Grigg v. Com.

• Court: Virginia Supreme Court
• Writing for the Court: Before CARRICO; CARRICO
• Citation: Grigg v. Com., 297 S.E.2d 799, 224 Va. 356 (1982)
• Decision Date: 03 December 1982
• Docket Number: No. 810519,810519
• Parties: , 8 Ed. Law Rep. 199 Robert GRIGG, et al. v. COMMONWEALTH of Virginia. Record

Page 799

297 S.E.2d 799

224 Va. 356, 8 Ed. Law Rep. 199

Robert GRIGG, et al. v. COMMONWEALTH of Virginia.

Record No. 810519.

Supreme Court of Virginia.

Dec. 3, 1982.

Gregory A. Giordano, Virginia Beach (Thomas B. Shuttleworth, Clark & Stant, P.C., Virginia Beach, on brief), for appellants.

Robert E. Kowalsky, Jr., Commonwealth's Atty., Chesapeake, for appellee.

James W. O'Toole, King George, on brief, amicus curiae, for appellants.

Robert E. Shepherd, Jr., Richmond, on amicus curiae brief of Youth Advocacy Clinic, T.C. Williams School of Law, University of Richmond, for appellee.

Gerald L. Baliles, Atty. Gen., Maston T. Jacks, Deputy Atty. Gen., Paul J. Forch, Joan W. Murphy, Asst. Attys. Gen., on amicus curiae brief of the State Bd. of Educ., for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

CARRICO, Chief Justice.

At the time this case arose, Code § 22-275.1 (now § 22.1-254), part of the compulsory school attendance law, provided in part that parents shall send their school-age children to "a public school, or to a private, denominational or parochial school, or have such ... children taught [in a home] by a tutor or teacher of qualifications prescribed by the State Board of Education and approved by the division superintendent ...." The principal question in this case is whether parents, not approved as tutors or teachers pursuant to the Code section, may qualify for the private school exemption by teaching their children at home.

The case originated in juvenile and domestic relations district court when the chief attendance officer for the City of Chesapeake school system filed separate petitions against Robert Grigg and Vickie Grigg, husband and wife, and their daughters, Stephanie and Nicole. The petitions against the parents alleged that the attendance officer had investigated and found "no valid reason" for the non-enrollment of the children in the public schools; the petitions prayed for entry of an order compelling the parents to enroll the children in the public schools or to make "other proper arrangements" for their education. As amended, the petitions against Stephanie and Nicole alleged that they were children in need of services; these petitions requested that the court deal with the children in a manner to serve the purpose and intent of the "Juvenile and Domestic Relations District Court Law."

Following adverse decisions by the juvenile court on the four petitions, the Griggs appealed. The circuit court ordered the petitions against Mr. and Mrs. Grigg merged with those against the children. After a hearing, the court found that Stephanie and Nicole were children in need of services. The court placed the children on unsupervised probation for a period of twelve months on condition that they "regularly attend a private, public, denominational or parochial school, or ... be taught at home by a tutor or teacher of qualifications prescribed by the State Board of Education and approved by the Superintendent of Schools." The court also ordered the parents to send the children to one of the designated types of schools or to arrange for their instruction at home by an approved tutor or teacher.

It was stipulated below that Stephanie and Nicole, aged fourteen and eleven years, respectively, formerly attended public school in Chesapeake. They were withdrawn by their parents on January 2, 1980, in order that they might be "taught at home" by their mother.

The superintendent of schools gave the parents notice pursuant to Code § 22-275.10 (now § 22.1-261), requiring the children's attendance at school within three days, but neither child was re-enrolled. The parents sent a letter to the superintendent in March stating that the children were being instructed in a private school named "Ark II," which the parents had established in their home.

The parties stipulated also that Mrs. Grigg was the children's instructor and that she had not sought or received approval by state or local school authorities as a qualified tutor or teacher. The stipulation stated further that teachers in private, denominational, or parochial schools in Virginia are not required to meet the qualifications prescribed by the State Board of Education for tutors or teachers.

