Governor: “This legislation unfairly excludes some of our most vulnerable students.”

WILMINGTON, Del. – Governor John Carney on Thursday vetoed House Substitute 1 for House Bill 85, legislation that would remove the five-mile radius as an enrollment preference for Delaware charter schools, while excluding a number of students in the City of Wilmington. The following is a portion of Governor Carney’s statement to the Delaware House of Representatives:

“Educating our children is both a moral and an economic imperative, and the achievement gap in the State of Delaware is a problem that cannot be ignored. At-risk students across our state, but especially in the City of Wilmington, are not getting the education that they deserve. I believe that the sponsors of HS 1 for HB 85 wanted to expand options for students and increase diversity at Delaware charter schools by eliminating the five-mile radius as an enrollment preference. These are goals that I share.

Despite those efforts, this legislation unfairly excludes some of our most vulnerable students. It does not simply remove the five-mile radius preference. The legislation creates a new standard that uniquely limits options for at-risk students in the Christina School District portion of the City of Wilmington – many of the kids who need our help the most – and that is something I cannot support.”

Read Governor Carney’s full veto statement.

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House Bill 130 would make sexual contact between consenting adults a felony

Wilmington, DE – Governor Markell announced today he has vetoed House Bill 130, expressing concern the bill does not differentiate between the penalties for consensual and non-consensual sexual contact and that current Delaware laws address the behavior targeted by the bill. HB 130 would create a felony level offense for health professionals who, in the course of providing professional health services, intentionally have sexual contact with the patient.

In his veto statement (full text below), the Governor agreed that consensual sexual contact in the context of a professional relationship raises serious questions about the health care professional’s integrity and professional responsibility. However, there is a strong system of laws in Delaware that address illegal behavior by health care professionals and licensing boards that monitor misconduct among members.

“House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender, which results in a mandatory loss of professional license, if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail. The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.  House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist). For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature,” wrote the Governor in a statement delivered to the House of Representatives. 

Governor Markell Statement to House of Representatives Vetoing House Bill 130:

August 17, 2015

TO THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

OF THE 148th GENERAL ASSEMBLY:

Pursuant to Article III, Section 18 of the Delaware Constitution, after careful consideration, I am vetoing House Bill 130 by returning it with my objections to the House of Representatives without my signature.

I am vetoing House Bill 130 because the bill makes sexual contact between consenting adults a felony.  Under Delaware law, it is already illegal for a health care professional, social worker or counselor to have sexual contact with a patient or client under the guise of providing treatment.[1]  Under Delaware law, it is already illegal to have sexual contact with a minor, and there are enhanced penalties for cases involving health professionals and offenses against children and vulnerable adults.[2]  It is already illegal to have sexual contact with a person who is incapable of giving consent due to a cognitive disability or serious mental illness,[3] or because the patient is unconscious or under the influence of medication that impairs the patient’s judgment.[4]

House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender,[5] which results in a mandatory loss of professional license,[6] if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail.[7]

While HB 130 only applies in situations where a health care professional intentionally engages in sexual contact with a patient “in the course of providing those professional health services,” the legislation does not offer any definition or other guidance on what is “in the course of providing professional health services.”  Stated differently, this legislation does not define or otherwise limit the meaning of “in the course of treatment,” meaning that the law could be enforced in unpredictable and inconsistent ways.[8] The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.

House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist).   While consensual sexual contact in the context of a professional relationship may raise serious questions about the health care professional’s integrity and professional responsibility, there are already substantial mechanisms in place to deter inappropriate sexual contact between a health care professional and patient. Health professionals are governed by their respective licensing boards, and engaging in inappropriate relationships with patients can trigger sanctions up to and including loss of professional license and referral for criminal prosecution.   These Boards are best equipped to assess the circumstances of each case and the level of harm caused to the patient. We can rely on the current system of professional regulation to address these circumstances, and for more egregious behavior or for offenses against children or vulnerable adults, the criminal code already provides adequate protection.

For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature.

