Editor’s note: This commentary is by David F. Kelley, an attorney and a co-founder of Project Harmony (now PH International) who is a member of the Hazen Union School Board.
[S]tudents from wealthy families have always had school choice. Most students from poor families and even middle class families have not. But for over a century, in 90-some-odd small, rural towns throughout Vermont, school choice has been a great equalizer. From years of coaching high school debate I have come to appreciate the importance of choice in towns like Stannard, Walden and Wolcott. Act 46 is jeopardizing that tradition, and people need to understand the law if they want to save it.
School choice is being eroded partially because public education now faces a shrinking clientele and an increasingly expensive bureaucracy. Many public schools need the money that comes with filling seats. To some in the public sector, school choice has become threatening. The executive director of the Vermont School Boards Association recently told the House Education Committee:
“I now want to share my concerns regarding the possible expansion of school choice vouchers to school districts that operate schools. I believe that doing so would result in greater socio-economic stratification, increased costs to taxpayers, and the rapid decline of vulnerable public schools in rural parts of the state.”
With carrots, sticks, and in some cases misinformation, Act 46 has been creating pressure for school districts to merge into bigger districts with more remote governance. Districts that tuition students and merge with a district that operates a school, are told they must give up choice. The issue is not “expansion” of school choice. The issue is protecting it, and Section 4(a) of Act 46 should guarantee that protection:
“All governance transitions contemplated pursuant to this act shall preserve the ability of a district … to continue to provide education by paying tuition on behalf of all students in the grade or grades if it chooses to do so and shall not require the district to limit the options available to students if it ceases to exist as a discrete entity and realigns into a supervisory district or union school district.”
If that language wasn’t clear enough, Section 4(c) is even stronger:
“Nothing in this act shall be construed to restrict or repeal, or to authorize, encourage, or contemplate the restriction or repeal of, the ability of a school district that … provides for the education of all resident students in one or more grades: (1) by paying tuition on the students’ behalf, to continue to provide education by paying tuition on behalf of all students in the grade or grades …”
Despite language that is crystal clear, shortly after Act 46 was passed, key voices within the public education community began to explain why the bill didn’t mean what it said. For example, the attorney (then with Legislative Council, now with the Agency of Education) who drafted most of the bill, told the House Education Committee that it would be “impractical” to treat students in the same district differently and that “… offering different educational options to students in the same district solely on the basis of their residential address would likely violate the Common Benefits Clause of the Vermont Constitution …”
If a school district doesn’t find merger partners that work for them, Section 10 of Act 46 requires the Secretary of Education to help create an alternative governance structure that ensures “adherence to the protections of Sec. 4 of this act.”
On Sept. 15, 2015, the State Board of Education proclaimed: “There is no authority in Act 46 that authorizes a newly formed district/preferred model, to both operate and pay tuition, for the same grade level(s).”
Since 1956 Vernon Town School District has been a member of the Brattleboro Union School District, and it has concurrently paid tuition for resident students in grades 7-12. The people of Vernon have found this arrangement to be so “practical” they are determined not to give it up. For decades tuitioning districts have existed side by side in the same supervisory unions with districts that operate schools for the same grades. For years, in Orleans Southwest, students on one side of the road in Greensboro go to Hazen Union. On the other side of the road, in Stannard, students have choices. It has never violated the Common Benefits Clause. A district merger won’t change the Constitution.
Most communities that have school choice are reluctant to let it go. To sweeten a bitter pill, the State Board of Education has been approving merger proposals that “grandfather” tuitioning for current students in choice districts that merge with operating districts. That arrangement somehow isn’t “impractical” and somehow that doesn’t violate the Common Benefits Clause. But it is troubling when government agencies interpret the Constitution to suit their own ends.
There are two obvious options for tuitioning towns that want to protect their students’ choices: 1) Go to court; 2) Merge with other tuitioning districts. But there is also a third option that is worth consideration. If a school district doesn’t find merger partners that work for them, Section 10 of Act 46 requires the Secretary of Education to help create an alternative governance structure that ensures “adherence to the protections of Sec. 4 of this act.”
That third option is to do nothing. Take Mother Mary’s advice and just “let it be.” The secretary cannot make a school district give up choice. At least that is what the law says.
