[T]he Vermont chapter of the American Civil Liberties Union is threatening to sue the state over a variable cap on school spending that was enacted in the last legislative session. The nonprofit group is actively seeking plaintiffs for a lawsuit against the state.
Allen Gilbert, executive director of the Vermont ACLU, told a state education panel on Friday that he believes the limit on education spending is unconstitutional.
Gilbert says Act 46, the new school district merger law, which features an adjustable limit on how much a school can spend over the next two years, “violates the equity provision” of the Brigham decision and the Vermont Constitution.
“We will be following how Act 46 is implemented, and what happens with school budgets,” Gilbert told the members of the Vermont State Board of Education on Friday. “We put out the word that we will entertain the requests of any school districts who want to be represented.”
Gilbert said if a school district came to the ACLU next March (when towns vote on school spending) with a budget that exceeds the cap, the nonprofit would take the case. “We think in order to serve kids fairly we would look at taking them on as a client,” he said.
Gilbert said the ACLU does not want to take the state to court and is “hoping to see a legislative fix sometime early in the next session.”
The Vermont Supreme Court ruled in Brigham v. the State of Vermont that all students in Vermont must have access to a substantially equal opportunity for education. The ruling led to the enactment of Act 60, the 1997 law that established a statewide property tax for education financing. Vermont is the only state in the nation that sets a statewide property tax rate, collects money from municipalities and redistributes the money to schools.
Since the Brigham decision, Vermont schools have seen a drop in the student population of 24,000 pupils, due to the state’s aging population and depopulation of rural areas. Meanwhile, staffing levels have remained constant, schools have continued to increase spending, and tax rates have continued to climb.
Gov. Peter Shumlin’s narrow re-election victory and an increase in the number of Republicans and independents in the Legislature last November has been partly attributed to taxpayer backlash.
In response to voter dissatisfaction, lawmakers attempted to provide taxpayers with some relief through Act 46, which requires local town districts to merge school boards. The consolidation efforts and administrative savings are expected to take time. Vermont currently has 277 school boards and more school board members than any other state in the nation.
A provision of the new law puts a limit on how much local school districts can spend over the next two years. The “allowable growth percentage” formula is variable, depending on a school’s per pupil spending rate. The variable cap allows for no budget increase for the highest spending districts. The lowest spending districts can increase budgets by as much as 5.5 percent.
A district may spend as much as it wants in 2017 and 2018, but tax rates double for districts that exceed the variable cap.
In a letter to the Shumlin administration before the governor signed H.361 into law, the ACLU argued that a high spending town like Danby can spend up to $17,077 per student next year without triggering the penalty. Lowell, on the other hand, which spends $11,688 per pupil, could not in the coming year decide to increase spending to the same rate as Danby without paying the double tax rate.
“In other words, Danby can spend 46 percent more per pupil than Lowell can without triggering the tax penalty,” Gilbert and the ACLU board wrote. “We believe that this disparate access to funds violates Article 7. If H.361 becomes law, thousands of Vermont’s schoolchildren could be deprived for two years of their constitutional right to access to equal education funds.”
Gilbert questions whether the variable cap violates the Common Benefits Clause of the Vermont Constitution, which establishes 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.”
“We feel very strongly that the Common Benefits Clause of the constitution needs to be protected very well, and we’re prepared to go to court,” Gilbert said.
Lawmakers maintain the variable cap is constitutional. Rep. Oliver Olsen, I-Londonderry, says attorneys with legislative counsel concluded that the cap is within the parameters of the Brigham decision. The Supreme Court gave the Legislature “significant latitude” and discretion in creating a remedy to the inequities of the Foundation plan, the old state funding formula for education, according to legislative counsel. In addition, the justices wrote that “absolute equality of funding” is not a requirement for satisfying “the constitutional command of equal educational opportunity.”
The current statewide property tax system allows tax rate inequity already, and any inequity created by the two year variable cap would be insignificant, the lawyers for legislative counsel wrote in an analysis.
A legal challenge to the cap would be “premature,” Peter Griffin and Donna Russo Savage concluded.
Olsen said the state has more fundamental issues with education equity that need to be addressed.
“I think this bill provides an opportunity to remedy some of those inequities, and I think we all need to refocus our efforts around the question of how we provide educational equity for Vermont students and move away from the continual distraction around taxpayer equity because they are not one and the same,” Olsen said.
Olsen said one of the towns he represents, Jamaica, is part of the Leland and Gray Union High School. The school is one of the smaller high schools in the state and is not able to provide many of the educational opportunities that a large school district would take for granted, he said. The school budget was defeated last year and the administration looked at cutting the French language program.
“When you start talking about eliminating French, this is a school district trying to manage right down to the bone,” Olsen said.
“The question is, is it time to reshape the debate and conversation away from spreadsheet-driven focus around what we’re spending per pupil to what are we getting for money we’re spending, and do we have educational equity across districts?” Olsen said. Brigham doesn’t call for absolute equity of spending, Olsen said, and 16 years after Brigham, school districts “have more or less” reached spending levels they are comfortable with.
Gilbert accuses lawmakers of taking too little time to fully explore the options for re-evaluating the funding formula. The education reform bill was first taken up in 2014 and was a focus of the last legislative session.
“The Legislature felt compelled to do something related to school spending and what it perceives as the inefficient and high cost of local school districts,” Gilbert said. “[Lawmakers] never honestly explored whether it was true that larger schools and larger school districts lead to better performance by students and savings of money.
“People at that point began to base their thinking on opinion rather than research and when they saw research that is not conclusive in this area, they chose the research that confirmed their opinions,” Gilbert said.
Gilbert says lawmakers did not give the variable cap, which is a “significant change in the education funding formula,” adequate scrutiny before passing the law in the waning days of the legislative session. The cap provision was proposed in a conference committee, “three days before the Legislature’s scheduled adjournment.”
A 2.95 percent flat cap was built into the House version of the bill, which passed in March. In April, the ACLU questioned the constitutionality of the spending limit in Senate committees, and it was removed from the Senate version of the bill, but re-emerged in conference committee and was passed in the final iteration of the legislation.
Editor’s note: Erin Mansfield contributed to this report.
