Vermont state board looks to correct ‘mistakes’ in private school rules

State Board of Education
Education Secretary Rebecca Holcombe answers a question from State Board of Education member William Mathis during the board’s meeting in December at U-32 in East Montpelier. Photo by Andrew Kutches/VTDigger

Officials blame the controversy over new private school rules on mistakes made in the drafting process. Ambiguous language, they say, is the source of confusion that has sparked a statewide debate over whether the State Board of Education has the authority to mandate changes at private schools.

State board member William Mathis said the draft rules contain errors and need to be clarified.

“There are mistakes — that is the only way to put it,” Mathis said.

One rule, for example, says all teachers at private schools need to be licensed instead of just special education instructors, as intended. Another erroneously says private schools need to comply with all state and federal laws just as public schools do.

Those “mistakes” have sparked a brouhaha that have led private school leaders to conclude that the state effectively wants to eliminate school choice. Hundreds of community members came out for meetings on the rules in Manchester and St. Johnsbury last month protesting the change.

The State Board of Education says it never intended to hurt the state’s school choice system.

Rep. Oliver Olsen, I-Londonderry, who has criticized the way the board has gone about trying to promulgate the rules, said that the process has been rushed.

“The State Board of Education has never actually conducted a section-by-section review of the rules, so it should come as no surprise that there might be errors. In the absence of any effort to amend the draft over the past six months, it is difficult to know, with any certainty what may have been originally intended,” Olsen said.

The latest changes the state board is proposing would require private schools that accept town tuition dollars to share more financial data with the state, accept any student who applies and provide special education.

Oliver Olsen
Rep. Oliver Olsen, I-Londonderry, testifies before the House Health Care Committee. File photo by Mike Faher/VTDigger

Mark Perrin, a member of the SBE, said he thought approval of the draft rules last July would begin a process in which errors would be identified and changed through the public comment period.

Mathis said board members thought they’d have more time to review the draft rules. “We were going to come back to this with hearings,” Mathis said. “I would think people would just assume they would have many more chances to look at this. There was nothing scheming. It was just a screw-up.”

The state board is meeting with headmasters and representatives from private schools in an effort to clarify rules that guide the process for state approval of private schools that receive public tuition money. About 90 private schools in the state have some form of a public tuition program.

The SBE requested a review of the rules in November 2015, and staff at the Agency of Education drafted new language. At a July 29, 2016, meeting, the board approved the proposed rules.

The board has no staff and is charged with implementing school governance changes as part of Act 46, in addition to setting education policy. Mathis said the board has been overburdened and that contributed to the poorly written draft rules for private schools.

Nicole Mace, the head of the Vermont School Boards Association, says the state board was overtaxed. “The fact is the State Board of Ed didn’t have any (staff) support,” she said.

Many private schools do not hire licensed teachers. The first of the two errors that needs to be addressed is the one that would require private schools to only employ licensed teachers. The rule should have read “for special education,” which is federal law, Mathis said.

Stephan Morse, chair of the board, confirmed this was the intent. “The only licensed teachers in these proposed rules are for special education. All other teaching staff do not have to be licensed,” he said.

But the rule that has caused the most consternation is one that requires private schools to meet all federal and state rules that apply to public schools. The SBE says that provision was not written correctly and has been interpreted too broadly.

The rule was meant to apply only to federal and state requirements for health and safety laws, fire codes, fingerprint background checks and mandatory reporting of abuse, according to a letter the state board issued Nov. 29.

But Mark Tashjian, headmaster of Burr and Burton Academy in Manchester, read it to mean his school would have to dump its board of trustees and operate as a public school.

Morse says that section of the rules was not clear. “It reads as if an independent school would have to comply with all federal and state laws and rules and what we meant by that is that they would have to comply with health and safety rules. That was not clear in the original draft,” Morse said.

This is also where the confusion around school choice originates, according to Morse. “It is my understanding talking to folks from the independent schools that this is the area that they interpreted to remove the possibility of school choice,” he said, adding that philosophically the SBE is in favor of school choice.

“We never had any intent for the revised rules to have any effect on school choice,” he said.

In October, Tashjian wrote a letter to the Burr and Burton community telling them that the SBE rules would “effectively eliminate school choice in all of our towns.” He said smaller private schools would have to close and Burr and Burton would have to become like a public school. Tashjian encouraged them to make their voices heard and let the state know they reject the rules.

