The State Board of Education will hold a public hearing on Wednesday, November 10 on two key proposals:
- The school voucher bill (also known as “Education Freedom Accounts”): The State Board is considering permanent rules for the administration of the new statewide school voucher program after a legislative oversight committee raised “substantive” questions and concerns over their interim proposal in August. The new rule proposal does not appear to address many concerns raised by lawmakers and the public, who were specifically concerned over the lack of oversight and accountability.
- Distance education: Proposed distance education rules would limit public and charter schools’ ability to offer remote learning, except in weather emergencies and for individual parent requests. If adopted, the rules would prohibit schools from switching to remote learning under most instances, even temporarily, which has received pushback as COVID-19 cases increase among school-aged children.
Note: the public hearing for the Holocaust and Genocide Education Standards has been moved to December 9, 2021.
This is the public’s chance to weigh in on the policy and substance of the proposed rules. Once they move onto the legislative oversight committee (JLCAR), lawmakers will only consider the legality of the rules, and will not consider whether the rules are good or bad policy.
Download the proposed rules for the school voucher program here: https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/ip_ed_800_efa_9_9_21.pdf
Download the proposed rules for distance education here: https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/ip_ed_306_18_306_22_distance_education_9_9_21.pdf
Testimony for public hearings may be made in-person at the New Hampshire Department of Education, Walker Building, 21 South Fruit Street Room 100, or by submitting written testimony to the committee by emailing it to Angela Adams at Angela.m.Adams@doe.nh.gov.
When the temporary (“interim”) rules were adopted in August, the public and the legislative oversight committee had several significant concerns:
- The rules stripped all oversight of the scholarship organization by the state;
- Removed protections for students’ personal information, including health, financial, and school records data;
- Concerns around special education services and rights; and,
- Concerns that background checks are not required for education provider staff, including those who come in direct contact with children.
The Department’s attorney, Chris Bond, responded by saying that some of the open concerns are addressed in the sole-source contract with the Children’s Scholarship Fund that the Executive Council approved. The remaining concerns would be addressed in the regular rulemaking process, he said. But a review of the proposed permanent rules shows that these concerns may not have been addressed.
Oversight of the Scholarship Organization
The proposed rules do not appear to address concerns around oversight of the scholarship organization itself. The scholarship organization remains responsible for determining the eligibility of students and education service providers, determining and reporting cases of fraud, selecting and contracting with an auditor of voucher accounts, and other key elements of the program.
The law that created the voucher program provides “minimal” oversight by the state, and may represent an “impermissible delegation of authority,” according to the legislative oversight committee. The lack of oversight was a top concern for lawmakers and the public as well, but the concerns were dismissed by party leaders when the voucher bill was rolled into the larger statewide budget.
Criminal Background Checks
The proposed rules do require that education service providers report on their processes for criminal background checks. However, there are no requirements for the background checks, or stipulations that a negative background check would result in a bar from participation in the program.
Protections for Students’ Personal Information
The proposed rules include the same language as the interim rules regarding student data privacy, which require that the scholarship organization “develop a records retention policy,” and implement “all customary commercial data security procedures and protocols” to protect confidential student information. However, the committee had significant concerns that neither the rules, nor the statute, address the protection of personal and confidential student information, and how HIPAA and FERPA protections apply to the organization and to participating families.
Student data privacy has been an issue of interest among families, educators, and advocates, especially over the past year with the rise in educational technology software and data mining. During committee hearings, lawmakers and members of the public expressed concern that there was a lack of protections for students and their families; however, protections were not included in the statute or in the rules.
