The State Board of Education is moving to dramatically raise the bar for private schools to receive public money for educating students from districts that offer choice.
Private schools would have to start accepting and accommodating all types of special education students — just as public schools are required to do — if they want to receive tuition dollars from the state education fund.
Currently those schools are not required to admit all students and don't have to provide special education, although many do.
A group representing the interests of private schools in Vermont is questioning whether the plan violates the Vermont Constitution or state law. But the head of the Human Rights Commission applauded the change and said schools that receive tax money are places of public accommodation and thus barred from discriminating.
The state board met Friday in Barre for a special session where it approved draft rules that include the change. Members said they are responsible for making sure such schools provide a quality education and don't discriminate in admissions. "Effectively, this (decision) ensures public dollars are reserved for open enrollment institutions that commit to serving all of our Vermont children, including our students with disabilities," the board said in a statement.
Private schools that want to receive public tuition dollars have to be approved by the board and renew that approval every five years; the rules in question guide the process. In addition to providing special education, private schools will have to be accredited by the New England Association of Schools and Colleges or the Office of Overseas Schools (part of the U.S. State Department), and the rules would increase the amount of financial documentation required.
At the meeting, board Chair Stephan Morse called the proposed rules "dramatically different."
"We are at the very beginning of the process, and I don't know that folks need to feel compelled to give a presentation today," he added. "There are going to be ample opportunities with three public hearings plus other hearings to do so. I hope we are not going to get into a major conversation today."
Vermont and Maine are the only two states that allow towns that do not operate a school to use tax money to pay tuition for students to attend private schools.
Last year, nearly 7 percent of Vermont's school enrollment represented students who were tuitioned; of them, more than half went to a private school. That is up from the 2013-2014 school year, when the rate was about 4 percent; that year, Vermont students attending schools in other states and countries cost an estimated $4.7 million, according to a National School Boards Association report.
Almost 70 percent of Vermont's tuition students go to five private schools that already do serve students in all 12 special education categories. They are Thetford Academy, St. Johnsbury Academy, The Mountain School at Winhall, Burr and Burton Academy, and The Village School of North Bennington, according to the Vermont Education Agency.
"The proposed rule changes require the remaining entities to employ good educational and fiscal practices, demonstrate a strong commitment to academics and exercise basic principles of equity in admissions and in programs," the board said in its statement.
But Mill Moore, executive director of the Vermont Independent Schools Association, said this move doesn't take into account the ski schools and other private institutions with specialized missions. The Sharon Academy recently announced it is moving to open tuition, but it is approved to take students in only two of the 12 special education categories.
Moore argued that the approval process for special education is burdensome and difficult and will likely result in fewer private schools being available for students living in school choice towns.
"The recommendations would also create very challenging barriers for new schools hoping to open as approved independents," Moore said.
Moore asked the state board to delay its vote until concerns his organization has about the legality of the proposed rules can be hashed out and further discussion can take place.
In a letter distributed with the meeting materials, the Vermont School Boards Association argued that the new rules merely level the playing field between private and public schools at a time when competition for resources has reached a fever pitch.
"Public dollars that support private schools should carry with them the same obligations regarding quality, equity, efficiency, transparency and accountability that apply to public school districts," wrote Nicole Mace, executive director of the school boards group.
The State Board of Education also brought up irregularities that have been uncovered nationally as an unprecedented number of private schools look to draw down public money.
"Proper and proactive accountability for scarce public funds is a necessity," said the board. "In particular, we note the governor's veto of private school funding in New Hampshire due to a lack of accountability and violation of the state's constitution."
Mace also said legal questions surround "the current practice of allowing public funds to go to private institutions that do not adhere to the same nondiscrimination and accountability standards that apply to public school districts, including whether such a construct violates the education and common benefits clauses of the Vermont Constitution or the Vermont Public Accommodations Act."
But Moore and the Vermont Independent Schools Association's attorney Mark Oettinger said state statute requires the board to approve any private school as long as it meets the criteria listed in the law. "Nowhere in statute does it say independent schools must provide special education for all students," said Oettinger. "For the regulations to take that additional step is beyond the scope of the statute and therefore not within the rulemaking ability granted by the Legislature" to the state board. He said Title 16, section 166 (b) lists all the things that private schools have to comply with for approval and that special education is not one of them.
"Title 16 is clear about the type of conditions the State Board of Education may establish," Moore told board members.
Mace disagrees and says Title 16, section 166 (b) does include special education. It states: "(T)he Board's rules must at minimum require that the school has the resources required to meet its stated objectives, including financial capacity, faculty who are qualified by training and experience in the areas in which they are assigned, and physical facilities and special services that are in accordance with any State or federal law or regulation."
Karen Edwards of the Vermont Human Rights Commission told the state board it has to do something or Vermont is vulnerable to lawsuits. Edwards said private schools that accept public money are considered places of "public accommodation" and as such fall under the purview of the Human Rights Commission.
"This means that from our perspective, admissions policies that excluded certain students because of their disabilities would violate the (Vermont Fair Housing and Public Accommodations Act) as would policies that excluded students because of any other protected category including race, color, national origin, sex, sexual orientation or gender identity," Edwards said.
The proposed rules will now be considered by the Interagency Committee on Administrative Rules and could be taken up at the August meeting. If that happens, public hearings can begin after Sept. 30. The Agency of Education is proposing at least three public hearings and would like one held in each region of the state.
The earliest the state board could consider a final vote on the rules would be Dec. 20.