The fear of losing school choice drove hundreds of people to two SBE stakeholder meetings in St. Johnsbury and Manchester.

Mace said the SBE has “no intention” of closing private schools.

“People are very proud of their schools and will resist any attempt by the state to close their school, but that is what they were told would happen [by private school leaders],” she said.

The proposed rule changes, she said “will not fundamentally alter the school landscape as we know it.”

“They (SBE) are going to ensure public education dollars carry with them the same access in private schools that they have in public schools,” Mace said.

Morse and other SBE members, including Peter Peltz, Sean-Marie Oller and Bill Mathis have said that they never intended to force private schools to meet public school mandates in order to receive state tuition dollars.

“It was never the board’s intention,” Morse said.

Olsen says he had a phone conversation in October with Morse in which he asked if the rule was a “catch-all” to force private schools to act as publics. Olsen said Morse said “that’s the whole point.”

Morse said he has “no memory of this conversation.” He reiterated that the SBE has “every intention to correct this section so that it is clear that every institution must comply with state and federal rules and laws dealing with health and safety. This is very standard for any public institution.” Morse added that they have conveyed this to the private school community.

“We are not targeting the independents,” said Peltz.

The Agency of Education agrees that the federal and state health and safety section “was ambiguously written and needs revision. Clarifications to this section and the teacher licensure section will be made to ensure clear interpretation of the rules,” according to Haley Dover, public information officer for AOE. She added that the timing of the redrafting will depend on the availability of staff.

But the problem remains as long as the language remains.

On Friday, the Senate Education Committee met to hear legislative counsel Jim DesMarais explain his analysis of the draft rules. DesMarais said that the rules, as written, would force private schools to change the way they do business.

Sen. Philip Baruth, D-Chittenden, who chairs the committee, agreed that as written “it says we are going to map everything from public schools onto private schools. I don’t think that is a stretch. They indicated they are going to change that but they have not done it on paper.”

Mathis said that the SBE should have caught the mistakes at the June meeting. In hindsight, he said, there are a whole host of things he would do differently starting with inviting stakeholders at the “very inception” as well as spend more time working on the rules.

Next week members of the SBE will go over proposed changes, Morse said.

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  • Tom Grout

    “One rule, for example, says all teachers at private schools need to be licensed instead of just special education instructors, as intended. Another erroneously says private schools need to comply with all state and federal laws just as public schools do.”
    I dont believe this for one minute. As I started reading this column I thought ,Ok the VSE is accepting other views but to come back and state mistakes of this magitude were made tells me the Ed folf and outright lying and covering their butts.

    • Things are never as they seem:

      According to a previous ‘comment’ by Mr. Mathis, even the licensing requirement for independent school SPED teachers is not always a requirement.

      And keep in mind that these ‘requirements’ have many permutations. For example, a teacher in the process of taking classes to be SPED certified is often considered sufficiently qualified to be employed as such.

  • Tom Grout

    Again all these Ed people from Mace to Mathis are crying and making excuses just like little Johnny in first grade. There ought to be consequences in their actions and not reason why they needed up big time.
    Gov Scott; please clean house with these individuals and get someone on these boards that care for the children.

  • Willem jewett

    Why use quotation marks around the word mistakes? Rules are proposed, comments are taken, amendments are made. The process appears to be working. By using quotation marks you express skepticism of the boards work. Working without staff it seems like we might accept the explanation and allow the process to work rather than fueling further controversy.

    • Exactly – there is a policy development process whereby a starting point is selected, public feedback is obtained and alterations to the proposal are made. In this specific case the process concludes with a decision by the Legislative Committee on Rules.

      Plenty of time for folks of good will to come together and exchange thoughts.

      Unfortunately this process involving approved independent (aka private that gets public tuition dollars) school rules has been hijacked by a few very loud people and turned into personal attacks against Vermont State Board of Education members.

      • Tom Grout

        Sorry but the VSBE members lost sight of who they represent being us the people and not the teachers union. The fact that this commentator cannot see this or is unwilling to accept critism like the others board memebrs clearly shows how unwilling they are to listen. Rama, parents want choice even if they dont use it. Parents want accountability, able to understand their childs report card and most importantly parents want their child to have a good education and the latter is not a given by throwing globs of greenbacks to the union and its members.Plain and simple.

