MIDDLEBURY — The outcome of a Vermont Supreme Court hearing held at Middlebury College on Wednesday will likely decide the fate of Act 46, the state’s controversial school district merger law.
While the judges won’t rule on the case for possibly months, education officials, parents, high school students and other stakeholders attended a public hearing held in the college’s McCullough Student Center.
Many were there to get their first look at the state’s five-member Supreme Court bench. Others were there to better understand the issue as well as the arguments for and against it.
The public hearing focused on the case of Athens School District, and others, versus the Vermont Board of Education. The case against forced mergers was presented to the court by David Kelley, an attorney representing the school districts jointly appealing the board’s merger decisions.
More than 30 school boards are represented in the “Athens” lawsuit.
Attorneys argued vigorously for and against the district consolidation law, often citing arcane sections of the law, including the history of the law as well as lawmakers involved in crafting Act 46. Former Vermont Gov. Peter Shumlin, a Democrat, signed the law in 2015.
Visibly nervous in front of the bench, and standing in front of a campus auditorium filled with over 200 attendees, Kelley argued the school districts’ anti-merger case. He said the civilian board created by the Legislature to enforce Act 46 has extra-municipal powers that fall far outside what the Vermont Constitution describes. And because school districts are actually municipal governmental bodies with their own elected officials, an unelected body deciding the fate of school merges is unconstitutional.
David Boyd, the lawyer for Vermont State Board of Education, defended the constitutionality of the law. He argued that the Act 46 board and process are democratic in nature. During the defense, he frequently consulted a large three-ring binder volume of the law and was able to cite, chapter and verse, why the Board of Education believes the law is constitutional.
“The state legislature decided there was a statewide problem that needed to be addressed,” Boyd said. “(In 2015, when the law went into effect) there was declining enrollment that was unevenly distributed around the state.”
In arguing against Act 46, Kelley told the judges that the district merger law challenges the constitutional rights of local voters to decide on how to handle their local schools. A centralized, appointed authority making the decisions did not sound like “democracy,” Kelley said. He was also puzzled about the intent of Act 46 and how it is being implemented statewide.
“The understanding was (as the law so states), if it’s not necessary to merge you, if you are indeed an affordable school with good outcomes, then this bill seeks to leave you alone,” he said. None of the justices expressed disagreement with Kelley’s reading of Act 46’s intent.
But Boyd reacted with confidence.
“This is fundamentally a democratic process,” he told the justices. “The state legislature decided there was a statewide problem it needed to address (and) that there was declining enrollment that was unevenly distributed around the state.”
After nearly 90 minutes the gavel sounded and the justices left the stage. Their decision will be announced in the coming weeks.
Reactions to Act 46 have pitted local voters against the state’s appointed authority.
In a recent commentary on the law, John McClaughry, vice president of the Ethan Allen Institute, wrote that advocates for Act 46 have argued that “the existence of 272 school districts in a state with 80,000 public school students produced fragmentation, duplication, inefficiency, inequalities, economic cost and educational shortcomings. Their remedy, always the first resort of people with the centralizing mentality, was to convert public school governance into a far more orderly and manageable state-led system, that would produce ‘savings’, administrative conveniences, and better outcomes.”
One member of the audience, Brookfield resident John Klar, a 2020 Republican candidate for governor, said opposing Act 46 is central to his gubernatorial campaign.
“Being an attorney myself, I can say that Mr. Kelley did an excellent job for us today, — he argued the case against Act 46 brilliantly,” Klar said. “Our campaign is working on a detailed alternative plan to Act 46; it’s not a one-size fits all. We must shrink administrative costs, not continue to grow government even as the student population shrinks. … People don’t want to move to our small communities if there’s no school or if they have to bus their students miles away.”
Lou Varricchio is a freelance reporter for True North Reports. Send him news tips at firstname.lastname@example.org.