IN THE SUPREME COURT OF PENNSYLVANIA. No. 60 MAP 2013 COMMONWEALTH OF PENNSYLVANIA, JENNIFER ANN KERSETTER, BRIEF OF AMICUS CURIAE

Transcription

1 IN THE SUPREME COURT OF PENNSYLVANIA No. 60 MAP 2013 COMMONWEALTH OF PENNSYLVANIA, v. Appellee JENNIFER ANN KERSETTER, Appellant BRIEF OF AMICUS CURIAE Appeal from the order of the Commonwealth Court dated February 19, 2013, at No CD 2012, which Affirmed and Remanded the order of the Snyder / Union County Court of Common Pleas, Criminal Division, dated June 29, 2012, at No. CP-55-SA , CP-55-SA , and CP-55-SA Richard Winkler Butcher & Winkler 123 North Franklin St. Titusville, PA (814) Counsel for Home School Legal Defense Association, Amicus Curiae James R. Mason, III Darren A. Jones Home School Legal Defense Association P.O. Box 3000 Purcellville, VA (540) Counsel for Home School Legal Defense Association, Amicus Curiae

2 TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF CITATIONS... 3 INTEREST OF AMICI CURAE... 4 STATEMENTS... 5 ARGUMENT A. Pennsylvania Students Enrolled in Kindergarten Are Not Subject to the Compulsory-attendance Law B. Pennsylvania Students May Be Withdrawn from Kindergarten And Are Then Not Subject to the Compulsoryattendance Law. 6 CONCLUSION

3 TABLE OF CITATIONS Cases Commonwealth v. Kerstetter, 62 A.3d 1065 (Comm. Ct. 2013)... 5, 6, 7 Slippery Rock Area School Dist. v. Pennsylvania Cyber Charter School, 612 Pa. 486, 31 A.3d 657 (Pa. 2011)... 5 Zager v. Chester Community Charter School, 594 Pa. 166, 934 A.2d 1227 (Pa. 2007)... 8 Statutes 24 P.S , 7 24 P.S P.S P.S , 8 24 P.S A... 8 Regulations 22 Pa. Code

4 INTEREST OF AMICI CURAE The Home School Legal Defense Association is an international organization with over 84,000 members in all 50 states, the District of Columbia, and 36 countries. We have over 2,800 member families in Pennsylvania. Our mission is to protect and advance the right of parents to teach their children at home. Any family who homeschools their children is eligible for membership. HSLDA attorneys assist member families to understand the law in their states, represent them in court when necessary, and advocate in federal and state legislatures on behalf of the interests of our members. Since our founding in 1983, HSLDA has been on the front line defending the constitutional right of parents to direct the education of their children by teaching them at home. HSLDA attorneys have been involved in scores of home school cases and have assisted in resolving thousands of legal contacts around the nation. Children who are homeschooled in Pennsylvania are subject to the same compulsory-attendance age as those who attend public schools. Parents who choose to homeschool must file an affidavit with the public school when the child reaches compulsory-attendance age and comply with comprehensive record-keeping requirements and annual assessments. 24 4

5 P.S Accordingly, the Commonwealth Court s interpretation in Kerstetter could affect homeschooling parents in certain circumstances. STATEMENTS For the statements of jurisdiction, scope and standard of review, case summary, and questions involved, we rely on the parties briefs. ARGUMENT A. Pennsylvania Students Enrolled in Kindergarten Are Not Subject to the Compulsory-attendance Law. Amicus is writing in support of Appellant s position on the Question Presented. The dissenting opinion of Senior Judge Friedman accurately states the compulsory-attendance law of the Commonwealth as we have long understood it to be, and we urge this Court to adopt Judge Friedman s construction of compulsory school age as found in 24 P.S and as explained further in 24 P.S ( beginners ). We further contend that Judge Friedman was correct in his analysis that [b]ecause kindergarten is not mandated by statute, attendance is not compulsory. Commonwealth v. Kerstetter, 62 A.3d 1065, 1072 (Comm. Ct. 2013). This Court has recognized for years that Pennsylvania law does not entitle a child to a kindergarten education at public expense. (See, as a recent example, Slippery Rock Area School Dist. v. Pennsylvania Cyber Charter School, 612 Pa. 486, 502, 31 A.3d 657, 667 (Pa. 2011).) But once the 5