Sincerely,

Jack A. Markell

Governor

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• [1] See 11 Del. C. § 761(j)(4) (In the criminal sex offense statute, “without consent” includes: “[w]here the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. …”).
• [2]See generally 11 Del. C. §§1100-1112 (crimes against children and vulnerable adults; enhanced penalties); see also, e.g., 11 Del. C. § 761(k) (a minor child is deemed unable to consent to a sexual act with a person more than four years older than the child); 11 Del. C. § 1105(b)(enhanced penalties for crimes committed against vulnerable adults).
• [3] See 11 Del. C. § 761(j)(3) (“without consent” includes when “the defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting”).
• [4] See 11 Del. C. § 761(j)(5) (“without consent” includes when “the defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance”).  See also 11 Del. C. § 761(j)(2) (“without consent” includes when “[t]he defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed”).
• [5] See 11 Del. C. § 4121(d)(2) (a person convicted of  unlawful sexual contact in the second degree is designated as a Tier II sex offender); 11 Del. C. § 4121(e)(1)(b) (a Tier II sex offender must register for 25 years following release or sentence).
• [6] See, e.g., 24 Del. C. § 1731(a) (Since 2010, the Medical Practice Act requires that conviction of a felony sex offense result in license revocation). Similar provisions were passed in 2010 to apply to nurses, chiropractors, dentists, physical therapists, athletic trainers, optometrists, occupational therapists and a number of other health care professionals.
• [7] 11 Del. C. § 767 (A person is guilty of unlawful sexual contact in the third degree, a Class A misdemeanor, when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent); See also 11 Del. C. §§ 4121(d)(2-3) (a person convicted of unlawful sexual contact in the third degree can be designated a Tier II sex offender only upon Motion of the State as set forth therein; otherwise the person is designated a Tier I sex offender).
• [8] There is no universally accepted definition of “course of treatment” or in the course of providing professional health services” in Delaware statute or common law, and the phrase can be interpreted broadly.  See, e.g., Doe v. Bradley, 58 A.3d 429, 468 (Del. Super. 2012) (“[U]nder Delaware law, medical negligence is governed by statute and premised on health care services rendered in an existing doctor-patient relationship. Beyond the definitions of ‘patient’ and ‘healthcare,’ the medical negligence statute offers no further guidance regarding the factors a court should consider when determining whether a doctor-patient relationship exists. The balance of the statutory provisions assume the presence of a doctor-patient relationship. It is generally understood, however, that a doctor-patient relationship is consensual and begins when the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him or her as a patient. That interaction between the patient and doctor is necessary to create the contract for medical services, express or implied.”).

Emphasizes importance of annual statewide assessment for improving schools, while saying the state must move forward with reducing time spent on other tests

Wilmington, DE – Governor Markell announced today that he has vetoed House Bill 50, which would allow for any student to be opted-out of any state or district assessment, while he signed Senate Joint Resolution 2, which aims to eliminate unnecessary, ineffective, or redundant tests required by the state, districts, and individual schools.

In his veto statement (full text below), the Governor expressed agreement with concerns raised by parents and educators about the need to reduce the amount of time students spend on testing. However, he said he could not support encouraging opt-out of the annual state assessment, which provides information for teachers and school leaders to determine areas in which students are excelling or need additional help. It also represents a vital tool for evaluating the effectiveness and ensuring the best use of the more than $1 billion in state funds directed to the education system.

“HB 50 would undermine the only objective tool we have to understand whether our children are learning and our schools are improving. It has the potential to marginalize our highest need students, threaten tens of millions of dollars of federal funding, and undermine our state’s economic competitiveness – all without adequately addressing the issues that motivated many to support the legislation. That is why educators and school leaders have joined the civil rights community and business leaders in opposing the legislation, and why I am returning the bill unsigned,” wrote the Governor in a statement delivered to the House of Representatives.

“I have heard the concerns of some parents and teachers that our students are experiencing too much testing. I agree… And that is why I have signed Senate Joint Resolution 2, which will bring together teachers, parents, civil rights leaders, and legislators to help us review our required assessments and eliminate those that are unnecessary, ineffective, or redundant.”

SJR 2 builds on an initiative started by the Governor earlier this year, when he announced an inventory of all required state assessments, and support for districts to take stock of assessments required at the local level. The legislation signed today brings legislators and other key groups into the process of reviewing the inventory results and making recommendations about what assessments should be cut. In addition to requiring completion of the inventory, SJR 2 will:

• Require districts to report the results of the inventory, including assessments that will be eliminated;
• Require the Department of Education to do the same thing at the state level;
• Require the Department to publish the results of the inventories to the House and Senate Education Committees, and to the public; and
• Require the Department to convene three members each of the House and Senate Education Committees, along with representatives of the state teachers union, the state’s superintendents, the civil rights community, and parents, to review the inventory results and make recommendations about assessments to eliminate, with final results reported publicly by June 2016.

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Civil rights groups and Delaware employers, along with the State Board of Education and teachers and school leaders, applauded the Governor’s decision:

“We strongly support Governor Markell’s decision to veto House Bill 50 because we must know if our children are learning, and we cannot fix what we cannot measure. If too many children opt out, we’ll lose perspective on how our children are doing with achieving the proficiency most important to succeeding in today’s world. We’d risk being unable to make meaningful demographic comparisons and track progress in relationship to other schools, districts, states, and countries.

