Testimony introducing bill clarifying terms for non-resident student transfers

Testimony of Rep. Brian Hubbell
LD 1591: An Act To Amend the Process Controlling the Transfer of a Student between School Administrative Units
Before the Joint Standing Committee on Education and Cultural Affairs

Senator Millett, Representative MacDonald, and fellow distinguished members of the Education and Cultural Affairs Committee, I am Representative Brian Hubbell. I am here to introduce LD 1591: An Act To Amend the Process Controlling the Transfer of a Student between School Administrative Units.

As you will recall, last session, via LD 530, the Legislature amended the statute regarding school superintendents’ transfers of non-resident students. This change—which received an unanimous report from this Committee and was enacted under the hammer in the House and with unanimous roll call in the Senate—simply intended that superintendents document the reasons for their decisions regarding transfer requests in order to inform any subsequent process of appeals.

In our committee’s policy discussion, no one advocated altering the threshold for valid non-resident student transfers. The amended statute, therefore, deliberately retains the following permissive language: Two superintendents may approve the transfer of a student if the transfer is in the student’s best interest.

Unfortunately, following guidance issued by the Department of Education, some are now reading the amended statute as a requirement that all transfer requests must be approved unless superintendents can explicitly prove that such a transfer is not in the student’s best interest.

This interpretation represents an inconsistency between the long-established permissive language in the statute which allows certain flexibility in non-resident transfers based on specific circumstance and this new, much more stringent interpretation—which essentially requires a non-resident transfer or else a problematic proof of a negative.

Should this newer, inconsistent interpretation prevail, I am concerned that the result will weaken local support for community schools as resourceful parents increasingly request to transfer their children to schools funded by adjoining towns while tolerating inadequate local funding within their own tax jurisdictions. At the same time, receiving schools will face increasing burdens for the wholesale education of non-resident students at their own expense.

The long-term consequence would likely be an increase in inequality of educational opportunity for Maine students rather than overall improvement.

The bill before you today would clarify the original intent of this committee, and the Legislature, when it passed LD 530, in the first session. It would do so simply by striking the clause ‘that the transfer is not in the student’s best interest’ and thereby ensuring that superintendents have the authority to approve or deny a transfer request.

This, I believe, is the essential and necessary part of this bill.

Beyond that, if this committee finds it useful to ensure consistency in relation to the determination of students’ best interest, the bill provides a framework for the consideration of student needs.

A second, related provision proposes that if the transfer is denied and an appeal filed, this bill would require the Commissioner of Education to uphold the decision of the superintendents unless the commissioner determines that the decision to deny the transfer was ‘arbitrary and capricious’, a specific legal term of art, in which case the commissioner may overturn the denial and approve the transfer.

If the Commissioner of Education upholds the denial decision, an appeal may still be submitted to the State Board of Education. The State Board of Education must deny the transfer unless the board determines that the decision was arbitrary and capricious, in which case the board may approve the transfer.

A third provision in this bill, for the practical benefit of the State Board, extends the period of time they have to hear an appeal from 30 days to 45 days to avoid the necessity of scheduling a special meeting.

This issue of non-resident student transfers is a significant concern to many local school boards and their taxpayers. I strongly encourage you to join me in support of this legislation.