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Act 46 ruling creates more complexity

Windham Southeast School District Transition Board continues working on governance as judge hands down a mixed ruling and legislative solutions appear dim

In the same week when the Windham Southeast School District’s Transition Board held its first working meeting, Superior Court Judge Robert Mello issued a ruling that dismissed three out of six counts in a lawsuit filed by 33 school boards and other entities.

Mello’s decision came on April 12 after several months of hurry-up-and-wait since the State Board of Education issued its November merger decisions for school districts that had yet to merge, including Brattleboro, Dummerston, Guilford, and Putney.

The lawsuit filed by the 33 school boards followed in December.

As it has wended its way through the courts, newly merged districts still had to prepare to meet a July 1 deadline to be operational.

For the Windham Southeast School District Transition Board, those duties include preparing teachers’ contracts, setting up a new legal entity, and preparing a budget that incorporates all the schools in the four towns.

The board has been operating under a set of default articles of agreement from the Agency of Education.

These articles, which went into effect after the State Board of Education made its merger decision, replaced the two plans created locally: one by the Act 46 Study Committee and an alternative plan created after the four towns voted down the merger.

At the Transition Board meeting on April 8, Chair Ricky Davidson, noting that the board plans to amend these default articles of agreement, described the default articles as “basic” and “not addressing the community’s concerns.”

The amendments under consideration by the Transition Board include:

The size and makeup of the new school board to better include representation for all the schools: The default articles require two representatives from each town, regardless of a town’s population size.

Creating leadership councils in every school: These leadership councils would act like working groups focusing on a school’s individual needs. Members could come from administration, teaching staff, parents and, when age appropriate, students.

A process for school closures: Many members of communities with smaller schools have voiced concern that under Act 46, these smaller institutions would disappear in order to save money.

Davidson said that the study committee had addressed these concerns in its original articles of agreement by outlining an approximately two-year vetting process before a board could shut a school.

Grade configuration: Some are concerned that elementary-school children will be moved into buildings with older students such as the Brattleboro Area Middle School. The West River Modified Union Education District made a similar decision to move its district’s sixth-graders to Leland & Gray.

“We’re dealing with the big stuff,” Davidson said. He hopes the little details won’t slip through the cracks but anticipates that the new board will have a long to-do list when it takes over in July.

Davidson also asked anyone elected to the new board to trust the administration, who he described as “professional,” “experts,” and “good people.”

If the transition process and new board’s work all goes well, Davidson suspects students will see little change in their schools, “because so much is right about our schools” already.

“The biggest thing for people to understand is that people with good heads, good minds, and good hearts are really trying to do what’s best for the students,” Davidson said.

At some point, compromises will have to happen, he continued. But Davidson felt confident the community could pull through the merger process by working together.

Fellow Transition Board member David Schoales added, “I think it’s important to know that we are creating a constitution and starting the process with a conversation about our values and what we want for our communities from this new governance structure.”

That discussion will take place at the board’s next meeting on Wednesday, April 24, at 6 p.m. at Dummerston School. Along with the amendments to the default articles of agreement, the board will discuss the district-wide budget.

Legislation could provide deadline relief — for other districts

While the Transition Board prepares for July 1, its decisions have not happened in a vacuum, but rather in a cluttered landscape of bigger, potential changes that could have a statewide reach.

One such potential change: The Legislature is considering legislation filed by Rep. Heidi Scheuermann, a Republican from Stowe to extend the timeline for some mergers, although these extensions will probably not apply to Windham Southeast.

Under the bill passed by the House in February, “A newly formed district shall become operational on July 1, 2019 if each forming district was a member of a study committee that, on or after July 1, 2015 and on or before November 30, 2018, presented a proposal to the voters of each forming district to merge into a new union district.”

The Senate has passed a version with an amendment that continues funding for the Small Schools Grant and defines the circumstances under which merging districts qualify.

With the House refusing to approve the bill as amended by the Senate, a conference committee is working to reconcile the differences in the versions.

Judge issues split ruling on lawsuit

The second change: the potential results of a lawsuit filed in December that takes issue with Act 46.

