On Thursday, the Senate Education Committee heard from Heather Bouchey (Interim Secretary, Agency of Education) and Chris Kane (Interim State Director of Special Education, Agency of Education) on H.483. Bouchey stressed the nature of public process and 2200 rulemaking stakeholder engagement. She believed this needed to be “implemented and experienced” as independent schools engage with that newly developed process.

She also noted that under the new rules a school would need to publish, maintain, and follow non-discriminatory enrollment policies. Bouchey also made it clear that the Agency’s position on the recent SCOTUS decisions is to not demand a major overhaul of Vermont tuition system. They believe too many things are already in play and appropriate protections already exist.

Senator Hashim commented that “the way I see it, this is not in response to the recent court rulings, rather regarding religious status.” Essentially, they are trying to create an anti-discriminatory provision that is applicable to all independent schools, regardless of religious affiliation.

NOTE: It could be argued that this is responding to the Carson v. Makin case in the sense that the state is preparing for the possibility of religious schools applying to receive tuitioning students.

Chairman Campion characterized the rules related to Act 173 as “if you are going to take public dollars, and go to an independent school, you are going to follow the special education laws put forward by the state and federal governments.”

Kane noted that the new 2200 rules contain several other provisions not about special education. Bouchey added that the AOE is in the process of gauging initial interest with an informal survey (non-binding) to determine which schools may choose to move forward under the new rules. Then school districts and independent schools would need to reach out to parents if any changes are coming.

In terms of compliance, AOE will then seek “assurances” annually which is a standard way they check on these things with schools, instead of going through the entire approval process for each school again. Totally new approvals before the SBE will be looked at in full detail.

Later that afternoon, Jennifer Samuelson (Chair, State Board of Education) joined the Committee as “a resource.” She noted that she oversaw the recent changes to the 2200 series rules. Campion thought that was a good place to start and asked her to explain their process around the anti-discrimination language. Samuelson noted that the language already existed in statute, but the Board felt it was important to draw out that language and make it part of the application process to approve independent schools that would be eligible for public tuition.

She noted that they had received over 80 written public comments, the majority of which were regarding therapeutic schools and the admissions process. Campion asked about the anti-discrimination provisions and what the feedback was in relation to those. Samuelson couldn’t remember receiving any public comment on those provisions specifically.

Campion asked her to walk them through an application process for an independent school. She responded that:

1. Must be accredited or go through an approval process with the Agency of Education.
2. School must provide a statement of non-discrimination and assurances that the school complies with the Public Accommodations Act.
3. The SBE reviews the application and makes a determination, or offers feedback.

Campion asked if the rules are working. Samuelson noted that the attestation clause is “already being utilized.” In February, two schools refused to sign the non-discrimination attestation and withdrew their applications after the SBE blocked progress. Also, a complaint process is in place for anyone that feels a student has been discriminated against. This would be grounds for “revocation or suspension” of the school’s approval status.

Samuelson agreed that H.483 was largely saying the same thing, but “I would say it’s already in the rule.” She added that “the fact that we’ve had two schools withdraw their applications suggests that schools are taking the new rules seriously.”

Senator Hashim asked what happens to schools that choose not to sign the attestation. Samuelson responded that they “would become recognized independent schools.”

NOTE: “Recognized” independent schools are a different (lower) designation than “Approved” independent school status. Recognized schools are not allowed to receive public tuition dollars and the designation only serves for truancy purposes so that students attending them are not considered truant by their resident school district.

Senator Gulick asked the Committee if “anyone else [had] a problem that we are using the term recognized in relation to schools that discriminate?” No one else seemed to have this concern.

She continued to ask if having the rules in statute (duplicative) was an issue. Campion turned to Legislative Counsel and asked for a brief description of the difference between rules and statute. Legislative Counsel explained that in this instance, the legislature had delegated authority to the State Board of Education (SBE). It is best practice to maintain that purview as long as the SBE rulemaking was consistent with the legislative intent.

Senator Weeks asked if prohibiting interviews and academic history (like the bill does) was considered when developing 2200. Samuelson admitted that they did not consider the specific language but agreed that got to the heart of the issue. She said that “an independent school is independent” and they wrestled with how to build a structure that was flexible enough to allow independence to exist and practice different educational philosophies, while also putting a framework around that which was fair. She gave an example where schools might be looking for different “qualities,” such as performing arts academies or ski academies. They wanted the rules to be clear, non-discriminatory, and adhered to. She seemed to feel like they accomplished that with the new 2200 series rules.

Campion asked about enforcement and what actions the State Board of Education could take in this regard. Samuelson noted that there is already a complaint and violation process that could “culminate in the revocation or suspension of a school’s approval.” Additionally, the AOE is compiling annual attestation forms for compliance.