Friday, August 23, 2013

Vic’s Statehouse Notes #151 – August 23, 2013

Dear Friends,

Controversy erupted into public view at the August 7th State Board meeting over vouchers for special education students. Rep. Behning, the Superintendent of the Catholic Archdiocese, the executive director of the Catholic Conference and the executive director of the Non-Public School Association all asked the State Board in public comments to reject the emergency rules that were on the action agenda. The State Board complied, tabling the matter until September and leaving the rules for special education vouchers in limbo.

House Enrolled Act 1003

Faithful readers of Vic’s Statehouse Notes will certainly remember HEA 1003, the voucher expansion law that I strongly opposed. Before the bill was passed, I described the conflict to come as part of my opposition with these words from “Notes #133” written on April 10, 2013:
“The Senate version requires new state rules from the State Board of Education regulating special education programs in private schools. State regulation of any program in a private school would be a controversial step, and state regulation of a complex program like special education will raise even more questions about the scope, the method and the accountability of the regulations needed to monitor special education services in private schools.

HB 1003 says: “The state board shall adopt rules under IC4-22-2, … for the provision of special education or related services to an eligible choice scholarship student who receives an amount under section4(2) of this chapter. The rules adopted under this section shall include annual reporting requirements, monitoring and consequences for noncompliance by an eligible school.

This seemingly is in direct conflict with the current voucher law which says (IC 20-51-4):

A nonpublic eligible school is not an agent of the state or federal government, and therefore:

(1) the department or any other state agency may not in any way regulate the educational program of a nonpublic eligible school that accepts a choice scholarship under this chapter, including the regulation of curriculum content, religious instruction or activities, classroom teaching, teacher and staff hiring requirements, and other activities carried out by the eligible school;

(2) the creation of the choice scholarship program does not expand the regulatory authority of the state, the state's officers, or a school corporation to impose additional regulation of nonpublic schools beyond those necessary to enforce the requirements of the choice scholarship program in place on July 1, 2011; and

(3) a nonpublic eligible school shall be given the freedom to provide for the educational needs of students without governmental control.

The conflict looming over special education regulation is clear.”
The General Assembly ignored the potential conflict and passed the bill. The conflict is now here.

Emergency Rules

HEA 1003 provided that emergency rules could be used to set regulations for special education vouchers. Emergency rules are good for one year while permanent rules requiring public hearings are promulgated. IDOE Director of Special Education Becky Bowman initiated stakeholder meetings this summer involving private school leaders and public school special education leaders to write the emergency rules for special education vouchers.

The public discussion of the draft rules in the State Board meeting on August 7th revealed two major controversies.

Controversy #1: Whether Special Education Money Goes to All Special Education Voucher Students or Whether Private Schools Can Keep Basic Tuition for Special Education Students but Opt Out of Providing Special Education Services

Rep. Behning and his allies want the State Board to interpret the written law to do things that he apparently left out of the law that he sponsored. In defining the voucher amount for special education students, the law says: “Section 4: The amount an eligible choice scholarship student is entitled to receive under this chapter for a school year is equal to the following: (1) … [basic tuition]… (2) In addition, if applicable, any amount that a school corporation would receive under IC 20-43-7 for the student if the student attended the school corporation.” IC 20-43-7 is the special education funding law.

The next section of the law says: “Section 4.5. (a) Notwithstanding 511 IAC 7-34-1(d)(4), a public school is not required to make available special education and related services to an eligible choice scholarship student who receives funds under section 4(2) of this chapter.” When the law was being debated, it seemed clear that special education students would become eligible for vouchers and the special education money would also follow them to the coffers of the private school by giving them a bigger voucher amount.

The dispute hangs on the phrase “if applicable” in Section 4(2).

IDOE is saying that special education students will all get the special education funding provided by IC 20-43-7, and therefore, the public school will no longer be involved with that student. They are interpreting “if applicable” to mean that state special education money would be added to the voucher “if the student qualifies for special education”, which is the common meaning that I and others took it to mean during the intense debate on voucher expansion last spring.

Rep. Behning, on the other hand, wants to retain the special education services of the public school if that is the request of the parent asking for a voucher. The private school would get the tuition support, but the special education services would be provided by the public school. The special education money would be administered by the public school. Voucher advocates are interpreting “if applicable” to mean that state special education money would be added to the voucher “if the student qualifies for special education and if the parent rejects special education services from the public school and selects to have all services from a private voucher school.”

Rep. Behning certainly didn’t make that clear in the wording of his law. Besides being unwise public policy, now we know that HEA 1003 was poorly written.

Such is the stuff of lawsuits.

Controversy #2: Giving the Special Education Money to Private Schools without Giving the Procedural Safeguards to Special Education Students and Parents in the Private School Program

Public school special education leaders are incensed that students and parents who enroll in special education programs in private schools will not be guaranteed the same procedural safeguards and rights to participate in individualized planning that Article 7 and IDEA now provide. They believe that the state special education money was provided in order to fulfill student and parent protections under the federal IDEA law established forty years ago.

HEA 1003 says: “The rules adopted under this section shall include annual reporting requirements, monitoring, and consequences for noncompliance by an eligible school.” After the first meeting with stakeholders, the IDOE watered down their first draft of procedural rules that would need to be followed by private schools, to the disappointment of public school special education advocates. This conciliatory gesture, however, was rejected by the private school forces, who claimed before the State Board that the procedural safeguards for parents were still too burdensome. For example, they reject specific deadlines for responses in favor of the phrase “within a reasonable time.”

You get the idea. Public school special educators who have spent their whole careers with specific deadlines and procedural rules that protect students and parents are incredulous that state special education money would flow to private schools without procedural safeguards.

Next Steps

Becky Bowman told the State Board that an Attorney General’s opinion would be needed regarding the meaning of the law in order to resolve the first controversy. Such a request would take additional time. In the meantime, additional stakeholder discussions would be held and the State Board would deal with the issue at the September meeting.

It is time to write members of the State Board on this issue. Urge them to protect parental and student procedural safeguards for all who get state special education money, whether they are in public schools or private schools. If state money is flowing to private schools for special education services, the parents involved should be guaranteed procedural rights as they are now in public schools.

Best wishes,

Vic Smith

ICPE is working to promote public education and oppose privatization of schools in the Statehouse. We need all previous members of ICPE to renew their memberships for the 2013-14 membership year which began July 1st. Please join us! To all who have recently renewed, we say thank you! We have reduced but not yet eliminated our debt from the General Assembly session. We need additional support to carry on our advocacy for public education. We need additional members and additional donations. We need your help!

WE NEED YOUR HELP NOW! We oppose new laws that---
  • allow your tax dollars to be diverted from public school students to fund tuition for religious and private schools.
  • allow for-profit companies to take over public schools.
  • allow tax breaks for home school textbooks but not for public school texts.


Go to for membership and renewal information.

Some readers have asked about my background in Indiana public schools. Thanks for asking! Here is a brief bio:

I am a lifelong Hoosier and began teaching in 1969. I served as a social studies teacher, curriculum developer, state research and evaluation consultant, state social studies consultant, district social studies supervisor, assistant principal, principal, educational association staff member, and adjunct university professor. I worked for Garrett-Keyser-Butler Schools, the Indiana University Social Studies Development Center, the Indiana Department of Education, the Indianapolis Public Schools, IUPUI, and the Indiana Urban Schools Association, from which I retired as Associate Director in 2009. I hold three degrees: B.A. in Ed., Ball State University, 1969; M.S. in Ed., Indiana University, 1972; and Ed.D., Indiana University, 1977, along with a Teacher’s Life License and a Superintendent’s License, 1998.

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