“If a school misses its threshold on participation, it also has implications for school accountability and funding, potentially harming the most challenged in our communities: particularly families of color, families struggling with poverty, and families who need special education services or are learning English. While we support reducing the number of tests and the total testing time for our students, opt-out is not the way to accomplish this goal. We thank the Governor for recognizing this and understanding that we need to know where our children are on the learning curve in order to hold those responsible for teaching our children accountable.”

– Deborah T. Wilson (President and CEO of the Metropolitan Wilmington Urban League), Maria Matos (President and CEO of the Latin American Community Center), H. Raye Jones Avery (Executive Director of the Christina Cultural Arts Center, Inc.) and Jea P. Street (New Castle County Councilman for District 10)

“As employers in Delaware, as supporters of Delaware public schools, and as parents, we thank the Governor for his veto of House Bill 50. There are better ways to deal with legitimate concerns about over-testing, and we support the effort by the Administration and General Assembly to reduce testing for all students through Senate Joint Resolution 2.

“We must have a way to determine how our children compare against others in their school, the state, and the world. Opt out would damage that process. It signals to businesses and the families that we shouldn’t strive for all of our students to graduate ready for college or the workplace. The results of the annual state assessment inform families and educators on student progress, and will provide lawmakers with a better view of how millions of tax dollars are being spent. As business leaders and as parents, we need our education system to support each and every student and school in our state to help them succeed.”

– Mark Stellini (CEO Chair of Delaware State Chamber of Commerce), Rich Heffron (President Delaware State Chamber of Commerce), Mark Turner (Chair of Delaware Business Roundtable), Ernie Dianastasis (Chair of Delaware Business Roundtable Education Committee), Bob Perkins (Executive Director for Business Roundtable)

“We have openly and repeatedly shared the Board’s opposition to this bill, which we believe will do real and lasting damage to both our education system as a whole, and our goal of ensuring that all of our students – irrespective of their gender, race, or socio-economic background – graduate from our schools ready for college, career, and citizenship.

“Should HB 50 become law and parents simply decide to opt their child out of the assessment, teachers and administrators will be unable to collect and use the data to address necessary improvements to the curriculum, as well as identify specific areas where students are struggling and where they are excelling. This is especially important information for our most vulnerable populations who may need additional support and assistance. Furthermore, we will be at risk of not complying with federal requirements with regard to test administration and school accountability, potentially jeopardizing millions in federal Title I funding, which directly impacts those children and schools that need support the most.”

– President Teri Quinn Gray and Vice President Jorge Melendez (State Board of Education)

“I believe the opt-out movement has been driven in part by many misconceptions about the Smarter Balanced Assessment.  The main misconception about the assessment is the amount of time it takes to complete it. The math portion of the test is made up of 35 questions along with one performance task. In my class of special needs students, the test takes up a minimal amount of time compared to past state assessments. It is also aligned to the curriculum and standards teachers are using, so there is no need to do anything special to ‘teach to the test.’ The results of the state assessment provides teachers the necessary data to help their students and I appreciate the Governor’s opposition to House Bill 50.”

– Jesse Parsley (teacher, Milford School District)

“I understand the concerns that have been expressed over the stress some students experience in taking tests. However, my experience has been that students benefit when we challenge them to meet a higher bar – when we give them the chance to see how well they can perform.  Further, my experience is that our teachers are on board. They are working hard to make whatever adjustments are necessary to ensure that students are learning and that their learning is measured.

“One primary mechanism to measure that learning is through standardized tests; right now the test is “Smarter Balanced.” I believe that we will make the necessary adjustments to meet the demands of this test. We have a responsibility to give our children the best possible education, and these tests are an important measure to gauge that education and the  academic progress of all students.”

– Patricia Oliphant (principal, Sussex Academy)

“Strong educators at every level assess students constantly. The state assessment is an important piece of the puzzle as it can help us understand how our students are performing and their progression from year to year. Test results also help push us to make the necessary changes to ensure students aren’t falling behind and help us reflect on instructional choices. Whether or not you support opt out is a different question than whether students are over-tested. We should still do more to evaluate the volume of tests, or the value of the existing ones, and I urge the Governor, the Department of Education and the General Assembly to keep an open dialogue with teachers, parents and stakeholders so that together we can solve even the toughest of testing questions.”

– Courtney Fox (Head of School at First State Montessori Academy and former State Teacher of the Year from Brandywine School District)

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Governor Markell Statement to House of Representatives Vetoing House Bill 50:

July 16, 2015

TO THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

OF THE 148^TH GENERAL ASSEMBLY,

 

Pursuant to Article III, Section 18 of the Delaware Constitution, I am vetoing House Bill 50 by returning it with my objections to the House of Representatives without my signature.

