Vermont Home Study Statute

The home-study statute, 16 V.S.A. 166b, has several components. First, it sets forth a process for enrollment in a home-study program. This is accomplished by sending a written enrollment notice to the Commissioner of Education. See id. 166b(a). Enrollments expire on July 1, and new notices may be filed after March 1 for the new school year. See id. Next, the statute prescribes the information to be included in the enrollment notice. This includes the name and age of the child; names, addresses, and telephone numbers of the parents or guardians; an annual assessment of the student's progress during the preceding school year; an evaluation as to whether the child is handicapped if not previously enrolled in public school or a home-study program, and, if ordered by a hearing officer after a hearing under the statute, a comprehensive evaluation to determine eligibility for special education; a detailed outline of the content to be provided in each subject area of study, including any special services to accommodate any handicapping condition in accordance with state or federal law; the school district in which the program is located; he names, addresses, telephone numbers, and signatures of the persons providing instruction; and the signatures of all custodial parents or guardians. See id. 166b(a)(1) - (8). Within fourteen days of receiving an enrollment notice, the Commissioner or designee is required to send an acknowledgment of receipt, which must include a determination: (1) either that the enrollment notice is complete and no further information is needed, or specifically identifying information required under subsection (a) of this section which is missing. If information is missing the home study program shall provide the additional information in writing within 14 days; (2) either that the child may be enrolled immediately or that the child may be enrolled 45 days after the enrollment notice was received. at any time before the child may be enrolled, the commissioner may order that a hearing be held. After notice of such a hearing is received, the child shall not be enrolled until after an order has been issued by the hearing officer to that effect. Id. 166b(b). The statute goes on to delineate in separate sections the procedures for hearings to determine whether a home-study program meets the statutory requirements. Subsection (e) provides that the Commissioner may call for a hearing to determine the adequacy of a home-study program "for a student who has not yet enrolled". Subsection (f) provides that the Commissioner may also call a hearing "after enrollment" to determine whether the program has failed to comply with minimum statutory requirements or a minimum course of study. Subsection (g) states that the hearing must occur within thirty days of notice, and further provides: "If a notice concerns a child not yet enrolled in a home study program, enrollment shall not occur until an order has been issued after the hearing". If a child is already enrolled, an order terminating enrollment takes effect immediately. See id. 166b(h). Notwithstanding the frequent references by the court - and occasionally the parties - to the Commissioner's ostensible discretion to "approve" a home-study program, the statute plainly confers no such authority. Under subsection (b), enrollment occurs either immediately or within 45 days after receipt of the enrollment notice, unless the Commissioner orders a hearing, in which case "the child shall not be enrolled until after an order has been issued by the hearing officer to that effect." Id. 166b(b)(2). There is no provision, however, authorizing or empowering the Commissioner to defer enrollment indefinitely merely by virtue of a letter to the parent or guardian indicating that the information provided is "incomplete." Where the Commissioner has requested additional information under subsection (b)(1) and the home-school program has not provided that information within the prescribed fourteen-day period, the Commissioner may prevent enrollment by calling a hearing to establish whether the program complies with the statute and will provide a minimum course of study. Id. 166b(e). If the Commissioner fails to call for a hearing within forty-five days of receipt of the enrollment notice, the child is enrolled. Any doubts about the adequacy of the program that arise thereafter may be resolved by noticing a hearing under subsection (f), but such notice does not affect the child's enrollment status, which remains in effect pending the outcome of the hearing. See id. 166b(g), (h). The enrollment process outlined above is plainly designed to expedite the enrollment of children in home-study programs, and to place the burden on the State to preclude enrollment solely by means of a noticed hearing, which must occur within thirty days of the notice. This conclusion is readily apparent not only from the statutory provisions discussed above, see State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) (first step in determining legislative intent "is to look at the language of the statute itself" and to "presume the Legislature intended the plain, ordinary meaning of the language"), but also from the legislative history. The legislation that resulted in Vermont's first home-study statute in 1987 also amended 16 V.S.A. 1121, the compulsory school-attendance statute. Prior to the amendment, 1121 had required a child between the ages of seven and sixteen "to attend an approved public school or an approved or reporting private school" unless the child "(2) is being furnished with an approved program of home instruction."; see State v. DeLaBruere, 154 Vt. 237, 241, 577 A.2d 254, 257 (1990). In conjunction with enactment of the home-study statute, the Legislature modified the compulsory-attendance statute by deleting the underscored language, and substituting the following: "A person having the control of a child between the ages of seven and sixteen years shall cause the child to attend an approved public school, an approved or reporting private school or a home study program . . . ." 16 V.S.A. 1121; see 1987, No. 97, 2. This contemporaneous amendment to the compulsory attendance law reinforces the conclusion that pre-approval of a home-study program was not contemplated by the Legislature. This conclusion is also evident from testimony concerning the home-study bill before the Senate Education Committee. Minutes of the hearings reveal that one of the problems the amendment was intended to remedy was delays in approval of home-study programs by the Department. Several witnesses testified that backlogs in processing otherwise timely home-school applications had held up approvals beyond the start of the school year, resulting in students becoming technically truant. They observed that the 45-day automatic enrollment provision would prevent this from occurring, and place the onus on the state to act expeditiously.