RULES AND REGULATIONS
Title 22—EDUCATION
STATE BOARD OF EDUCATION
[ 22 PA. CODE CH. 11 ]
Student Attendance
[44 Pa.B. 7670]
[Saturday, December 13, 2014]The State Board of Education (Board) amends Chapter 11 (relating to student attendance) to read as set forth in Annex A. The Board acts under authority of section 2603-B of the Public School Code of 1949 (School Code) (24 P. S. § 26-2603-B).
Summary
The final-omitted rulemaking amends § 11.13 (relating to compulsory school age) to conform to judicial rulings that found this section to be inconsistent with the compulsory school age and attendance requirements of section 1326 and 1327 of the School Code (24 P. S. §§ 13-1326 and 13-1327). Section 11.13 is also amended to acknowledge the discretionary authority related to compulsory school age granted by section 2103(8) of the School Code (24 P. S. § 21-2103(8)) to the governing authority of a school district of the first class.
On June 16, 2014, the Supreme Court of Pennsylvania upheld lower court rulings and affirmed that if a parent or guardian elects to enroll his child in a public kindergarten program, the parent and student are subject to the School Code's compulsory attendance requirements. See Commonwealth v. Kerstetter, 94 A.3d 991 (Pa. 2014). The appellant argued that kindergarten students are not subject to compulsory attendance, based in part on § 11.13, which formerly provided the following:
Compulsory school age refers to the period of a child's life from the time the child enters school as a beginner which may be no later than at the age of 8 years, until the age of 17 or graduation from a high school, whichever occurs first. A beginner is a child who enters a school district's lowest elementary school grade that is above kindergarten.Based on its examination of the relevant law, the Supreme Court concluded that § 11.13 inappropriately comingled ''compulsory school age'' and ''beginner'' in a manner that is inconsistent with the School Code. Based on a plain-language reading of Article XIII of the School Code (24 P. S. §§ 13-1301—13-1394), the Supreme Court ruled that the terms address discrete issues and apply to different audiences. Thus, § 11.13 is not consistent with the School Code.
The use of ''beginners'' in section 1304 of the School Code (24 P. S. § 13-1304) provides guidance to school districts as to the point at which districts must admit students to their schools. Since kindergarten is not made mandatory in this Commonwealth, logic dictates that ''beginners'' must be understood to mean students attending primary grades above the kindergarten level. Further, the School Code states that the use of ''beginners'' in this context applies only to section 1304 of the School Code.
Sections 1326 and 1327 of the School Code, by contrast, contain provisions for enforcing attendance in school that are directed at parents and guardians, including a definition for ''compulsory school age.'' As defined in section 1326 of the School Code, compulsory school age begins when a parent or guardian ''elects'' to have his child enter school. School attendance may be no later than 8 years of age. The Supreme Court noted that there is not a reference to ''beginner'' in this statutory definition, nor does the definition restrict compulsory school age to primary classes above kindergarten.
Because the Supreme Court ruled finally that § 11.13 is inconsistent with relevant provisions of Article XIII of the School Code, the Board must amend § 11.13 to delete references to ''beginner,'' a term that the Supreme Court has held is unrelated to the determination of compulsory school age.
The Board also makes a technical amendment to § 11.13 in recognition of the discretionary authority related to compulsory school age granted to the governing authority of a school district of the first class by section 2103(8) of the School Code. Effective July 1, 2008, an amendment to that section granted the school district's governing authority the right to set the compulsory school age for the district at no earlier than 6 years of age, with the exception of home education students who could continue to comply with the compulsory attendance of 8 years of age established for all other public school students in this Commonwealth.
Affected Parties
Because § 11.13 was inconsistent with the School Code as authoritatively interpreted by the Supreme Court, the final-omitted rulemaking conforming this regulation to the School Code will not affect anyone. However, the final-omitted rulemaking avoids potential confusion by anyone unfamiliar with the Supreme Court's opinion in Commonwealth v. Kerstetter.
Cost and Paperwork Estimates
The final-omitted rulemaking does not carry a new cost for the regulated community. The amendment does not alter current paperwork or reporting requirements and does not create additional paperwork or reporting requirements.
Effective Date
The final-omitted rulemaking is effective upon publication in the Pennsylvania Bulletin.
Sunset Date
The Board will review the effectiveness of Chapter 11 every 4 years in accordance with the Board's policy and practice respecting all of its regulations. Therefore, a sunset date is not necessary.
Contact Person
Interested persons may contact Karen Molchanow, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 787-3787, ra-stateboardofed@pa.gov.
Final-Omitted Rulemaking
The Board has promulgated this amendment as a final-omitted rulemaking. The Board believes this amendment meets the criteria in section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)), known as the Commonwealth Documents Law (CDL), because the amendment conforms § 11.13 to Article XIII of the School Code as interpreted by the Supreme Court in Commonwealth v. Kerstetter. The final-omitted rulemaking also makes a technical amendment in recognition of discretionary authority regarding compulsory school age granted to the governing authority of a school district of the first class by section 2103(8) of the School Code. Other amendments to § 11.13 would be inconsistent with the School Code. Therefore, consideration of alternative formulations is contrary to the public interest.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on October 10, 2014, the Board submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Education and the Senate Committee on Education. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on November 12, 2014, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 20, 2014, and approved the final-omitted rulemaking.
Findings
The Board finds that:
(1) Notice of proposed rulemaking is impracticable, unnecessary and contrary to the public interest under section 204(3) of the CDL and the regulation thereunder, 1 Pa. Code § 7.4(3).
(2) The amendment of the regulation in the manner provided in this order is necessary and appropriate for administration of the School Code.
Order
Acting under the authority of the School Code, the Board orders that:
(a) The regulations of the Board, 22 Pa. Code Chapter 11, are amended by amending § 11.13 to read as set forth in Annex A.
(b) The Executive Director shall submit this order and Chapter 11 to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Executive Director of the Board shall certify this order and Chapter 11 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order is effective upon publication in the Pennsylvania Bulletin.
KAREN MOLCHANOW,
Executive Director(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 44 Pa.B. 7622 (December 6, 2014).)
Fiscal Note: 6-332. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
Subpart A. MISCELLANEOUS PROVISIONS
CHAPTER 11. STUDENT ATTENDANCE
ADMISSION TO PUBLIC SCHOOLS § 11.13. Compulsory school age.
Except as otherwise provided by law, compulsory school age refers to the period of a child's life from the time the child enters school (which may be no later than at the age of 8 years), until the age of 17 or graduation from a high school, whichever occurs first.
[Pa.B. Doc. No. 14-2550. Filed for public inspection December 12, 2014, 9:00 a.m.]
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