 All right. Good afternoon. Welcome to Senate Education. It's Friday, February 4th, 132. I think we have a relatively late afternoon. We're going to jump into S219 for a little bit. We have Ms. Yang from Human Rights Commission and talk about our most updated draft with council. And then we're going to spend some time on S139. This is returning to our bill on team mascots where we are going to hear from the council. And I don't know. Did we hear from Chief Sheehan? Daphne? We have not heard from him yet. So it might just be Ms. St. James. So I think we'll have a pretty late afternoon on this snowy Friday. But with that Ms. Yang, great to see you. Haven't seen you in a while. I think it's probably been about a year. Hope you're doing well. I am. How are you all? Thank you so much for inviting me back. Yeah, I know. It's great to have you here. So we're looking at S219, which I'm sure you're familiar with by now. And wondering if you could give us some feedback or any thoughts or any concerns as we move in this direction. Yeah, thank you. Just for the record, my name is Bo Yang. I'm the executive director of the Vermont Human Rights Commission. And we enforce the anti-discrimination laws of this state. And that includes housing, state government employment, and places of public accommodations. And so the Vermont Public Accommodations Law defines places of public accommodations to include the word schools. And I think the plain meaning of that term is pretty self-evident. We have always taken the position that school means all schools in the state of Vermont that is generally open to kids, to students. That includes K through 12, college, secular, religious, public, independent schools. I don't necessarily think that the term is ambiguous. I know that there has been some discussions, both maybe in your committee and outside of your committee about whether or not the Public Accommodations Act covers religious schools or independent schools. My opinion is that it does and that there's no ambiguity in the law. But it's just my opinion. And so the fact that there's conversations about it means that maybe there is an opportunity here to clarify that the legislature always intended that word to truly mean what it is, and it captures all schools. The reason why I think it's not ambiguous is because if you look at the exemptions that are in the statute, the canons of statutory construction tell us that when one thing is specifically expressed in a statute, there is an inference that the legislature intended to exclude others that are omitted from the statute. Here the legislature carved out an exception for religious organizations from having to provide services or accommodations or facilities related to the solemnization of a marriage or celebration of marriage. We have to believe that the legislature when they enacted this law knew that they could have carved out the same exception for religious schools and yet did not choose to do that. On the other hand, I would say that the people who say that the law is a little bit confusing might also say that we have intent language in the Public Accommodations Act that says our law should be construed consistently with the Americans with Disabilities Act and the Americans with Disabilities Act does exempt religious organizations, including religious schools. If that creates confusion, I certainly think it wouldn't necessarily hurt for us to clarify the Public Accommodations Act that school means really all schools. Again, I don't think that's necessary, but that's just my opinion. I would say the commission generally supports this bill. We're not necessarily going to take a position on the public tuition piece of it. I do think there's some really good language here that we like. Specifically, the language regarding the provisions that outline conditions of eligibility for approved independent schools. We like that schools should be adopting implementing policies and procedures to comply with our anti-discrimination laws. We like that schools should post these policies and procedures on their website in prominent places to comply with our laws. I also really appreciated the language and the current draft around students who belong in the, who are part of the IEP plans. I think my only question is, I don't think that you intend, I don't know, to exclude other kids with disabilities who would fall, who are not in special education, but who would otherwise need accommodations or could otherwise be excluded. Kids with disabilities could seek reasonable accommodations even if they're not part of any plan. Then there is a select group of kids who are not in special education, but who receive accommodations as part of the Section 504 of the Rehabilitation Act. Those are, they have what's called a 504 plan. I think I would just like to see consistency or clarity about making sure that all kids with disabilities, whether they are in special education or not, would be protected under this law and that that exclusion isn't on purpose. Other than that, I really is my, my, my thoughts on behalf of the commission. I'm happy to answer any questions that you have. Okay. Terrific. Senator Lawrence. First, it's great to see you and thanks for being here. Do you have, do you have your testimony in writing? Is it possible that we could get that? Sure. I just haven't had the time lately, but I will get it. No, that's okay. We understand the time issue. Yeah, I will. Yeah, I'll write something up and send it your way. The 504 plan that is being developed and these kids that you're talking about, can you just give us an example of the type of child who might be under a 504 plan? Sure. You might have a child that needs medication. Yeah, because of a certain disability. And so they are not, they don't