[R]evisiting a controversy from the initial round of Act 46 mergers, the State Board of Education has made clear that school districts merging under the later phases of the law will face the same prohibition on combining systems that operate a school and those that tuition students for the same grades.
Board Chair Stephan Morse said members adopted a policy statement at the suggestion of the Agency of Education “to make it clear that the way we were reading the law under the first phase also applied to phases two and three. The game isn’t changing because we are moving into a new phase.”
The second phase of Act 46 implementation likely will see more complex voluntary mergers that still qualify for tax incentives. The final phase is meant for school districts or groups of districts that propose an alternative structure, meaning they say they can meet the equity, quality and cost goals of Act 46 without changing their governance structure.
With the first part of the statement the board adopted this month, it reiterated the words that drove it into a public relations quagmire in September when it concluded that Act 46, when considered in the context of existing law, made clear that mergers of school districts that would result in both the operation of a school and tuitioning students in the same grades should not be approved.
The second part of the policy statement speaks to those school systems that want to stay the same and are considering applying for an alternative structure.
At their annual retreat, board members agreed that:
- “Under current Vermont law, the state cannot compel the merger of school districts with different operating and tuition structures. Only the voters can decide whether to change their district’s structure in order to make merger possible.”
- “All choices come with consequences. A decision not to make any changes, structural or otherwise, will not insulate a school district or group of school districts from the consequences of declining enrollments and increasing tax rates.”
Last summer, Franklin Northeast Supervisory Union in Franklin County and Windsor Southeast Supervisory Union in Windsor County were considering mergers that would have commingled school choice districts with those that operate schools. They came to the state board and asked if this would be possible under Act 46.
The state board, lawyers with the Legislative Council and the general counsel for the Agency of Education determined that under Act 46, together with the existing Section 822 of Title 16, new districts either have to operate a school or tuition students. This decision set off a firestorm of protest that included some lawmakers and school choice advocates.
House Minority Leader Don Turner wanted to tweak this part of the law during the legislative session, but that didn’t happen. The School Choice Caucus held several news conferences, and legislative members offered a number of bills to try to adjust this determination, but their attempts withered in committee.
Education Secretary Rebecca Holcombe has said again and again that the September decision doesn’t limit current school choice. By the letter of the law, it is up to voters to decide if they want to change by either giving up school choice or expanding it by becoming a choice district. Both have happened. This past year, voters in at least four school districts decided to stop tuitioning and merge into a district that operates schools. Voters have also chosen to close schools and pay tuition in Guildhall, Concord, East Haven, Morgan, Plymouth, Granby and Granville-Hancock.
But the way the law actually plays out means some school districts may not be able to merge with their neighbors without changing — with a vote — the way they do things.
Windsor Southeast is one of the places that has looked long and hard at either giving up the one pre-K-through-12 school that operates in the supervisory union or giving up choice in Hartland, West Windsor and Weathersfield.
The formal study committee, which at this point ordinarily would be busy drawing up articles of agreement, is considering disbanding because the choice towns and the operating town that have long worked together can’t find a way forward under the parameters reiterated in the policy statement.
Windsor Southeast Superintendent David Baker reacted to the statement and its reliance on a vote by residents: “To throw that back to the local towns struggling to figure out how to pay for the schools they have now and to think they will come to a miraculous agreement of what is fair and equitable — that is not going to happen.”
Equity is at the heart of the conflict over school choice, and the Legislature’s failure to address it in Act 46 has led to towns fighting over operating structures, according to Baker.
He invoked the Brigham v. State of Vermont decision over equality of educational opportunity, which led to Act 60 and Act 68. “If you think about it, Act 46 is right on the verge of Brigham. It is a court case waiting to happen. Act 46 brought the inequality of the system to the surface,” said Baker.
