In re S.M

In re S.M (2002-214); 175 Vt. 524; 824 A.2d 593

2003 VT 41

[Filed 01-Apr-2003]

                                 ENTRY ORDER

                                 2003 VT 41

                      SUPREME COURT DOCKET NO. 2002-214

                              MARCH TERM, 2003

  In re S.M.	                       }	APPEALED FROM:
                                       }
                                       }
                                       }	Department of Education
                                       }	
                                       }
                                       }	DOCKET NO. 0204


             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Appellants, parents of S.M., appeal from an administrative
  decision by a hearing officer disallowing S.M.'s enrollment in a home study
  program on the grounds that appellants failed to comply with 16 V.S.A. §
  166b, in particular, that appellants did not provide "independent
  professional evidence" of the existence or nonexistence of a disability as
  required by 16 V.S.A. § 166b(a)(4).  Appellants contend that the hearing
  officer's interpretation of § 166b(a)(4) violates the plain meaning of the
  statute, contravenes the legislative intent behind the statute, is contrary
  to this Court's holding in In re T.M., 171 Vt. 1, 756 A.2d 793 (2000), and
  makes the statute unconstitutionally vague.  They argue that § 166b(a)(4)
  requires only that the child be evaluated by an appropriate professional
  and that the Vermont Department of Education (VDE) be provided with
  evidence that the evaluation has occurred along with the professional's
  conclusion about whether the child is handicapped.  We affirm.
   
       ¶  2.  The material facts are not in dispute.  S.M. is a
  six-year-old child who has not been previously enrolled in a Vermont public
  school or a Vermont home study program.  On February 4, 2002, appellants
  submitted a notice of S.M.'s enrollment in home study to the VDE, pursuant
  to 16 V.S.A. § 166b(a).  As part of the enrollment notice, appellants
  submitted a preprinted form designed by the Home School Legal Defense
  Association (the "HSLDA form") entitled "Evidence Concerning Lack of
  Handicap."  This form provides a statement by a professional that the child
  is or is not handicapped, along with the professional's credentials and
  signature.  The form does not indicate that any screening for disability
  has occurred or the date on which the individual signing the form last saw
  the child.  At the bottom of the form is the statement "This is not an
  authorization to release confidential information."  The HSLDA form
  submitted for S.M. was signed by Joanne Pye, a Vermont Early Childhood/EEE
  certified teacher, and dated January 28, 2002.

       ¶  3.  Believing that the HSLDA form was all that was required to
  satisfy 16 V.S.A. § 166b(a)(4), appellants chose not to file Form B, a
  nonmandatory form that allows parents to provide detailed information on
  the disability screening, including the screening method, the date of the
  screening, the results of the screening, and an opinion as to whether
  further screening is necessary.  This form is part of the Department's
  Guidelines for Home Study, which is included in a packet of information
  sent to home schoolers and which also contains descriptions of a variety of
  formal and informal screenings that may be utilized.

       ¶  4.  On February 15, 2002, the VDE's home study coordinator wrote
  to appellants and informed them that S.M.'s home study enrollment was
  incomplete, and requested by means of an attached checklist that they
  provide information concerning the method of screening for disability that
  was utilized.  On March 19, 2002, after appellants had failed to provide
  the information requested, the Commissioner of Education called a hearing
  pursuant to 16 V.S.A. § 166b(e).  The parties stipulated to facts, and the
  hearing officer concluded that the HSLDA form did not provide the
  "independent professional evidence on whether the child is handicapped"
  required by  § 166b(a)(4).  The hearing officer thus disallowed the home
  study enrollment for S.M. until such time as appellants provided
  information concerning the method of screening for disability used by Ms.
  Pye and the date of the screening.  This appeal followed.