qualify to be in special education, but they need a plan in place for the school, nurse or teachers to abide by. You have kids who have are, you might have students who are hard of hearing. And they need accommodations around their hearing disability. And that might be captured in a 504 plan. It's not always captured, but it ought to be captured in a 504 plan. And so that's how schools are on notice and are on alert that they have to accommodate a certain disability. So that kid wouldn't be in an IEP plan, but they would still need accommodations. It is possible that schools may not necessarily want to accommodate kids who are receiving medication. It's possible that schools may not want to accommodate kids who need additional assistive devices. And so we want to make sure that those kids are not excluded either. And there are kids who have disabilities who may not be on any part of a plan, even though maybe they ought to be, right? A kid who's in a wheelchair and just really needs to use a bathroom that is accessible. A school that is inclusive and thoughtful will accommodate that. They may not necessarily put that in a plan, but we want to make sure that those kids also are receiving the necessary accommodations to access that school. Thank you. That's really helpful. So these kids, is it your understanding that both disabled children and those under the 504 plan would be eligible for Medicaid support, education Medicaid support? I don't know. That's a great question. I'm not sure. It's not an issue, probably not a question for us here, but I was just curious if you knew. Student that has seizures, for example, might fall into that category. Okay. All right. Senator Chittenden, did you have your hand up earlier? Senator Hooker probably has a better question. I'll go after it. I don't know if it's better. I just high bored. It's good to see you. I just want a clarification on the Americans with Disabilities Act. You talked about a carve out for religious schools. Yeah, it carves out religious entities under the public accommodations law. And that might include when a religious entity creates a school, controls a school as well that's open to members or non-members of that religious entity. So the ADA sort of does carve that piece out. I want to say that our public accommodations laws in Vermont has always been more encompassing than the public accommodations law under the federal law. Our federal, I'm sorry, our public accommodations law defines places of public accommodations as any place that provides goods and services to the general public. And that isn't just commercial entities, but at schools and hospitals. And we have case law in Vermont that says also any governmental entity. We had a case in which the Department of Corrections had argued that they were close to the general public and therefore the inmates were not like they didn't have to necessarily follow the public accommodations law. And the court said, no, if you're a government entity, you are open to the general public. And so it opened the door to inmates bringing claims of public accommodations violation as well. And so I just want to say that, yes, we have that intent language at the beginning of the public accommodations act that says this law should be construed consistently with the Americans with Disabilities Act. But we also have, you know, exemptions within our own laws that specifically set out that religious organizations are exempted in, in relation to the solemnization of marriage. So I read that to mean that our legislature could have carved out an exception for religious schools if they wanted to, they chose not to. And that means that, you know, schools mean schools, all schools. But when there's so much conversation around ambiguity and whether that word is ambiguous, I don't think it's ambiguous, but when there's conversations or other, it doesn't hurt to clarify that that's what you mean. That that that word schools means all schools. Yeah. Senator Chandan. Very helpful testimony. And it's great to hear that you like the language and the intent and the direction we're going. And I too, I think this is very well worth arguing did receive testimony from individuals that everybody on this committee highly respect that cautioned us on acting now before the making decision comes out and before additional court court decisions are known this summer and so on. Do you have any thoughts on the timing of this and in contrast with what we are waiting for from the Supreme Court? Yeah, I'm going to I'm going to cheat a little bit and say that I'm not necessarily going to take a position on the speediness of this. I think that as a lawyer, I think it might make sense to wait so that you can create a law that sort of addresses specifically what is going to happen at the Supreme Court level and those Second Circuit Court cases. On the other hand, I also think there are many kids waiting for this body to make a decision that guides local schools and guides the agency of education and school boards on discrimination and public tuition dollars. And so I think there are two competing really both valid reasons here. And I'm not unfortunately going to guide you one way or the other, but they're both compelling. Thank you. Senator Perslick. Thank you. And thank you, Ms. Yang. And on that last point, I know you just said you were going to take a position on that, but could you give us what your legal view is of the danger of acting early? So on this on your latter point, the compelling argument about the students that are waiting and that we, I think as a committee and the legislature, want to act this way, but we're told, oh, wait, because you can do a better lot. You know what the decision is. What's the danger if we're off a little bit? I