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How to Privatize a Public School in Vermont: A Layman's Guide

In 1998, residents of the town of Winhall broke new ground by directing their School Board to close their public school, reconfigure it as a private school, and open the new school to students in the fall. The process involved a great deal of research, courage, and thoughtfulness and was not without controversy.

Since that time, other school boards around the state have desired information on the privatization process as they consider how to deal with escalating costs, the effects of Act 60, and conflicting community needs. Privatizing a public school can help communities maintain a school in their area even when shifting demographics shrink the pool of students. Privatizing a public school can give school leaders more flexibility in hiring teachers and designing curricula. It can also help a community save taxpayers’ money under certain circumstances.

Vermonters for Better Education has prepared this guidebook to help school boards, citizens, and parents understand the steps necessary on the road to privatization. It is important for readers to know, however, that this booklet is just a guide, not a legal handbook with all the answers. If privatization is in your school’s future, you should consult the Vermont Department of Education yourself for information, and use the services of legal experts and/or consultants to help you through the hurdles – both practical and "atmospheric" – that you will surely encounter.

This booklet was put together with information and help from numerous people. Carol Cone of the Winhall School Board was particularly generous with her time and materials from the Winhall experience. She deserves our heartfelt thanks. Thanks also go to Bill Reedy and Natalie Casco of the Vermont Department of Education, Bernier Mayo of St. Johnsbury Academy and Harry Chaucer of the Gailer School. Their materials and insights were invaluable.
 

Vermonters for Better Education

VBE@comcast.net


This is a publication of Vermonters for Better Education, a nonprofit, nonpartisan organization committed to enlisting parents and the public at large in achieving quality educational opportunities for all the children of Vermont. VBE will accomplish this by:
      1. Streamline the budget
      2. Reduce staff
      3. Increase enrollment
      4. Close the school
      5. Privatize the school
    1. Since teacher contracts were already signed and construction bids accepted, only limited budget reductions could be made for 1997-98 school year. Board was directed to return in December with additional recommendations for budget reduction at March 1998 Town Meeting.
    2. September 29, 1997, after legal warning and due explanation, Winhall votes to expand the school board from three members to five to address the task of adapting to Act 60 requirements.
    3. December 9, 1997 Winhall voters elect Louis Costanzo and Carol Cone to serve on the expanded School Board. Both were also members of the Ad Hoc committee. Resumes were published prior to vote.
    4. Town Meeting March 1998 – Winhall School Board recommends tabling school budget until May since Act 60 amendments not yet signed off by Governor Dean, and tax levels not yet set. Board has visited other small schools in southern Vermont, and has held conversations with neighboring schools about possibly combining with them. Also explored possibilities of a Montessori-based program, but structure and staffing are unclear.
    5. Community survey circulated asking residents’ opinions about strengths and weaknesses of current school structure and programs, as well as suggestions and options for future.
    6. School Board members visit a number of comparable schools in southern Vermont to evaluate program, costing, staffing, transportation solutions.
    7. May 26, 1998 – School Board presents results of community survey about school possibilities, outlines available alternatives:
      1. Operate the Winhall Public School on the Small School Model, combining more grades, reducing services, changing staffing assignments , restructuring program– still over $9000 per pupil.
      2. Explore alternatives of combining with neighboring town schools.
      3. Close the school, offering attractive buyout to current staff under contract.
      4. Privatize – lease the school building to KMW Associates (a consulting firm), who have made several presentations to the community on their proposal for an independent school in Winhall.
    1. Town votes to authorize the School Board to close the public school if and when it is confident that the independent school will be able to open for the 1998-99 school year. Full time teachers were offered a substantial buyout package, part time teachers a percentage of the FT.
    2. July 23, 1998 – Winhall School Board notifies town parents, residents and property owners by letter that it is the Board’s decision to close the public school and lease the premises to the Mountain School at Winhall, (MSW) further stating "it is the Board’s responsibility to students and taxpayers of Winhall to assure the community that any changes are in the best interests of these two groups."
    3. The fact that this decision was taken in July, with the school year beginning in late August, timing and consideration for Winhall’s children made it imperative that all children had a school to attend. The Mountain School promised that it would accept all Winhall students for the 1998-99 school year.
    4. Winhall School Board leases the school building to the Mountain School on a 50% basis, designating the building as a community Center, so be used for other community activities.
    5. Stratton-Winhall Education Foundation (SWEF) formed to supplement state block grant funds for Winhall students. Letters, publicity, local support sought by outlining tax savings to be achieved. Matching funds promised from the Freeman Foundation.
    6. Mountain School receives Independent School interim approval and opens on time. Agreement between Supervisory Union, Winhall School Board and Mountain School addresses Special Education Services to be provided by WCSU.
    7. May, 1999- Town Meeting – town votes school budget for l999-2000, votes to match Burr and Burton tuition of $7900 for Winhall students at approved secondary schools; votes to pay up to $7300 for Winhall students at approved elementary schools, including but not limited to MSW.
    8. Town meeting – School Board asks town to vote on reducing school board from five to three members at Town Meeting, major work having been accomplished. Town votes favorably.
    9. September 1999 - Second school year begins, with increased enrollment including students from outside Winhall
    10. October 1999 – Evaluation Team from state’s Independent School Division visits school; issues recommendation for 2-year approval with conditions
    11. November 1999 – All conditions met prior to final approval consideration. Mountain School granted 3-year unconditional approval, after meeting with committee in Montpelier.
    This process took 1½ years from inception to school opening, 2½ years to final approval. It often required two to four meetings per month of the Board during the early months. It also involved close communication with Bill Reedy, legal counsel to the Dept. of Education, and with Natalie Casco, Independent School supervisor.

