Attorneys argue Act 46 constitutionality before Vermont Supreme Court justices

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.

Lou Varricchio/TNR

A public hearing on Act 46’s constitutionality was held at Middlebury College on Wednesday, Jan. 15. Supreme Court justices will decide the fate of Act 46 this year.

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 lvinvt@gmx.com.

Images courtesy of Middlebury College and Lou Varricchio/TNR
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12 thoughts on “Attorneys argue Act 46 constitutionality before Vermont Supreme Court justices

  1. Entire reason for merging schools is that VT cannot afford an NEA-mandated educational establishment where teachers come first and our kids come last nor the pension obligations coming down the pike.

    We need Charter schools and private religious schools to receive the same funding as public schools to create an alternative to public school indoctrination of our youth and abject failure of our students receiving much less excelling in basic skills.

    In fact…public-sector unions are ruining our state creating a vast amount of upper echelon workers greatly exceeding in job security, pay and benefits private sector workers, who are forced to support this scam w/o receiving similar compensation.

  2. Salient points from ATHENS SCHOOL DISTRICT, et al., Plaintiffs,
    v.
    VERMONT STATE BOARD OF EDUCATION, et al., Defendants.

    and

    ELMORE-MORRISTOWN UNIFIED UNION SCHOOL DISTRICT, STOWE SCHOOL DISTRICT, and LAMOILLE SOUTH SUPERIVORY UNION,
    Plaintiffs,
    v.
    VERMONT STATE BOARD OF EDUCATION,
    Defendant.

    Plaintiffs due process claims must fail as a matter of law because:
    (1) school districts have no legally cognizable liberty or property interest in their continued existence which would give rise to due process protections;
    (2) Act 46 created a legislative agency process which cannot be challenged on due process theory; and
    (3) in any case, the Plaintiffs have not identified any procedural deficiencies in the Board’s process.

    This Court has already found that entities such as the Plaintiffs do not have a fundamental right to any particular form of school governance; therefore, their objections to changes in school governance imposed under Act 46 do not implicate the violation of a constitutionally protected right. See Athens Ruling on Motions to Dismiss at 6-7; Athens Preliminary Injunction Ruling at 23. Due process protections do not apply unless the government has deprived an individual of a protected property right. See Luck Brothers, Inc. v. Agency of Transportation, 2014 VT 59, ~10, 196 Vt. 584; cf. Mason v. Thetford School Board, 142 Vt. 495, 499, 457 A.2d 647 (1983) (Legislature may deny appellate review of State Board’s decision where “there is no constitutional right to be reimbursed by a public school district to attend a school chosen by a parent.”). It does not appear, therefore, that the Plaintiffs have stated the denial of a fundamental right.

    Importantly: I want to reiterate the following sentence from above…

    “Due process protections do not apply unless the government has DEPRIVED AN INDIVIDUAL of a protected property right.”

  3. Great reporting, Lou. One thing that struck me at these arguments was that Dave Kelley quoted legislators who specifically represented to the Legislature that this law would not be used to close local schools against the will of voters, but then the attorney for the state dismissed those comments in favor of the language of the law. How then can voters ever trust assurances by Legislators? How can legislators ever trust their own laws and courts? Vermonters hate this stupid law — one day that may count for something.

  4. Perhaps the required overhaul is not of the schools but of legislators who strip away rights fundamental to the Constitution and our liberties. But also, perhaps the entire administrative structure needs to be stripped away. Vermont has the highest per-pupil costs in the nation as a function of median income. It’s not the students we cannot afford — it’s the bureaucrats.

  5. Noting:
    “The public hearing focused on the case of Athens School District, and others, versus the Vermont Board of Education. ……..the civilian board created by the Legislature to enforce Act 46 has extra-municipal powers that fall far outside what the Vermont Constitution describes”

    “David Boyd, the lawyer for Vermont State Board of Education……. 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 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,” “

    With Socialists in power, there’s no democracy.

    Problems noted:
    1) Act 46 law requires a large three ring binder, that’s a problem right there.
    2) The VSBE needs a lawyer to defend their unconstitutional law?
    3) Act 46 won’t cure “declining enrollment that was unevenly distributed around the state.” There’s no industry and extreme taxation forces people to move out of state. Greener pastures are elsewhere.
    4) The VSBE is an “appointed authority. “, not subject to selection by the voters, therefore isolated from the public, a renegade group not accountable.
    5) Reported that town costs have increased surprisingly, not lowered with little knowledge about and time to react. The Montpelier way.
    6) Where’s the government for the people and by the people?

  6. So – “It’s the same as any other check in a democratic context. It’s your legislature,” Boyd responded. “Your legislators.”

    Clearly, the remedy then is for voters to elect legislators sympathetic to those smaller districts choosing not to merge and promising to overturn Act 46.

    Unfortunately, the same predicament facing the voters in those newly merged smaller districts is now facing voters in the State as a whole. Merged districts with the largest enrollments, and the most to gain, have effectively been gerrymandered with more representation than their smaller counterparts, thereby guarantying their, and the State’s, continued control.

  7. This will be interesting. The ruling will depend on where the Justices fall regarding interpreting the constitution as it pertains to citizens rights at the local town level. Unfortunately, Vermont state Universal Socialists have gobbled up local control in as many avenues as possible over the last 40 years. Sadly I do not expect anything different when the ruling comes down in this issue.

    • Re: “…as it pertains to citizens rights at the local town level.”

      This is precisely the point made by the previous Superior Court ruling against the plaintiffs who have chosen not to merge. The current lawsuits were brought by ‘school districts’, not individual citizens. The previous Superior Court ruling, in fact, specifically pointed out that only individuals have constitutional standing in this regard.

      Unless and until agreived individuals, acting separately or in a class action, assert their constitutional rights, the courts will continue to find, yet again, that ‘school districts’ have no constitutional rights…only individuals do.

      • Thank you Jay. I did not know a prior court ruling gave plaintiffs a roadmap to use. And, unfortunately, in this last iteration, it was not. Sadly then, justice, once again comes down to money – towns feel they have it because they spread out the cost to all taxpayers but, individuals feel they do not have enough of it to fight in today’s legal arena.

        • The problem, as it occurred in my school district (Athens, Westminster, Grafton), is that individual rights are being denied, not only by the State but by our local school district boards as well. These lawsuits are nothing more than ‘pissing matches’ (forgive my colloquialism) between one tyrannical education oligarchy and another. Both are fighting to control the massive education property tax monies derived by the State – both at the expense of individual parents. The salient point ignored by both parties is as follows:

          [I]n Brigham v. State of Vermont, 166 Vt. 246, 265, 692 A.2d 384 (1997), the Supreme Court found that Vermont’s “distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence” and therefore violated the Common Benefits Clause. (emphasis in original). The Brigham court noted that, under the Vermont Constitution, education is a fundamental right and that “any statutory framework that infringes upon the equal enjoyment of that right bears ·a commensurate heavy burden of justification.” I d. at 256. This “heavy burden of justification” implies a more searching scrutiny, where “the State must demonstrate that any discrimination occasioned by the law serves a compelling governmental interest, and is narrowly tailored to serve that objective.” Id.at 265.

          Page 21 ATHENS SCHOOL DISTRICT, et al., Plaintiffs,
          v.
          VERMONT STATE BOARD OF EDUCATION, et al., Defendants.

          But again, any due process complaint in this regard must be taken by an individual or group of individuals in a class action. School Districts have no constitutional due process standing.

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