guess one danger that you can confirm is that we'd be open for a lawsuit. But could we then change it? Or are we precluded kind of from a legal defense perspective from changing it after the making decision comes out? Does that make sense as a question? Yeah. I mean, I think you can always change it. I don't know if there's a danger so much as putting a lot of time and energy into something that may later need to be corrected. And obviously, the danger, I mean, it's not a danger, but this is the end of the biennium. And will you all be here who understood why this bill came about and what is the purpose of the next week? I often feel like I'm in testifying in a different committee in the house where there's a conversation about why wasn't the current bill added to a bill that was passed two years ago. And I'm having to explain, that's just the way you all work, right? It wasn't intentional. You passed one bill and now this is a bill that needs to catch up to that. But now people think that was on purpose, right? And so you're you're trying to, yes, I think that's the the the danger is you are a great group of people who care about our kids who want to make sure that all of our kids are included and really have choice, whether or not they don't have to be straight and cisgender and able bodied without any disabilities in order to have real choice. And I think, you know, I think that's an important message to send. I just think, yes, you're devoting a lot of time and energy to something that could end up being overturned. Or could, you know, is it possible that the case law comes down and you could have created a much more powerful law in this in 2019, right? To address the guy, the guideline that the court, like the order that the is issued by the court, right? So that's that's I think that that mostly is it. But you know that. Yes, Senator. So follow up on this very good point. So thank you for that. And I agree that in the broader long term context, all of our actions are ephemeral. I'm wondering if you since we're all here now, and we might not be here next year and this group of people think that we should do this, you think splitting the atom or finding a middle ground would be to proceed with passing a bill but set an effective date for after the next biennium's first year, so that the next legislature whoever's sitting in these seats, if they would make an advice can then adjust course. Is there merit in considering that? Yeah, I mean, certainly. I think that just depends if which, by the way, I'm sure you'll all be back. I don't want to say that. But certainly, I think it just requires it requires that the chair of this committee recognize that and know that and that know that that has to be revisited based on this case law. So, so long as there's sort of that passing of information, I could see that that might make that might make sense. But yeah, again, I'm not sure that waiting or not waiting is necessarily the best. Any other questions for Ms. Yang? Following up on Senator Chitenden's question about putting the effective date off, do we know when making this going to be decided? I mean, can we know? Yeah, thanks. I mean, I think whether the effective date is, you know, upon passage or a few years from now, the same kind of work, the same kind of questions would be asked to make the necessary adjustments. Yeah. Yeah, Senator Lyons. No, okay. No, I'm fine. Thank you. We're just okay. Thank you through and I think, you know, I think putting it off because of a court case, so the next we put it off and then there'll be another court case and so I think the interest of kids, the compelling interest of kids is more important for me at this point, but that's part of our discussion. That's not part of Boer's testimony necessarily, but her testimony is compelling. It's good. Ms. Yang, any other final comments from you? No, I just want to thank you for really introducing a bill and taking up a bill that is really important and recognizes that there are many kids left out of having real choice in the state of Vermont and thank you. And if you just following up on Senator Lyons' request, if you would be so kind as to send us some written testimony that way, we can make sure your comments are well considered and likely incorporated into the bill. Yep, absolutely. Thank you. Thank you. Mr. Demeray. How are you? How are you? Good. So are we reviewing a new copy or is there anything last we saw was the copy with the blue highlights, if you will. And I think this committee has, I think, I don't think we're moving in that direction, but people are certainly willing to speak up. So any updates really from you? Any decision points that you need decided from us, Jim? Well, aside from that one area in blue, no. And I just want to respond to a few of the comments made by Boer, if that's okay. Please. So a few things, just to give you some assurance about what your draft does. First of all, the question about whether the Public Accommodations Act covers schools. The ambiguity doesn't lie in the word school. School is a very clear term. But what the Act does is it defines place of public accommodation to mean a school, restaurant, store, et cetera, at which services are offered to the general public. And the question, therefore, is around whether the services are offered to the general public. And that's all about admission policies. You know, how, how wide is your catchment? So it's a fact in circumstance test, which is why, in my mind, it's not 100% clear whether this law applies to all schools. Therefore, your bill says in order to receive public tuition, the independent schools, including religious and secular, would have to comply with this Public Accommodations Act as if they were public schools. So, and that's true