Another Act 46 lawsuit is brewing

At least 21 school districts are considering going to court if the Agency of Education forces mergers on them, and they’ve got a group of lawyers ready to go, including one well-known Act 46 opponent.

Last Thursday, H. Brooke Paige made closing statements to the Vermont Supreme Court challenging the constitutionality of the state’s school district merger law Act 46. Already, another lawsuit is just around the corner to prevent the state from forcing consolidation.

Photo courtesy of David Kelley

PICKING UP THE FIGHT: While the State Supreme Court is still working out a decision for a current lawsuit against Act 46, lawyer David Kelley is building up his own team of colleagues and plaintiffs to bring to court if the current effort falls short.

“I would fully expect that they are going to attempt to force mergers on at least some that have asked for alternative governance structures and have been denied by the agency,” David Kelley, a lawyer and vocal critic of Act 46, told True North last week.

An alternative governance structure is a form of district governance which does not adhere to the requirements of Act 46, primarily that at least 900 students comprise the district.

“The agency has made recommendations to the State Board, and now the board needs to decide,” Kelley said. “Will it accept those recommendations? Will the board listen to the districts or the agency?”

Kelley said based on the board’s decisions, he and the schools in question will know “if and who we will go to court with.”

On Wednesday, the State Board voted to force mergers of the Brattleboro Union High School board with the Brattleboro, Putney, Guilford and Dummerston boards. They also voted to merge the Washington Central Supervisory Union school boards of Berlin, Middlesex, Calais, East Montpelier and Worcester.

“What they’ve decided is still provisional until they put out a final plan,” Kelley said. “It does seem like things are heading in the direction that we feared.”

Last Monday, Kelley sent a letter to the Agency of Education outlining a list of grievances that he and his clients have with the implementation of Act 46. The letter is addressed to Krista Huling, chair of the Vermont State Board of Education, Molly Bachman, general counsel for the AOE, and William Griffin, chief assistant attorney general.

In the letter, Kelley accuses the AOE of changing the rules for an alternative governance request at the 11th hour.

“They had gone and created all of these new points about how they are going to make these judgments, and it’s a little late laying out points,” he said.

In the letter, Kelley alleged the AOE is not doing its due diligence on vetting the alternative governance proposals before rejecting them.

“This document, if adhered to by the State Board, would force mergers onto a significant number of the 37 districts who seek to remain independent, without the board even engaging in a discussion of the underlying Alternative Governance Structure proposals submitted by those districts,” he wrote.

A spokesperson for the AOE told True North that agency officials do not comment or ongoing or potential litigation. Calls to the State Board and the attorney general’s office have not yet been returned.

Kelley said he’s keeping an eye on Paige’s case against Act 46 as well.

“I think he’s well-intentioned. He’s worked hard … I certainly sympathize with his feelings,” he said.

“Mr. Paige is arguing that Chapter 2, Article 68 of the Vermont Constitution does preclude the legislature from compelling mergers of multiple towns. I read it, and that is literally what article 68 said.”

RELATED: Brooke Paige appears before Supreme Court to challenge Act 46

During Paige’s Supreme Court hearing, the state counselor chose to challenge Paige’s standing rather than address his constitutional argument. Kelley said that could a blessing because if the court were to dismiss Paige’s case based on standing, that leaves the door open for their new case to come in with strong standing, and they can again push the constitutional argument, among other issues.

Kelley said his group’s case will be different.

“It will be substantially more complicated — there would be multiple plaintiffs if we go to court, and probably in the neighborhood of a dozen issues,” Kelley said. “I think there are equal protection issues, due process issues, issues with the U.S. Constitution, the Vermont Constitution, issues about legislative intent, the power of an appointed agency to impose un-voted-on debt to communities from another community, there are takings issues.”

The “takings” issue is a reference to a government entity deciding to take somebody’s property without consent. In this case, it would be an intergovernmental taking, a government entity taking property from another government entity against the other’s will without due process.

Kelley said once the State Board has finalized its plans, he and his colleagues and plaintiffs will decide their next course of action. He did emphasize that the prospects of a court case look pretty strong.

“It’s certainly starting to look that way,” he said.

Michael Bielawski is a reporter for True North Reports. Send him news tips at and follow him on Twitter @TrueNorthMikeB.

Images courtesy of Essex Westford School District and David Kelley

4 thoughts on “Another Act 46 lawsuit is brewing

  1. This is bad legislation. Voting a Bill into law before a full study of its impact on our schools and communities is an act of incompetence! Forcing mergers is “Big Brother Bullying” are small communities and school districts! Our legislatures are now saying that they have concerns with Act 46. They thought it would not impact “their” communities! It is time we vote folks into office that have some foresight into legislation. Rushing to get it done is not a solution. What are the lasting concerns of Act 60, Act 66? Black River High School will cease to exist and just what if the Act 60 funds were to remain in Ludlow? Would they be able to sustain their home school? What about technology to provide enrichment courses or itinerant teachers? It is time for change folks.

  2. In one sense the court case was about money, my school has nicer things than yours. It was never about education, the desired goal all along to give the state total control, the money, which is truly love lobbyist control. We need to abolish act46 no matter how the court rules with something simple and transparent.

    It’s only going to get worse if we keep putting our heads in the sand , every body knows it, the lobbyists are hoping they can slip another bad deal past Vermont.

    Brooke thank you for having the courage and backbone to bring problem forward.

  3. David Kelly’s statement is, most probably, a sad kind of wishful thinking as the plaintiffs in both Brigham I (1997) and Brigham II (2005) were found to have standing as injured taxpayers. Mr. Kelly and I had a extended conversation over the case and I provided him with the 1,500 pages of briefs, rulings, evidence and exhibits to assist him in developing his case. I was encouraged that the Attorney General’s office failed to address the issue of the Constitutionality of Act 46 and their allotted 15 minutes fumbling to answer questions posed by the Justices – the issue of standing was settled in my favor by the Superior Court and the A/G did not appeal that decision.

    If the court should find in my favor and follow my prayer for relief – Act 46 would be ruled unconstitutional and all of the evil wrought on the town school districts, the townspeople, the parents and school students of Vermont would be required to be reversed at the State’s expense AND the reversal of Brigham I could result in a ruling that – since the State and the AOE have proven themselves incapable of providing Vermont’s students and parents with education equity – the parents and students should be given the right to make the decisions for themselves, by requiring the State to provide “universal school choice” for all students after they complete their elementary grade studies.

    H. Brooke Paige
    Washington Vermont .

    • If constitutional fairness is the objective, Universal Education Choice ought to be required for PK through 12th grade. As it is now, wealthy families can move to desirable tuition districts or pay their full property taxes plus independent school tuition and have the unfair advantage ostensibly mitigated by Brigham I and Brigham II.The ONLY way school financing by the State can be ‘constitutional’ is by allowing ALL families, not just the wealthy or those lucky enough to find themselves in a State approved tuitioned district, to have equal access to all PK through 12th grade education programs (public and independent) using an announced tuition voucher.

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