Commonwealth v. Kerstetter

DISSENTING OPINION BY

Senior Judge FRIEDMAN.

I respectfully dissent. The majority affirms the order of the Court of Common Pleas of the 17th Judicial District (Snyder County Branch) (trial court), which denied Jennifer Ann Kerstetter’s motion to dismiss the charges filed against her by the Midd-West School District (School District) for violating section 1327 of the Public School Code of 1949 (Code),1 24 P.S. § 13-1327, relating to compulsory school attendance. Because a child who has not entered first grade or is less than eight years old is not of “compulsory school age,” I would reverse the order of the trial court.

As stated in O’Leary v. Wisecup, 26 Pa.Cmwlth. 538, 364 A.2d 770, 773 (1976), “[t]he right to a public education in Pennsylvania is a statutory right, and, as such, [is] limited by the statutory provisions.” “A child is not statutorily entitled to a kindergarten education.” Slippery Rock Area School District v. Pennsylvania Cy-ber Charter School, 612 Pa. 486, 502, 31 A.3d 657, 667 (2011); see section 503 of the Code, 24 P.S. § 5-503. School districts are, however, statutorily required to provide free public education commencing with first grade. O’Leary, 364 A.2d at 773; see section 501 of the Code, 24 P.S. § 5-501.

Section 1327 of the Code, 24 P.S. § 13-1327, provides that “every child of compulsory school age ... is required to attend a day school.... ” Section 1326 of the Code, 24 P.S. § 13-1326, states:

The term “compulsory school age,” as hereinafter used, shall mean the period of a child’s life from the time the child’s parents elect to have the child enter school, which shall be not later than at the age of eight (8) years, until the age of seventeen (17) years. The term shall not include any child who holds a certificate of graduation from a regularly accredited senior high school.

In accordance with the above, from age eight until the age of seventeen, or upon graduation, a child is of compulsory school age. The Code states that a child must enter school by age eight; however, a parent may elect to start the child sooner. I believe the phrase “enter school” refers to *1072that mandated by statute, i.e., education that is required beginning with first grade. Thus, a parent may choose to enroll a student in first grade earlier than, but no later than, age eight.

The object of statutory construction is to ascertain and effectuate legislative intent. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a). “The best indication of legislative intent is the plain language of the statute.” Slippery Rock, 612 Pa. at 497, 81 A.3d at 663. The plain language of the statute provides that from the time a child enters first grade and until age seventeen or graduation, that child is of compulsory school age. The intent of section 1326 of the Code, 24 P.S. § 13-1326, is to ensure that by age eight a child is attending first grade, which a school district must provide, not kindergarten, which is optional.2 Further, a child must remain in school until age seventeen or upon graduation.

Moreover, the Department’s regulations support the proposition that “compulsory school age” does not include children attending kindergarten. Specifically, 22 Pa. Code § 11.13 provides:

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.

In O’Leary this court addressed the interplay between the Code and the regulations and stated:

An examination of the state statutes involved here, however, clearly indicates that a local school district is required to provide a free public education only to those resident children who enter school as “beginners” at the primary level (above the kindergarten level), and that the Department’s regulations compel attendance for “beginners,” not for kindergarten students.5

5. Every child of "compulsory school age” is required to attend school. Section 1327 of the Code, 24 P.S. § 13-1327. "Compulsory school age” is the period of a child's life which commences when he enters school as a "beginner,” 24 Pa.Code § 11.13; See Section 1326 of the Code, 24 P.S. § 13-1326. A "beginner" is defined as “any child that should enter the lowest grade of the primary school or the lowest primary class above the kindergarten level.” Section 1304 of the Code, 24 P.S. § 13-1304.

O’Leary, 364 A.2d at 773.

As stated by the majority, “a school district is not required to provide kindergarten and parents are not required to enroll their child in kindergarten.... ” (Maj. Op. at 1070.) Because kindergarten is not mandated by statute, attendance is not compulsory. “Compulsory” is defined as “[cjompelled; mandated by legal process or by statute.... ” Black’s Law Dictionary 326 (9th ed.2009). The Code’s compulsory school attendance provisions apply to a child required to be enrolled in public school. This requirement commences with first grade.

Accordingly, because a child who has not entered first grade or is less than eight years old is not of “compulsory school *1073age,” I would reverse the order of the trial court.

. Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 — 27-2702.

. The majority states that "the compulsory school attendance provisions apply to any student enrolled in public school, regardless of whether they are enrolled in kindergarten.” (Maj. Op. at 1070.) Following the majority’s rationale, a parent could circumvent the intent of Section 1326 of the Code, 24 P.S. § 13-1326 by enrolling an eight-year-old child in kindergarten, because that child would be enrolled in public school.