Act 46, the Agency of Education and Things That Go Bump In The Night

As the June deadline for Act 46 school district merger votes approaches voters in choice towns should be extremely wary of the tactics being used to promote mergers. One common tactic is the use of Articles of Agreement to bribe voters in choice towns. They include provisions to “grandfather“ in choice for limited time periods in exchange for a merger eliminating choice altogether. This is a duplicitous tactic since the Agency of Education (AOE) is insisting that it is “likely unconstitutional” for merging school districts to offer school choice and operate schools for the same grades. What AOE is actually saying is, “it’s unconstitutional but we can make it legal for a while if you do what we want.” In reality there is no provision in Act 46 or related statutes authorizing this grandfathering tactic. AOE has acknowledged this (in writing) while claiming that’s because “it’s up to the voters.” Really? This begs the question of why voters can’t ratify Articles of Agreement that permanently allow both choice and the operation of schools for the same grades. Logic would dictate that this is either unconstitutional or its not. It can’t be temporarily constitutional just because AOE says so based on no legal authority. This is called making it up as you go along. 

Voters in choice towns should also be aware of the lack of consistency in the individual grandfathering provisions in the Articles of Agreement. Some towns are getting more years of choice than others. It ranges from a few years to 2025. Some towns do not get continued private school choice while others do. This is hardly equal treatment under the law. Choice towns considering a merger should at least take a look at the varying Articles of Agreement posted on the AOE webpage under merger proposals.

Act 46: Unification to Achieve Sustainable Governance

Although parents with school age children are outnumbered by other voters, who are terrified of even higher property taxes (a commonly employed scare tactic), they can at least try for the best possible deal.

All of this is frightening because of what it says about the state of Vermont politics and the power of unelected officials to control the “conversation” (an overused education buzz word) and manipulate voters. Still, what really goes bump in the night is that the Articles of Agreement developed for mergers do not  necessarily prevent a newly formed centralized board with proportional membership from eliminating choice any time they want by a simple majority vote of its members. To prevent this there must be a separate warned article that requires an electorate vote on that particular issue. This is the law on Articles of Agreement. §706n. Amendments to agreements reached by establishment vote, organization meeting, or final report

Is this carefully explained to voters? After all it would make sense that voters in choice towns would insist on this protection. While some of the articles of agreement that have already been developed for mergers expressly state that closing a school requires an electorate vote, that safeguard is noticeably absent from the provisions on grandfathering choice. Maybe choice towns lack allies since the School Boards Association has taken a public stance against choice. Just take a look at the School Boards Association’s memo to the Chair of the House Education Committee.

Vermont's Education Voucher System~3-16-2016 

Equally frightening is the tactic of encouraging study groups to orphan choice towns by making them “advisory” as opposed to “necessary” to a merger. If they are “advisory” then a merger of other districts can still occur even if the choice town votes against it. This punishes choice towns by preventing them from continuing longstanding cooperative relationships as part of an existing supervisory union while geographically isolating them. Absent a repeal or amendment of Act 46, this leaves them at the mercy of the State Board of Education in 2019 when the Board gets to decide their fate (with no appeal).

The biggest monster hiding under the bed all along though turns out to be the study group itself. AOE has taken the position that Vernon, a choice town, cannot get out of its study group.


It’s an important development because by implication it means that the study group can take a merger proposal directly to voters regardless of a town's own elected officials’ positions. If Vernon is deemed “necessary” to a merger (as determined by the study group with proportional representation) there will automatically be a vote. If they are deemed “advisory” there can still be a vote, over the objections of locally elected officials, upon petition of 10% of the voters; the study group will control the information about the benefits of merging by way of its report. § 706d. Vote to establish union school districts

AOE’s position is a power grab, plain and simple. It should be a wake up call to Vermonters. It is not necessary to form a study group to look at mergers. If you do form a study group then you have to engage a facilitator cherry picked by the School Boards Association. When it begins to dawn on you that its not an impartial process you discover that you can’t get out. The coup de grace is that if a choice town holds out and votes against a merger then the education lobby just pushes to bring the issue back for a revote as it did in Elmore. AOE has even published handy instructions on how to get a revote when a merger is not approved.

Frequently Asked Questions - Reconsideration of Merger Votes

No wonder an insightful observer compared forming a study group to checking into the “Hotel California” (as in you can check out but you can never leave).

Have we had enough yet? Voters in Maine did not fight back against a nearly identical statute and the outcome was dismal.

Portland Press Herald - Tax relief scarce in school consolidations

The cost savings never materialized and Mainers discovered that withdrawing from a merger was an uphill legal battle, just as it would be in Vermont. 

Vermonters still have a means of fighting back. We can hold out on mergers and oust the members of the general assembly who promoted Act 46, did nothing to lower our property taxes and ignored voter outcry. We can also push the candidates for governor to take a stand on Act 46 before the election. It’s up to us now. After all if we can’t check out of the Hotel California we can always burn it down.


Barbara Crippen
Policy Coordinator

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