We have no higher priority as a state than providing all of our children with a world-class education, and ensuring that they are prepared to compete in the increasingly global economy.  Every child, no matter his or her family situation or income or background, deserves the chance to reach his or her potential.  Their future, and the future of our state, depends on a quality education.

House Bill 50 would not help prepare our children, or our state, for success in the economy of tomorrow.  To the contrary, HB 50 would undermine the only objective tool we have to understand whether our children are learning and our schools are improving.  It has the potential to marginalize our highest need students, threaten tens of millions of dollars of federal funding, and undermine our state’s economic competitiveness – all without adequately addressing the issues that motivated many to support the legislation.  That is why educators and school leaders have joined the civil rights community and business leaders in opposing the legislation, and why I am returning the bill unsigned.

Universal statewide assessments provide our teachers, parents, and education officials with objective information about how children are doing – not just in their classrooms, or in their schools, but relative to their peers across the state and the country.  These test results are the clearest way we can evaluate whether our efforts to improve Delaware schools are working.  The state spends more than one billion dollars on education every year, and we all deserve to know whether those resources are spent well and whether our students are making progress.

If the test results don’t paint an accurate picture, particularly if struggling students are disproportionately encouraged to opt out as has happened elsewhere, we may not be able to identify the children who need intervention to be successful.  That is why civil rights groups in Delaware and across the country – including the NAACP, the National Urban League, the United Negro College Fund, the National Council of La Raza, and the Disability Rights Education and Defense Fund – strongly support universal testing requirements and oppose “opt-out” legislation.   Low-income students, students with disabilities, and students of color have benefitted the most from the adoption of statewide testing requirements.  Those tests help us identify individual and groups of students who need more support, effectively focus additional resources on preparing our young people to reach their potential, and hold schools and districts accountable for ensuring that all of our students are learning.  That is also why federal law requires us to assess at least 95 percent of our students to receive millions of dollars in federal funding – it’s that important.  The loss of those federal funds, which disproportionately support low-income and high-needs students, is a risk I am unwilling to take.

I have heard the concerns of some parents and teachers that our students are experiencing too much testing.  I agree.  While I believe strongly in the value of a universal statewide assessment to tell us whether our students are making progress, the first priority of our schools must be to ensure that our students have the time they need to learn.  But to address that concern, we should not be encouraging certain students to opt out of a test that provides valuable information – we should eliminate entire tests for all of our children and put that time to work in the classroom.

That is why the Department of Education is conducting an inventory of all required state assessments, and providing districts with financial and technical support to do the same at the local level.  And that is why I have signed Senate Joint Resolution 2, which will bring together teachers, parents, civil rights leaders, and legislators to help us review our required assessments and eliminate those that are unnecessary, ineffective, or redundant.

I also understand, and have taken action to address, other frustrations that have led some parents and teachers to support HB 50, including concerns about the design of the Smarter Balanced statewide assessments and the use of student data for teacher evaluations and school accountability.  We asked for, and received, permission from the U.S. Department of Education to delay using Smarter Balanced results in teacher evaluation for two full years, while we all adjust to the new test.  We use many other measures to evaluate the progress of our students, and the effectiveness of our teachers, because we understand assessments are only one snapshot of our students’ success.  We have approved a process to allow schools and districts to pilot new educator evaluation systems.  We are continuing to provide feedback on Smarter Balanced to help make it better.  And we don’t require our students to take or pass the Smarter Balanced assessments for advancement or graduation.

I am committed to working with our entire education community to continue to address those concerns, but HB 50 is not part of the solution.  This bill does not reduce testing and does not say anything about how the state uses test results.  The only effect of HB 50 would be to establish a process for individual parents to prevent their individual students from participating in the Smarter Balanced English and math tests and any district assessment, which doesn’t solve the problems that our parents and teachers have named.  However, it can undermine our ability to identify students who need help and to measure our schools’ improvements.

In today’s economy, opportunity is increasingly tied to the quality of one’s education and our schools are the key to giving all of our children – especially those from struggling neighborhoods – the best chance to realize their potential. But we can’t make that possible if we find out too late that students have fallen behind.  If House Bill 50 becomes law, we will not know if many of our students really are on track to graduate ready for college or the workplace.

I cannot support a bill that runs counter to our efforts to ensure an objective, consistent, and reliable measure of all of our students’ progress. Without it, many students would be too easily forgotten.

Sincerely,

 

Jack A. Markell

Governor

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