[M]embers of the State Board of Education vowed to move forward with a rule change to private schools, despite the Shumlin administration’s attempt to block the effort.
The board wants to require private schools that use public tuition dollars to allow open enrollment, among other changes.
After hearing that the Interagency Committee on the Administrative Rules rejected their proposed rules for independent school approval, the members of the state board voted unanimously to revise the rules and take them directly to the secretary of state. They said it was a civil right imperative particularly in the current political climate.
Chair Stephan Morse emotionally recounted what happened at the meeting with ICAR and told fellow board members that he didn’t think the political climate was right for a rule change.
“The current administration is against them [the rules] and has instructed the Agency [of Education] not to participate,” he added that the Gov.-elect, Phil Scott has indicated he isn’t supportive either.
“I think there is no real political viability of moving forward with these rules at this point,” he said.
The board, however, is moving ahead with rulemaking despite the political pushback.
A year ago, the SBE asked the Agency of Education to update the rules that are used to approve private schools to accept public funds to pay for students from choice towns. Private schools seek renewal every five years and the rules guide that process. The proposed rules would require schools to have open enrollment, provide special education, be accredited by an approved body and would increase the amount of financial documentation the schools need to supply.
Private schools pushed back saying that the new requirements would cost too much and could drive smaller schools out of business thereby limiting the choices that students have in towns that tuition. Rep. Oliver Olsen, I-Londonderry, who is also a trustee for Burr and Burton Academy, argued that real estate sales would slump in his district because people move there to access school choice.
One section of the rules particularly upsetting to the private schools says that to be approved they have to “comply with all other state and federal laws and rules applicable to Vermont public schools including, without limitation providing a learning and (as applicable) residential environment for students that is safe and healthy, unless otherwise provided by law.”
Private schools read that to mean they would have to give up their board of trustees and be guided by an elected school board as well as hire licensed teachers and a host of other things, according to Burr and Burton Headmaster Mark Tashjian.
Morse addressed this at the ICAR meeting saying it was a “misinterpretation” and the section was only meant to address health and safety needs. He reiterated that the rules did not affect how a school runs itself or who it hires.
“Nothing in these rules from the board’s point of view has any effect on school choice. We thought we were just modernizing the rules to bring them into compliance with public school operations,” he added.
In an interview, Olsen said that the rule that is in front of them says that independent schools have to do everything that a public school does. “There is absolutely no ambiguity – it is black and white.”
Morse said they will clarify the misconceptions, but he questioned the private school lobby’s motives.
“A lot of misinformation has been circulated and was presented yesterday (at ICAR),” he said adding that the interpretation that independent schools had to do everything that public schools do may have been “construed to accommodate what the independents wanted” the rules to look like to the public.
Morse acknowledged that the independent schools make an “immense” contribution to the state’s education program, “but I think they did a real disservice to the state education system and themselves yesterday [at ICAR].”
But that road goes two ways, according to Olsen, who wrote in a letter to Morse on Wednesday that “many people are deeply suspicious of this particular rule-making process.”
Jeffrey Francis, executive director of the Vermont Superintendent Association, was present at ICAR and the SBE’s meeting. He said it was clear the panel had received testimony before they considered the rules. Francis said that public hearings would have been the next step in the process. He questioned ICAR’s objectivity after being lobbied. “ICAR is largely administrative in nature and then they were confronted with an apparently unprecedented lobby,” he said.
Morse defended the board’s efforts over the past 18 months, saying that the process was fair and provided ample chance for comments.
AOE provided draft rules to the board at their annual retreat in July. They were approved and submitted to ICAR, but then were pulled back when Gov. Peter Shumlin asked the SBE to wait to submit them until after the election. Shumlin then told the agency not to help the SBE with the rules and they hired a private lawyer to support the work, according to Morse.
On Monday, ICAR sent the rules back to the SBE because it thought they needed more economic impact information and more stakeholder and public input. If ICAR had approved the rules they would have been filed with the secretary of state and the public comment period would have begun.
The motion stated that the rules are being sent back to the “State Board of Education for further work on the Economic Impact Statement, specifically the impact on small businesses and local school districts, and special education services as well as maximizing public and stakeholder input.”
Clare O’Shaughnessy, who sits on the ICAR board and is the AOE attorney who wrote the rules, told the SBE on Tuesday that it still has a path forward. “You can still go forward with the rulemaking process, there is no prohibition on going forward. You do have to do what they said and revise the paperwork to include an economic impact and stakeholder input. Once you have done those things then file the rules with the secretary of state and the official start of rulemaking begins.”
Francis said that this is “very legitimate territory for examination” by the State Board. “I hope that policymakers continue to look at the issues that were the subject of the rules and they aren’t dissuaded by ICAR’s initial response.”
Nicole Mace, who had been at the ICAR hearing, urged board members not to buckle.
“Yesterday there was really evidence of unprecedented lobbying that had gone on behind the scenes in advance of the meeting,” she said, adding, “Throughout this process, the perspectives of the independent schools have been loud and clear.”
She said that schools that want to have “selective enrollment policies should not accept public tuition dollars,” because the Vermont constitution says that when government provides a benefit they must provide it to all people on equal terms.
“We have independent schools that have close to 90 percent of their students publicly funded and yet are not equipped to ensure students with disabilities can access their programs,” she said referring to testimony before the SBE given by the Vermont Independent Schools Association in July.
Mace said that is a violation of the Constitution.
“Proceeding with these rules is a civil rights imperative,” she said. She encouraged them to resubmit the rules to “protect the rights of every student to have equal opportunity and access to education.”
SBE member Sean-Marie Oller introduced a motion to abide by ICAR recommendations and file the rules with the secretary of state.
Morse repeated that he didn’t think the timing was right. “I think the political climate is — as important as this is — I think it is a dangerous route to take at this stage.”
“I think it is dangerous not to take it,” said SBE member Bonnie Johnson-Aten.
Mark Perrin, another board member, said, “I try not to look at myself as a political figure so taking politics out of it — I think we should move ahead.”
Board member Peter Peltz said that “at this political crossroads it may be even more compelling.”
With visible emotion, the board voted unanimously to move the rules forward.