    Winhall also had full support of the Superintendent of the local Supervisory Union. Both Mountain School and town had supporting legal counsel throughout.

    vvvvvvvvvvvv


    Statutes Governing the Privatization Process (all under Title 16):

    § 166. Approved and recognized independent schools

    (a) An independent school may operate and provide elementary education or secondary education if it is either approved or recognized as set forth herein.

    (b) Approved independent schools. -- On application, the state board shall approve an independent school which offers elementary or secondary education if it finds, after opportunity for hearing, that the school provides a minimum course of study and that it substantially complies with the board's rules for approved independent schools. Except as provided in subdivision (6) of this section, the 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. Approval may be granted without state board evaluation in the case of any school accredited by a private, state or regional agency recognized by the state board for accrediting purposes.

      (1) On application, the state board shall approve an independent school which offers kindergarten but no other graded education if it finds, after opportunity for hearing, that the school substantially complies with the board's rules for approved independent kindergartens. The state board may delegate to another state agency the authority to evaluate the safety and adequacy of the buildings in which kindergartens are conducted, but shall consider all findings and recommendations of any such agency in making its approval decision.

      (2) Approvals under this section shall be for a term established by rule of the board but not greater than five years.

      (3) An approved independent school shall provide to the parent or guardian responsible for each of its pupils, prior to accepting any money for that pupil, an accurate statement in writing of its status under this section, and a copy of this section. Failure to comply with this provision may create a permissible inference of false advertising in violation of 13 V.S.A. § 2005.

      (4) Each approved independent school shall provide to the commissioner on October 1 of each year the names and addresses of its enrolled pupils. Within seven days of the termination of a pupil's enrollment, the approved independent school shall notify the commissioner of the name and address of the pupil. The commissioner shall forthwith notify the appropriate school officials as provided in section 1126 of this title.

      (5) The state board may revoke or suspend the approval of an approved independent school, after opportunity for hearing, for substantial failure to comply with the minimum course of study, for failure to comply with the board's rules for approved independent schools, or for failure to report under subdivision

      (b)(4) of this section. Upon revocation or suspension, students required to attend school who are enrolled in that school shall become truant unless they enroll in an approved public school, approved or recognized independent school or approved home instruction program.

      (6) This subdivision applies to an independent school located in Vermont which offers a program of elementary or secondary education through correspondence, electronic mail, satellite communication or other means and which, because of its structure, does not meet some or all the rules of the state board for approved independent schools. In order to be approved under this subdivision, a school shall meet the standards adopted by rule of the state board for approved independent schools which can be applied to the applicant school and any other standards or rules adopted by the state board regarding these types of schools. A school approved under this subdivision shall not be eligible to receive tuition payments from public school districts under chapter 21 of this title. However, a school district may enter into a contract or contracts with a school approved under this subdivision for provisions of some education services for its students.