too for anti-discrimination laws. So if there's a question about disabilities, you have to comply with the laws that apply to public schools. So wherever it might be vague about those laws is intended by this bill to be made certain for these schools to take public tuition. So I'm sorry, did you say it's made vague by this bill? Wherever it might be vague, wherever it might be, yes. Whether the laws apply or not, your bill makes them apply because they have to operate as if they're a public school in terms of not discriminating against anyone. So hopefully that helps. The other thing is... Let's pause there. Any questions for Jim right now on that piece? Okay. Senator Hooker. I just want to go back to the definition of open to the public. And public schools are obviously open to the public. They have to take everybody. Independent schools... Do they only accept applications? I mean, I know that the acceptance is critical here, but people can apply, right? So I'm sort of open on that end. You can apply, but whether you are accepted or not is the question. How broad is your... Public schools have to take every student. Wait, one second on that, Jim. Are we sure that that is 100% accurate? Yeah. Because I do recall some testimony last year of saying that, okay, maybe yes, but maybe what they did was sometimes they would redirect a student, a student with perhaps a severe social-emotional issue that they really felt as though they could not accommodate. They then maybe... Maybe it's then through advice that they're doing this and saying to parents, you know, yes, like you're saying, you're welcome to come to this school, but we may not be able to accommodate that child. So for children who are like on an IEP, first education, for example, the Supervisory Union, which is the so-called LEA, Local Education Authority, is responsible for placing the child in, providing a public education at no cost in a least restrictive environment for that child. That might require a placement into another program, school, you know, whatever, but the schools have to accept the kids. Public schools have to accept the kids. If they're placed there, they have to accept the kids. If they live there, they have to accept the kids. For a private school, take a private religious school, for example, that might be, let's just say, a Christian school. They might have more selective criteria in kids in terms of who they accept. And so therefore, I can't tell you for sure that all schools serve the general public. I just can't say that. It has to be looked at, I think on a case-by-case basis, again, how they admit kids. So that's why there's some ambiguity, and that's why your bill tries to solve that by saying it doesn't matter if it's ambiguous over there. If you're taking public money, you have to comply with those laws. So that's what your bill does. The other thing for a- Senator Hooker, is that clear to you? I just want to make sure you're okay. I think it is. I'm just trying to get to the idea, how does a school not be a open to the public if they're accepting applications from anyone? And they're not. So they're not. It's when they do, that's when the public dollars come into play. And then the public accommodations act comes into play. Is that accurate, Jim? Yeah. A much more clear example for you, Senator Hooker, is not school so much, but think of like the else club or a club. Typically, the cases are in that area because clubs can be quite selective, all men, all women, or wherever there might be. And there are a bunch of cases around whether they, because they have selective criteria, are subject to the public accommodations law. So it's the same sort of analysis for these schools. Obviously, the schools have a broader probably a broader acceptance policy than maybe a private club does. But there are some restrictions on that for some schools. And therefore, the question is a valid question to raise. And your bill addresses that question. Thank you. Okay, Senator Chinden. So my comment with someone on this point is my understanding is that a private institution can still be a public or a place of public accommodation. I don't know if that goes to your question, Cheryl, but I think of Costco is a private institution or at the else club, but it is still a place of public accommodation, just like a public school doesn't you can't just walk into a public school like the doors are locked, but it is a place of public accommodation. So it abides by these rules. I'm seeing Jim nod that makes me happy, which means I understand what he's talking about. Yeah, good. Okay, no, that is how that's helpful. It's going to Senator Perchley. You're leaning in. I was just going to say I was disappointed that Senator Chinden didn't use the example of the victory club. I was hoping that we hear what is remind me again, the victory club. That's just something for Chittenden County Senators. I'm not a member. Exclusive, but exclusive. Is Lyons a member? I'm hockey. No. Okay. All right. All right. I don't I don't know anything about it. I don't. So I am I'm in new territory. Okay, Jim, please. The second point the board raised I want to respond to is she mentioned the fact that the bill has language that these these independent schools as they take public tuition have to take kids IEP. Okay. And she said, Well, why not for five or four plan? Why not just a disability? I believe we've got that covered more or less through our language already because they have to comply with the laws that apply to public schools in terms of taking kids with disabilities. But the reason why the law the both drafted around special ed students is the grand bargain that was reached three years ago or so. When Senator Baruth showed this committee and there was a summer study