[T]he question of whether to delay forced mergers under Act 46 has consumed the Legislature for weeks. But the subject is now on hold at the Statehouse as lawmakers wait to hear from a Superior Court judge, who has been asked the same question by a group of more than 30 school districts challenging the law in court.
Judge Robert Mello heard arguments from both sides on Friday in court in St. Albans, where the plaintiff school districts are asking for a preliminary injunction to block merger activity while the court weighs the broader merits of the case.
Mello did not indicate which way he might rule on the injunction over the course of the roughly two hour hearing, but promised to do so “as soon as I possibly can.”
Attorneys for the school districts argued that mergers, which are otherwise set to go into effect July 1, couldn’t be undone once districts were consolidated, and that even preparatory work would cause districts to incur costs they wouldn’t be able to recoup later.
At least four transitional board meetings are scheduled to take place as soon as next week, said Ines McGillion, an attorney for the plaintiffs, who argued that preparing the materials for each meeting alone would likely cost thousands.
“We come to you like a woman came before King Solomon, asking you not to split the baby. Because the baby cannot be put back together,” she said.
But Assistant Attorney General Jon Alexander countered that the harms plaintiffs alleged were imminent were entirely “speculative.” And he pointed out that the Stowe and Elmore-Morristown school districts, who are also challenging their forced merger in court, are not seeking a similar injunction and instead preparing for both merger and independence as they wait on Mello’s ultimate decision.
Assistant Attorney General David Boyd further argued a delay would “tie the hands” of school districts from doing necessary work to prepare for a merger. If Mello granted the injunction, but the state later prevailed, Boyd argued, new districts would be “as a functional matter, incapable of carrying out their responsibilities as of July 1. And the parties that will really suffer are the children themselves.”
While Friday’s hearing was focused on the injunction, attorneys also waded into the core debates of the suit, including debt, whether the State Board of Education provided school districts due process, and the constitutionality of the law.
A key argument from the plaintiffs is that only the Legislature can create or dissolve municipalities. By telling the State Board of Education to make the final call on mergers, lawmakers unconstitutionally delegated their authority, they argue.
Boyd acknowledged legal precedents in Vermont which suggest the Legislature cannot delegate such a responsibility. But he argued that it wasn’t clear that precedent was absolute where towns and cities were considered, and that it didn’t apply to school districts.
“Why should this court draw that distinction? Isn’t a school district its own form of a municipality?” Mello asked him.
Boyd replied that school districts were highly specialized in their purpose, whereas towns exercise a much broader array of responsibilities.
“And there is no equivalent to a State Board of Education in the context of towns. Legislatures commonly do, as the development of the administrative state has progressed over the years, delegate authority to agencies in specialized areas,” he said.
To make her recommendations regarding forced mergers, Boyd noted, the Secretary of Education had to consider 44 separate proposals, hold nearly as many meetings with affected districts, and generate a 200 page report – plus appendices – to submit to the State Board of Education.
“It was a large, complicated task, that was appropriately delegated to entities that have expertise in the area of education policy,” Boyd said.
But McGillion countered that Boyd’s argument was a distinction without a difference, and that Vermont law specifically included school districts as types of municipalities and treated them the same way.
In making its decisions about which districts it would merge, the State Board assumed the law intended school districts be merged together to form entities covering a minimum number of students where “possible” and “practicable.”
David Kelley, an attorney for the plaintiffs, argued Friday the board ignored that part of the law that called on them to create new districts “where necessary.”
“Reading that language, your honor, it is clear that the analysis of necessity is a precursor to implementing what’s possible or practicable,” he said.
Boyd countered that the plaintiffs were selectively reading the law, and ignoring that the phrase “where necessary” is used both when referring to districts that are left alone and to districts that the state will merge.
“The plaintiffs are seeking to suggest the use of the word ‘necessary’ … somehow tips the balance in one direction. It doesn’t. It’s used identically in both contexts,” he said.