      • Megs Keir

        It is disingenuous to describe the timeline for this process of rule development as providing “plenty of time for folks of good will to come together and exchange thoughts.” Act 46, with its clearly defined set of incentives attached to a clearly defined timeline, should only have been enacted AFTER all the rule-making was completed, as well as thoroughly vetted, researched and corrected for “mistakes,” before it was implemented. Now the state has hundreds of school districts in various stages of complying with new governance requirements, and school boards trying to keep up with the ever-evolving legal counsel surrounding this Act.

    • Tom Grout

      Yes i agree Williem however these Ed gurus were denying the public’s comments all the while and spilling out nonsense for responses.

  • Matthew Patterson

    ‘The hubris of the defeated’

  • It’s way past time to disband the State Department of Education entirely.

  • Matt Young

    The Vermont education board never ceases to amaze. They are now portraying problems with their new regulations as basically a misunderstanding. They will tweak them just enough to try slide them through. The boards continuous assertion that they aren’t trying to squeeze independent schools is disingenuous. Some of Vermonts small independent schools do not have an abundance of money, the proposed regulations that would, “open the books” are actually designed to enable the Ed board to close a school down for not having “enough money to satisfy their mission”. So here is how it works,
    1. Big Ed does its best to keep tuition dollars from independent schools.
    2. Big Ed then looks at the books and determines that our small independent schools don’t have enough money to ‘satisfy their mission”
    3. Big Ed closes our small independent schools for lack of resources.
    4. Students are forced to return to public schools.
    5. Mission accomplished, union teacher jobs are saved.

  • Mia Culpa??? ‘Fake News’….meet ‘Fake Rules’.

    Who is to say whether or not the corrected rules will be correct? Will they be based on incorrect research and assessments from education special interest lobbyists?

    Those of us who have tried to call the State Board of Ed. to account can’t be expected to do so forever. And we can’t expect VTDigger to expose every incorrect rule, or misinterpretation thereof, that occurs at every school board meeting or parent/teacher conference.

    Yes, yes, yes….you’ve heard it before. But at some point everyone must consider that ‘education experts’ are often wrong and there is the distinct possibility, if not probability, that the best agent for accountability in our education system comes from individual parents looking out for what’s best for their individual children.

    • Vaughn Altemus

      Yes, yes , yes Mr. Eshelman, we’ve heard it all before. The rule-making process regularly takes up to a year. Plenty of opportunities for for public input are built in. People were assured that licensing all independent school teachers was not intended as soon as the error was pointed out. But you didn’t want to hear. Much better to have a war and play victim.

      Your real objective is not protecting existing independent schools, which are not threatened. It’s having the state impose universal school choice on districts that operate schools and belong to unions. As the issue is studied it will become clear that your proposal is an existential threat to many small schools.

      • An interesting spin, isn’t it….’imposing’ choice on a school district electorate (parents, taxpayers, teachers and administrators). I guess it’s a bit like imposing liberty and freedom on everyone.

        Please don’t throw me in that briar patch.

        • Vaughn Altemus

          You’re confusing freedom with anarchy. Maximized individual choice doesn’t maximize freedom when the choices of a minority constrain the choices of the majority. It’s a basic concept.

          Is an imposition of a community standard on your neighbor that prevents him from blasting his large, expensive stereo at 2:00 in the morning an intolerable suppression of his pursuit of happiness?

          I’m not sure whether you can’t envision how the choice of a minority of parents and students to opt out of a small local school could drive enrollment below the point where the school is viable, or whether you think a school in those circumstances that can’t attract enough tuition students to replace those who leave deserves to be closed.

          We should sit down over cups of coffee someday. Communication is facilitated when people start with the assumption that people with whom they disagree are acting in good faith. There is a shortage of that on all sides in education debates.

          • Matt Young

            Vaughn, I will use your “blasting a large stereo at 2 in the morning” analogy. When referring to independent schools no one is blasting a stereo at 2 in the morning. But some children like to listen to different types of “music.” The public school monopoly offers one kind of music, some kids enjoy it and tap their foot and smile, it’s painful for other children to listen to this particular type of “music.” Independent schools offer another type of “music”, one of what should be many choices from a playlist. This particular type of “music” isn’t perfect for everyone either. Things get a little sticky when the “stereo” retailer will only sell a particular brand of “stereo” and the stereos they are selling only play one type of music.
            The students that are “leaving” the public school monopoly, why do you suppose they are leaving?
            Many of us wanted to believe the Vt board of education was acting in good faith, through their actions they have proven that they are not.

          • Vaughn Altemus

            Matt, when I have a chance I will write a commentary on why monopoly is an inappropriate description for a political entity. The best you could argue for in any case is a local district monopoly since voters of any district can opt out.

