Are Home Instruction Regulations s100.10 unconstitutional?

The Packer Decision can help answer this question.  In Packer, the court decided that a statute  violated the NY Constitution by delegating legislative powers to the Commissioner of Education.  If the Commissioner could not promulgate regulations where a statute directed him to, but failed to specify limits, then clearly, it can be argued that regulations CR s100.10, for which no statute specified authorization, are unconstitutional.

While Packer acknowledges the state's "limited right" to regulate non-public education, parents should seek for the least restrictive means of accommodating that limited right of the state. 

Packer Decision - Court of Appeals of New York - 07/16/1948
This is no small or technical matter we deal with here.  Private schools have a constitutional right to exist, and parents   [*192]   have a constitutional right to send their children to such schools (Pierce v. Society of Sisters, 268 U.S. 510). The Legislature, under the police power, has a limited right to regulate such schools in the public interest (Pierce v. Society of Sisters, supra; Meyer v. Nebraska, 262 U.S. 390). Such being the fundamental law of the subject, it would be intolerable for the Legislature  [***18]   to hand over to any official or group of officials, an unlimited, unrestrained, undefined power to make such regulations as he or they should desire, and to grant or refuse licenses to such schools, depending on their compliance with such regulations.  

Dee Black, Lawyer -Memo to Paul Matte - 04/24/2000 
 I have also read the 1948 decision of the New York Court of Appeals in Packer Collegiate Institute v. The University of the State of New York which you sent us.  Unfortunately, this case does not support your position that the State has no authority to regulate private education.  In that case the court declared unconstitutional a statute authorizing the Commissioner of Education to regulate private schools without any standards or limitations in the statute.  The statute in question was unconstitutional because it delegated legislative power to the Commissioner of Education.  The court said that the Legislature must formulate standards to govern the exercise of discretion by the Commissioner.  Citing the Pierce v. Society of Sisters case, the court said that the Legislature, under the police power, has a limited right to regulate private schools in the public interest.    It is also well settled that even though a state may regulate through a state agency or official, it cannot do so without express authority from its legislature.  In this case, there must be some statutory basis for the Commissioner of Education's promulgation of Section 100.10, or this regulation of home instruction programs in New York is invalid.  I believe the required statutory authority is present in Section 3210 of the New York Statutes.   Section 3210, from which the Packer case arose, also has language in a different subsection which is part of the basis for the home school regulation.  The home school regulation cites this statute as part of its authority to regulate home instruction.  Subsection (2)(d) of 3210 authorizes the State Education Department to promulgate regulations approving instruction elsewhere than at school which are "substantially equivalent in amount and quality to that required by the provisions of part one of this article."  Part one has to do with compulsory attendance, instruction by competent teachers, and instruction in prescribed courses.  I believe this is sufficient statutory authority for the home instruction regulation, although I suppose a legal argument could be made to the contrary.  

Seth Rockmuller, Lawyer - Email  to Paul Matte - 05/01/2001
There is, of course, a related constitutional argument similar to the one relied upon by the court in Packer. In that case a law was passed authorizing the Board of Regents to adopt regulations for the mandatory registration of nonpublic schools. The court indicated that looking at the subdivision challenged, the section in which it was contained, the entire article, or the entire Education Law, it could not figure out what the regulations were to contain. It did not say that, looking at the compulsory education requirements generally, the Regents could do certain things. Rather, the court could not ascertain what areas the Regents could regulate and what areas were beyond their authority.   Here, the Commissioner has no specific general authority to promulgate regulations regarding home instruction. Arguably, this would give him less authority, not more, than the Regents were found to have in Packer. I continue to have a real problem with the notion that the reference to regulations in Education Law section 3210(2)(d) provides an adequate basis for the general regulation of home education programs. By its terms, it applies only to attendance for a shorter school day and/or for a shorter school year; it would certainly be a tail wagging the dog argument to expand this provision to general authority to regulate home education. Additionally, authorizing regulation of the "quality" of a private program would seem to me to be as objectionable (based on lack of specificity) as the language found unconsitutional in Packer.

Scott Perkins, Lawyer -  Email to Paul Matte - 05/10/2001
I have, since the promulgation of Commissioner's Regulations 100.10, taken the position that the regulations, while binding upon public school administrators, are not binding upon those engaged in nonpublic, home school education ("elsewhere", as defined in the Education Law). The reason I have taken that position is that it is clear to me that the Commissioner of Education, by definition, generally  has jurisdiction and authority over the State's system of education and not over private education. There are some areas where the Commissioner does arguably have authority over those engaged in private education, such as the power to dictate the form for attendance records (Education Law 3204, I believe) and to those who voluntarily submit to his authority (i.e. state chartered  private schools). However, such authority  must be specifically delegated by the Legislature. Absent such limited and specific authority from the Legislature, the Commissioner has no authority to regulate private, home based education.   I  therefore agree with Seth's position that there is indeed a plausible argument that the existing regulations are beyond the Commissioner's statutory authority. I also agree with Seth that the reference to regulations in Education Law 3210 does not empower the Commissioner to regulate generally home education; if that were the case, why would the legislature specifically define those areas where authority was granted the Commissioner?   I was privy to some of the information and negotiations at the time the Part 100 regulations were adopted in the 1980's. I do not think anyone truly believed at that time that the Commissioner actually had the legal right to regulate home instruction. In fact, the lack of legal authority for the regulations was seen by some as favorable to homeschoolers. (Home school attorneys knew that if there was  a significant change in the legal climate involving the regulations, we could always advance a strong argument  that the Commissioner exceeded his statutory authority with the regulations.)  New York at the time was a hot-spot for truancy related Family Court prosecutions, and the general consensus was that homeschoolers had to call a truce with the State Education Department.  That truce resulted in the Commissioner's regulations which, ironically, homeschool leaders actually helped draft. The regulations were seen at the time as an acceptable and reasonable compromise to the public school superintendents' assault on home education, a view that I did not and do not hold.  I am sure that most knowledgeable participants in the process knew full well that the Commissioner could not legally promulgate home school regulations, but they served a purpose for all concerned. As a matter of expedience, most simply pretended that there Emperor indeed had clothes, and New York as a troublesome battleground became  relatively quiet.