Town asks for more school data

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NEWFANE — In a case over education funding, the state did not object to a chart submitted to the court showing Whitingham as one of the top three spenders. But the plaintiffs' attorneys look at it as just one piece of the puzzle.

Brad James, finance manager for the Vermont Agency of Education, provided fiscal year 2019 numbers with Whitingham and Wilmington spending $20,155 per "equalized pupil," the second highest rates in the state. Students are weighted differently in equalized pupil counts. Factors include age and ability to speak the English language.

Attorney James Valente, of Costello, Valente & Gentry in Brattleboro, said his team wants to see more data from the agency. He is representing the town of Whitingham, a taxpayer and a student in the lawsuit.

"In order to show that there is significant inequality in the system, we want to compare testing outcomes, curriculum size, class size, etc, with per pupil funding," he said. "If and when discovery reopens, that will be another fight. We believe we are entitled to documents they claim they either don't have or don't exist."

Judge Robert Gerety called the case "important" during a September hearing in Windham Superior Court, Civil Division. He is looking at whether to grant the state's motion for judgment on the pleadings, which would mean there are no material issues of fact to be resolved and the state is entitled to judgment as a matter of law.

Valente brought up the comparison of per-pupil spending in communities during the hearing. The state requested that the data be submitted in a court filing.

As number one in actual per-pupil costs, Winhall spent $21,018. As number four, Townshend spent $19,128. Behind these local communities is East Haven at $18,912.

Montgomery spent the least: $12,060. Richford was slightly higher: $12,147. Barre Town was $12,885. Windsor was $12,978, and Berkshire was $13,058.

Whitingham has 178.19 equalized pupils and Wilmington has 237.5. They send their students to Twin Valley schools.

Equalized pupil counts show Winhall with 175.59, Townshend with 150.02, East Haven with 54.3, Berkshire with 301.33, Windsor with 500.56, Barre Town with 1,177.90, Richford with 427.4 and Montgomery with 196.79.

William Griffin, chief assistant attorney general, said the chart comparing per-pupil spending can be considered but it shows "the case is about tax formulas, not education."

"The Vermont Supreme Court has previously rejected a similar argument, because 'absolute equality of funding' is not constitutionally required and '[d]ifferences among school districts in terms of size ... and other factors will invariably create unavoidable differences in per-pupil expenditures," Griffin wrote in a recent court filing, citing a case from Stowe. "Data about Wilmington and Whitingham is not relevant because they do not operate schools and the 2019 equalized pupil count of the Twin Valley School District, which does, is comparable to two of the four lowest spending districts in Vermont, Richford and Windsor."

The only information in the chart, Griffin wrote, is a comparison of education spending by town.

"This is significant because challenges to tax formulas are subject to rational basis review and plaintiffs have identified no cases in which a court found irrational tax formulas that are as equal on a per-pupil basis as Vermont's," he said.

Griffin said the town is not a proper party for the lawsuit "because it could not change an education budget even if ordered to do so by a court."

"At the time the complaint was filed, Twin Valley budgets were approved by the aggregate majority of all votes cast within the Whitingham and Wilmington School Districts," he wrote. "On July 1, 2018, those districts ceased to exist and Twin Valley became a unified union, with budgets decided by a district wide vote."

The town does not have any control over education funding, Griffin wrote. The town "does not attend schools, operate schools, or set education budgets," nor "pay homestead taxes, set the relevant tax formulas or adopt the budgets that trigger those formulas."

Whitingham is subject to a rule barring local governments from challenging state legislation, Griffin wrote. "The exception Whitingham seeks to invoke applies on where municipal officials would be forced to violate a constitutional proscription by complying with the challenged statute."

Griffin said towns cannot asset claims that belong to their residents. They would belong to people like the other plaintiffs, Whitingham taxpayer Madeline Klein and and Twin Valley student Sadie Boyd, he added.

It is possible the town could be dismissed from the lawsuit, Valente said, "but that wouldn't change much."

"We'd remain lead counsel in the case and continue to litigate it," he said. "I suppose we'd consider whether an interlocutory appeal is appropriate."

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

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