Act 46 and school choice- Whether it’s intentional or not, the legislature could not have done a better job of inhibiting independent school choice. Despite the strong preliminary language in Act 46 that can be construed as preserving school choice by not “ restricting” it, the rest of the Act undermines this statement of intent. (See Act 46, Section 4(C))
Act 46 As Enacted
Act 46 expressly precludes the merger of districts where operation of a school and tuitioning exist for the same grades. In other words, “like can only merge with like.” This was not carefully explained to the members of the general assembly who did not have the time to wade their way through a dense, complicated 64-page bill. Small wonder that some legislators felt hoodwinked. After all it makes perfect sense to look towards merging with neighboring districts. Nevertheless as Franklin Northeast Supervisory Union discovered in September of 2015 when it went to the State Board of Education (SBE) for approval of their consolidation plan, districts cannot do so and retain their unique character. They have to decide, all or nothing, no hybrids allowed.
VTDigger - SCHOOL CHOICE RULING CLOUDS CONSOLIDATION TALKS
This could easily be changed with a bill amending some of Act 46’s proscriptive language. In fact, two bills have been introduced to fix the drafting issue. One of these bills was introduced and assigned to the House Education Committee and the other was introduced and assigned to the Senate Education Committee. This late in the session it can fairly be said that they are “nailed to the wall”, an expression used to refer to bills that will simply die in committee without any public input. Campaign for Vermont will keep you informed in this regard. Here are links to the membership of both House and Senate Education Committees.
House - http://legislature.vermont.gov/committee/detail/2016/10
Senate - http://legislature.vermont.gov/committee/detail/2016/24
Some may argue that the bills are dying because hybrid consolidations are unconstitutional under the Vermont constitution’s “common benefits clause”, as discussed in the landmark education funding case of Brigham v. State of Vermont.  The SBE, in refusing to approve the consolidation plan submitted by Franklin Northeast Supervisory Union, relied upon a July 2, 2105 opinion by former Legislative Council Attorney Donna Russo-Savage that a hybrid consolidation would “likely violate the common benefits clause.” Her opinion is open to dispute.
VTDigger - TUITIONING TOWNS DO NOT NEED TO GIVE UP CHOICE IN MERGERS
While the Vermont Supreme Court did conclude that that the common benefits clause required “substantially equal educational opportunities“ and prohibited “gross inequities“ in education based on residence  it did not define these terms. Instead it held that: “Although the Legislature should act under the Vermont Constitution to make educational opportunity available on substantially equal terms, the specific means of discharging this broadly defined duty is properly left to its discretion” (Emphasis added.)
Nowhere did the Court state that “substantially equal” means identical. Certainly the notion that an education in an independent school is somehow inferior or superior to an education in a public school seems inherent in the notion that providing different educational opportunities (i.e. choice or no choice) based on residence creates substantial inequality or a gross inequity. In fact Vermont has historically been allowing or excluding school choice based upon residency for decades without any legal challenges.
Then there’s the public school choice lottery. Some parents get to choose their public high school and some don’t. Why isn’t this unconstitutional as a “gross inequity” in “substantially equal educational opportunity?” If it’s not, then does an independent school lottery in a consolidation of hybrid districts create sufficient equity to tip the scales?
There is also the question whether the voter-approved articles of agreement, which spell out the educational structure that will result from the merger, change the picture. Could this voter approval take the purported constitutional issue off the table? This should be examined in the light of AOE’s statement on its webpage that such articles of agreement can “grandfather “ in choice for students already availing themselves of that opportunity.
These dangling questions just highlight the fact that there was no discussion in the legislature about a constitutional concern with hybrid mergers. This is because Attorney Russo- Savage’s opinion that hybrid governance structures allowing for choice based upon town of residence was “likely unconstitutional “ was given in July, after Act 46 passed and legislators had left Montpelier. Legislators never had a chance to put the brakes on Act 46 to examine the question.
Meanwhile lurking in the background is the Act 46 end game. Districts that choose to retain their current structure rather than merge are facing the 2019 deadline for an SBE decision on their continued existence as independent entities. This is entirely predicated upon an SBE decision that they can “ meet the goals of Act 46.” The SBE has the absolute authority to decide whether to allow their current structure or force them to enter into a merger of any type and with any entity that the Board chooses. There is no appeal from an SBE decision. Predictably many districts will choose to avoid this fate and develop their own plans for merger even if this means giving up independent school choice. Here’s where mergers stand right now:
Nicole Mace - Update School Districts Map 2-17-2016
The reality is that parents like school choice. There are a lot of good reasons for this. Taxpayers did not ask the legislature to limit their school choice options and create a top down governance mandate. Instead voters asked for property tax relief. They didn’t get it from Act 46. Preliminary estimates are for a residential tax increase of $10.3 million and a non-residential tax increase of $8.7 million.
So is it too late to stop Act 46 to allow for discussion of an educational system that parents actually do want? Take another look at that map and remember mergers require your vote.
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 Here’s exactly what that clause says: “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”
 166 Vt. 246 (1977)
 This is a reference to the amount of money so-called gold towns could raise by way of local taxes to support schools based on their higher property values.
 While there is an earlier analysis of the Brigham decision by Vermont’s legislative council, dated February 5, 2015, this opinion reaches no conclusion regarding the constitutionality of hybrid school governance structures.
 While towns can designate an independent school as the public school this is a dramatic change for an independent school.
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