            The point I am trying to call to peoples’ attention with absolutely no success is that this is a situation where the choices made by some people can reduce dramatically the choices available to others.

            You and I can listen to any music we choose without restricting in the slightest the music choices of anyone else. There is a real possibility that a minority of parents and students choosing a school outside a district can force a small school to close. Then the majority of parents will lose the choice they believe is best for their children, the small local school.

          • Matt Young

            Vaughn, regarding “a minority of parents and students choosing a school outside the district could force a small school to close.” Apparently this is something you dont want to see happen. Neither do I. Conversely, if the Vermont board of education creates regulations that would close our small independent school, we wouldn’t like that either. In fact we won’t stand for it, period. One VERY important difference, our small independent schools aren’t creating regulations or putting the squeeze on public schools in an effort to close them. Public schools should do what our little independent schools do, when enrollment is down they make hard choices to cut costs, they don’t try to force children to attend. Our independent schools are in fact “small local schools”

          • An interesting perspective..and not new. To the totalitarian, freedom appears as anarchy while the dictatorship loses the absolute control to which it has become accustom. The alibi is always the same, always absolute. Its ‘basic concept’; that with freedom and liberty there is no rule of law.

            It’s a false dichotomy. Are we better off allowing the tyranny of the majority to take the place of the dictator? Slaves are made in such ways.

            We have two people who feel it’s their right to act as they choose. One chooses to act in common, which requires the other to act in common as well. One chooses to act independently, while requiring nothing from the other. Who is the oppressor? Is the independent individual forcing independence on the other by virtue of resisting the common order?

            No. History consistently shows us that the independent individual has the functional and moral high ground, because acting independently does not preclude acting in common from time to time.

          • Vaughn Altemus

            You are certainly correct that the perspective of majority rule is not new. The point you refuse to address or rebut is that those who opt out may well be requiring something of the majority contrary to a deeply held value, the ability to operate a community school.

            Comparing a choice between attending a local school or an independent school at parents’ expense to slavery is an offensive debasement of the word.

            May we conclude you believe that the closing of an indeterminate number of small schools is an acceptable price to pay for a universal choice option?

          • RE: ” The point you refuse to address or rebut is that those who opt out may well be requiring something of the majority contrary to a deeply held value, the ability to operate a community school.”

            This is precisely the point I addressed. Again:

            We have two people who feel it’s their right to act as they choose. One chooses to act in common, which requires the other to act in common as well. One chooses to act independently, while requiring nothing from the other. Who is the oppressor?

            Your persistent conclusions continue to present false choices and are, therefore, wholly inaccurate. I do not believe any schools should or should not close, because it’s not under my authority that they exist in the first place. Nor is it under your authority.

          • Vaughn Altemus

            It’s a very real choice that polities make continually. There is nothing false about the choice. Either the majority prevails or the minority, through actions with predictable consequences, strips the majority of the choice they favor.

          • David C.Austin

            It all boils down to whether one believes in and values the primacy of the individual or the state. Either way, it is certainly an interesting philosophical discussion. From a practical perspective though, we ought to be asking ourselves what our education system should look like and how it should function. Obviously a very polarizing issue. Looking at it without any preconceived notions with regard to the system as it currently exists would make sense. Certainly not an easy task, given the political climate. But if the education of Vermont students is the priority that it should be, it is one that ought to occur. I have the utmost respect and admiration for those who work educating our young people. I worked as a substitute teacher at one point, and it was one of the most challenging jobs I ever had. I cannot say that I have the same admiration and respect for the politicians and bureaucrats that wrestle with the issues surrounding education year after year, with little to show for it

  • Ben Kinsley

    If this was an isolated incident the SBE’s denial might be plausible. However this is only the latest in a string of decisions that have undermined school choice. Further the manner in which the SBE has proceeded through this rulemaking process is very concerning. First they claim this is a routine update, if that were the case they would have taken testimony on what is working and what is not with the current rules, they did not. Additionally an update is meant fix issues with implementing current policy, not create an entirely new policy.

    Once the rules where drafted, the SBE TOOK NO PUBLIC TESTIMONY on the rules prior to voting them out. The rules then went to the Interagency Committee on Administrative Rules which found a deficiency in public input and kicked the rules back down to the SBE. Since that time they have held two public hearings which had massive turnout from concerned parents and teachers.

