Respondent wrote to the State Education Department for advice regarding this matter and received a response on September 7, 1993. That response restated the requirement that students of Nathan's age must be administered commercially published norm-referenced achievement tests (see 8 NYCRR 100.10[h]). Petitioners appealed the superintendent's decision to require testing to respondent board. The board upheld the superintendent's decision. This appeal followed.

As an initial matter, respondent asserts that petitioners' reply improperly raises new issues and seeks to supply information which should have been presented in the petition. A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Verity, 31 Ed Dept Rep 485; Matter of Pronin, 27 id. 203). A review of the record reveals that petitioners' reply papers contain new material which was not previously set forth in the petition (8 NYCRR 275.14). Therefore, I will not consider the material belatedly added by petitioners' reply.

There is no dispute that petitioners have the option, under the Education Law and implementing regulations, to educate their son at home. That does not mean, however, that petitioners can expect to do so free from any governmental regulation. The State of New York has a legitimate and compelling interest in assuring that children in this State receive an education to prepare them to be productive members of society (Blackwelder v. Safnauer, 689 F. Supp 106). The compulsory education law and '100.10 of the Regulations of the Commissioner of Education were enacted to promote that interest.

Education Law ''3204(1) and 3205(1)(a) require that all children between six and sixteen years of age attend full-time instruction at a public school or elsewhere. If instruction is given other than at a public school, it must be "substantially equivalent" to the instruction given to minors of similar age and attainment at the public schools of the district where the minor resides and must be given by a "competent" teacher (Education Law ''3204(1), 3204(2) and 3205(1)(a); Appeal of White, 29 Ed Dept Rep 511). The parent or guardian of the child in question must assure that the child receives the instruction mandated by the Education Law and must furnish proof that the child "is attending upon required instruction elsewhere" (Education Law '3212(2)(d)). Failure to provide such proof raises a presumption that the child is not receiving the required instruction, which may result in a finding of educational neglect (New York Family Court Act '1012(f)(i)(A); In re Christa H., 127 AD2d 997; In re Andrew "TT", 122 AD2d 362).

The primary responsibility for ensuring parents' compliance with the requirements of the compulsory education law rests with the local boards of education for the various school districts within the State (Blackwelder v Safnauer, supra; In re Adam, 132 Misc. 2d 797; Appeal of Lynn, 29 Ed Dept Rep 128; Appeal of White, supra). Through their superintendents, the boards bear the initial responsibility of determining whether an alternative educational program, including a home-schooling program, provides instruction substantially equivalent to that provided in the public schools of their own districts (Blackwelder v Safnauer, supra; Appeal of White, supra). Section 100.10 of the Regulations of the Commissioner of Education was enacted, in part, to assist school authorities in fulfilling that responsibility.

Commissioner's Regulations '100.10(h) requires that a commercially published norm-referenced achievement test must be administered to home-instructed students. The regulations also provide that in lieu of this test a written narrative may be supplied for a student in grades one through three (8 NYCRR 100.10(h)(2)(i)). However, the regulation further states that "...for grades four through eight, a written narrative ... may be used no more often than every other school year for these grades" (8 NYCRR 100.10(h)(2)(ii)).

I find that petitioners did not comply with the requirements of '100.10(h) of the Commissioner's Regulations. The record reflects that a commercially prepared norm-referenced achievement test has not been included in the current proposed annual assessment or in previous annual assessments conducted for Nathan. In accordance with the regulations, this test should have been given no later than the fifth grade level. Petitioners' son is now at the sixth grade level, and petitioners are out of compliance with the Commissioner's Regulations.

Petitioners' explanation for lack of compliance is that the regulation conflicts with their personal philosophy. They assert that districts are out of compliance with other regulations of the Commissioner, and, therefore, their failure to comply should be condoned or at least excused. However, knowing failure to comply with the law because it conflicts with personal philosophy or for any other reason is inexcusable.

THE APPEAL IS DISMISSED.

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