       ¶  5.  Appellants' primary argument on appeal is that the hearing
  officer erred in interpreting  § 166b(a)(4) to require appellants to
  provide the VDE with more evidence than simply that the professional
  concluded that the child is or is not handicapped.  They contend that the
  hearing officer's interpretation of §166b(a)(4) violates the plain meaning
  of the statute, contravenes the legislative intent behind the statute, is
  contrary to this Court's holding in In re T.M., 171 Vt. 1, 756 A.2d 793
  (2000), and makes the statute unconstitutionally vague.

       ¶  6.  "Absent compelling indications of error, interpretations of
  administrative regulations or statutes by the agency responsible for their
  execution will be sustained on appeal."  In re Capital Inv., Inc., 150 Vt.
  478, 482, 554 A.2d 662, 664 (1988).  We find no compelling indications of
  error here.
        
       ¶  7.  As we stated in In re T.M., the enrollment process laid out
  in the Vermont home study statute "reflects a careful balance between the
  interests of the state in ensuring that students receive an adequate
  education, and the right of parents to direct the education of their
  children."  171 Vt. at 8, 756 A.2d  at 798.  Parents are thus free to craft
  a home study program for their child, see 16 V.S.A. § 166b(i) ("Nothing in
  this section requires that a home study program follow the program or
  methods used by the public schools"), so long as the program provides the
  child with a "minimum course of study," as defined in 16 V.S.A. § 906, that
  is "adapted in each area of study . . . to the age and ability of the child
  and adapted to any handicapping conditions of the child."  Id. § 166b(i). 
  To this end, although the Vermont home study statute is a notice-enrollment
  rather than an application-approval regulation, and thus "place[s] the
  burden on the State to preclude enrollment solely by means of a noticed
  hearing," In re T.M.,171 Vt. at 7, 756 A.2d  at 797, the Commissioner is
  empowered to call a hearing if he has significant doubt about whether the
  home study program can or will provide a minimum course of study, in which
  case it is up to the parents to establish that the home study program will
  provide the student with such a course of study.  16 V.S.A. § 166b(e).

       ¶  8.  The requirement of 16 V.S.A. § 166b(a)(4) that parents
  provide "independent professional evidence" on whether the child is
  handicapped must be viewed in the context of this statutory scheme.  The
  purpose of identifying home study students with disabilities is to ensure
  compliance with the requirement that home study curricula be adapted to
  student disabilities in each area of the minimum course of study.  See 16
  V.S.A. § 166b(i).  Yet, as the Hearing Officer stated:

    [W]ithout verification that some type of screening for
    disabilities has occurred there is simply no means for the
    Department to determine that the professional can actually render
    an opinion regarding the existence of a disability.  In addition,
    information concerning the method of screening, its results and
    whether the child is in need of further screening is essential to
    a determination as to whether a curriculum should be adapted and
    what sort of adaptations are necessary.

  In order for the Commissioner to fulfill the statutory duty to ensure that
  the home study program provides the student with a minimum course of study,
  VDE must be provided with sufficient information to show whether the child
  is handicapped.  The bare, conclusory opinion of a professional is
  insufficient for the Commissioner to make the required determination.  

       ¶  9.  This reading of 16 V.S.A. § 166b(a)(4) is consistent with the
  plain meaning of the statutory language.  Since the term "evidence" is not
  defined in the statute, it retains its plain and commonly accepted meaning. 
  N. Rent-a-Car, Inc. v. Conway, 143 Vt. 220, 222, 464 A.2d 750, 751 (1983). 
  "Evidence" is commonly defined as "[a] thing or things helpful in forming a
  conclusion or judgment," American Heritage Dictionary 617 (4th ed. 2000),
  or "that which tends to prove or disprove something; ground for belief;
  proof."  Random House Unabridged Dictionary 672 (2d ed. 1993).  Given the
  deference we accord VDE's interpretation of the statute, we conclude that
  VDE's interpretation that the conclusory statement of the professional
  alone is not sufficient "independent professional evidence" of lack of
  handicap must be sustained.
   
