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October 18, 2013

On the Case:

HSLDA Amicus: Don’t Misinterpret State’s
Compulsory School Attendance Statute

Staff attorney Darren Jones is a member of HSLDA’s litigation team. He and his wife currently homeschool. Read more >>

In September 2013, Home School Legal Defense Association filed an amicus brief with the Pennsylvania Supreme Court in Commonwealth of Pennsylvania v. Kerstetter. The brief opposes an interpretation of Pennsylvania law which would effectively lower the age at which children become subject to compulsory school attendance.

Two lower courts have already ruled in the non-homeschooling case that children enrolled in kindergarten are subject to the compulsory attendance law, even if their age is below compulsory attendance age.

Pennsylvania’s compulsory attendance statute states that the compulsory school age begins when the parents enroll a child in school, which shall not be later than age 8, with the exception of the school district of Philadelphia, which sets the age at 6. An administrative regulation issued by the state board of education supplements the statute by stating that a child must be enrolled in a grade above kindergarten in order to be subject to the compulsory attendance age.

Affecting Homeschoolers

If not overturned by Pennsylvania’s Supreme Court, the ruling in Kerstetter will affect some homeschooling families. According to HSLDA Senior Counsel Dewitt Black, parents who enroll their children in a public school kindergarten, but then decide to homeschool them, would have to comply with Pennsylvania’s homeschool statute, filing the annual affidavit and portfolio, even if their child were below the compulsory attendance age.

Despite the plain language of the law, the Commonwealth Court ruled there was a contradiction between the statute and administrative code. The majority opinion stated that a child enrolled in kindergarten is subject to compulsory attendance, despite the administrative code specifying enrollment in a grade “above kindergarten.” The dissenting opinion argued that considering both the compulsory attendance law and the fact that Pennsylvania law does not require public schools to offer kindergarten classes, the legislature did not intend enrollment in kindergarten to mean a child is subject to compulsory attendance.

Because HSLDA is not a party to the case, we submitted a "friend of the court" brief explaining the impact of this case on homeschool families in Pennsylvania. Our amicus brief urges the Pennsylvania Supreme Court to consider the plain language of the statute and the dissenting opinion. We recommend that the court rule narrowly, only considering the facts specific to the case, and not upholding the more general ruling that would change Pennsylvania’s compulsory school attendance age for all. HSLDA hopes that the Pennsylvania Supreme Court will reverse the ruling and preserve the law as currently interpreted by the regulation.

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