    This string of “mistakes” begins to look a lot like intent.

  • Ralph Colin

    Perhaps I’m just a skeptic, but I would suggest that the SBE has every intention of changing the landscape for independent schools and just got caught with its pants down.

  • Rob Skiff

    “SBE had no intention of closing schools.” Nonsense. Mathis knew the policies were designed to shut them down and only backed off when people realized about the subtle takeover of yet another sector of our society by the institutions of Montpelier.

    Vermont has become a place where anything not controlled/regulated by government employees or there representatives is looked down upon. Our government is to large with to big a mission whoes only goal is the extension of its own influence.

    • Robert Morgan

      This mea culpa is beyond breath-taking. If this rule-making process was merely plagued with error rather than Big Ed motive, are we to assume the members of VSBoE to be intelligent, well educated, and worthy of their position of power? None of this computes. How stupid do they think we all are? I am dumb-founded that they think anyone will buy these excuses for their actions.

  • Ed Dooley

    Based on some of the comments here, I think the SBE should start a brand new program of remedial education, focusing on grammar and basic spelling. “Mia Culpa???”, “Our government is to large with to big…”, “further the manner”, “additionally an update”.
    I have no opinion if it should be taught in public or independent schools.

    • ‘Mea’ Culpa. Forgive my misspelling, Mr. Dooley. Such is the consequence of often rushed extemporaneous commenting on a public forum. I trust it is only the occasional breach in English Usage and Composition with which you take issue in this case and not the actual content of the commentary.

  • Arthur Hamlin

    According to this article ” The rule was meant to apply only to federal and state requirements for health and safety laws, fire codes, fingerprint background checks and mandatory reporting of abuse”, but they also say private schools that take public tuition have to accept all students and offer special education. I agree 100% as the current system actually denies school choice to special education students. Therefore, I have to assume they meant to include IDEA in the list of federal requirements that private schools that take public tuition will be required to comply with and that the State will make sure they do. I hope I am right.

    • Arthur, I think you are right. “…the state board is proposing would require private schools that accept town tuition dollars to share more financial data with the state, accept any student who applies and provide special education.” This is the larger issue. Can public money fund the education of VT students at schools that discriminate via admissions or program?

  • I agree with the section of the new rules stipulating that if private schools take public dollars, they should also be required to accept all students that apply — just as public schools do. There’s no reason to make an exception for private schools, given that they are going to use substantial amounts of taxpayer dollars to help them stay in business. Anything thing less than this requirement amounts to the use of public money to provide an unfair and discriminatory subsidy to private schools.

  • David C.Austin

    There are two potential explanations here:
    – The Board is inept and not capable of
    the careful work required when drafting
    language that essentially carries the
    force of law.
    – The Board was aware of and clearly
    understood the effects the draft
    language would have relative to
    independent schools.
    Either way, it raises questions regarding whether or not this Board is fit to exercise the control it has over Vermont students and families. Uh-oh.

  • Jon Parker

    Governor Scott,
    Our State Board of Education has been publicly pushing proposed rule changes without taking the time to properly proofread them. Please encourage them to be more thoughtful and considered in their work. Perhaps they are operating in a bubble and are not used to hearing a difference of opinions at Board meetings?
    An opportunity awaits you. Help them to broaden the conversation.

  • Will Hatch

    Damage control, with an attempt to regroup, and resume the same fight. I would think all policies that the State Board Of Education attempts to implement were reviewed by attorneys. schooled in education law. Vermonters should not be duped by the narrative that this is simply an oversight in language. It is an attempt to backpedal, assess what opportunities that exist to attack the opposition, and to continue moving forward with the agenda to eliminate school choice. Perhaps this retraction of the language of the original proposal could put the issue of conflict of interest, of certain board members, to the very back page. Hopefully not.

  • Carolyn Schmidt

    This does not seem to me to be a question of simple incompetence by the State Board of Education. it seems to be part of the larger picture – along with efforts to make homeschooling more difficult, and the consolidation push – to centralize and control education.

    Another example of disingenuous explanations occurred in my town during the vote on public school consolidation. We were assured that each town would be able to elect its own representative on the new consolidated board. OK. Our town voted to join. But it turned out that “our” representative was not the one who got the most votes from Whiting – our own small town – but one who got the most votes overall. So residents of other towns – who don’t have as strong an involvement or investment in the Whiting School as we do – selected the Whiting representative. This does not seem fair. Also, it was not explained to us in advance of the vote.