    (c) Recognized independent schools. -- Upon filing an enrollment notice a recognized independent school may provide elementary or secondary education in Vermont. The enrollment notice shall be on a form provided by the commissioner and shall be filed with the commissioner no earlier than three months before the beginning of the school year for the public schools in the town in which the applicant proposes to locate.
    (1) The enrollment notice shall contain the following information and assurances:
    (A) a statement that the school will be in session an amount of time substantially equivalent to that required for public schools;

    (B) a detailed description or outline of the minimum course of study for each grade level the school offers, and how the annual assessment of each pupil will be performed; and

    (C) assurances that:

    (i) the school will prepare and maintain attendance records for each pupil enrolled or regularly attending classes;

    (ii) at least once each year the school will assess each pupil's progress, and will maintain records of that assessment, and present the result of that assessment to each student's parent or guardian;

    (iii) the school's educational program will include the minimum course of study set forth in section 906 of this title; and

    (iv) the school will have teachers and materials sufficient to carry out the school's educational program; and

    (v) the school will meet such state and federal laws and regulations concerning its physical facilities and health and safety matters as are applicable to recognized independent schools.

    (2) If the commissioner has information that creates significant doubt about whether the school would be able to meet the requirements set forth above, the commissioner may call a hearing. At the hearing, the school shall establish that it can meet the requirements for recognized independent schools. Failure to do so shall result in a finding by the commissioner that the school must take specified action to come into compliance within a specified time frame or the children enrolled must attend another recognized independent school, approved independent or public school, or home study program, or be declared truant unless absent with legal excuse.

    (3) A recognized independent school shall provide to each student's parent or guardian a copy of its currently filed statement of objectives and a copy of this section. The copy shall be provided when the pupil enrolls or before September 1, whichever comes later. Failure to comply with this subsection may create a permissible inference of false advertising in violation of section 2005 of Title 13.

    (4) A recognized independent school shall renew its enrollment notice annually. An independent school shall be recognized for a period not to exceed five years by the commissioner without need for filing an annual enrollment notice if:

    (A) it is recognized by an organization approved by the state board for the purpose of recognizing such school, or

    (B) it is accredited by a private, state or regional agency approved by the state board for accrediting purposes. Nothing contained herein shall be construed to prohibit the commissioner from initiating a hearing under this section.

    (5) If the commissioner has information that creates significant doubt about whether the school, once in operation, is meeting the requirements for recognized independent schools, the commissioner may call a hearing. At the hearing, the school shall establish that it has met the requirements for recognized independent schools. Failure to do so shall result in a finding by the commissioner that:
    (A) the school may not be in operation for the remainder of the school year and that the children are truant unless absent with legal excuse or enrolled in an approved public or independent school, another recognized independent school or a home study program; or

    (B) the school must take specified action to come into compliance within a specified time frame or the school will not be permitted to operate for the remainder of the school year.

    (6) Each recognized independent school shall provide to the commissioner on October 1 of each year the names and addresses of its enrolled pupils. Within seven days of the termination of a pupil's enrollment, the recognized independent school shall notify the commissioner of the name and address of the pupil. The commissioner shall forthwith notify the appropriate school officials designated in section 1126 of this title.

    (7) After the filing of the enrollment notice or at a hearing, if the school is unable to comply with any specific requirements due to deep religious conviction shared by an organized group, the commissioner may waive such requirements if he or she determines that the educational purposes of this subsection are being or will be substantially met.


    (d) Council of independent schools. -- A council of independent schools is created consisting of eleven members, no fewer than three of whom shall be representatives of recognized independent schools. The commissioner shall appoint nine members from within the independent schools' community. The commissioner shall appoint two members from the public-at- large. Each member shall serve for two years and may be reappointed for up to an additional two terms, except that five of the first eleven appointments shall be for an initial term of one year. The council shall hold its organizational meeting before March 1, 1990 at the call of the commissioner and shall adopt rules for its own operation. A chair shall be elected by and from among the members. The duties of the council shall include advising the commissioner on policies and procedures with respect to independent schools. No hearing shall be initiated before the state board or by the commissioner under this section until the recommendations of the council have been sought and received. The recommendations of the advisory council, including any minority reports, shall be admissible at the hearing.

    (e) The board of trustees of an independent school operating in Vermont shall adopt harassment policies, establish procedures for dealing with harassment of students and provide notice of these as provided in section 565 of this title for public schools, except that the board shall follow its own procedures for adopting policy.

    (f) An approved independent school which accepts students for whom the district of residence pays tuition under chapter 21 of this title shall bill the sending district monthly for a state-placed student and shall not bill the sending district for any month in which the state-placed student was not enrolled.

