The following op-ed by Bill Duncan was published in the Concord Monitor on July 24, 2019.

We are at an interesting juncture in the debate over Gov. Chris Sununu’s proposed Learn Everywhere program. The legislative committee charged with ensuring that proposed agency rules conform with the statutes they implement (that’s the Joint Legislative Committee on Administrative Rules, JLCAR) has, by a party-line vote of 6-4, lodged a “preliminary objection” to the Learn Everywhere program in a letter listing many problems. Central to the committee’s concerns is the provision that New Hampshire high schools “shall” accept graduation credits created by private groups accredited by the State Board of Education (SBOE).

Normally, when JLCAR sends a proposed rule back with a preliminary objection, the agency makes the required changes and resubmits the rule to JLCAR for a virtually assured final approval. That does not seem likely in this case.

While merely changing the requirement that schools “shall” accept Learn Everywhere credits to “may” would be the obvious remedy to the key JLCAR objection, SBOE will probably not do that. The whole goal of the Learn Everywhere program is to replace public school courses with privately created graduation credits overseen by the education department. The word “shall” is the heart of the project. So this may become a real battle, one in which both sides will feel the stakes are high.

However, after this JLCAR vote, it is unlikely that the Learn Everywhere program will ever be implemented. Here’s why.

The governor’s SBOE majority can be expected to follow the education commissioner’s lead and vote, probably at its August meeting, to send the Learn Everywhere program back to JLCAR with “shall” still in place. It would be accompanied by a letter essentially restating the testimony the commissioner gave at last week’s JLCAR meeting, saying that the 11-page rule is a faithful implementation of the innocuous sounding one-sentence bill that authorizes it. (This kind of large, complex program that fundamentally changes the relationship between the state and its local school districts would normally be created in the Legislature but the current Legislature would not have supported it. Thus the attempt to implement the program as a rule.)

At its September or October meeting, if “shall” is still in place, JLCAR can be expected to issue a “final objection” on a similar party line vote. It may also vote to introduce a “joint resolution” in the full Legislature. If so, SBOE would not be able to adopt any parts of the rule to which JLCAR had objected until the legislative process was completed in the spring of 2020.

There are concerns that if JLCAR does not approve the rule after its full process, SBOE could choose to implement Learn Everywhere without JLCAR approval. That would not be a great solution for SBOE.

Any rule SBOE issued would not have the full effect of law. The JLCAR manual says that if SBOE adopts the rule without JLCAR approval, “(The) rule is no longer prima facie lawful and reasonable.” The agency would have the burden of proof and must defend the rule in any court challenge.

Picture the situation if SBOE tries to implement Learn Everywhere without JLCAR approval, a step that, it appears, no New Hampshire agency has ever taken before. Learn Everywhere would be a complex rule of uncertain legal standing. It would be logical to expect a court challenge requiring many months to resolve. Would the Girl Scouts and the local knitting store, as the commissioner suggests, actually make programs that attempt to conform with the N.H. Minimum Standards for School Approval? Would they go through a months-long SBOE accreditation process in an unfamiliar education context?

After all that, what about the school districts themselves? Would local school boards actually feel compelled to grant the credits? Any attempt to enforce Learn Everywhere would require the education department to defend the validity of a rule the Legislature had found invalid. And in the unlikely event that the department prevailed, there would be no real penalty for refusing the credits.

But there’s more. Even if a private organization did create a program in the face of the legal uncertainties, it would probably not take its first students until the 2021-22 school year. At that point, there may or may not be a new governor but the term of Commissioner Frank Edelblut, the primary sponsor of Learn Everywhere, is up in March 2021, so there may well be a new education commissioner.

What initially looked like a bipartisan effort to support New Hampshire’s thriving alternative educational programs has become a hyper-partisan privatization project about which the Democratic legislative majority feels misled. In this politicized context, last week’s JLCAR decision makes it unlikely that the Learn Everywhere program will ever see the light of day.