Whittingham prepares for legal battle with state over education funding

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WHITINGHAM — An attorney working on suing the state on behalf of the town, a taxpayer and a student, is getting ready for a legal fight that will at the very least spark more conversation on "equitable" education.

"I think that no matter what the trial court rules, it's going to the [Vermont] Supreme Court," said James Valente, of the Brattleboro-based Costello, Valente & Getry. "Requesting an injunction ensures it will happen quicker. It's important for our plaintiffs. One is a taxpayer. The real reason is to avoid damage for something we say is unconstitutional."

At annual Town Meeting in March, voters in Whitingham approved a legal defense fund to hold $100,000. The idea had been to fight the state on what local officials call an unfair funding formula for education. A hearing is scheduled for next month. A complaint and motion for preliminary injunction has been made.

Valente is representing the town, student Sadie Boyd and resident Madeline Klein. He said his team has been collecting information and data since April or May.

One of the toughest parts was getting plaintiffs on board.

"You need to identify a taxpayer and you need to identify a student," Valente said. "That's always a tricky one logistically. I mean, people just don't like to be involved in lawsuits."

The complaint says the system deprives Boyd of an equal educational opportunity, requires Klein to contribute disproportionately to the funding of the system, discriminates against Boyd without serving a compelling governmental interest and compels the town to violate the Vermont Constitution in order to comply with the system.

Boyd is a ninth grader. Her father is on the Whitingham School Board and recently "retired" from being chairman of the Twin Valley School Board.

Twin Valley schools serve Whitingham and Wilmington students. The two towns saw significantly higher school tax rates this year. Voters in both towns rejected the school budget at annual Town Meeting but approved it at a later date. Whitingham residents were hit hardest, with an approximately 17 percent increase in their property tax bills.

"Vermont's Constitution requires that there be substantial equality and educational opportunity and that classifications of taxpayers be fairly applied," the complaint stated. "Vermont's education property taxation and education funding system treats students and taxpayers differently based on their municipality."

Valente does not think the situation in Whitingham is unique. Part of his team's analysis looked at district comparisons.

"There's sort of an envelope where schools are too big to receive help [Small School Grant] but too small to have an economy of scale, particularly when you're talking about a high school," said Valente.

Transportation and education mandates from the state were cited as costs for why Whitingham went over an "excess spending threshold." The district was penalized this year for spending more than a certain percentage for every "equalized pupil." Those rules contributed to 43 percent of the property tax increase, according to the complaint.

The overall increase was not due to education expenses, attorneys wrote. Education expenditures dropped by $290,262 from the previous fiscal year.

Another cause for the increase — about 33 percent — was a decline in the number of "equalized pupils." That figure went from 192.73 in fiscal year 2017 to 182.56 for FY18.

Also, there was a change in the common level of appraisal in the town. The CLA, which attempts to ensure fair market values are being considered for property taxation, was credited with contributing about 17 percent of the increase.

Whitingham's homestead tax rate was the second highest in the state in FY18, according to the complaint. Victory, which had the highest, was described by attorneys as "an extremely small district."

The lawsuit is meant to show that Whitingham is not getting "an equitable education for a comparatively equitable tax price," according to Valente.

"I think the bottom line is that Whitingham has a pretty high tax burden," Valente said. "It's a modest school. They have one AP [Advanced Placement] class and the amount of tax they're paying is as if it's extravagant. It really shines a light on the fallacy of using per-pupil spending when you simultaneously have all these state-mandated expenses."

The high school has consistently had dropout rates above the state average in recent years, the complaint stated. Students there are also said to have fewer options for elective classes and athletics.

The percentage Twin Valley students in elementary, middle and high school considered proficient or better was lower than the statewide average on 11 of 14 standardized tests last year, according to the complaint.

"In 11 of those same 14 tests, less than half of TVES and TVMHS students were deemed proficient or better," the complaint said. "In 2016... the number of students who took AP examinations and the number of AP examinations taken were among the fewest in the state. It is not clear if any of the students passed. In 2017-18, only one AP class is being taught."

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.

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