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School districts, voters tread lightly around Act 46 suit

Judge denies injunction, meaning consolidation law proceeds apace; education secretary warns of ‘serious consequences’ for noncompliance

BRATTLEBORO—In the aftermath of Superior Court Judge Robert Mello’s ruling against an injunction that would have halted the state-mandated school-district merger process, the original lawsuit against Act 46 continues to make its way through the legal system.

Meanwhile, state officials warn of “serious consequences” to districts that don’t plan for July 1 deadlines to comply with aspects of the education-reform law.

“The Plaintiffs have not shown a substantial likelihood that they will prevail [in the lawsuit] on the merits of their claim that the [State Board of Education]’s actions in implementing Acts 46 and 49 are unconstitutional, and their claims of irreparable harm are speculative,” Mello wrote in his March 6 ruling.

“The factors of potential harm to others and public interest appear at best neutral,” the judge continued. “Even assuming the Plaintiffs will suffer some relevant harm in the absence of a preliminary injunction, the current record suggests that the issuance of a preliminary injunction also may adversely affect others who are not party to the suit.”

Opponents of Act 46 speculate that no matter what the outcome of the lawsuit in Franklin Superior Court, the losing side will exercise their appeals and the case will eventually be decided by the Vermont Supreme Court.

“I don’t think the smoke will clear until we get a final answer from the Supreme Court,” said Attorney David F. Kelley for the plaintiffs opposing the merger process.

“The Act 46 train has moved farther down the tracks,” he said. “We live with the uncertainty of moving forward without knowing the final destination.”

Also unknown is whether the Legislature will put a halt to mergers.

State Sen. Becca Balint, D-Windham, confirmed the Senate is “working on a bill that would allow a delay in implementation” of the forced mergers. She added that the Senate’s Education Committee will take testimony this week.

“I anticipate it being quite different from what the House passed,” Balint said.

Education Secretary warns of ‘consequences’

Meanwhile, on March 8, Vermont’s Secretary of Education Daniel M. French issued guidance for those school districts still working through the merger process. French urged unmerged districts to complete the transition process by June 30 or face the consequences.

French’s biggest concern: not having a working budget to fund the new district.

“Although the General Assembly is considering whether to extend the date of operation for newly formed union school districts by one year to July 1, 2020, the Agency of Education strongly recommends that districts proceed in good faith under current law unless and until an amendment to current law is passed through both chambers of the General Assembly or the Court issues a ruling that would invalidate a provision of the State Board’s order,” French wrote to the districts.

Under the state’s 2015 education law, school districts that have yet to complete the merger process must be operational by July 1. That includes approving a new unified budget, transferring employee benefits to the new district, and setting up new accounts with the IRS to reflect the new corporate entities.

Frank Rucker, the Windham Southeast’s business administrator, said that setting up a new legal entity such as school district takes time.

“Typically, a year is good practice” to implement a change of “this magnitude,” Rucker said.

According to French, “Barring a change in the law, which at this time is speculative, a district’s or group of districts’ failure to use the time remaining between now and June 30, 2019 will result in serious consequences to students and staff.”

The secretary noted that part of the transition process includes electing new board members and approving the budget.

French’s guidance provided potential timelines for districts like Windham Southeast which had voted to delay their transition meeting.

According to French, because Windham Southeast had adjourned to a date certain, “Robert’s Rules and elections law allow the meeting to be continued on the chosen date without a new warning and warning period.”

French suggested the following milestones for Windham Southeast: If candidate petitions are due on Monday, April 8, then the election of new board members can occur on Tuesday, May 14. Next, if a meeting is warned by Wednesday, May 15, voters could consider the budget on Monday, June 17.

These steps are necessary to meet the July 1 deadline, French wrote.

“If voters do not take the opportunity at organizational meetings to conduct the business of the district, the transitional board may need to take independent steps to prepare the district for full operations[,] including warning the election of the initial board and preparing and warning a budget for the first year of operations,” French warned. “Both of these steps are authorized by the Default Articles of Agreement.”

‘It seems inappropriate’

Last November, the State Board of Education issued its final orders regarding school districts, such as Windham Southeast, that had not merged.

In that order, the board created the Windham Southeast Unified School District, incorporating schools in Brattleboro, Dummerston, Guilford, and Putney.

The transitional board for the new district includes two representatives from Brattleboro town schools, the BUHS #6 district, Dummerston, Guilford, and Putney.

It now appears that Windham Southeast voters will return to the floor on April 2.

In a short meeting on a snowy night, voters approved a temporary halt to the Windham Southeast Unified Union School District’s Act 46 transition process.

The Feb. 27 special meeting was to serve as an organizational step in the merger process.

But the meeting — attended by 75 of the district’s four towns’ registered voters — lasted less than 45 minutes.

After introducing the second article of a 10-article agenda, Brattleboro resident Andrew Davis made the motion to postpone the meeting until 7 p.m. on Tuesday, April 2.

One of the reasons given for the postponement — approved by voters in a standing vote, 51 to 22 — was to wait until the court decided whether to issue a preliminary injunction to school mergers.