Mr. and Mrs. Grigg both testified below. Mr. Grigg said that he taught the children part of the time, but that Mrs. Grigg was the principal instructor. He is a high school graduate with the equivalent of an Associate's Degree in Industrial Technology; she obtained her high school diploma from a correspondence school. He stated the children were withdrawn from public school because he did not believe they were receiving an adequate education, because he did not approve of the language and violence present in the schools, and because he deplored the lack of morality in the public school setting. Mrs. Grigg echoed her husband's testimony in these respects.

In their instruction of the children, the parents employed the "Calvert School" program, using teaching manuals included in the materials furnished with the "Calvert Home Courses." The children received instruction daily from 8:00 a.m. to 4:00 or 5:00 p.m. during the school week; they were taught "everything that they had on a daily basis in the public schools [and] some extra things." Although she admitted that it was "difficult," Mrs. Grigg stated she was able to cope "[j]ust fine" in caring for her two younger children, aged three and two years, while she taught Stephanie and Nicole.

I.

The Griggs do not challenge the authority of the Commonwealth to require parents to send their children to public school unless they make proper provision otherwise for the children's education. Such a challenge would be fruitless, for this authority is recognized universally. Rice v. Commonwealth, 188 Va. 224, 236-37, 49 S.E.2d 342, 348 (1948).

Neither do the Griggs contend that the children's non-enrollment in public school was excused by the portion of Code § 22-275.1 that permits home instruction by an approved tutor or teacher. Rather, the Griggs contend that they established their own private school, which the children attended just as they would any other school, and hence the family's action was in full compliance with the statute.

The Griggs argue that the school attendance law is penal in nature and must be strictly construed, with every reasonable doubt regarding its interpretation resolved in their favor. They maintain that the term "private school" is undefined in the statute and that, unlike public schools, private schools are unregulated by the Commonwealth, even to the point that teachers in such schools need not be certified; hence, the term "private school" must be accorded a broad interpretation.

In support of their position, the Griggs cite People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950), which, they say, is "strikingly similar" to the present case. There, a statute required school-age children to attend public school in the district where they resided, but it exempted from the requirement those attending "a private or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools." 404 Ill. at 576, 90 S.E.2d at 214-15. The child involved had been withdrawn from public school and taught at home by the mother. The state contended the child's home tutoring did not constitute attendance at a private school. The court disagreed, adopting the parents' argument that "by receiving instruction in her home in the manner shown by the evidence the child was attending a private school." 404 Ill. at 577, 90 N.E.2d at 215.

Unlike our school attendance law, however, the Illinois statute did not provide for home instruction as a separate category of exemption in addition to attendance at a private school. We believe this distinction is not only substantial but also crucial. A similar distinction was noted in People v. Turner, 121 Cal.App.2d Supp. 861, 263 P.2d 685 (1953), appeal dismissed, 347 U.S. 972, 74 S.Ct. 785, 98 L.Ed. 112 (1954).

In Turner, the court had under consideration California's Compulsory Education Law, which is akin to our compulsory school attendance statute. The California law required children to attend public school but exempted, among others, those "being instructed in a private full-time day school by persons capable of teaching" and those "being instructed in study and recitation ... by a private tutor or other person [holding] a valid State credential for the grade taught." 121 Cal.App.2d Supp. at 864, 263 P.2d at 686. The parents contended that, in instructing their children at home, they were operating a private school within the meaning of the applicable statute. The court rejected this contention, stating:

[T]he legislature intended to distinguish between private schools, upon the one hand, and home instruction by a private tutor or other person, on the other. If a "private school" as that term is used in [the Compulsory Education Law] necessarily comprehends a parent or private tutor instructing at home, there was no necessity to make specific provision exempting the latter.

121 Cal.App.2d Supp. at 868, 263 P.2d at 688. Referring to the Illinois decision in Levisen, the California court stated:

The statute there, however, unlike our own, while exempting private and parochial schools, did not grant such exemption to instruction at home or by private tutor. Thus it did not upon its face indicate a legislative intent to distinguish between the two.

121 Cal.App.2d Supp. at 868, 263 P.2d at 688-89. ¹

The Griggs attempt to distinguish Turner on the ground that California's statute defines and regulates private schools, while Virginia's does not. A similar non-regulation argument was advanced in State v. M.M., 407 So.2d 987 (Fla.Dist.Ct.App.1981). Rejecting the argument, the court stated:

That there is no statutory authority...