committee trying to find find ways in which to get these independent schools to take on special education students and they agreed to take that category of students under various conditions that were written into Act 173. So what this bill is doing is it's taking that already agreed upon language that was developed in Act 173 and it's making it's putting into this into your bill. So you you had two conditions that you're adding. You're saying you have to not discriminate and you have to not use funds for this purposes. And the third thing from Act 173 is you have to take students on IEP if they're placed by the Supervisory Union for that student. So that's the third element. The third element was already there before from Act 173. So for example if if Supervisory Union believes that St. John's Mary St. John's Mary Academy is the spot for the student with IEP they need to take that student. Yes. Okay. And this grand bargain was signed by this was sounds to me like it was a conversation between this committee. I do remember and also our academies and independent schools. Yeah the independent schools were on that committee and they they all kind of agreed to this and that's where it says on the State Board of Rules which are drafted are about to go into effect for this. Right. Well I'm not sure about that but they've been drafted for this purpose. I believe the House is working on that. Yeah. Anything else Mr. Dimmery? Well the House is looking at possibly delaying the special education change from reimbursement to census grant to lay that right. On this question I don't think there's a debate there happening about timing. Senator Perslick. Can you just tell me more about is that a bill that the House is doing? They've just caught my ear that they're talking about delaying the census grant. Is that something bigger like they're working on? I'm not sure whether there's been talk about that. There's been strong testimony by a number of school districts over there that they don't want a delay. So I'm not sure they're going to delay that. There's another rule that's State Board has about determining when there's an adverse effect on a child which is part of the determination for special education and that's a different rule and there's some debate about that rule whether that should be delayed. But that's kind of separate from the big switch from reimbursement to census. Right. It was a rule that came out of back 173 and it's going through the rulemaking process. It's in front of Elkar. Now we're upcoming is my understanding. Correct. Yeah. The House is thinking about kind of interjecting and saying hold up possibly on the rule implementation. I'm not sure if they were thinking about that. They think it's in testimony on that question. So even though Elkar may be working on it, they may be half three quarters of the way done, it's the legislature can interrupt that process. Yeah. Well, it's not going to different rules here. The rules that deal with moving from reimbursement to census, that's okay. That sorry, we're talking about. Yeah. So the rules we're talking about here are the 2,200 series, which is the rules for approving independent schools. That's the one that was we're talking about this in play right now, for sure. Then there's a separate role on this adverse effect thing. And that's separate from from the input school approval stuff. I'm not sure where that would stand. So that's where there's been some conversation about whether that needs more time. That's a change in definition of adverse effect might need more time. I don't know where that's going, but just to say it's in conversation. Just so the community knows, I've been contacted about that. So I looked into a little bit and looked like it was on Elkar's, like the rule was written that Elkar hasn't acted yet, but I don't know if it's on their agenda. But a lot of the same people that had contacted me about literacy were worried about a delay. They thought it was going to be helping these children. The implementation rule is a central part of Act 173 about these, and specifically the children learning disabilities. So they were they were worried about delaying it. So Jim, can you get us some more information from RepWeb on that or you know what they might be thinking? Sure, I can ask her. I think I think they're having some conversations early next week. So I'm quite sure it might be a few days into next week before I can get back to you. Okay, thank you, Senator Lyons. I'm just trying to remember what's happening on Elkar. I'm trying to remember if that rule was postponed, if we've even gotten it yet on our agenda, but if a rule comes up and we we can ask for an extension or we can the agency can ask for an extension on any rule. If a rule is not approved by Elkar, it goes into, it is active anyway, but then it's open for a challenge. So I don't know, I honestly can't remember. We don't have an Elkar meeting for another couple of weeks. We didn't have one this week. So but I don't know if that helps or not, but I can all look and see where it is on when I look at my Elkar papers, maybe a little bit later. I'll check it. I can send you the rule number two. Yeah, yeah, no, I'll have it, but you know, go ahead, that'd be helpful. So, Mr. Demeray, I think what would be helpful to us is seeing a 4.1 version of the bill without the highlighted section, clean copy, and that way we can start to get close to finalizing it, start to share something with colleagues and others. Yep, okay. So if you would plan to take us through that Tuesday or Wednesday? Yeah, I'm on Tuesday. Oh yeah, so Wednesday, whatever works for you, honestly. Yep, yep. I think we're in good shape in terms of, okay. Okay, any other comments from you, Jim? Definitely, no. Okay, any other?