By Scott Woodruff
Senior Counsel, Home School Legal Defense Association
This essay should not be construed as legal advice.
Maine law requires home instruction families to file a statement assuring that they will provide at least 175 days of instruction, annually. I recently helped a family whose unique situation caused me to probe what "175 days, annually" really means.
They started homeschooling their child on July 1 when their child was only 5 years old, and therefore not subject to compulsory attendance. (If a 5-year old is enrolled in public school, the child is subject to the compulsory attendance laws until the parents withdraw him from the public school.) By the time his birthday rolled around on September 30—and their notice of intent was therefore due—the child had received 60 days of instruction. Would those 60 days count toward the 175?
I believe the correct answer is "yes". Here's why.
What "Year" Means
Everyone knows what "annually" means. It means once a year. And we all know a "year" is 12 months.
On the other hand, there are many different kinds of "year." They are distinguished based on when they start and stop. A calendar year goes from January 1 to December 31. A "fiscal year" can start on any day of the year. An "academic year" can start any day as well. So can a "school year."
A "year" might be reckoned based on the Gregorian year (which is commonly used in the West), or the Julian year (used by the Eastern Orthodox Church). The Islamic year begins in the summer. The traditional Chinese new year will next begin on February 12, 2021.
In ancient Greece, every big city had its own calendar. Multiple calendars were in use while Christ walked on earth (which causes some interesting dating challenges).
If we draw back our lens, we see that the earth's orbit around the sun (the basis of our solar year) is roughly circular, and a circle has no end or beginning. While the amount of time it takes to make one orbit around the sun is always about the same, the point we pick to call the "start" of that huge circle is more or less arbitrary.
Liberty is Fundamental
All governments in our nation rest upon the fundamental theory of liberty. This theory could be very briefly summarized as: "everything that is not prohibited is allowed." Many other nations, sadly, employ the exact opposite: "everything that is not allowed is prohibited."
Since everything is allowed that is not prohibited, and since Maine law does not specify a start date for the "annual" period, it follows that families are at liberty to establish a date that fits their situation.
This flexible start date also coincides with what the legislature intended. It's clear that the purpose of the 175 days is so that homeschooled children will receive about the same amount of instruction, overall, as public school students. The quantity of instruction is at the heart of the matter—not the date on which the annual period begins.
The legislature knows how to set a specific date when it wants. It set September 1 as the hard-and-fast due date for the yearly assessment (notice that I did not call it a "year end assessment"!). But it set no start date for the "annual" period.
Establishing a Program Year
Let's go back to our family with the soon-to-be six year old. They can pick July 1 as the start date for their program year. If so, they can count their 60 instructional days accomplished July through September toward the 175. Their program year began before they were compelled to begin it (i.e., before their child turned 6). That is totally ok.
If a family begins homeschooling in mid-year, they face similar decisions. If they start home instruction on March 1, do they need to get 175 days of instruction before the assessment is due on September 1? That would be preposterous.
When a family is starting their program, they should establish their desired program year, and stick with it consistently.
The family starting on March 1 could establish their program year as March 1-February 27. Or they could establish their program year as (for example) September 1 - August 31. If so, it would make sense to prorate the days.
March 1 to August 31 is 6 months, or 50% of an annual 12-month period. It would make sense for the family to provide 50% of 175 days, or about 88 days of instruction by August 31.
Department of Education Stance
Now let's see what the Maine State Department of Education says on the topic. Their paper notice form says: "A school year starts on July 1 and ends on June 30." Their form requires parents to say they "intend to provide home instruction... during the 20--/20—school year."
But home instruction is not classified as a "school" under Maine law. The "school year" is therefore not applicable. Neither HSLDA's nor HOME's sample form use the phrase "school year." Maine law does not require home instruction families to file a "report," so "reporting year" is likewise not applicable.
The State's form does not give families the option of stating that their program began before they filed their notice. This is somewhat understandable since the Maine statute uses the phrase "the date home instruction will begin." But here we must resolve an incongruity.
Resolving an Incongruity
The notice must be filed "within 10 calendar days" of when the program begins, according to the law. This means the notice can be filed 10 days after the program began. If a family starts their program on October 1 and files their notice on October 10, as they are allowed, it would be inaccurate to say their program "will" begin on October 10. It truly began in the past, on October 1.
Let's suppose this family withdrew their child from public school on September 30, and started their program on October 1. And let's say that on October 10 they used the Department's notice form and indicated their program "will begin" on October 10. Might an official claim the kids were truant between October 1 and October 10?
It cannot be ruled out. Logic demands that they have the option of stating that their program began on a date prior to the day on which they filed their notice.
Let's go back to our family with the soon-to-be 6 year old. If they file their notice on September 30, it would be inaccurate to say their program "will" begin on any date. In simple fact, their program began in the past, on July 1.
The most sensible way to resolve the incongruity is to conclude that families must be allowed to make an accurate statement on this point. The sample notices that HSLDA and HOME provide allow families to make an accurate statement about a program starting prior to the date of the notice. The Department's materials do not.
I could envision unusual circumstance where the misidentification of a program start date could have significant consequences for a family. It's imperative that families have the option of stating that their program began in the past. Families should, however, seek guidance appropriate for their situation if they are planning on doing this.
Let's zoom out to the here and now. School units are "rejecting" notices that do not identify a school year or reporting year. They are even claiming that such students will be "considered truant" (whatever THAT means!). This demand, and the corresponding threat, have no foundation in the law.
In light of the thoughts I have expressed above, I believe families should feel free to establish their own program year and reject demands to identify a "school year" or "reporting year". I join with the great freedom fighter Frederick Douglass in saying:
"Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them."
* HOME strongly urges HSLDA membership for the best legal support while homeschooling. Join to protect your homeschooling freedom, as well as the freedom of others! Find out more about HSLDA membership.
Article used with permission.