In May 2022, a working group proposed a slate of updates to Vermont school rules.
The Act 1 working group, created by Vermont statute in 2019, was tasked with drafting changes that would incorporate ethnic studies into Vermont classrooms and make recommendations about “prohibited conduct as it relates to racism, sexism, ableism, and other ethnic and social biases,” among other topics.
But now, the State Board of Education believes that some of the group’s proposals went too far.
The language in question deals with discrimination in Vermont schools. Under state and federal law, students are already protected from discrimination based on race, national origin, gender, sexual orientation, gender identity and several other categories.
The rules proposed by the working group would expand those protections by explicitly prohibiting discrimination on the basis of “ethnicity, caste, language and linguistic diversity, socio-economic status, religion, housing status, and non-citizenship or immigration status.”
State board members initially incorporated that language, almost word-for-word, into drafts of the educational rules. But in August, after consulting with Sarah Buxton, an attorney, the board scaled back the wording.
Instead, the board drafted language saying that discrimination based on those categories “does not embody the intent of the Board to promote welcoming inclusive, bias-free environments for learning in Vermont’s schools” — without outright banning it.
Tammy Kolbe, vice chair of the board, said in an interview that the board’s changes were made to make the rules “consistent with federal and state law.”
“The rules cannot add protected classes that are not in law,” she said.
The new proposed rules also say that “any distinction, exclusion, classification, restriction or preference based on any ground … should be carefully considered and rejected if it results in unlawful discrimination or interferes with the delivery of effective, available, and equitable educational opportunities.”
According to the minutes of an August board committee meeting, Buxton told members that the original language proposed by the working group could have “potential unintended consequences.”
The addition of more protected classes “would exceed what current state and federal law provide and, if that is the case, could be potential sources of litigation,” Buxton said, according to the minutes.
She said the language could also be interpreted to “exclude” school programs “such as French Club, Girls on the Run, etc,” the minutes showed.
But the board’s new draft language has drawn some criticism.
“I think it’s unacceptable and disappointing to modify or water down anti-discrimination policies in our schools,” said Rep. Mary-Katherine Stone, D-Burlington, the clerk of the Vermont House Committee on Education, who has previously voiced concern over the current rules.
“I think, you know, you have a good policy laid out for anti-discrimination — you shouldn’t have to even think twice about it,” she said.
The board’s new language amounted to “substantively weakening or diluting” protections against discrimination, Amanda Garcés and Mark Hage, the former chairs of the Act 1 working group, wrote in an Oct. 15 memo to the board.
The removal of an explicit prohibition on discrimination “is a glaring and fundamental omission, and it runs counter to anti-discrimination policies adopted by most public and private institutions,” Hage and Garcés wrote.
Garcés, a director at the Vermont Human Rights Commission, told VTDigger that the working group had received input from multiple attorneys while drafting the rules.
Language in the initial rules “explicitly defines and forbids discrimination while providing essential protections,” she said in an email. “Why would we not want that for all our 83,000+ students in our public schools and those 6,000+ in independent schools?”
The creation of the equity rules, a long, complicated and technical process, has proved frustrating to people both on and off the State Board of Education.
It has also divided Vermont’s educational ecosystem along a longstanding fault line: public vs. private schools.
Last year, the working group submitted a draft of new equity rules and asked the state board to apply them to both public and approved independent schools — that is, private schools that are eligible to receive public tuition.
The board, however, said that would be impossible under Vermont statute. Instead, board members set about drafting updates to a different set of rules, one that applied exclusively to approved private schools.
Board members have vowed that new anti-discrimination protections for students will be incorporated equally into rules for both public and private schools. But as of now, the updated language appears only in the rules for approved private schools.
In an Oct. 12 memo, Jennifer Samuelson, chair of the State Board of Education, reiterated the board’s previous stance on the issue: The same anti-discrimination protections would hold in both public and private schools.
The board has a “commitment to adopting the same substantive language in both sets of rules,” she wrote, and plans to revisit the public school rules soon.
It’s not clear, however, why the concerns about the language did not arise until August. The state board voted in May — following meetings that were attended by a different board attorney — to advance the public school rules with stronger anti-discrimination language.
Asked why those legal concerns had not surfaced before, Kolbe said, “I don’t know the answer to that question.”
Changes to both sets of rules are still working through the state rulemaking process and have not yet been finalized. None of the updates have yet taken effect.
