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1 H.483
2 An act relating to the accountability and oversight of approved independent
3 schools that are eligible to receive public tuition
4 It is hereby enacted by the General Assembly of the State of Vermont:
5 * * * Findings * * *
6 Sec. 1. FINDINGS AND PURPOSE
7 (a) The Vermont Constitution provides that “a competent number of
8 schools ought to be maintained in each town unless the general assembly
9 permits other provisions for the convenient instruction of youth.” VT Const.
10 Ch II, § 68. Interpreting this provision in Brigham v. State, 692 A.2d 384
11 (1997), the Vermont Supreme Court stated that “[t]he state may delegate to
12 local towns and cities the authority to finance and administer the schools
13 within their borders; it cannot, however, abdicate the basic responsibility for
14 education by passing it on to local governments, which are themselves
15 creations of the state.” Id. at 395.
16 (b) From this, it is evident that the State has a constitutional obligation to
17 provide public education to its youth. Many Vermont school districts operate
18 schools, but others do not. Vermont is a relatively sparsely populated and
19 mountainous state that has made the operation of public schools unviable in
20 certain regions of the State. Students who live in these regions do not have the
21 choice of enrolling in a public school in their district; their only choice is to VT LEG #369124 v.1
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1 enroll in a public school operated by another school district or an independent
2 school or to be homeschooled.
3 (c) Therefore, in order to fulfill its constitutional requirement to provide
4 public education to its youth, the State permits school districts that do not
5 operate schools (nonoperating school districts) to use public funds to send their
6 resident youth to public schools operated by other school districts or to certain
7 independent schools.
8 (d) In 2020, the Office of the Vermont State Auditor authored a report
9 comparing the statutes and rules applicable to public schools in Vermont to the
10 statutes and rules applicable to Vermont’s independent schools. In a letter
11 dated December 17, 2020, the Secretary of Education provided comments on a
12 draft of the Auditor’s report. In his closing, the Secretary stated, “This
13 evolution in education policy has taken place in the absence of a single,
14 coherent design for the system as a whole. The resulting differences
15 highlighted in this report should not come as a surprise. They should, along
16 with all education statutes and regulations, be examined to determine whether
17 the current framework makes sense, and whether it enables the state to provide
18 all students equal access to a high-quality education.”
19 * * * Approved Independent Schools Eligible to Receive Public Tuition * * *
20 Sec. 2. 16 V.S.A. § 166 is amended to read:
21 § 166. APPROVED AND RECOGNIZED INDEPENDENT SCHOOLS
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1 (a) Authority. An independent school may operate and provide elementary
2 education or secondary education if it is either approved or recognized as set
3 forth in this section.
4 (b) Approved independent schools. On application, the State Board shall
5 approve an independent school that offers elementary or secondary education
6 if it finds, after opportunity for hearing, that the school provides a minimum
7 course of study pursuant to section 906 of this title and that it substantially
8 complies with all statutory requirements for approved independent schools and
9 the Board’s rules for approved independent schools. An independent school
10 that intends to accept public tuition shall be approved by the State Board only
11 on the condition that the school agrees, notwithstanding any provision of law
12 to the contrary, to enroll any student who requires special education services
13 and who is placed in or referred to the approved independent school as an
14 appropriate placement and least restrictive environment for the student by the
15 student’s individualized education program team or by the local education
16 agency; provided, however, that this requirement shall not apply to an
17 independent school that limits enrollment to students who are on an
18 individualized education program or a plan under Section 504 of the
19 Rehabilitation Act of 1973, 29 U.S.C. § 794, and who are enrolled pursuant to
20 a written agreement between the local education agency and the school. Except
21 as provided in subdivision (6) of this subsection, the Board’s rules must at
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1 minimum require that the school have the resources required to meet its stated
2 objectives, including financial capacity, faculty who are qualified by training
3 and experience in the areas in which they are assigned, and physical facilities
4 and special services that are in accordance with any State or federal law or
5 regulation. Approval may be granted without State Board evaluation in the
6 case of any school accredited by a private, State, or regional agency recognized
7 by the State Board for accrediting purposes, provided that the State Board shall
8 determine that the school complies with all student enrollment provisions
9 required by law.