6 parents decide to enter the child in school at first grade, the Commonwealth (through the agency of the local school district) is obligated to offer the student a free and appropriate public education. We agree with Judge Friedman that the phrase enter school refers to that mandated by statute, i.e., education that is required beginning with first grade. Kerstetter, 62 A.3d at B. Pennsylvania Students May Be Withdrawn from Kindergarten And Are Then Not Subject to the Compulsory-attendance Law. We also wish to bring to the Court s attention a distinction that could allow the Court to affirm the Commonwealth Court s judgment while preserving the right of parents whose child is not yet eight years old to withdraw the child from kindergarten without becoming subject to the compulsory-attendance law. It is not uncommon in our experience for parents to enroll a child in kindergarten, and then formally withdraw the child after the parents determine that the child is not ready for a formal educational setting. Some of these parents later decide to homeschool the child rather than send her back to public school. It has long been our understanding of the compulsory-attendance law that a child who begins kindergarten and then is formally withdrawn is not subject to compulsoryattendance until the child attains the age of 8 years old, at which time the home-education statute becomes operative. Amicus urges this Court to rule 6

7 in such a way as to continue protecting the right of parents to formally withdraw their children from kindergarten without being subject to the full force of the compulsory-attendance law. In this case below, defendant enrolled her children in kindergarten and then failed to cause the children to attend because she could not get them out of bed. Kerstetter, 62 A.2d at That is quite different from a parent who responsibly withdraws a child from kindergarten and then decides to wait before beginning the child s formal education, either at the public school or under the home-education statute. In practice, this withdrawal and waiting has been going on for years. Every year, our organization is made aware of parents who enroll their children in kindergarten and then withdraw them. The parents then wait until the child is more ready for formal education, and they either enroll the child in school or file the affidavit required by Pennsylvania s homeieducation law when the child turns eight. This practice is in accord with the Department of Education s regulation found in 22 Pa. Code 11.13, which tied entrance into public school to the definition of beginner found in 24 P.S In fact, the Pennsylvania Department of Education s Basic Education Circular 24 P.S states, Compulsory school age refers to the period of a child's life from the time the child enters school as a beginner which may be no later 7

8 than eight years of age until the age of 17 or graduation from a high school, whichever occurs first. 1 Amicus believes that this regulation, which was struck down by the Commonwealth Court, can and should be construed to be in accordance with the statutory definition of compulsory school age. The Commonwealth s compulsory-attendance law allows the parent of a child some discretion in determining whether the child is actually ready for formal institutional instruction. It recognizes that some children may not be ready to enter formal education until age eight, but that school districts may offer instruction for children even younger than first grade if the parents choose to take advantage of the opportunity. The Commonwealth has also pursued a strategy of allowing parents options in education by recognizing home education (24 P.S ), certified tutors (24 P.S (a)), and private religious day schools (24 P.S (b)). Even in public schools, the Commonwealth has opened up new options for parents and students in the form of charter schools (24 P.S A(5)). See Zager v. Chester Community Charter School, 594 Pa. 166, 174, 934 A.2d 1227, 1232 (Pa. 2007). 1 Pennsylvania Department of Education Basic Education Circular 24 P.S Admission to Kindergarten and Beginners at ion_to_kindergarten_and_beginners/507324, accessed on September 24,

9 The Commonwealth should defer to the wisdom of a parent who determines after a short time of enrolling the child in kindergarten that he is not ready for formal instruction. Parents should not be penalized with truancy charges for simply misreading a five-year-old child s readiness for institutional education. CONCLUSION This Court should reverse the decision of the Commonwealth Court and instead adopt the well-reasoned analysis of Senior Judge Friedman s dissent. Alternatively, should this Court decide to affirm the Commonwealth Court s judgment, Amicus urges a narrow interpretation that would only include a parent who enrolls a child in kindergarten and then fails to cause that child to attend for no good reason. This construction would preserve the right of parents to responsibly withdraw from kindergarten without being subject to the compulsory-attendance laws until the child either turns eight years old, or is enrolled in first grade. 9

10 Respectfully submitted, Richard Winkler PA ID Butcher & Winkler 123 North Franklin St. Titusville, PA (814) Local Counsel for Amicus Curiae James R. Mason, III Home School Legal Defense Association P.O. Box 3000 Purcellville, VA (540) Fax: (540) Counsel for Amicus Curiae Darren A. Jones Home School Legal Defense Association P.O. Box 3000 Purcellville, VA (540) Fax: (540) Counsel for Amicus Curiae 10

11 Certificate of Service I,, do hereby certify that the foregoing Brief on behalf of Amicus Curiae Home School Legal Defense Association was served upon the following counsel by first class mail, on this day of October, 2013: Counsel for Appellant: Patrick Adam Johnson Snyder County Public Defender s Office PO Box 152 Lock Haven, PA Counsel for Appellee: Michael F. J. Piecuch, Esq. Snyder County District Attorney s Office P.O. Box West Market Street Middleburg, PA