Concerns Around Special Education Services and Rights and Parental Notification
Finally, the Department noted that the proposed rules address JLCAR’s conditional approval request that the Department review and approve the notice given by parents by the scholarship organization specifying the rights that are retained and lost by students participating in the school voucher program. While the proposed rules include the required statement, there are questions as to whether the statement is clear enough that families would know the implications of participating in the program:
“Participation in the EFA program is a parental placement under 20 USC section 1412, Individuals with Disabilities Education Act (IDEA). Parentally-placed private school children with disabilities are not entitled to a FAPE in connection with their enrollment by their parents in a private school, in accordance with 34 C.F.R. §§ 300.148(a) and pursuant 300.137(a), while participating in the State-Funded EFA program.”
The Government Accountability Office (GAO) published an in-depth report underscoring the importance of notifying families in changes to rights to services:
“Officials from national stakeholder groups, private choice programs, and Education told GAO that some parents do not understand that certain key IDEA rights and protections—such as discipline procedures and least restrictive environment requirements—change when parents move their child from public to private school. Ensuring that quality information is communicated consistently and accurately to parents can help address potential misunderstanding about changes in federal special education rights.“
About the school voucher program
The statewide school voucher program, which was passed as part of the state budget in June 2021, allows for the use of taxpayer funds to pay for private and homeschooling expenses through “Education Freedom Accounts,” or vouchers.
The school voucher program has been overwhelmingly opposed by the public in hearings, polling, and in the news due to concerns over the absence of accountability or transparency provisions, the cost to the state and to local school districts, and objections over using public tax dollars to fund private education.
When it was first introduced in January 2021, lawmakers had significant concerns over the technicalities of the bill. The House Education Committee retained the bill after a day-long executive session where members went through each piece of the legislation, raising questions and problems with the legal language. However, the bill was incorporated into the state budget, evading scrutiny from lawmakers and the public, and with zero work sessions to iron out the open questions.
Lawmakers have proposed over 20 pieces of legislation regarding the school voucher program in 2022, some of which address concerns raised by the public and by the oversight committee. These bills are expected to be introduced at the beginning of the session in January. To stay informed on school vouchers and other education policy issues, sign up for our newsletter at bit.ly/edfundingnews
The State Board is also holding a public hearing on the proposed rules around distance education. While the distance education rules were initially adopted to allow students and schools flexibility and local control, they have more recently been used to allow schools to offer remote learning during the COVID-19 pandemic.
The rules would allow distance education in cases of inclement weather or when a parent requests it but would otherwise require schools to offer in-person instruction five days a week. Schools could offer remote learning, but it would not count towards the required annual learning hours, and school districts would have to make up those school days.
“The governor always has the option of declaring a current state emergency and saying you can go fully remote,” State Board of Education Education chairman Drew Cline told NHPR. “But what we’re saying is outside of a declared state of emergency, these are the options that a school has. A school just cannot tell parents you are going to have to keep your kids home and go through this whole remote learning process.”
Dr. Carl Ladd, who serves as the Executive Director of the NH School Administrators Association (NHSAA), said that the decision should be left up to local school boards.
“There should be the discretion of the local school district to determine what’s safe for them to be open and what’s not safe for them to be open,” Ladd told NHPR said. “… If they need to stay closed for longer than 10 days, then they should get approval from the Department of Education, but up to that point districts should be able to pivot.”
School officials say that the restriction could mean that they have to cancel school altogether if there’s a cluster or a staffing shortage.
“We could have a staffing issue one day where we just can’t get enough subs to come in and cover classes that we would have to go remote for a day,” Pinkerton Academy Headmaster Timothy Powers told WMUR. “So, to take that away means that we would then have to close the school for the day and make up the day.”
School leaders and educators are already juggling multiple roles and responsibilities. Just as they did in the early days of the pandemic, school leaders, teachers, and staff are rising to meet the challenges of an unusual school year: helping students readjust to in-person learning, evaluating and addressing students’ needs, and trying to rebuild a sense of community, all amid widespread staff shortages.
And, several school districts have already had to shift to remote learning temporarily during surges. Two Manchester elementary schools had to shift to remote learning in September, and Raymond High School had to shift to remote learning in October after a COVID-19 cluster in early October.
*This article was edited for clarity on November 10, 2021.