    (g) An approved independent school which accepts students for whom the district of residence pays tuition under chapter 21 of this title shall use the assessment or assessments required under subdivision 164(9) of this title to measure attainment of standards for student performance of those pupils. In addition the school shall provide data related to the assessment or assessments as required by the commissioner. (Amended 1989, No. 44, § 1; 1993, No. 162 (Adj. Sess.), § 3; 1995, No. 157 (Adj. Sess.), § 2; 1997, No. 60, § 5, eff. June 26, 1997; 1997, No. 84 (Adj. Sess.), § 2.)

    § 562. Powers of electorate

    At a school district meeting the electorate:

    (1) Shall conduct meetings in accordance with Roberts Rules of Order, unless other rules of order are specifically adopted at a meeting;

    (2) Shall elect a moderator at the annual meeting who shall preside at the district meetings, regulate the business thereof, decide questions of order, and make a public declaration of every vote. He may administer oaths to district officers and newly elected school board members. In his absence a moderator pro tempore shall be chosen to preside;

    (3) May elect a school district clerk at the annual meeting who shall keep a true record of all proceedings at each district meeting, certify its records, make an attested copy of any records of the district for any person upon request and tender of reasonable fees therefor, if so appointed serve as secretary of the school board, and perform such other duties as may be required by law;

    (4) May authorize the school board to retain a public accountant, licensed in this state, to examine the accounts of the treasurer and the school board at the close of each fiscal year and at such other times whenever necessary, and report to the district whether the same are correctly cast and properly vouched;

    (5) May vote annual salaries for school board members;

    (6) May authorize the payment of actual and necessary expenses of school board members when traveling in the performance of duty;

    (7) May authorize the school board to enter into leases of real or personal property for more than three years, to purchase buildings or sites for school purposes, to locate and erect schoolhouses, and to sell, or otherwise dispose of, schoolhouses or sites for same;

    § 563. Powers of school boards

    The school board of a school district, in addition to other duties and authority specifically assigned by law: ……

    (7) May relocate or discontinue use of a schoolhouse or facility, subject to the provisions of section 821 and section 822 of this title.

    § 821. School district to maintain public elementary schools or pay tuition

    (a) Elementary school. -- Each school district shall provide, furnish, and maintain one or more approved schools within the district in which elementary education for its pupils is provided unless:

      (1) The electorate authorizes the school board to provide for the elementary education of the pupils residing in the district by paying tuition in accordance with law to public elementary schools in one or more school districts.

      (2) The school district is organized to provide only high school education for its pupils.

      (3) Otherwise provided for by the general assembly.

    (b) Kindergarten program. -- Each school district shall provide public kindergarten education within the district. However, a school district may pay tuition for the kindergarten education of its pupils:
      (1) at one or more public schools under subdivision (a)(1) of this section; or

      (2) if the electorate authorizes the school board to pay tuition to one or more independent schools approved by the state board, but only if the school district did not operate a kindergarten on September 1, 1984, and has not done so afterward.

    (c) Notwithstanding subsection (a) of this section, a school board without previous authorization by the electorate may pay tuition for elementary pupils who reside near a public elementary school in an adjacent district upon request of the pupil's parent or guardian, if in the board's judgment the pupil's education can be more conveniently furnished there. The board's decision shall be final in regard to the institution the pupil may attend.

    (d) Notwithstanding subsection (a) of this section, the electorate of a school district that does not maintain an elementary school may grant general authority to the school board to pay tuition for elementary pupils at approved independent nonresidential elementary schools upon request of a pupil's parent or guardian, if in the board's judgment the pupil's educational interests can be better served there. The board's decision shall be final in regard to the institution the pupil may attend. (Added 1969, No. 298 (Adj. Sess.), § 52; amended 1985, No. 71, § 4; 1987, No. 141 (Adj. Sess.); 1989, No. 271 (Adj. Sess.), §§ 1, 2; 1991, No. 24, § 11.)
     

    § 822. School districts to maintain high schools or pay tuition

    (a) Each school district shall provide, furnish, and maintain one or more approved high schools in which high school education is provided for its pupils unless:

      (1) The electorate authorizes the school board to close an existing high school and to provide for the high school education of its pupils by paying tuition in accordance with law. Tuition for its pupils shall be paid to an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state; or

      (2) The school district is organized to provide only elementary education for its pupils.

