Don McLean: Vermont Supreme Court hears appeal of school consolidation suit

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On Jan. 15, the Vermont Supreme Court heard the appeal of the case challenging Vermont's school consolidation policy — that infamous boondoggle known as Act 46 — a suit brought by 33 school districts throughout the state.

A number of residents of towns in (the Reformer) readership area attended the proceedings, held at Middlebury College. Had it occurred to me that there would be no press coverage of this hearing for southeastern Vermont, I might have thought to take more thorough notes. There were a couple of TV reporters in evidence, but the actual press was understandably busy covering the statehouse and myriad other things. Even VTDigger, which might have been expected to report, apparently didn't.

Given the strong interest in this topic, including the fact that voters in the Windham Southeast Supervisory Union, by a wide margin in all five towns, voted against the consolidation plan, I am providing this brief summary of the Supreme Court session.

The proceeding was held in Middlebury College's Wilson Hall. From time to time the Court leaves Montpelier to bring its hearings to different parts of the state, an excellent outreach. The auditorium, with a capacity of 350, was packed with folks from many of the towns involved in the appeal, college students, lots of lawyers, and a big group from local high school social science classes. Former governor Jim Douglas, a Middlebury resident, was also spotted.

The school districts had filed their original suit in Franklin County Superior Court. That action was an appeal of the ruling by the State Board of Education in November 2018 that summarily forced school districts to consolidate. The Superior Court ruled against the plaintiffs, who thus filed an appeal with the Supreme Court.

The plaintiff districts "allege that the Agency of Education and the Board of Education misinterpreted, and misapplied Act 46, and the required mergers violated the Vermont Constitution the school districts contend that Act 46 permits forced mergers only when schools are failing to meet educational standards, so the Board's order violates Act 46. The school districts also argue that the Board's order violates statutes guaranteeing the right of voters to weigh in on mergers, and violates the Vermont Constitution."

David Kelley was the lead attorney for the school districts. Kelley, a former member of the Hazen District School Board, is widely regarded as one of the state's leading attorneys in Vermont education law.

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Kelley brilliantly outlined the issues, citing Vermont statute, sections of the Board of Education's merger articles, case studies from Vermont law, and relevant cases from other states. Among his key points were:

- That school districts are true "municipalities," and as such the statutes applying to municipal law should apply in school districts;

- That when issues involving the transfer of property, or the assumption of debt, are undertaken between municipalities, there are correct procedures, notably including the requirement that whatever action is taken must have the approval of legal voters in those municipalities;

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- That in the case of many of the forced mergers, school districts' votes opposing the consolidations were ignored;

- That Vermont is unique among the states in that its constitution specifies that each TOWN must provide a school or schools — attorney Kelley pointedly noted that the Constitution says "Town," not "region";

- That the State Board of Education, and Act 46, left in place language affirming the voting rights of citizens in the districts; had the legislature or Board intended that voters would not have the right to weigh in on mergers, they presumably would have struck that language;

- That Act 46 and the State Board documents emphasize that mergers should be undertaken where NECESSARY, a word which appears a number of times in the merger articles;

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- Kelley argued that in many cases, where districts demonstrated that mergers were not necessary, the Board ruled forced consolidation anyway;

- And that many districts, following the provisions of Act 46, devoted considerable time and work to crafting viable Alternative Governance Structures under Section 9 of the Act, and that not a single one of these was approved by the Board.

Arguing for the State was Attorney David A. Boyd, who attempted to dispute some of the technical details in Kelley's arguments.

In summation, Kelley said, "Rural Vermont is at a crossroads. To a very large extent, our very future depends on our small schools which are the very heart of civic life in these towns."

A knowledgeable lawyer present, who is familiar with the operations of the Vermont Supreme Court, said that we might expect a ruling on the case in March.

This case is about more than the important issue of our towns keeping their local schools. It is a serious constitutional issue. At a time when we daily hear about the abridgment of voting rights in other states, this suit demands the preservation of our rights as voters here in Vermont.

Don McLean, of Guilford, is a former chairman of the Guilford Town School Board, and participated in the WSESU Alternative Governance Structure Sub-Committee. The opinions expressed by columnists do not necessarily reflect the views of the Brattleboro Reformer.


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