New
York Constitution
Article XI
Section
1
The Legislature shall provide for the support and maintenance of a system of free common schools wherein all the children of the state may be educated.
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“The
section, as it stands here, in no
way interferes, directly or by implication, with the sacred right of the
parent and the family first to educate their children if they wish to do
so. It simply says that the State of New York, as a fundamental part
of its policy toward all of its inhabitants, shall provide for a system of
schools wherein if required — for those words, in my opinion, are fairly
implied — all the children of the State may be educated;
and that, of course, means if required by the parent.” Frederick Holls, Chairman of the Committee on Education of the NY Constitutional Convention of 1894, which wrote Section I, Article XI (then IX) regarding the common [public] schools |
Mr.
Peter Applebee, Director
Senate Education Committee
Room 846A LOB
Albany, NY
Peter as you know when we last met with you we requested that Senator Kuhl use
the powers granted by the people of New York in their Constitution in Article XI
Section 2 to decrease the powers of the Commissioner regarding oversight of
parent directed education. The record shows that this effort was not successful.
A review of CR100.10 results in determining that it claims its authority from
207, 3204, 3210, 3212, and 3234 of the education law. Observing the process
during the past two years it is evident that specific legislation is required
prior to the promulgation of regulation. That is further reinforced by a review
of Packer Collegiate Institute v SED in which the court determined that
legislation did not sufficiently delimit the power to regulate licensure of
private schools being granted to the Commissioner.
A comparison of the one time licensure process that was repealed in Packer to
the yearly regulatory process for parent directed education is virtually an
annual licensure requirement. All of the above mentioned statutes we in
existence at the time of Packer and were not sufficient for the Commissioner to
promulgate regulation without Legislative authority in 1948. Therefore it is
concluded that the action by the Commissioner in 1988 in promulgating CR100.10
was arbitrary and bypassed legislative authority.
We
also discussed at our last meeting the fact that there is very little if any
mandate in the New York Constitution regarding oversight of parent directed
education. Research of the original documents and records surrounding the
submittal of Article XI (then Article IX) has revealed that the purpose of
Section 1 was clearly explained by Mr. Frederick Holls, Chairman of the
Committee on Education of the Constitutional Convention of 1894.
Mr.
Campbell a Convention Delegate wished to add an amendment that would exempt,
“children whose parent or guardian are otherwise providing for their
education.” He wanted to protect, “…a right
superior in the parents to that of any other person, superior to any right that
might be asserted by the State or any other aggregation of persons.”
“It would seem, therefore, that since the right of the parent to
direct the education of the child is undeniable, and is meant to be conceded
here, that it is wiser to express it in the Constitution than to leave it
unexpressed, and, therefore, capable in the near future of denial or
controversy.”
In
no uncertain terms Mr. Holls replied:
“The section, as it stands here, in no way interferes, directly or by implication, with the sacred right
of the parent and the family first to educate their children if they wish to do
so. It simply says that the State of New York, as a fundamental part of its
policy toward all of its inhabitants, shall provide for a system of schools
wherein if required --- for those words, in my opinion, are fairly implied --- all
the children of the State may be educated; and that, of course, means if
required by the parent.”
He concludes with:
“There
is nothing here, and there was nothing further from the mind of the committee
than a denial of the rights of the family, or of any imputation upon private
schools of any character, and it is impossible for me to see by what language it
might be read into that amendment.”
This
finding would preclude oversight by the local (common) public school. Additionally it would protect the family and parent and their children from
state mandated testing or any comparison to the local (common) public school.
Therefore
we are asking for a redress of grievances which can best be accomplished in the
following manner:
The
NY Constitution grants certain power to the legislature, which can be employed
to protect the rights and liberties of the citizens or to police and suppress
them. What we are asking, is that the legislature use its power to protect the
inalienable right of the parent and family to direct the education of their
children free from the encumbrances placed upon them by the SED.
The
passage of the following exception will give permanent protection from
unnecessary regulations of the Commissioner of Education, Regents, or other
requirements made by School Boards and School Superintendents and their
associations.
The
language of the exception is consistent with the constitutionally implied
protection as illustrated in the Record of the Constitutional Convention of
1894. It will restore freedoms to New York citizens consistent with those, which
have been enjoyed by fellow Americans in the state of Illinois during the past
half-century, in the state of Texas for the past ten years and the state of
Michigan for the past three years.
Section
1 of Section 3205 of Part I of Article 65 of the education law is amended to add
an exception for a minor whose educational instruction is provided by a parent
or legal guardian as follows:
2. Exceptions.
d. A minor whose educational instruction is otherwise provided by a
parent or legal guardian or other person(s) designated by the parent or legal
guardian shall not be subject to the provisions of part one of this article. No
rule or regulation of the Commissioner of Education,
Section
2. This act shall take effect immediately.
