For months, Vermont education officials have been meeting to hash out rules that will govern how private schools handle special education.
The process, which involves a State Board of Education subcommittee discussing and editing pages and pages of state rules, can seem dry and technical. One commenter described it as “moribund.”
But when the rules go into effect, they stand to impact hundreds, if not thousands, of students across the state. And some people are voicing concerns that the impact could be more harmful than intended.
Members of the public and at least one State Board of Education member have expressed fear that the new rules do not go far enough in preventing discrimination.
Some observers are also concerned that the rules would give independent schools too much flexibility in setting their tuition rates, potentially opening the door for taxpayers to foot exorbitant bills.
Act 173, a 2018 law that overhauled Vermont’s special education funding system, also tasked the State Board of Education with rewriting the rules for special education at private schools, commonly referred to as “independent schools.”
Vermont has 33 independent schools that serve only students with disabilities. Hundreds of students get special ed services at other independent schools.
Since the state is required to pay for students’ schooling, taxpayer dollars pay the tuition of many students with disabilities going to these schools.
State officials have spent months hammering out rules that will govern how these independent schools operate: how much money they can charge, how the state approves them and how they enroll students.
But in a Nov. 5 letter to the board chair, an attorney for Vermont Legal Aid warned that the new rules could prevent certain special education students from being able to choose which school they want to attend — asserting that amounts to discrimination.
Marilyn Mahusky, a staff attorney at Vermont Legal Aid, highlighted a clause of the proposed rules that she said could give certain school officials the ability to veto a student’s chosen school.
“This provision and the proposed implementing rule are not only inconsistent with (federal law) but have the effect of discriminating against students with disabilities by denying them an equal opportunity, if they live in a tuition town, to apply to and attend the school of their choice,” Mahusky wrote.
In a comment submitted to the board, Rebecca Holcombe, a former Secretary of Education and longtime critic of Vermont’s private school voucher system, argued the new rules would give independent schools broad leeway to accept or turn away students.
Holcombe cited a clause that stipulates that independent schools will allow students to enroll “provided that … the student meets the other requirements of the school’s enrollment policies.”
That language, she said, could allow schools to accept or turn away students for various reasons, from religious requirements to prior disciplinary actions.
“So long as these students are not allowed to enroll in a taxpayer-funded school because of criteria set by the school, this is not a system of school choice, but a taxpayer-funded system of private schools that choose which students to serve,” she wrote.
The Vermont School Boards Association also weighed in, calling for all publicly funded schools to “adopt and exercise equal and equitable opportunities in admissions, programs, and practices in order to operate in the state of Vermont.”
State officials agree that the new rules should prohibit discrimination. But a sometimes testy meeting of a board of education subcommittee last week showed that there is disagreement on how best to do it.
Kim Gleason, a state board member, proposed inserting a provision that would require independent schools to affirm that they would not discriminate while enrolling students.
“Either we’re OK with discriminatory enrollment practices, and we’re going to send our public dollars there, and that’s fine — or we’re not,” Gleason said at the meeting. (Gleason declined to comment further.)
Other members countered that Vermont’s Fair Housing and Public Accommodations Act already outlaws such discrimination, although it does not explicitly mention enrollment.
Board members suggested adding a phrase requiring schools to affirm compliance with that Act. The Agency of Education also has endorsed such an addition.
“The caution that you’re hearing here is we need to be really careful that we are completely aligned with the statute that’s on the books,” board chair Oliver Olsen said at the meeting. “And that we are not doing anything in our rules that could lead to a challenge on the basis of us exceeding our statutory authority.”
In an interview, Oliver reiterated that position.
“Everybody wants the same outcome,” Olsen said. “Where there’s discussion is, (what’s) the cleanest, best way to accomplish it within our legal authority?”
Mill Moore, the executive director of the Vermont Independent Schools Association, said he would have no problems with an anti-discrimination clause in the rules.
“I wouldn’t object to that in the slightest,” he said. “The law is there. If you want to put a reminder into the state rules that the law applies, I mean, that’s fine with me.”
Recent court rulings have also raised open legal questions about how much authority the state has over private religious schools.
In comments submitted to the board, some people, including Holcombe, raised concerns that the new rules could also allow private schools to bill the state exorbitant rates and give officials little oversight of school rate-setting procedures.
The new rules would require independent schools to submit a list of their operating costs to the state, broken down into categories like “General Operating” and “Travel/Transportation.”
Those expenses would be used to verify that the schools’ rates, which are paid by the state, would be fair. But some argued that those procedures are not stringent enough.
“These rules do not provide sufficient detail of expenditures to enable the state to ensure limited public resources are not wasted,” Clare O’Shaughnessy, who described herself in an email as a “Concerned Vermont Taxpayer,” wrote in a submitted comment. “There are no provisions in these rules requiring accountability.
O’Shaughnessy, a staff attorney at the Agency of Education, said she was commenting as a private citizen and not in her official capacity. She declined to comment further.
Olsen said the State Board of Education has been “fairly active” about looking into concerns about private schools’ financial practices.
But he declined to take a position on the criticisms of the financial oversight rules, saying, “I need time to fully digest before I could comment.”
Moore, meanwhile, endorsed the proposed rules as written.
He noted that the rule-making process began with recommendations from a group of many stakeholders, including the Vermont Principals’ Association, Superintendents Association and School Boards Association.
“We worked with all the others in a very agreeable fashion, there were no significant battles,” Moores said. “Our consensus package — to which the agency signed onto — is something that everybody’s comfortable with.”
State officials have no hard timeline for completing the rules, but hope to put them into effect by the middle of 2023.