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VOL. 43 | NO. 13 | Friday, March 29, 2019

Lawmaking 101 – Legislators agree that words matter

By Kathy Carlson

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There’s an old saying that laws are like sausages and it’s better not to see them made. That may be so, but Tennessee legislators seem to be taking a little extra care this session.

They’ve been taking a deliberate approach as they sort out the fine print on several administration proposals that could remake K-12 education in Tennessee.

Vaughan

“It’s better to get it right than get it fast,” Rep. Kevin Vaughan, R-Collierville, said as the House Education Committee weighed a bill on charter schools. Vaughan is in his second term in the General Assembly.

Freshman Rep. Mark Cochran, R-Englewood, said he isn’t philosophically opposed to charter schools but doesn’t want to rush on the bill, which initially sets up another body that could authorize charter schools. “We have rolled far less important things,” he said, adding that lawmakers received the revised measure only 24 hours earlier.

Cochran

In recent meetings, Republicans and Democrats have been raising questions and examining specific language in two key proposals from Gov. Bill Lee’s administration: Education Savings Accounts (ESAs) and the Tennessee Public Charter School Commission bill.

The administration is listening. It recast the charter commission bill so that the commission would hear appeals of local charter-application decisions rather than approve charter school proposals from scratch, just as local educational agencies do now.

“Words are just stubborn things,” Vaughan said in the midst of examining the charter school commission bill. Bills are written in legal language that seems to have its own meaning, sometimes not the everyday meaning that non-lawyers take for granted.

What’s the difference between “may” and “shall,” for example, and is it a big deal? It can be, if you’re talking about how someone who wants to start a charter school obtains the needed approvals to move forward.

The charter school commission bill originally gave applicants who wanted to start a charter school the option of going to the local educational agency – a school board – or filing with the new state commission. That raised all sorts of questions from lawmakers who value local control over schools, since local school boards are closest to local schools, know their needs and are accountable to voters.

In the administration’s revised bill, the new commission would hear appeals only.

But, some lawmakers asked, the revised bill said charter school “sponsors may apply to the local board of education to establish a new public charter school.”

Did using the word “may” mean the sponsor still had the option of going to the new commission? If not, why didn’t the bill say sponsors “shall” go to the local board and remove all doubt?

The answer lay in the rules of legal writing, known mostly to lawyers and difficult for laypersons to grasp. A legislative lawyer assured the lawmakers that the sponsors had only one option – go first to the local board of education for charter school approval. The new commission would hear appeals only.

There’s been much the same attention to detail as lawmakers considered the Lee administration’s effort to bring Education Savings Accounts, a form of voucher that would help eligible families pay for educational options other than their local public schools.

DeBerry

Rep. John DeBerry Jr., D-Memphis, wonders what sort of transportation services would the ESA bill pay for?

That would be nailed down when regulations were written to guide the day-to-day implementation of ESAS, a legislative attorney says.

The state education department official overseeing Tennessee’s small, focused voucher program for students with disabilities, the IEA program, says its regulations cover transporting only the student via a commercial service such as a bus or taxi, which also must provide a receipt detailing the trip.

That information reassures DeBerry, who has served in the General Assembly since 1995. Transportation wouldn’t be covered “willy nilly,” he adds, with a parent putting gas in the car and charging the state.

Baum

Rep. Charlie Baum, R-Murfreesboro, recommends requiring ESA students take all of the proficiency tests that public school students take, not just English and math, as the proposal requires. That way, lawmakers would be better able to assess the ESA students’ academic results compared with peers in public schools. Baum is a freshman representative.

Another Republican, Rep. Tom Leatherwood of Arlington, has reservations about the bill’s effect on homeschool families. His own family has homeschooled in the past, and the ESA bill is written to allow financial aid to families who take their children out of public school and homeschool them.

Leatherwood was concerned families that accept the ESA funds would be giving up some of the freedom they currently have to teach their children. Leatherwood served in the state Senate from 1993-2000; he was elected to the House in 2018.

Dixie

He and Rep. Vincent Dixie, D-Nashville, serving in his first General Assembly, eventually voted against sending the ESA bill to the full Education Committee.

Other possible sticking points for ESAs include income eligibility, how much ESA money could be set aside for use in college, and whether a student had to be in a low-performing school to receive an ESA.

The bill as initially delivered to lawmakers in mid-March stated students had one of two ways to be income-eligible for an ESA, but the bill didn’t discuss priorities for who receives an ESA unless there are more applicants than available ESAs.

The two paths to income eligibility include the SNAP path, making students eligible if their families qualify for SNAP benefits (formerly known as Food Stamps), and the 200 percent path, making students eligible if their family income doesn’t exceed 200 percent of the eligibility guidelines for free or reduced-price school lunches.

The 200 percent path is available if the number of students seeking ESAs hasn’t reached the cap on available ESAs, 5,000 in the first year. Once the cap is reached, students are chosen by a lottery that gives priority first to students with siblings receiving ESAs, then to students in low-performing priority schools, then to students whose families receive SNAP aid.

Under the 200 percent path, families of four making up to $92,800 a year could be eligible for ESA aid.

The median family income in Nashville was $74,900 for a family of four in 2018, according to data received from the U.S. Department of Housing and Urban Development and cited on a Metro Nashville website.

Regarding using ESA money to fund college, the current bill doesn’t set specific limits on how much can be set aside, but the IEA regulations for children with disabilities allow parents to put aside half of the IEA money for college.

And students don’t have to actually attend a low-performing school to receive an ESA, as long as they live in a district with at least three low-performing schools, under the first iteration of the ESA bill. Theoretically, a student in a high-performing school in a qualifying district could receive an ESA for private school if his family met the income guidelines.

The details will take time to iron out. Rep. Debra Moody, who chairs the Curriculum, Testing and Innovation Subcommittee, was one of the sponsors of the IEA bill. She says she and others spent months writing the regulations that fleshed out the bill.

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