HOUSE BILL NO. 242

INTRODUCED BY R. JORE

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING SCHOOL ENROLLMENT AND ATTENDANCE LAWS; ABOLISHING PROVISIONS REQUIRING A PARENT TO ENROLL A CHILD IN SCHOOL AND PROVISIONS REQUIRING A CHILD TO ATTEND SCHOOL; ABOLISHING REQUIREMENTS FOR A NONPUBLIC OR HOME SCHOOL; ALLOWING A STUDENT TO NOT ATTEND A CLASS OR ACTIVITY NOT REQUIRED FOR GRADUATION; AMENDING SECTIONS 20-1-308, 20-3-206, 20-5-111, 20-5-201, 20-7-435, 41-5-1203, AND 45-8-361, MCA; REPEALING SECTIONS 20-5-102, 20-5-103, 20-5-104, 20-5-105, 20-5-106, 20-5-107, 20-5-108, AND 20-5-109, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

WHEREAS, children are properly the wards of parents, not of the state, and compulsory attendance laws presuppose just the opposite; and

WHEREAS, the responsibility, both legally and before God, for the education of children lies with the parents, not with the state; therefore, the parents, not the state, must be able to exercise authority over the education of the children; and

WHEREAS, there are no Montana constitutional provisions warranting compulsory attendance statutes, making the statutes of questionable validity and inviting tension among parents, lawmakers, educators, and law-enforcement officers; and

WHEREAS, compulsory attendance laws are doubtful contributors to the literacy rate of the state, it being evident that mere attendance at a school does not constitute education or guarantee the acquisition of literary skills, nor does absence from school preclude a child's development of academic skills; thus, compulsory attendance satisfies no "compelling interest" of the state.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 20-1-308, MCA, is amended to read:

"20-1-308. Religious instruction released time program. (1) The trustees of an elementary or high school district may provide for a religious instruction released time program under which a pupil may be released from regular school attendance for a period not to exceed 2 hours a week for the purpose of receiving religious instruction upon written request, renewed at least annually, of the pupil's parent or guardian.

(2) A religious instruction released time program may not be established or administered in a way that public school property is used for the purpose of religious instruction.

(3) Public money may not be used, directly or indirectly, for religious instruction.

(4) A period for which a pupil is released under a religious instruction released time program is part of the school day and week for purposes of 20-1-301, 20-1-302, 20-9-311, and all other provisions of Title 20, and a release may not adversely affect the pupil's attendance record."

Section 2. Section 20-3-206, MCA, is amended to read:

"20-3-206. Additional positions. In the capacity as county superintendent, the county superintendent shall also serve as:

(1) the presiding officer of the county transportation committee, as prescribed by 20-10-131; and

(2)

the clerk of a joint board of trustees under the conditions prescribed by 20-3-361."

Section 3. Section 20-5-111, MCA, is amended to read:

"20-5-111. Responsibilities and rights of parent who provides home school -- rights of child in home school. A parent has the authority to instruct the parent's child, stepchild, or ward in a home school and is solely responsible for:

(1) the educational philosophy of the home school;

(2) the selection of instructional materials, curriculum, and textbooks;

(3) the time, place, and method of instruction; and

(4) the evaluation of the home school instruction."

Section 4. Section 20-5-201, MCA, is amended to read:

"20-5-201. Duties and sanctions -- exception. (1) Except as provided in subsection (5), a pupil :

(a) shall comply with the policies of the trustees and the rules of the school that the pupil attends;

(b) shall pursue the required course of instruction;

(c) shall submit to the authority of the teachers, principal, and district superintendent of the district; and

(d) is subject to the control and authority of the teachers, principal, and district superintendent while the pupil is in school or on school premises, on the way to and from school, or during intermission or recess.

(2) A pupil who continually and willfully disobeys the provisions of this section, shows open defiance of the authority vested in school personnel by this section, defaces or damages any school building, school grounds, furniture, equipment, or book belonging to the district, or harms or threatens to harm another person or the person's property is liable for punishment, suspension, or expulsion under the provisions of this title. When a pupil defaces or damages school property, the pupil's parent or guardian is liable for the cost of repair or replacement upon the complaint of the teacher, principal, or superintendent or any trustee and the proof of any damage.