On April 12, Vermont Superior Court Judge Robert Mello — presiding judge of Addison County Superior Court but hearing the case in the court’s Franklin division — issued a split ruling in the case when he dismissed three of the plaintiffs’ six claims.

The three claims Mello dismissed focused on constitutional issues around the Legislature’s ability to delegate its authority, the dissolving of school districts, and due process.

In his 13-page ruling, Mello outlined his case for why the plaintiffs’ three dismissed claims had not reached the threshold of constitutional violations.

Mello’s ruling, however, preserved the plaintiffs’ charges that the State Board of Education’s merger decisions didn’t follow legislative intent, that Act 46 redistributes debts and assets in a way that violates the state and U.S. constitutions, and that it creates “disparate financial treatment of schools, taxpayers, and students.”

On these counts, Mello cautioned that resolving the final counts “may require the presentation of facts that have yet to be established.”

The judge also acknowledged that his split ruling might end up having created a situation where the state’s Supreme and Superior Courts would hear the lawsuit and its potential appeals at the same time.

“This Court also understands that directing the entry of final judgment now on just three of Plaintiffs’ six counts runs a risk that the Supreme Court could be faced with a second appeal in this case later,” Mello wrote.

“However, the issues in this case are of unusually great statewide importance, and the time available to review and decide them is very limited,” the judge continued.

Given all the moving parts, Mello concluded that the court “would be remiss were it not to afford the Supreme Court an opportunity to consider these weighty issues as much in advance of that [July 1] deadline as possible.”

Dismissal ‘not unexpected’

David Kelley, one of the attorneys working with the plaintiffs, said Mello’s dismissal of the constitutional issues was “not unexpected.”

“Courts as a general rule are reluctant to challenge the Legislature on constitutional issues,” said the Craftsbury Common lawyer, one of seven attorneys involved in the lawsuit.

But, he continued, the courts will rule on constitutional issues in some cases — like the Brigham vs. State of Vermont decision that led to the creation of Act 60 and upended the state’s education funding system. In that case, the Vermont Supreme Court ruled on the issue.

In Kelley’s opinion, the three counts Mello preserved are very important questions that focus on issues of due process, common benefits, and the State Board of Education’s interpretation of Act 46.

The alternative structures process, formally called Section 9, links to these questions. Section 9 is “a very big issue” to the case, in Kelley’s opinion.

Section 9 provided a way for districts that could not come up with a voluntary merger plan to maintain their unmerged state — and their autonomy — while still enacting changes that advanced the goals of Act 46.

But in previous interviews, Kelley and others connected with the case have expressed frustration that despite their communities completing the Section 9 process after voting down mergers, the State Board of Education issued decisions that seemed to have ignored the alternative proposals.

In Kelley’s opinion, what was the value of the Section 9 process, or the value of communities demonstrating how they could meet the state’s education reform goals, if the state would force mergers anyway?

He interpreted Mello’s ruling as instructing the plaintiffs to assemble more facts before moving the case to the next level.

One challenge Kelley anticipates is compiling these additional facts. Developing facts for a single client is simpler than developing them for 33 school districts, he said.

Kelley hopes to bring the lawsuit before the Vermont Supreme Court as quickly as possible. The longer the Act 46 process continues, the “more entangled” school districts, contracts, and budgets will become, he said.

“The more like Humpty Dumpty they will all become,” he said.

Still to do: district-wide curriculum

One irony Davidson has noted is that the Transitional Board has yet to focus on Act 46’s prime directive: educational equity.

This task will likely fall to the new School Board, which will take over from the Transitional Board after elections on Tuesday, May 21, when voters will name two board members from each town. Voters will then decide a budget on Wednesday, May 22.

To achieve an equity in curriculum and courses across all schools will take time, he said. “And there are systems to put into place, and systems take time.”

In a process that has unleashed change and uncertainty on the Windham Southeast schools, one thing is certain, he noted.

“There will be school in the fall,” Davidson said.

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Originally published in The Commons issue #506 (Wednesday, April 17, 2019). This story appeared on page A1.

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