In two split decisions handed down Friday, the Vermont Supreme Court narrowly ruled against school districts fighting forced mergers under Act 46, a sweeping school governance reform passed in 2015.
School districts fighting state-imposed mergers filed three separate lawsuits, all of which were dismissed in the lower court. Two sets of plaintiffs appealed to the Supreme Court, including a collection of more than 30 school boards in what is called the Athens case, for the first named plaintiff district. The second lawsuit was filed by the Huntington school board.
The controversial law was implemented over multiple years, and eventually cut the number of school boards in Vermont by over 150. It used tax breaks to encourage voluntary mergers between school districts, and, in its final phase, tasked the State Board of Education with deciding how to reorganize those that had rejected merging.
The justices in January heard oral arguments in the historic cases at a packed hearing held in a Middlebury College auditorium. Hundreds attended, including lawmakers, education officials, former state Supreme Court justices and former Gov. Jim Douglas.
“The split of the court reflects that these issues strike close to home for a lot of people and that they’re difficult. But we’re pleased that the court ultimately supported the state’s position,” said Vermont Solicitor General Ben Battles.
David Kelley, the lead attorney for the plaintiffs in the Athens case, said that while he had not yet read the decisions, he was nevertheless disheartened by the outcome.
“I fear that the consequences for Vermont will be not good. Small rural towns — their elementary schools are on the chopping block,” he said.
Steve Coteus, an attorney for the Huntington plaintiffs, said he was “disappointed the 3-2 split went the wrong way.”
“I think there’s some solace in what I think is a very moving and very persuasive dissenting opinion from Justice (Harold) Eaton,” he added
Friday’s decisions likely represent the end of the road for those fighting school consolidation in the courts. But Margaret MacLean, a leading anti-merger activist, said the battle would continue, albeit more quietly, in individual districts, where local boards unsatisfied with the outcomes of their mergers are considering de-coupling. Communities that hold votes to undo mergers will have to go back to the State Board of Education, whose makeup has substantially changed since it last weighed in on consolidation.
“It’s not over,” MacLean said.
Vermont Education Secretary Dan French, in a statement released Friday, expressed hope that the decisions will put the debate to rest.
“While it may not be the outcome some districts wanted, I hope they can move forward under these new structures to achieve greater equity and value for students, parents, voters and taxpayers. The Agency remains a partner to you in reaching these goals,” French said.
A key argument in the plaintiffs’ cases has been that the Legislature unconstitutionally delegated its authority when it gave the State Board of Education the final say on involuntary mergers. Only the General Assembly can create or dissolve municipalities, they argued, and the responsibility could not be handed off to the executive branch.
Writing for the majority, Chief Justice Paul Reiber argued that while school districts were treated as municipalities “in certain respects,” they had long been treated differently than towns and cities in case law.
“The Vermont Legislature has a long history of permitting the creation or merger of school districts without legislative approval, but it has never done so with respect to the incorporation of municipalities,” he wrote.
On this point, Eaton, writing for the minority, agreed.
The Legislature did have the authority to delegate to the State Board and agency “the power to create, merge, or dissolve school districts as long as that delegation is accompanied by ‘reasonable standards to govern the achievement of [the] purpose and the execution of the power which it confers,’” he wrote.
But where the justices differed was whether the board, in fulfilling its responsibilities under the law, had correctly interpreted its mandate. The plaintiffs had argued that the board was required to show that any forced mergers were not only “possible and practicable” but also “necessary.”
The state, in response, argued that plaintiff districts were selectively reading the law, and misapplying the use of the word “necessary” in order to invert the intent of Act 46, which assumed from the outset that merged structures were best suited to achieve both financial efficiencies and better educational outcomes.
Reiber agreed with the state, and wrote in his opinion that the law “plainly does not require the necessity finding for which plaintiffs advocate.” He added that the view advanced by those challenging the state-imposed consolidations were “inconsistent with the legislative intent underlying Acts 46 and 49 and cannot be reconciled with the various sections in those acts considered together.”
Eaton, on the other hand, saw it the opposite way.
“The plain language of Act 46 requires that the Secretary and the Board recommend and adopt changes in school governance structures only where ‘necessary’ to promote the goals of the statute,” he wrote.
“Many things are possible and practicable. That does not make them necessary as intended by the Legislature. At the very least, the communities who are the subject of forced mergers have the right to know why the Board felt those mergers were necessary,” he added.
Krista Huling, the former chair of the State Board, said its members had also debated how to interpret a law that appeared “contradictory in some spots.”
“It was an awful lot of work that we did, in trying to interpret the word ‘necessary.’ So I’m glad that the justices also struggled,” she said.
At the heart of the debate over the consolidation law has been a fear that a loss of local control would erode the vitality and autonomy of small, rural schools. The law did not close schools directly, but its critics charged that merged school boards would nonetheless ultimately choose to do just that.
Eaton echoed these anxieties, and argued that while he understood the need for economies of scale, “the Legislature did not seek efficiency at any cost.” Instead, he said, lawmakers recognized that it “was best to only merge districts when necessary to achieve educational and efficiency goals.”
“Without this condition, discarding local control,” Eaton wrote, “… is a wholesale change which may or may not accomplish its purpose, but surely represents the irrevocable end of many local school districts and their local schools.”
The justice concluded his dissent with a lyric from the Joni Mitchell’s “Big Yellow Taxi.”
“Don’t it always seem to go / That you don’t know what you’ve got / ‘Til it’s gone.”