The private school lobby and some lawmakers say the roots of the past year’s controversy over proposed rules on public funding of private schools go back to failed legislation from the previous biennium.
Private schools mobilized in recent months after seeing a threat in the rules that members of the State Board of Education say they didn’t intend.
But some observers say the similarities between the earlier legislation and the most controversial provision in the draft rules help explain private schools’ feeling of being targeted.
After the outcry, the Senate Committee on Education is now considering changing the makeup of the state board and limiting its rulemaking authority, but only when it comes to private schools.
The board is responsible for approving private schools that accept public dollars for students with school choice. The controversial proposed rules would change the requirements for gaining approval.
Two bills being drafted by the committee specifically say the state board cannot adopt rules that have to do with a private school’s governance, organizational structure, mission, scope of responsibilities, teacher licensing and evaluation, programs and reporting. The board has authority over those areas for public schools.
Some members of the Senate believe they have already debated the issue and decided that private schools and public schools can be treated differently in statute — undercutting a push by the board to require open enrollment and special education at private schools. Jim Desmarais, legislative counsel for education, has said previous legislation supports treating private schools differently.
The sense some have of déjà vu goes back to the 2013-2014 biennium, when Sen. Dick McCormack, D-Windsor, introduced S.91. The bill would have curtailed public money going to private schools unless they met most of the same standards as public schools. Those standards included accepting all town-tuitioned students as long as there is space, and offering busing, meals for low-income students, and a full range of special education services. The bill would have affected only general education private schools where more than a third of the students are paid for with public funds.
The draft rules the State Board of Education is considering would require similarly open admissions, the teaching of special education, and more financial reporting for general education schools. But, in the original draft the Agency of Education wrote and the state board adopted last summer, there was a clause that reminded lawmakers and private school proponents of S.91.
It stated that private schools that want to be approved 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.”
A history lesson
The state board has since said the rule applied only to federal and state health and safety regulations, but because of the history of S.91, lawmakers and private school advocates didn’t read it that way. In fact, some of the same board members now proposing draft rules had previously advocated for S.91 in the Senate Education Committee.
The board’s proposed rules would revamp state oversight of private schools, according to Sen. Philip Baruth, D-Chittenden, who chairs the Senate Ed panel. While the board has said the new language was a mistake, Baruth saysit’s not surprising that private schools have questioned the board’s intent.
“Those communities are not crazy to think it is part of a philosophical push that has been in the air for some years,” Baruth told his committee.
When the committee first considered S.91, a majority opposed it, Baruth said.
By the time S.91 passed the Senate it was a completely different bill. It became known as the school “flipping bill.” Lawmakers were reacting to a North Bennington community that privatized a public elementary school. Senators wanted to place a two-year moratorium on any town that wanted to replace a public school with a private school.
While the upper chamber debated this, the House was consumed with a bill that was the precursor to Act 46. Soon after, the more narrow “flipping bill” made it to the lower chamber, where it was sponsored by then-Rep. Peter Peltz, who is now a member of the state board. The bill was tabled.
Peltz said he didn’t see any connection between the draft rules and S.91, because the bill he was familiar with had to do with North Bennington. “It was a completely different subject. It was about the privatizing of public schools,” he said.
Even though the state board clarified the draft rule last fall after learning about the way it was being interpreted, it was too late, according to Baruth. “Every private school person got the memo that they are trying to do that, so even though they pulled it back it is still part of the conversation,” he said.
Stephan Morse, then-chair of the state board, and members Bill Mathis, Krista Huling, Sean-Marie Oller and Peltz have stated that S.91 had nothing to do with their drafting of the rules.
“I didn’t know anything about S.91. The rules came up because they had not been updated and the agency brought it to our attention,” Morse said.
Huling said the board asked the Education Agency to identify rules that needed updating.
Baruth said the Senate has a practice of not questioning the intention of another senator. “That was instituted to prevent fistfights,” he said.
With regard to the private school rules, Baruth said, “It is immaterial what the intent was. The rule exists and the process by which the rule was introduced exists. We are trying to deal with both of those things. So the question of intent is academic at best. I think it is better to just move forward with how to resolve the difficulties that have been created.”
