Vermont state board looks to correct `mistakes' in private school rules

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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.

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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