    (b) For purposes of this section, a school district which provides, furnishes and maintains a program of education for the first eight years of compulsory school attendance shall be obligated to pay tuition for its pupils for at least four additional years.

    (c) The school board may both maintain a high school and furnish high school education by paying tuition to a public school as in the judgment of the board may best serve the interests of the pupils, or to an approved independent school if the board judges that a pupil has unique educational needs that cannot be served within the district or at a nearby public school. Its judgment shall be final in regard to the institution the pupils may attend at public cost. (Added 1969, No. 298 (Adj. Sess.), § 53; amended 1977, No. 33, § 2; 1989, No. 271 (Adj. Sess.), § 3; 1991, No. 24, § 2; 1997, No. 71 (Adj. Sess.), § 85, eff. March 11, 1998.)

    § 823. Elementary tuition

    Tuition for elementary pupils shall be paid by the district in which the pupil is a resident. The tuition paid to a public elementary school shall be at a rate not greater than the calculated net cost per elementary pupil in average daily membership in the receiving school district for the year of attendance. The tuition paid to an approved independent elementary school shall not exceed the lesser of (1) the average announced tuition of Vermont union elementary schools for the year of attendance or (2) the tuition charged by the public elementary school attended by the greatest number of the district's pupils. (Added 1969, No. 298 (Adj. Sess.), § 54; amended 1989, No. 271 (Adj. Sess.), § 4.)

    § 824. High school tuition

    (a) Tuition for high school pupils shall be paid by the school district in which the pupil is a resident.

    (b) Except as otherwise provided for technical students, the district shall pay the full tuition charged its pupils attending an approved public high school in Vermont or an adjoining state, or a public or independent school in Vermont functioning as an approved area technical center, or an independent school meeting public school standards. However, if a payment made to an approved public high school or an independent school meeting public school standards is three percent more or less than the calculated net cost per secondary pupil in average daily membership in the receiving school district for the year of attendance then the district shall be reimbursed, credited or refunded pursuant to section 836 of this title, unless otherwise agreed to by the boards of both the receiving and sending districts or independent schools.

    (c) For students in grades 7 and 8, the district shall pay an amount not to exceed the average announced tuition of Vermont union high schools for students in grades 7 and 8 for the year of attendance for its pupils enrolled in an approved independent school not functioning as a Vermont area technical center, or any higher amount approved by the electorate at an annual or special meeting warned for that purpose. For students in grades 9-12, the district shall pay an amount not to exceed the average announced tuition of Vermont union high schools for students in grades 9-12 for the year of attendance for its pupils enrolled in an approved independent school not functioning as a Vermont area technical center, or any higher amount approved by the electorate at an annual or special meeting warned for that purpose. (Added 1969, No. 298 (Adj. Sess.), § 55; amended 1971, No. 52, § 5, eff. April 14, 1971; 1975, No. 27, § 1, eff. Jan. 1, 1976; 1983, No. 247 (Adj. Sess.), § 3; 1991, No. 24, § 3; 1991, No. 24, § 3; 1991, No. 204 (Adj. Sess.), § 7; 1995, No. 34, § 2; 1997, No. 60, § 8, eff. June 26, 1997; 1997, No. 71 (Adj. Sess.), § 86, eff. March 11, 1998; No. 138 (Adj. Sess.), § 21.)
     

    § 3741. School buildings

    Each town district shall provide, furnish, maintain and control schoolhouses suitable for schools under the provisions of this title. When so authorized by the town district, the board of school directors shall have power to lease or purchase buildings or sites for schoolhouses, locate and erect schoolhouses, and sell or otherwise dispose of schoolhouses or sites for same. A school district which issues bonded debt to pay for capital construction costs under this section is authorized under the provisions of sections 428 and 511 of this title to levy ad valorem taxes on the grand list to pay for debt service therefor as it becomes due and payable, and shall do so unless otherwise payable from other sources. (Amended 1997, No. 71 (Adj. Sess.), § 89, eff. March 11, 1998.)
     


    Notes:

    1. There are slightly different statutes governing elementary and secondary schools, so it’s important to refer to the relevant statutes depending on your situation.

    2. These questions were compiled by Harry Chaucer, Ed.D., founder and headmaster of The Gailer School in Shelburne. They were presented at a June 22, 1998 conference entitled “How to Start an Independent School” sponsored by Resources for Vermont Education.