A lobbying push
McCormack said he isn’t surprised by the pushback on the rules. There was a similar response when he introduced S.91.
At that time, very few lawmakers had given the issue of public dollars going to private institutions much thought, he said. “The private school community was well-organized and mounted impressive opposition. The bill’s opponents got the jump on us in framing the discussion,” he said.
This time around, the private school lobby’s reaction to the board rules was swift.
Between September, when the draft rules were most hotly contested, and the end of December, private schools spent nearly $72,000 on lobbying — about $65,000 more than the public school advocates working on the issue.
Some claim to see the effect of that spending in what happened when the draft rules went to the Interagency Committee on Administrative Rules, which needed to sign off before the state board could begin the public engagement portion of the rulemaking process.
First the rules were pulled at then-Gov. Peter Shumlin’s request in August, according to Morse. Then when the rules came to ICAR in November after the election, the committee took the highly unusual step of sending them back for revision.
ICAR’s role is an administrative one, rather than part of the public review. Michael Clasen, deputy secretary of ICAR, said he had never before received calls and emails about a rule. “Twenty-five different individuals wrote me, and they have all opposed this rule,” he said.
The day after ICAR’s decision to send the rules back, Nicole Mace, executive director of the Vermont School Boards Association, said, “Yesterday there was really evidence of unprecedented lobbying that had gone on behind the scenes in advance of that meeting.”
Morse, then chair of the state board, said he believed the governor colluded with the independent schools.
When the board decided to move ahead by complying with ICAR’s recommendations for more analysis and input, Bennington County Democratic Sens. Dick Sears and Brian Campion said they would introduce legislation stripping the state board of its rulemaking authority. Both senators represent areas that have school choice, although Sears was listed as a co-sponsor of the original S.91.
Their legislation laid the groundwork for the legislation in Senate Education. One provision would block the state board from making recommendations for the secretary of education. Another would designate a seat on the state board for a private school representative. The proposal directs the state board to only make rules for private schools that are directly tied to statute.
Lobbying records from the last quarter of 2016 show that private schools (Lyndon Institute, St. Johnsbury Academy, The Sharon Academy, Burr and Burton Academy in Manchester, and the Vermont Independent Schools Association) collectively spent $71,933 on lobbying.
That compares with $52,345 during the same quarter in 2015.
Before the last quarter of 2016, the same group had spent a total of $342,868 over the biennium. This money would include lobbying on Act 46 and other education issues.
Defending their interests
Private schools increased spending on lobbying because the rules threaten the future of their institutions, according to Kevin Ellis, a lobbyist for The Sharon Academy and co-founder of Ellis-Mills Public Affairs.
“These private schools were minding their own business and suddenly the State Board of Education, chaired by a former Speaker of the House and a very smart and talented hardworking secretary of education, plopped a bunch of proposed rules on the table that are going to change your life,” Ellis said. “You have to do something, you can’t just sit there.”
Ellis doesn’t see why the spending would be criticized. “It is like saying someone should not hire a lawyer to defend themselves,” he said.
During the last quarter of the biennium, the public school lobby — the Vermont School Boards Association, the Vermont Superintendents Association and the Vermont Council of Special Education Administrators — spent $6,869. (The state teachers union didn’t lobby on the private school rule issue during this quarter.)
Over the entire biennium, these groups plus the teachers union spent a total of $173,524 on lobbying. The Vermont National Education Association accounted for the lion’s share: $107,899. Act 46 would have been a major issue these groups would have worked on during the biennium.
At a March 1 meeting of the Senate Ed panel, Jeff Fannon, who heads the VT-NEA, weighed in on the issue for the first time publicly, asking lawmakers to reconsider making changes to the state board.
“As we have seen in these past few months, the independent schools are very capable of advocating for themselves. That is not a knock, but it is simply an observation,” Fannon said. “But because a small vocal group is upset with a particular action it should not result in a permanent seat on the Board of Education, the board that is tasked with ensuring the educational well-being of all of Vermont’s students, including the approximately 3.5 percent of Vermont students who attend Vermont’s independent schools.”
DISCLOSURE: Kevin Ellis is a member of the board of the Vermont Journalism Trust, the parent organization for VTDigger.org.