       ¶  10.   We need not, however, rely only upon the plain meaning of §
  166b(a)(4) alone.  If, based on the information provided, the Commissioner
  has "significant doubt" whether the home study program will provide a
  minimum course of study, the Commissioner can call a hearing and require
  the home study program to prove it will provide a minimum course of study. 
  16 V.S.A. § 166b(e).  Thus, the Legislature intended that the Commissioner
  be satisfied of the minimum course of study beyond significant doubt.  In
  essence, by requiring information about the professional's basis for the
  opinion that the child is not handicapped, the Commissioner is saying that
  a bare conclusory opinion statement is not sufficient to remove significant
  doubt.  We find no grounds to second-guess this reasonable application of
  the Commissioner's authority.

       ¶  11.  Nothing in our decision in In re T.M. is contrary to this
  interpretation of the statute.  In T.M., we held that the State can
  preclude enrollment in a home study program only by means of a noticed
  hearing. 171 Vt. at 7, 756 A.2d  at 797.  Thus, since the State failed to
  order a hearing within forty-five days of receipt of the notice of
  enrollment as required by 16 V.S.A. § 166b(b)(2), T.M. became automatically
  enrolled in a home study program and therefore could not be considered
  truant under 33 V.S.A. § 5502(a)(12)(C).  In re T.M., 171 Vt. at 8-9, 756 A.2d  at 798.  In reaching this conclusion, we emphasized that the Vermont
  home study statute is a notice-enrollment rather than an
  application-approval regulation.  Id. at 6-7, 756 A.2d  at 797.  The
  Commissioner and VDE complied with the requirements of T.M. in this case by
  calling a hearing on whether appellants had properly enrolled S.M. rather
  than denying enrollment.  Nowhere did we suggest in T.M. that Vermont and
  other "notice" states lacked any enforceable standards for home study
  programs.  To the contrary, we specifically recognized that the statute
  imposes certain requirements on parents, and that the Commissioner is
  empowered to determine whether a home study program complies with the
  statute in providing a minimum course of study, and to prevent enrollment
  through a noticed hearing if the program is not in compliance.  Id. (citing
  16 V.S.A. § 166b(e)).  Appellants' characterization of VDE's role in the
  enrollment process as merely a "ministerial function" is inaccurate.

       ¶  12.  Similarly, we reject appellants' contention that the VDE's
  interpretation of 16 V.S.A. § 166(a)(4) makes the home study statute into
  an application-approval provision by giving the VDE the authority to
  approve or disapprove the home study enrollment based on its own evaluation
  of the professional's data.  At best, appellants' criticism is premature. 
  As the Hearing Officer stated, "by requesting the method of screening and
  the date the screening occurred, the Department is not mandating a
  particular type of screening, or kind of professional required or use of a
  preapproved list of professionals.  The Department has asked the parents to
  submit the data or basis for the teacher's opinion and nothing more."  We
  recognize that appellants fear that the VDE will go further and begin
  judging the merits of the conclusion of the independent professional.  If
  that occurs, the parents involved can contest the VDE's action.  This is
  not that case.
        
       ¶  13.  In further support of their interpretation of 16 V.S.A. §
  166(a)(4), appellants argue that 16 V.S.A. § 166b is a penal statute that
  must be strictly construed against the VDE.  Penal statutes are generally
  to be strictly construed against the State.  State v. Oliver, 151 Vt. 626,
  629, 563 A.2d 1002, 1004 (1989).  However, nothing in the home study
  statute empowers VDE or a hearing officer to issue an order that has direct
  penal consequences.  It simply establishes a governmental reporting
  requirement, much as any regulatory law.  If the reporting requirement has
  penal consequences, it is because the person involved refuses to make the
  required report.  Thus, in the home study context, only if the Commissioner
  disallows enrollment following a noticed hearing, and the parents refuse to
  provide the required information, and the parents then choose to ignore
  Vermont's compulsory attendance requirement, see 16 V.S.A. § 1121, by
  failing to enroll their child in a public or private school, will any penal
  consequences under the truancy law ensue.  See id. §§ 1126-1127.  We reject
  appellants' characterization of the statute at issue as a penal statute. 
  See State v. Blondin, 164 Vt. 55,57, 665 A.2d 587, 589 n.1 (1995) (finding
  that 13 V.S.A. § 7031, which requires a court to establish a minimum and
  maximum term and to give credit for time served, is "primarily
  administrative in nature and not truly penal because it neither defines an
  offense nor prescribes a punishment").