10 ***
11 (5) The State Board may revoke, suspend, or impose conditions upon
12 the approval of an approved independent school, after having provided an
13 opportunity for a hearing, for substantial failure to comply with the minimum
14 course of study, for failure to demonstrate that the school has the resources
15 required to meet its stated objectives, for failure to comply with statutory
16 requirements or the Board’s rules for approved independent schools, or for
17 failure to report under subdivision (4) of this subsection (b). Upon that
18 revocation or suspension, students required to attend school who are enrolled
19 in that school shall become truant unless they enroll in a public school, an
20 approved or recognized independent school, or a home study program.
21 ***
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1 (9)(A) An approved independent school that intends to accept public
2 tuition shall be approved by the State Board as eligible to receive public tuition
3 only on the condition that the school complies with the following
4 requirements; provided, however, that this subdivision (9) shall not apply to
5 therapeutic approved independent schools as defined in subdivision 11(36) of
6 this title:
7 (i) the school agrees, notwithstanding any provision of law to the
8 contrary, to enroll any student who requires special education services and who
9 is placed in or referred to the approved independent school as an appropriate
10 placement and least restrictive environment for the student by the student’s
11 individualized education program team or by the local education agency;
12 (ii) the school shall provide local education agencies with an
13 attendance report for students attending the school on public tuition at an
14 interval determined by and in a format approved by the Agency;
15 (iii) the school shall provide local education agencies with a report
16 of the academic progress of students attending the school on public tuition at
17 an interval determined by and in a format approved by the Agency;
18 (iv) the school shall provide local education agencies with a report
19 of any enrollment change for students attending the school on public tuition,
20 including withdrawals, suspensions, or expulsions, provided that the school VT LEG #369124 v.1
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1 shall notify a local education agency the same school day if the school is
2 considering expelling a publicly tuitioned student;
3 (v) the school has adopted and implemented policies and
4 procedures to comply with the Vermont Public Accommodations Act,
5 9 V.S.A. chapter 139 and the Vermont Fair Employment Practices Act,
6 21 V.S.A. chapter 5, subchapter 6;
7 (vi) the school shall not use an admissions process for publicly
8 tuitioned students that includes mandatory interviews, academic entrance
9 exams, academic history, mandatory campus visits, or consideration of ability
10 to pay for any costs or fees, provided that:
11 (I) the school may request proof of a student’s most recently
12 completed grade;
13 (II) the school may set a capacity limit on the number of
14 publicly tuitioned students the school will accept; and
15 (III) the school shall establish a nondiscriminatory selection
16 process when the number of publicly tuitioned student applicants exceeds any
17 capacity limits;
18 (vii) the school shall provide the results of all State-mandated
19 assessments of students on public tuition to the Agency of Education, which
20 shall publish the results on its website in a manner consistent with the
21 publication of the same results for public school students;
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1 (viii) the school’s tuition rate for publicly tuitioned students shall
2 be the same as or lower than the tuition rate for private payer students and both
3 tuition rates shall be published on the school’s website and reported to the
4 Agency of Education annually;
5 (ix) publicly tuitioned students shall not be charged an application
6 fee, an academic fee, or any other fees for academic materials; and
7 (x) the school attests on or before August 1 of each year to
8 compliance with the requirements of this subdivision (9), all other statutory
9 requirements for approved independent schools, and the Board’s rules for
10 approved independent schools, on a form created by the Agency, including
11 documentation of the following:
12 (I) a statement of nondiscrimination, posted on the school’s
13 website and included in the school’s application materials, that is consistent
14 with the Vermont Public Accommodations Act, 9 V.S.A. chapter 139 and the
15 Vermont Fair Employment Practices Act, 21 V.S.A. chapter 5, subchapter 6;
16 (II) an assurance, signed by the head of school, that the school
17 complies with the Vermont Public Accommodations Act in all aspects of the
18 school’s admissions and operations; and
19 (III) an assurance, signed by the head of school, that no public
20 funds were used to subsidize the tuition of private payer students.
