A delay of forced school district mergers under Act 46 won’t be coming from the court.
Superior court Judge Robert Mello on Monday ruled against an injunction request by over 30 school boards asking that merger activity be delayed while their lawsuit challenging the state-mandated consolidations was adjudicated in full. As it stands, those mergers are set to go into effect July 1.
“The Plaintiffs have not shown a substantial likelihood that they will prevail on the merits of their claim that the Board’s actions in implementing Acts 46 and 49 are unconstitutional, and their claims of irreparable harm are speculative,” Mello wrote at the conclusion of his ruling in the closely watched case.
Mello on Monday ruled on the plaintiffs’ request for an injunction – not the case itself – and David Kelley, one of the attorneys representing the school boards, called the order “one motion in a very long journey.”
He wouldn’t have decided to take on the case, he said, without “almost complete faith in our ability to win on the merits of this case.”
But in his 25-page ruling, Mello did weigh in on some of the key arguments at the core of the case, which were debated at length during a hearing on the injunction in mid-February. Plaintiffs, for example, argue that legislators acted unconstitutionally when it decided to give the State Board of Education the final say on mergers, because only the Legislature can form or dissolve municipalities.
For evidence, plaintiffs pointed to an advisory opinion by the state Supreme Court, which argued that a 1910 law granting the Public Service Commission the authority to review and ratify municipal charters was unconstitutional because it violated the separation of powers.
But quoting from that same advisory opinion, Mello noted that justices had also said that “the doctrine of the separation of governmental departments does not mean an absolute and entire separation.”
“Like police power, education oversight resides with the State, and, when accompanied by sufficiently specified policies and standards, the state may properly delegate to the Board of Education,” Mello wrote.
Mello similarly considered arguments by plaintiffs that the State Board had violated due process by acting in an arbitrary manner, and that it had failed to show why the mergers it was ordering were “necessary,” as required by the law. In both cases, he wrote that he found the state – not the plaintiffs – to be making the more persuasive argument.
Echoing arguments made by Assistant Attorney General David Boyd during the mid-February hearing, Mello argued that plaintiffs had essentially misread the use of the word “necessary” in the law.
“There is no individual ‘necessity’ finding required that is divorced from the Act 46 directive that the Board should take feasible actions to merge schools into a preferred or alternative governance structures,” he wrote.
The 30-plus school boards are one of three groups challenging the law in court. Stowe and the Elmore-Morristown districts have together filed their own appeal, as has the Huntington school district. The latter two cases, which did not take part in requesting the injunction, aren’t directly affected by Mello’s ruling. But all three lawsuits make some of the same arguments – including that the Legislature unconstitutionally delegated its responsibilities to the State Board.
Certain lawmakers and anti-Act 46 activists have also asked the Legislature to consider delaying implementation of the state-mandated mergers. In early February, the House approved a bill granting a one-year reprieve to about half of the districts under order to merge.
But, hoping Mello would take the question out of their hands, the Senate education committee has so far put off taking up the subject. Sen. Phil Baruth, D/P-Chittenden, the committee’s chairman, says he plans to take the bill up again after the Legislature’s week-long break for Town Meeting.
Dan French, the secretary of the Agency of Education, said in a statement Monday afternoon that he had not yet had a chance to review the judge’s order.
“We will continue to work with school boards and local school officials to provide them the supports they need to implement the State Board of Education’s merger order that was issued in November 2018,” French said.
View Mello’s full order below:
