Editor’s note: This commentary is by Allen Gilbert, a former journalist, teacher, civil liberties advocate and executive director of the American Civil Liberties Union of Vermont. He chaired the Worcester School Board in 1995 when it joined as a plaintiff in the Brigham lawsuit. A 20th anniversary celebration of the decision is being held Tuesday, Feb. 7, from 4 to 6 p.m. at the Cedar Creek Room in the Statehouse in Montpelier.
[T]he Vermont Supreme Court’s Brigham v. State education equity decision was handed down 20 years ago this month, setting in motion a major overhaul of the state’s education funding system and school quality standards.
In the unanimous ruling, the court said that “in Vermont the right to education is so integral to our constitutional form of government, and its guarantees of political and civil rights, that any statutory framework that infringes upon the equal enjoyment of that right bears a commensurate heavy burden of justification. The State has not provided a persuasive rationale for the undisputed inequities in the current educational funding system. Accordingly, we conclude that the current system, which concededly denies equal educational opportunities, is constitutionally deficient.”
The suit was brought by the American Civil Liberties Union of Vermont on behalf of 13 different plaintiffs representing students, school districts and taxpayers. The court’s determination of inequity was based on arguments offered by the plaintiffs’ lead attorney, Robert Gensburg of St. Johnsbury. Gensburg argued successfully that Vermont’s Constitution established education as a fundamental right and access to that right had to be provided equally under the constitution’s “common benefits” clause.
The court noted two important considerations. The first was the high value the state’s founders attached to education. “Only one governmental service — public education — has ever been accorded constitutional status in Vermont,” the decision states. The value came from a recognition that education was “essential to self-government”; it was the way the “attributes of citizenship” were perpetuated.
The second key consideration was the unequal distribution of school funds. This formed the core of the education opportunity argument made by the plaintiffs. The court ruled, “Children who live in property-poor districts and children who live in property-rich districts should be afforded a substantially equal opportunity to have access to similar educational revenues.”
The Legislature responded to the court’s ruling by passing the Equal Education Opportunity Act of 1997. “Act 60,” as the law came to be known, retooled the state’s education tax revenue and distribution systems. A penny on the tax rate in one town would now raise the same amount of revenue per pupil as a penny on the tax rate in any other town. School budgets would still be voted locally; towns would continue to make their own decisions about how much to spend on their schools, as the court said they should. But no longer would an individual town’s property wealth determine if it could provide the education programs it wanted for its children.
A 20th anniversary celebration of the decision is being held Tuesday, Feb. 7, from 4 to 6 p.m. at the Cedar Creek Room in the Statehouse in Montpelier.
Act 60 has remained in place for 20 years, a remarkable longevity. Policy experts judge it the fairest education funding system in the country. While arguments persist about how school taxes are raised, there is no disagreement about how school funds are disbursed. Nibbles at the principle of towns’ equal access to resources meet stiff resistance. In our state, all kids count.
The principle of equal treatment of all citizens runs deep and long in Vermont. If the state has a justifiable claim to “exceptionalism,” it is our constitution’s common benefits clause. Older than the U.S. Constitution’s “equal protection” amendment by nearly a century, our “Article 7” protection clause has its roots in a burgeoning sense of equality born of the American Revolution.
The language is nearly a verbatim copy of a clause of Pennsylvania’s original constitution, adopted in 1776. That constitution is considered by historians the most progressive of all constitutions adopted by the founding states. Its language reflected tensions in Pennsylvania between established political leaders in Philadelphia and farmers, craftsmen and other less well-to-do settlers in the state’s rural areas.
Recent historians have written about a “revolution within a revolution” in the 1770s. While patriots were united in the political fight for independence, they were deeply divided socially. Patriots (those white and male, at least) would have agreed they were fighting for equality under the law, but they would have disagreed about social and cultural equality. Only a meritocratic elite possessed the “virtue” (which meant talent and merit) that republican government required, most leaders believed; the majority of the citizenry were a rabble whose passions needed to be controlled but whose support the Revolution desperately needed.
Pennsylvania’s common benefits guarantee sought to provide the means by which that division would be erased. Within a few years of its adoption, though, the established elite regained state power, and Pennsylvania’s progressive constitution was rewritten. The assertive common benefits language was weakened. But the language remained in Vermont’s constitution. Indeed, Vermont’s founders strengthened protections, adding what were then seen as radical provisions, such as the abolition of slavery.
The language in the final version of Vermont’s constitution, hammered out in 1786 in preparation for Vermont’s admission as the new country’s 14th state, has remained unchanged since then. The values laid out by Vermont’s founders yielded what one historian has called the “most democratic constitution produced by any of the American states.”
Much of this history of Vermont’s common benefits clause can be found in the Vermont Supreme Court’s Baker v. State equal marriage rights decision. Baker came two years after Brigham, and it, too, was decided on the common benefits clause. The opinion of the unanimous court was written by Chief Justice Jeffrey Amestoy. It reads like an invitation for Vermonters to think about the context in which the common benefits clause was written and to think how it should be applied today to best create and maintain an “inclusionary” society where everyone counts.
Brigham may be 20 this month, but the principle on which it’s based has been Vermont’s vision for more than two centuries. This small state has been unafraid to assert that “equal” really does mean “equal.”