Davis noted that the organizational meeting had originally been scheduled for Jan. 9. In his opinion, the meeting had already once been postponed because of ongoing legislative and legal proceedings that could put the entire Act 46 merger process on hold.

Davis argued that the circumstances and uncertainty that existed in January still existed, though that situation would change days later.

“We’re in the same situation now as we were on Jan. 9,” he said. “It seems inappropriate to me that we would move forward with this.”

Judy Davidson, also of Brattleboro, and Dummerston resident Paul Normandeau echoed Davis.

Franz Reichsman, a member of the Brattleboro Representative Town Meeting Finance Committee, spoke against Davis’ motion.

Former Selectboard member Dick DeGray also urged the audience to vote against the amendment.

Other districts look ahead

While Windham Southeast’s merger process will wait, the county’s other supervisory unions have taken their own Act 46 paths.

The WNESU towns of Athens, Grafton, and Westminster joined the lawsuit filed in December.

Superintendent Christopher Pratt said the Windham Northeast Supervisory Union has yet to form a transitional board.

Speaking prior to the judge’s ruling, Pratt said the supervisory union would warn a transitional meeting once staff know the outcome of ongoing Legislative and legal proceedings.

“Once these decisions are made, Athens, Grafton, and Westminster will warn their meetings and follow the law,” he said.

Secretary French provided a timeline for the Windham Northeast Union Elementary School District to get it ready to meet the July 1 deadline.

According to French, a transitional meeting has been warned for for April 10. He recommended that petitions are due no later than Monday, April 15, and the election of initial board members happens on Tuesday, May 21.

French then recommended that a budget meeting be warned on May 22 and the budget presented to voters as soon as Friday, June 21.

William Anton, superintendent for Windham Central Supervisory Union, outlined where the district’s schools were with the merger process.

Stratton, which does not operate a school, will remain what the state calls a “non-operating district,” Anton said.

Marlboro is the only town in the district that operates a school for students in kindergarten through grade 8, with school choice for grades 9 though 12, Anton continued. That town received permission to continue operating K-8 despite the other schools in the newly reconstituted district having different grade structures.

Dover and Wardsboro residents approved a school merger. The new River Valleys Unified School District will present its first unified budget at this year’s annual Town Meetings, he explained.

The West River Modified Union Education District’s unified board has operated for two years, Anton said.

This district includes schools in Brookline, Jamaica, Newfane, Townshend, and Windham. Windham Elementary offers schooling up through grade 6.

Windham has joined the lawsuit against the state over Act 46. Anton said that, for now, Windham students are considered part of the WRMUED’s 7-12 grades.

Anton said Windham will find its own path through the law after the court issues its ruling.

In the meantime, according to Anton, the WRMUED will present budgets that include pre-k-6 for students from the four towns of Brookline, Jamaica, Newfane, and Townshend. A second budget covering grades 7-12 education, will include students from all five towns.

Windham School Board Chair and state Rep. Carolyn Partridge said that Mello’s ruling changed nothing. She anticipates the case will go to the State Supreme Court.

A citizen group in town is also exploring closing the town school in favor of founding an independent school.

Partridge added that voters at Annual Town Meeting approved the elementary school’s budget. Voters also overwhelmingly approved leaving the WRMUED for grades 7-12.

“It’s what we’re lovingly calling the Wexit vote,” she said.

The other WRMUED member towns still have to vote to approve Windham’s exit.

The WRMUED’s annual meeting is Tuesday, March 26. Residents will vote on the fiscal year 2020 budget by Australian ballot on Wednesday, March 27.

Windham Southwest Supervisory Union Superintendent Barbara Anne Komons-Montroll, who took over from Chris Pratt — now with Windham Northeast — last July, said that the schools under her purview had merged by the time she assumed her duties.

She said the mergers in Windham Southwest “went pretty smoothly, thanks to a lot of good work” by the community, principals, and school boards.

Twin Valley School District includes schools in Wilmington and Whitingham. According to Komons-Montroll, Twin Valley had operated a pre-kindergarten-through-grade-12 school system for many years prior to Act 46.

“Twin Valley was pretty simple in comparison because they were mostly consolidated,” she said.

Southern Valley Unified Union School District serves students in Readsboro and Halifax, she explained. This district serves students from pre-kindergarten through grade 8 and then offers families school choice for high school.

Searsburg, a Bennington County town with 109 people counted in the 2010 census, does not operate a school.

Perhaps the most interesting ongoing merger process is that of Stamford School, which serves students in pre-kindergarten through grade 8. Located on the Vermont-Massachusetts border, Stamford is exploring an interstate merger with Clarksburg, Mass.

According to Komons-Montroll, the Vermont Agency of Education and the Massachusetts Department of Elementary and Secondary Education have approved a study process to investigate merger options.

She said a consultant agency is expected to release a report this spring.

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Originally published in The Commons issue #501 (Wednesday, March 13, 2019). This story appeared on page A1.

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