This commentary is by Allen Gilbert, a former journalist, teacher, and ACLU-VT executive director. He was chair of the Worcester School Board when it became a plaintiff in the Brigham v. State lawsuit. He is the author of “Equal Is Equal, Fair Is Fair,” a book on equity issues in Vermont.
This month marks the 25th anniversary of the signing of Act 60, the school funding equity law passed in 1997 to address the Vermont Supreme Court’s Brigham decision.
The law was the culmination of years of effort to eliminate the inequity of previous school funding formulas.
“The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence,” the court’s unanimous decision read. “Labels aside, we are simply unable to fathom a legitimate governmental purpose to justify the gross inequities in educational opportunities evident from the record.”
The law was signed by Gov. Howard Dean on June 26, 1997, in a sun-drenched outdoor ceremony at Amanda Brigham’s elementary school in the town of Whiting, in Addison County.
Opposition to the new law was swift and scathing. The New York Times would report on its front page that “Vermont these days is riven by revolution.” A later feature article in the Sunday Times Magazine predicted, “There will be blood in the streets.”
The observations were a bit of hyperbole. The Times was right in one respect, however. There was a revolution. But it was a nonviolent one. Vermonters were asked to extend their vision for kids’ schooling beyond their individual towns, to the entire state. They were asked to take on a sense of collective responsibility to guarantee equal access to the fundamental right of public education.
There were endless twists and turns in the implementation of Act 60, with tweaks and modifications along the way. But the law is still with us, and the core values it’s based upon are intact. The longevity speaks to a continuing commitment to fairness to kids and taxpayers. Act 60 has been recognized as one of the most progressive education finance reform laws in the country.
Perhaps even more significant than the school funding changes that Brigham brought through Act 60, though, was the acceptance of the legal grounds on which the decision had been based. Robert Gensburg, the plaintiffs’ lead attorney, argued in Brigham that the Vermont Constitution’s “common benefits clause,” Article Six as written in the original 1777 document, required that a benefit provided by the state must be distributed on an equal basis. The court agreed.
Three years after Brigham, the newfound power of this 250-year-old right to equity was used again in the Baker decision, this time to gain marriage rights for same-sex couples. In another unanimous Vermont Supreme Court decision, written by Chief Justice Jeffrey Amestoy, the court ruled that the common benefits clause entitled same-sex couples to the same marriage rights granted opposite-sex couples.
Amestoy, in a 2004 law review article looking back on the Baker decision, wrote: “In concluding that extending the benefits and protections of marriage to the plaintiffs was ‘simply, when all is said and done, a recognition of our common humanity,’ the Baker opinion was intended to resonate with every Vermonter. For in our constitutional system, every Vermonter is a participant and we all live in the same house. We will know we have built well when — in the words of the poet — ‘underneath that roof there was no distinction of persons, but one family only, one heart, one hearth, and one household.‘” (The poet Amestoy quoted is Longfellow; the poem, “Tales of a Wayside Inn.”)
The common benefits clause in our core political document is, really, a reminder to Vermonters of a responsibility to consider the importance of equal access to society’s benefits. Equity is not a partisan ideology in Vermont. It’s a foundational value, embedded in our constitution.
No other state holds as strong a vision of the need for citizens to work together in a way that ensures fairness and equity.
Vermont’s biggest and most persistent inequity today is access for everyone to affordable health care. It’s an issue that’s been debated and fought over since the 1920s, with only bits of grudgingly-given successes.
Using the common benefits clause to create health care equity might not be easy. But perhaps the full bravery of the Brigham decision, which brought us Act 60, and of the Baker decision, both based on the common benefits clause, is yet to be tapped.
Such an approach would be a major challenge — which perhaps is precisely what the state’s founders hoped the common benefits clause would encourage.
