Decision No. 13,225

(July 22, 1994)

SOBOL, Commissioner.--Petitioner, a resident of Indian River Central School District ("the district"), appeals the board's determination that she must comply with Commissioner's Regulation '100.10 while her daughter is receiving home schooling. The appeal is dismissed.

Petitioner's daughter has been receiving home schooling and respondent required petitioner to complete the Individualized Home Instruction Plan ("IHIP") for the 1993-94 school year. Petitioner failed to do so and instead requested a waiver from compliance with '100.10, asserting compliance would violate her First Amendment right to the free exercise of her religion. On February 5, 1994, respondent denied petitioner's request. This appeal followed.

As an initial procedural matter, respondent asserts that petitioner's memorandum of law raises new issues which should have been presented in the petition and, therefore, cannot be considered. A memorandum of law is not meant to belatedly add assertions which should have been included in the petition (Appeal of Executone Northeast, Inc., 29 Ed Dept Rep 18). A review of the record reveals that petitioner's memorandum of law contains 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 petitioner in the memorandum of law.

As a threshold matter, the Commissioner of Education will decide only cases where an actual controversy exists and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Chrisfield, 33 Ed Dept Rep 463; Appeal of Hartmann, 32 Ed Dept Rep 640). On January 5, 1994, respondent filed a report of suspected educational neglect with the local Department of Social Services (DSS). Therefore, the action petitioner is seeking to avoid -- the institution of educational neglect proceedings -- has already occurred. Further action on this matter occurs at the discretion of the local DSS, not respondent and not the Commissioner of Education (Family Court Act '1012). Therefore, this request is outside my jurisdiction. Additionally, there is no longer a controversy that I can adjudicate. Therefore, to the extent that petitioner seeks to have me prevent respondent from notifying the local DSS of petitioner's failure to comply with '100.10, the appeal must be dismissed as moot.

Even if I were to entertain this appeal, it would be dismissed on the merits. There is no dispute that petitioner has the option, under the Education Law and implementing regulations, to educate her daughter at home. That does not mean, however, that petitioner has a right to do so free from all government regulation. The State of New York has a legitimate and compelling interest in assuring that its children receive an education to prepare them to be productive members of society (Blackwelder v. Safnauer, 689 F. Supp 106; Appeal of Abookire, 33 Ed Dept Rep 473). The compulsory education law and '100.10 of the Commissioner's regulations were enacted to promote that interest.

Education Law '3204(1) and 3205(1)(a) require all children from six to sixteen years of age attend full-time instruction at public school or elsewhere. If instruction is given other than at 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 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 homeschooling 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 Commissioner's regulations was enacted in part to assist school authorities in fulfilling this responsibility.

Petitioner contends that the Religious Freedom Restoration Act ("RFRA") guarantees her the right to educate her child at home without any supervision by respondent. Section 3 of RFRA provides:

The record does not demonstrates how compliance with the regulation will result in an infringement on petitioner's First amendment right to the free exercise of her religion. The extent of petitioner's attempt to demonstrate this nexus is by repeatedly stating that she intends to render unto Caesar the things that are Caesar's and that her children's education is not Caesar's. The State of New York, however, has a legitimate and compelling interest in assuring that children in the State receive an education (Blackwelder v. Safnauer, supra; Abookire, supra). Furthermore, the court in Blackwelder held that New York's compulsory education scheme, including the method of enforcement, was the least restrictive means to serve the governmental interest of educating children. Therefore, even if I accept the argument that petitioner's first amendment rights to the free exercise of her religion were somehow infringed, there is no violation of RFRA, because the state's compelling interest meets the statutory standard. Accordingly, her appeal must be dismissed.

THE APPEAL IS DISMISSED.

IT IS ORDERED that, within ten days after receipt of my determination herein, petitioner comply with '100.10 of the Regulations of the Commissioner of Education.

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