Suit claims Act 46 ‘unconstitutional’

In this Messenger file photo Montgomery school board chair Mary Niles, left, and school board member Christina Suarez-Pratt, right, address the State Board of Education during the state board’s meeting in Newark last summer.

ST. ALBANS – A statewide lawsuit challenging forced school mergers under Act 46 as unconstitutional was filed late last month in the Washington Superior Court.

The lawsuit, filed against the State Board of Education and its individual members, as well as Secretary of Education Dan French, lists several Franklin County school boards, two selectboards and a handful of individual residents from Montgomery among its 54 plaintiffs.

School boards from Franklin, Highgate, Montgomery, Sheldon and Richford have signed on as plaintiffs in the statewide suit, as have the Montgomery and Franklin selectboards.

Montgomery Elementary School students Ivy and Audrey Betts and Chloe and Ethan Silva are also included on the suit, listed by name alongside “parents and taxpayers” Jonathan Betts and Sarah and Matthew Silva.

According to the lawsuit, the State Board of Education’s final statewide education plan has “ignored the plain text” of Act 46 and Act 49, an act amending Act 46, and the “clearly stated legislative intent underlying them,” as well as other statutory law.

“If upheld, the Board’s ‘casual dismissal of statute’ will have lasting impacts for decades, perhaps even centuries, to come,” the plaintiffs argue in the opening paragraphs of the suit. “It is harming our students, our schools, the very fabric of rural life, the democratic process, checks and balances, and the foundational notion that governance requires consent of the governed.”

The State Board of Education’s role in issuing a final state consolidation plan was assigned under Act 46.

Among the complaints lobbied against the State Board of Education, the lawsuit cites the state board’s apparent preference for Act 46’s “preferred structure” of consolidation as opposed to alternative structures proposed under Act 46’s Section 9, claiming this misreads both Act 46 itself and the intent of the legislators who passed it.

The lawsuit’s filing included previously recorded comments from legislators and officials arguing in favor of an “off ramp” to mandatory consolidation when a merger wouldn’t be deemed “practicable” or if an alternative structure could adequately meet Act 46’s goals of administrative efficiency and better educational outcomes.

The lawsuit also argues that consolidation mandated by the state violates the Vermont and federal constitutions’ Taking Clause by reassigning debt and school property without “due process” – namely a vote from the electorate.

The suit also accuses the state board of usurping the legislature’s constitutionally-ascribed role of organizing towns and cities, citing state statute that, according to the lawsuit, says a town constitutes its school districts.

Section 421 of 16 V.S.A., cited in the lawsuit, states that: “A town shall constitute a school district, except that when a town contains an incorporated school district, the town school district shall consist of that part of the town not embraced within the incorporated school district.”

The plaintiffs also argue that, in reassigning districts’ debt, the State Board of Education also failed to consider disparate levels of debt between merged districts, therefore violating a standard added to the consolidation process by Act 49.

The lawsuit accuses the state education board of inconsistency in the standards it applied to making its decisions on merging districts.

A statement from Montgomery school board chair Mary Niles was included in the lawsuit’s affidavit:

“By virtue of the Secretary’s and the Board’s failure to establish standards regarding Section 9 proposals, ignoring Montgomery School District’s success at meeting the goals of Act 46, failure to provide any rationale as to why an involuntary merger of our school district is ‘necessary’ and failure to evaluate our Section 9 proposal on its merits, and ignoring the mandates of Act 46 and Act 49 regarding geographic isolation and greatly differing levels of indebtedness, the Montgomery School District stands to be immediately and irreparably harmed since the involuntary merger process is beginning immediately.”

Her statement followed a summary of Montgomery’s Section 9 proposal arguing in favor of keeping Montgomery’s school district separate from any mandated school consolidation.

In the State Board of Education’s final plan, Montgomery was slated to merge with the Sheldon Town School District and the Northern Mountain Valley district created by the previous merger of the Bakersfield and Berkshire districts.

This is only the second of three lawsuits filed by school boards against the State Board of Education over mergers mandated under Act 46.

A separate lawsuit was filed by the Stowe and Elmore-Morristown school districts almost immediately after the State Board of Education issued its final plan, similarly accosting the State Board of Education for violating the Vermont and federal constitutions.

Since the statewide lawsuit was filed, the Huntington school district filed a third lawsuit against the state board over its slated consolidation with the Mount Mansfield Modified Union School District.

The lawsuit’s 54 plaintiffs are represented by lawyers David F. Kelley, Ines McGillion and Charles Merriman.

Aside from seven Montgomery residents, the Franklin and Montgomery selectboards, and five Franklin County school districts, another twenty-five school boards, five selectboards, nine individuals and the Irasburg planning commission are also listed among the plaintiffs.

Since the Franklin school board initially signed onto the lawsuit in September, other school boards in Franklin County have joined with the hope that an ensuing injunction following the filing of the suit would buy legislators time to either amend or repeal Act 46.

The conversations that ultimately led the boards to join Act 46 were covered previously in the Messenger.

Act 46 is the state’s school consolidation law. Under Act 46, school districts were encouraged to explore voluntary mergers with neighboring districts in order to streamline administrative costs and provide stronger educational opportunities for students.

Districts that opted not to merge were allowed to file alternative governance proposals under Act 46’s Section 9, with the understanding that, should a merger appear more adequate for meeting Act 46’s efficiency and education goals, those districts could face a mandatory consolidation.

Most of Franklin County’s schools were slated for a mandated consolidation under Act 46, save for the voluntarily merged Maple Run Unified School District and the school districts in the Franklin West Supervisory Union.

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Montgomery joins Act 46 suit, two others sign on provisionally