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1 (B) No private right of action is created by this subdivision (9)
2 against an approved independent school approved by the State Board as
3 eligible to receive public tuition for failure to comply with any of the
4 requirements in this subdivision (9). The State Board is authorized to use its
5 powers under subdivision (5) of this subsection (b) to revoke, suspend, or
6 impose conditions on the eligibility of an approved independent school to
7 receive public tuition for failure to comply with these requirements.
8 Complaints of noncompliance shall be received, investigated, and resolved in
9 accordance with subdivision (5) of this subsection (b) and State Board of
10 Education rules. A person shall not coerce, threaten, interfere, or otherwise
11 discriminate against any individual who alleges noncompliance with the
12 requirements under this subdivision (9).
13 ***
14 * * * Tuition * * *
15 Sec. 3. 16 V.S.A. § 821 is amended to read:
16 § 821. SCHOOL DISTRICT TO MAINTAIN PUBLIC ELEMENTARY
17 SCHOOLS OR PAY TUITION
18 (a) Each school district shall maintain one or more approved schools within
19 the district in which elementary education for its resident students in
20 kindergarten through grade six is provided unless:
21 ***
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1 (d) Notwithstanding subdivision (a)(1) of this section, the electorate of a
2 school district that does not maintain an elementary school may grant general
3 authority to the school board to pay tuition for an elementary student at an
4 approved independent elementary school eligible to receive public tuition or an
5 independent school meeting education quality standards pursuant to sections
6 823 and 828 of this chapter upon notice given by the student’s parent or legal
7 guardian before April 15 for the next academic year.
8 Sec. 4. 16 V.S.A. § 822 is amended to read:
9 § 822. SCHOOL DISTRICT TO MAINTAIN PUBLIC HIGH SCHOOLS OR
10 PAY TUITION
11 (a) Each school district shall maintain one or more approved high schools
12 in which high school education is provided for its resident students unless:
13 (1) the electorate authorizes the school board to close an existing high
14 school and to provide for the high school education of its students by paying
15 tuition to a public high school, an approved independent high school eligible to
16 receive public tuition, or an independent school meeting education quality
17 standards, to be selected by the parents or guardians of the student, within or
18 outside the State; or
19 ***
20 (c)(1) A school district may both maintain a high school and furnish high
21 school education by paying tuition:
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1 (A) to a public school as in the judgment of the school board may
2 best serve the interests of the students; or
3 (B) to an approved independent school eligible to receive public
4 tuition or an independent school meeting education quality standards if the
5 school board judges that a student has unique educational needs that cannot be
6 served within the district or at a nearby public school.
7 ***
8 Sec. 5. 16 V.S.A. § 823 is amended to read:
9 § 823. ELEMENTARY TUITION
10 ***
11 (b) Unless the electorate of a school district authorizes payment of a higher
12 amount at an annual or special meeting warned for the purpose, the tuition paid
13 to an approved independent elementary school eligible to receive public tuition
14 or an independent school meeting education quality standards shall not exceed
15 the least of:
16 ***
17 Sec. 6. 16 V.S.A. § 824 is amended to read:
18 § 824. HIGH SCHOOL TUITION
19 (a) Tuition for high school students shall be paid by the school district in
20 which the student is a resident.
21 ***
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1 (c) The district shall pay an amount not to exceed the average announced
2 tuition of Vermont union high schools for the year of attendance for its
3 students enrolled in an approved independent school eligible to receive public
4 tuition that does not functioning function as a Vermont area career technical
5 center, or any higher amount approved by the electorate at an annual or special
6 meeting warned for that purpose.
7 Sec. 7. 16 V.S.A. § 827 is amended to read:
8 § 827. DESIGNATION OF A PUBLIC HIGH SCHOOL OR AN
9 APPROVED INDEPENDENT HIGH SCHOOL AS THE PUBLIC
10 HIGH SCHOOL OF A SCHOOL DISTRICT
11 (a) A school district not maintaining an approved public high school may
12 vote on such terms or conditions as it deems appropriate, to designate three or
1