       ¶  14.  Appellants' final argument on appeal is that under the
  Hearing Officer's interpretation of 16 V.S.A. § 166(a)(4), the statute is
  unconstitutionally vague because it fails to notify parents as to what is
  required for enrollment and permits arbitrary enforcement.  "A statute or
  ordinance is void for vagueness when it either forbids or requires the
  doing of an act in terms so vague that persons of common intelligence must
  guess at its meaning and differ as to its application."  Richards v.
  Nowicki, 172 Vt. 142, 150, 772 A.2d 510, 517 (2001).  We find no
  unconstitutional vagueness.

       ¶  15.  We need not reach whether § 166b(a)(4), standing alone
  without reference to agency guidelines and procedures, is vague.  The
  void-for-vagueness test is less strict where we are not dealing with a
  criminal statute and the person governed by it can "seek clarification of
  its meaning or resort to administrative processes."  Rogers v. Watson, 156
  Vt. 483, 491, 594 A.2d 409, 414 (1991).  Thus, we are unlikely to intervene
  for persons who "had the opportunity to clarify their responsibilities and
  did not use it."  Id.; see also Richards, 172 Vt. at 151, 772 A.2d  at 518
  (provision of septic ordinance not void for vagueness where town provided
  clarification and both parties offered evidence in response); Benning v.
  State, 161 Vt. 472, 484, 641 A.2d 757, 763 (1994) (failure to seek guidance
  on applicability of safety statute is fatal to facial challenge on
  statute).  A statute need only be "sufficiently clear to give a person of
  ordinary intelligence a reasonable opportunity to know what is proscribed"
  using the means available.  Brody v. Barasch, 155 Vt. 103, 110, 582 A.2d 132, 137 (1990).

       ¶  16.  Here, the statute, and its application, are constructed to
  clarify the responsibility of the parents.  The VDE publishes guidelines
  that show the information it needs for enrollment, and these guidelines
  clarified the information the VDE needed to show the child was not
  handicapped.  If the VDE determines that the parent's enrollment
  information is incomplete, it must specifically identify the information
  which it has determined is missing.  See 16 V.S.A. § 166b(b)(1).  As we
  held in T.M., if it wants to deny the enrollment because of incomplete
  information, it must call a hearing to determine compliance.  See id. §
  166b(e).  The hearing officer's decision following the hearing specifies
  the grounds for disallowing enrollment.  See id. § 166b(h).  Here, the
  guidelines and the notice from the VDE told the parents exactly what was
  expected of them.  The hearing officer's decision specified what they
  failed to provide.  They cannot claim that the statute is fatally vague in
  light of the specific instructions of the VDE and the hearing officer.
   
       ¶  17.  Despite the specific ruling in this case, appellants argue
  that the VDE's ruling in this case cannot provide the requisite
  clarification because it has acted inconsistently in other cases.  The
  inconsistent actions may undermine the weight that we give to the agency's
  interpretation of the statute, but do not make the statute vague. 
  "Consistency, of course, is a virtue both in administrative and in judicial
  determinations but inconsistencies in determinations arising by comparison
  are not proof of arbitrariness or capriciousness."  Seebach v. Pub. Serv.
  Comm'n, 295 N.W.2d 753, 761 (Wis. Ct. App. 1980) (citations omitted).

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, 
                                       Associate Justice (Ret.)
                                       Specially Assigned