December Birthdays and Compulsory School Age

December birthdays in New York City – now, that’s a fine kettle of fish! And we suspect it may be similarly messy for some homeschoolers in other parts of the state, too (more about that at the very end of this blog post).

We touched on the December Discrepancy (though we didn’t call it that) in Part 1 of the blog post titled “Kindergarten Changes in NYS” (we published Part 1 on 02/24/2013, and Part 2, which is less directly related to the discrepancy, on 03/10/2013). We said we’d be gathering more information on it, and now we have.

In April, we asked the parent of a NYC child with a December birthday, who had started filing homeschool paperwork in 2006-7, to tell us what she could remember of how the December Discrepancy had affected her family. She wrote us this email:   

What I remember (and this may not be accurate) is that there was a difference between homeschool and school requirements. If we had been sending [our son] to school he might have had to start 1st grade the year he was 5 in September because he was turning 6 before December 31 (his birthday is in late December). There was at least one boy in our playgroup at that time whom this rule affected; however, I also remember that this was a district and/or principal decision (I don’t remember which). We had a lot of December birthdays in our playgroup so this was an issue we parents often discussed. As I say (the way I remember it) at least one of the boys was absolutely required by his neighborhood school (or the one he selected — I cannot remember) to start school in the 1st grade when he was 5 in September because he was turning 6 in December (birthday sometime between 12/1 and 12/31). However, I remember other parents telling me that their particular school/district had waived this same rule for their child (of a similar age). At that time I checked into the homeschool rules and was relieved to find that the cutoff date was December 1, so I did not start filing for [our son] until the year he was 6 in September (meaning he had turned 6 the previous year in late December and may have been required to start school in some schools and/or districts). I do not remember there being a change in these rules, just that they were different. […]

Recently, it finally became clear to us that the New York City Central Office of Home Schooling (that is, Homeschooling) is now using a December 31 cutoff.

Here’s a timeline that we’ve been working on:

  • 1988 – The Regulations on Home Instruction went into effect for all of New York State.
  • Also about 1988: The NYS legislature passed a bill allowing Syracuse to (sort of – see the exact wording, as follows, for why it’s not really true that “kindergarten is mandatory”) change its lower limit for compulsory schooling. The new law read: “The board of education of the Syracuse city school district is hereby authorized to require minors who are five years of age on or before December first to attend kindergarten instruction”, but added that this doesn’t apply to “minors whose parents elect not to enroll their children in school until the following September” or to “students enrolled in non-public schools or in home instruction.” (Yes, it matters to NYC what happened with Syracuse – more on that below.)  
  • July 26, 1993: State law was amended to make December 1 the cutoff. Here’s item #38 from the NYSED’s Questions and Answers on Home Instruction: “When must a student begin to receive instruction? A change in Education Law 3205, which became effective on July 26, 1993, clarifies the age at which a student is subject to compulsory education. The law now requires children who turn six on or before December 1 to receive instruction from the start of the school year in September of that year. Children who turn six after December 1 must begin to receive instruction no later than the first day of school the following September.”
  • At some point in the past (we don’t know when): New York City began using a cutoff of December 31 rather than December 1 for admitting kids to public school kindergarten or first grade (and to other grades), though exceptions were sometimes made (including for kids transferring into the NYC public school system from private schools or from schools outside the city – many of these schools have earlier cutoffs). We have no details on what mechanism NYS may have used to authorize NYC to make these changes, but we think it did. The reason we think it did is that we remember seeing online the transcript or summary of a public hearing in which there was a parent urging a change to the cutoff in the public schools, and a state or city official answering that the change had already been authorized. (Sorry, we can’t find that link at the moment.)
  • Fall of 2006-7: The NYC Central Office of Home Schooling was created. Before that, homeschool paperwork had been processed by ten different Regional Offices within NYC (depending on the family’s address), and the procedures at these ten offices varied. The new Central Office, relying on the NYSED’s Q. and A. on Home Instruction, used a cutoff of December 1.
  • July 18, 2012: Governor Spitzer signed into law (to go into effect for 2013-14) two new bills (S07015 and S07519A, respectively) allowing New York City and Rochester to (sort of – again, see the exact wording for why it’s not really true that “kindergarten is mandatory”) lower the compulsory school age from 6 to 5 (in both cases, the child is/was supposed to attend from the beginning of the school year in which the child turns that age). The NYS legislature used the language of the old Syracuse bill in both the new bills. The part of the old bill that says “December first” wasn’t altered to reflect the fact that NYC had been using a December 31 cutoff for years in the public schools. Here’s a link to the text of the law that now incorporates the wording from all three bills (we hadn’t posted this link until now because the link wasn’t reliable – and we still think that it may go down sometimes for scheduled maintenance, especially on weekends): New Law
  • This spring (2013): Because of the change from age 6 to age 5, PAHSI began getting more questions than usual from NYC parents about when they should start filing homeschool paperwork for their children with December birthdays. PAHSI asked the NYC Central Office of Home Schooling for clarification, but got none. (We were already in hot water with them over our insistence on resolving other issues, like access to ARIS ParentLink and to older paper records, correcting computer records, and our two FOIL requests.) 
  • Recently: In reply to a parent asking about a child with a December birthday, the Central Office at first suggested she ask NYS, but later gave her the link to A-101 in NYC’s Regulations:  

So far, PAHSI’s interpretation of all of this is that, since the Central Office is currently using December 31 as the cutoff, and since the NYC public schools use that same cutoff, it’s probably in the best interest of your family, if you decide to homeschool, to use December 31 as the cutoff, too.

That is, unless some homeschooler really wants to try to prove that the public school cutoff was never authorized by NYS and therefore everybody in the NYC public school system is doing the wrong thing – in which case we don’t doubt that whatever lack of authorization technically exists will quickly be compensated for anyway, since NYS likely has no intention of telling NYC that it can’t have the cutoff it wants.

In other words, we understand that NYC regulations don’t technically supersede NYS law, but we don’t think this is a battle we would win, and we also think it might stir up a lot of other issues that are best left alone.  

The upside to all of this is that December 31 is just a far more intuitive cutoff than December 1 ever was. For example, we can now say to parents, “If your child was born in 2008, then -.”

In general, we feel that two different cutoffs in NYC (one for homeschooled kids and the other for public school kids) would worsen the already complicated compulsory school age situation, especially for parents taking their kids out of school and for parents who are investigated by the Administration for Children’s Services, for example because of a neighbor’s complaint. (The unexpectedly tricky process of discharging kids from a public school is what Part 2 of “Kindergarten Changes in NYS” was mostly about.)      

Note: The blog post you are now reading is focused on the narrow issue of December birthdays. For all the wrinkles on “whether kindergarten is really mandatory” (that’s an oversimplification), please go back to “Kindergarten Changes in NYS” (Parts 1 and 2). For information on who decides the grade level of your child while you’re filing homeschool paperwork, see point #26 in “How the Homeschool Regulations Really Work” (which you can access by clicking on “NYS Regulations”).  

We’d like to post a flow chart on compulsory school age limits (both upper and lower) in various parts of the state, but it’s a bit more work than we’re up for at the moment. (If anyone has experience in making flow charts, please volunteer to give us a hand.)   

Finally, is there anything confusing or problematic about December birthdays in other parts of the state (like Syracuse and Rochester)? We don’t know yet. Please send any info you might have for us about that to .