[T]he Vermont Legislature has been sending mixed messages about private school rules to the State Board of Education.
Every time the board attempts to revise rules regarding the approval of private schools that take public money, the Senate has tried to shut them down.
Meanwhile, House lawmakers wants the board to get on with rulemaking.
Last week, newly appointed board member John Carroll, a former state senator, tried to send a signal of collaboration to the Senate, but it backfired.
“Without intending to, the state board entered a game of chicken with the Legislature,” Carroll said. “The board would say we want to go ahead and do our rules and the Legislature is saying we want you to give us the chance to look at this before you do so and neither side is showing any sign of giving on this.”
At their April meeting, Carroll offered an amendment that would have paused work on the controversial draft rules, but the board rejected his proposal and put a new process in place.
The Senate wants to form a study committee that would handle thorny issues that neither side — the board nor private schools — can agree upon, and didn’t like the idea of a new rulemaking effort going on at the same time.
Lawmakers want to declare the draft rules null and void, force the state board to redraft rules after considering the study committee’s findings, and require the board to bring the rules back to lawmakers for more input.
Rep. David Sharpe, D-Bristol, chair of the House Committee on Education, said the Senate has “eviscerated” the State Board of Education. “Why didn’t they just disband the State Board of Education entirely, isn’t that what some of the senators wanted to do?” he asked.
The draft rules guide the process for private schools to gain approval for accepting public school students. Rules around open enrollment, special education and financial disclosure are controversial and the zig-zag process the rules have gone through has drawn the ire of some lawmakers.
On Friday, the Senate had approved an amendment that would have required the state board to accept the study committee’s findings and write rules “consistent” with it.
Sen. Philip Baruth, P/D- Chittenden, chair of the ed panel, told the Senate the original amendment to H.513, an omnibus education bill, “codifies this agreement.”
“The board will use the study committee to resolve the issues of financial disclosure, special education services and open enrollment. Once the study committee is finished in January they will go forward with the compromise language,” Baruth said.
Sen. Chris Bray, D-Addison, a member of the education committee, said he had not had a chance to see and digest that draft before he was asked to vote for it on the Senate floor. He voted for the provision, but didn’t think it was constitutional because it required the state board to use the results of the study committee when redrafting the rules.
“That is their choice, they are independent rule makers,” Bray said, adding that if the Legislature doesn’t like the new draft language then they need to write detailed laws that better guide the state board.
Bray spent the weekend researching the issue. The new measure Bray proposed requires the board to consider the study group’s findings when redrafting the rules. “They still write the rules and solve the puzzle but we would give them guidance about how,” Bray said.
“It’s unfortunate the Senate feels they need to take control of the rulemaking process. It has been in place for a long time and has served the state well,” Rep. Sharpe said, adding the Senate should let the rulemaking proceed.
But State Board Chair Krista Huling said the board’s vote was nothing of the sort.
“We are not trying to send political messages, we are just trying to get this job done. There is no timeline, there is just a process,” she said.
The plan they agreed to goes through the rules section by section starting with minor non-controversial parts of the rules. A subcommittee of the state board members and private school representatives plan to work on these areas first to build consensus, partnerships and good faith before trying to tackle the areas where they disagree, according to Huling.
She said the board agreed at the April meeting to revisit their plan if lawmakers pass a bill creating a study committee to deal with the rules.
They are trying to be flexible and mindful, not steam ahead, according to Huling, who said, “We only meet once a month. We can’t make changes daily.”
House lawmakers wanted Huling to commit to a Jan. 1, 2018, deadline, but she chose not to do so.
“We are receiving encouragement from the House to move fast and the Senate to move slow. We are getting mixed signals,” said William Mathis, vice chair of the state board.
The state board has been working on the rules for more than 15 months. When they were adopted last summer, interest groups began pushing back. Then-Gov. Peter Shumlin pulled his support for the rules and in November, after “unprecedented” lobbying on behalf of private schools, the Interagency Commission on Administrative Rules sent the rules back to the board for more work.
The rules were not well received, mainly due to what the board claims were “mistakes” and poor drafting.
Many didn’t buy their argument and when the Legislature reconvened in January, Bennington Sens. Dick Sears and Brian Campion – who have students in their districts that attend private schools such as Burr and Burton — filed S.24, a bill that would have eliminated the state board’s rulemaking authority and their ability to make recommendations to the governor for the Secretary of Education.
The state board has been trying to stay above the fray, according to Huling.
“The board is really trying not to be political and we keep getting dragged into these politics. We were not intentionally sending a political message to folks, but asking how do we go forward in an open and inclusive way that allows this process to come to an end,” she said.
Clarification: Sen. Chris Bray’s reason for voting for the provision was clarified at 6:33 p.m., April 27.