(3) In addition to the sanctions prescribed in this section, the trustees of a high school district may deny a high school pupil the honor of participating in the graduation exercise or exclude a high school pupil from participating in school activities. The trustees may not take action under this subsection until the incident or infraction causing the consideration has been investigated and the trustees have determined that the high school pupil was involved in the incident or infraction.

(4) (a) A school district may withhold the grades, diploma, or transcripts of a pupil who is responsible for the cost of school materials or the loss or damage of school property until the pupil or the pupil's parent or guardian satisfies the obligation.

(b) A school district that decides to withhold a pupil's grades, diploma, or transcripts from the pupil and the pupil's parent or guardian pursuant to subsection (4)(a) shall:

(i) upon receiving notice that the pupil has transferred to another school district in the state, notify the pupil's parent or guardian in writing that the school district to which the pupil has transferred will be requested to withhold the pupil's grades, diploma, or transcripts until any obligation has been satisfied;

(ii) forward appropriate grades or transcripts to the school to which the pupil has transferred;

(iii) at the same time, notify the school district of any financial obligation of the pupil and request the withholding of the pupil's grades, diploma, or transcripts until any obligations are met;

(iv) when the pupil or the pupil's parent or guardian satisfies the obligation, inform the school district to which the pupil has transferred; and

(v) adopt a policy regarding a process for a pupil or the pupil's parent or guardian to appeal the school district's decision to request that another school district withhold a pupil's grades, diploma, or transcripts.

(c) Upon receiving notice that a school district has requested the withholding of the grades, diploma, or transcripts of a pupil under this subsection (4), a school district to which the pupil has transferred shall withhold the grades, diploma, or transcripts of the pupil until it receives notice, from the district that initiated the decision, that the decision has been rescinded under the terms of subsection (4)(a).

(5) A pupil may not be compelled to attend a class or activity that is not required for graduation if the pupil is excused from the class or activity by the pupil's parent or guardian."

Section 5. Section 20-7-435, MCA, is amended to read:

"20-7-435. Funding of educational programs at in-state children's psychiatric hospitals and in-state residential treatment programs for eligible children with emotional disturbances. (1) It is the intent of the legislature that eligible children in in-state children's psychiatric hospitals and residential treatment facilities be provided with an appropriate educational opportunity in a cost-effective manner, including the provision of a free appropriate public education for eligible children with disabilities that is consistent with state standards for the provision of special education and related services. General education programs for eligible children without disabilities must be provided in accordance with the requirements of subsection (7).

(2) The superintendent of public instruction may contract with an in-state children's psychiatric hospital or residential treatment facility for provision of an educational program for an eligible child in the hospital or treatment facility.

(3) Whenever the superintendent of public instruction contracts with an in-state children's psychiatric hospital or residential treatment facility for provision of an educational program for an eligible child in the children's psychiatric hospital or residential treatment facility, the superintendent of public instruction shall:

(a) ensure the provision of a free appropriate public education and an education that is consistent with the requirements of subsection (7) for children attending the hospital or residential treatment facility;

(b) negotiate the approval of allowable costs under the provisions of 20-7-431 for allowable costs for providing special education, including the costs of retirement benefits, federal social security system contributions, and unemployment compensation insurance;

(c) from appropriations provided for this purpose, fund any approved allowable costs under this section, with the exception of services for which reimbursement is made under any provision of state or federal law or an insurance policy;

(d) provide funding for allowable costs according to a proration based on average daily membership.

(4) A supplemental education fee or tuition may not be charged for an eligible Montana child who receives inpatient treatment and an education under contract with an in-state children's psychiatric hospital or residential treatment facility.

(5) If a children's psychiatric hospital or residential treatment facility fails to provide a free appropriate public education under the provisions of this part for an eligible child at the children's psychiatric hospital or residential treatment facility or fails to negotiate a contract under the provisions of subsection (2), the superintendent of public instruction shall negotiate with the school district in which the children's psychiatric hospital or residential treatment facility is located for the supervision and implementation of an appropriate educational program that is consistent with accreditation standards provided for in 20-7-111 and with the provisions of 20-7-402 for children attending the children's psychiatric hospital or residential treatment facility. The amount negotiated with the school district must include all education and related services costs that may be negotiated under the provisions of subsection (3) and all education and related services costs necessary to fulfill the requirements of providing the child with an education.

(6) Funds provided to a district under this section, including funds received under the provisions of 20-7-420:

(a) must be deposited in the miscellaneous programs fund of the district that provides the educational program for an eligible child, regardless of the age or grade placement of the child who is served under a negotiated contract; and

(b) are not subject to the budget limitations in 20-9-308.

