I have heard some bewildered, bemused comments in response to my article explaining the Department of Education’s waiver of the two-filing rule.
Parents want to know: am I breaking the law if I file only with my local superintendent, and don’t file a duplicate with the department? Is it okay for us to hold the department to a firm standard of obeying the law while we ourselves don’t do what the law requires? Those are fair questions.
For every law, there is a person or agency responsible for administering or enforcing it. Those persons always have a certain amount of leeway or discretion in how they administer the law. But that discretion can only be exercised in one direction: the direction of giving greater leniency. The administrators have power to require less than the law demands, but they do not have power to require more than the law demands.
A police officer can let you slide by going 32 miles per hour in a 25 zone. That’s his judgment call. But he cannot give you a ticket for driving 15 mph in a 25 zone. He cannot enforce a harsher standard than the legislature established.
Administration of the Law
It is a good thing that police officers and other administrators have discretion in the direction of leniency. The legislature must write laws that apply broadly to everyone, but they cannot foresee how the law impacts people in individual situations. We want administrators to make sensible judgment calls.
This possibility of leniency exists at every level of administration. The police officer can forbear from pulling someone over. If the officer pulls someone over, he or she can forbear from writing a ticket (as happened to me in Maine!). A prosecutor can forbear from filing criminal charges. A judge can decide to dismiss charges a prosecutor filed.
The department is the proper agency for administering one very small part of the Maine homeschool statute: the provision that requires families to file a duplicate copy of their paperwork with the department. Since the department is the proper agency in this very small area, and has discretion in the direction of greater leniency, we can embrace their decision to require less than the law demands. Duplicate filing is so 20th century!
Welcoming the department’s decision to require less than the law demands in the area of duplicate filing is not inconsistent with the homeschool community rebuffing the department for trying to enforce another aspect of the law (regarding birth date and school year) more harshly than written.
Common experience tells us that a person will make some good decisions and some bad ones. But despite this common experience, we sometimes feel surprised when a person who has made a bad decision turns around and makes a good one.
To accept the waiver and file only with your superintendent is to acknowledge that the department is the proper authority for administering the law and is operating properly in granting the waiver. There is an important unity between the law and the enforcement of the law. The department has decided that in this case, less is “due” or “owed” (as per Romans 13:7—part of a Scripture passage I refer to for guidance when dealing with the government).
There were many years when the department and the Maine homeschool community enjoyed a collegial relationship. Problems were solved with a phone call. I believe that one day that collegiality will return.
But until it does, we will gracefully acknowledge good decisions the department makes and respond candidly to bad ones.