(7) For the purposes of this section, an educational program in a psychiatric hospital or residential treatment facility:

(a) shall maintain records on pupil attendance and disease immunization and make the records available to the county superintendent of schools on request;

(b) shall provide at least 180 days of pupil instruction or the equivalent in accordance with 20-1-301 and 20-1-302;

(c) must be housed in a building that complies with applicable local health and safety regulations; and

(d) shall provide an organized course of study that includes instruction in the subjects required of public schools as a basic instructional program pursuant to 20-7-111."

Section 6. Section 41-5-1203, MCA, is amended to read:

"41-5-1203. Preliminary inquiry -- youth assessment. (1) The probation officer or assessment officer may perform a youth assessment if:

(a) a youth has been referred to the youth court as an alleged youth in need of intervention with a minimum of two misdemeanor offenses or three offenses in the past year that would not be offenses if the youth were an adult;

(b) the youth is alleged to be a youth in need of intervention or a delinquent youth and the youth or the youth's parents or guardian requests the youth assessment and both the youth and the parents or guardian are willing to cooperate with the assessment process; or

(c) the circumstances surrounding a youth who has committed an act that would be a felony if committed by an adult indicate the need for a youth assessment and the safety of the community has been considered in determining where the youth assessment is conducted.

(2) A youth assessment:

(a) must be a multidisciplinary effort that may include but is not limited to a chemical dependency evaluation of the youth, an educational assessment of the youth, an evaluation to determine if the youth has mental health needs, or an assessment of the need for any family-based services or other services provided by the department of public health and human services or other state and local agencies. The education component of the youth assessment is intended to address attendance, behavior, and performance issues of the youth. The education component is not intended to interfere with the right to attend a nonpublic or home school .

(b) must include a summary of the family's strengths and needs as they relate to addressing the youth's behavior;

(c) may occur in a youth's home, with or without electronic monitoring, or pursuant to 41-5-343 in a youth assessment center licensed by the department of public health and human services or in any other entity licensed by the department of public health and human services. The county shall provide adequate security in other licensed entities through provision of additional staff or electronic monitoring. The staff provided by the county shall meet licensing requirements applicable to the licensed entity in which the youth is being held.

(3) The assessment officer arranging the youth assessment shall work with the parent or guardian of the youth to coordinate the performance of the various parts of the assessment with any providers that may already be working with the family or providers that are chosen by the family to the extent possible to meet the goals of the Youth Court Act."

Section 7. Section 45-8-361, MCA, is amended to read:

"45-8-361. Possession or allowing possession of weapon in school building -- exceptions -- penalties -- seizure and forfeiture or return authorized -- definitions. (1) A person commits the offense of possession of a weapon in a school building if the person purposely and knowingly possesses, carries, or stores a weapon in a school building.

(2) A parent or guardian of a minor commits the offense of allowing possession of a weapon in a school building if the parent or guardian purposely and knowingly permits the minor to possess, carry, or store a weapon in a school building.

(3) (a) Subsection (1) does not apply to law enforcement personnel.

(b) The trustees of a district may grant persons and entities advance permission to possess, carry, or store a weapon in a school building.

(4) (a) A person convicted under this section shall be fined an amount not to exceed $500, imprisoned in the county jail for a term not to exceed 6 months, or both. The court shall consider alternatives to incarceration that are available in the community.

(b) (i) A weapon in violation of this section may be seized and, upon conviction of the person possessing or permitting possession of the weapon, may be forfeited to the state or returned to the lawful owner.

(ii) If a weapon seized under the provisions of this section is subsequently determined to have been stolen or otherwise taken from the owner's possession without permission, the weapon must be returned to the lawful owner.

(5) As used in this section:

(a) "school building" means all buildings owned or leased by a local school district that are used for instruction or for student activities. The term does not include a home school provided for in 20-5-111.

(b) "weapon" means any type of firearm, a knife with a blade 4 or more inches in length, a sword, a straight razor, a throwing star, nun-chucks, or brass or other metal knuckles."

NEW SECTION. Section 8. Repealer. Sections 20-5-102, 20-5-103, 20-5-104, 20-5-105, 20-5-106, 20-5-107, 20-5-108, and 20-5-109, MCA, are repealed.

NEW SECTION. Section 9. Effective date. [This act] is effective on passage and approval.

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