Motion for Immediate Status Conference 1/14/19
Click here for .pdf
Dan French is the secretary of the Vermont Agency of Education. File photo by Mike Dougherty/VTDigger
Vermont’s school district consolidation law, Act 46, may have been the state’s most controversial school reform in decades. But an internal government document suggests the state’s top education official believes it hasn’t gone nearly far enough.
In a draft policy memo dated Jan. 1, administration officials, led by Education Secretary Dan French, outline a radical idea for Vermont’s schools. In it, they suggest consolidating all school districts into one, abolishing the State Board of Education, and establishing four regional administrative entities, each with its own school board and superintendent, to oversee schools in the area.
Under this system, according to the document, titled “Designing our Future: A Blueprint for Transforming Vermont’s Education System,” students would have universal public and private school choice. Budgets would be developed by regional superintendents and submitted to the secretary of education, who would create an overall education budget. That budget would then go before the General Assembly, which would have the final say over how much money schools receive. Regional school boards, with the approval of the secretary, would decide whether to close schools.
According to the memo, an “education policy design team” was formed in fall 2018 to design a “policy blueprint” for reform efforts. Its members included the secretaries of Commerce and Community Development, Digital Services, Education and Human Services, the commissioner of Labor, and staff from the governor’s office.
For context, the document repeats oft-repeated concerns – in particular, by Gov. Phil Scott – about Vermont’s schools. It cites statistics about steadily declining enrollments, rising costs, and the state’s extremely low staff-to-student ratio.
“Vermont’s education delivery will need to adapt to the current demographic context to be successful,” the document states. “We will need to redesign an education delivery system not just make incremental adjustments.”
The document was not publicly available and was leaked to VTDigger. Officials with the governor’s office and the agency acknowledged the document existed and that such conversations had occurred, but hastened to add that there were no plans yet to propose such a reform.
Rebecca Kelley, the governor’s spokesperson, said the document was not a “policy paper” but instead a “conversation fielder.”
And Ted Fisher, an agency spokesperson, said the document – and a follow-up expected out Friday – should not be considered “policy proposals” but “collaborative efforts to imagine a new system focused on quality and equity.”
“The secretary is leading a visioning process to reimagine the future structure of our education system,” Fisher said. “This is a strategic exercise internal to the Agency of Education designed to surface opportunities to create a more coherent and integrated approach to delivering education and related human services.”
Fisher added that a second version of the document would be ready on Friday with “significant updates, more developed policy proposals and additional materials,” and he offered to share that document publicly then.
State Board of Education Chair Krista Huling said she hadn’t seen the document and didn’t feel comfortable commenting until she had read it. Bill Mathis, the board’s vice chair, said he also hadn’t seen it and that it was “disconcerting” that discussion on the subject had gone as far as it had without wider input and a more public process.
“This comes as a surprise and government should not have surprises,” he said.
The document itself appears to explain why so few people were involved in its development, by way of a discussion on the difference between a “representative” and “design” strategy. A representative strategy, it states, “is often used when a solution to a problem already exists, and when affirmation of stakeholder values or current practices supersedes the need for change.”
A design strategy, meanwhile, “is more useful when there is a need to create a new policy solution.” In that case, “a small design team is assembled with the goal of rapidly creating a viable design prototype.”
Legislative leaders said they had gotten wind, secondhand, of discussions of a statewide school district, but then been reassured by French that conversations were entirely theoretical and would not be brought forward during the legislative session.
Rep. Kate Webb, D-Shelburne, the new chair of the House Education committee, said French had characterized the conversations as “futuristic thinking.”
“It wasn’t anything that he was interested in pursuing at this point,” she said.
Webb said she had heard a white paper existed on the subject but that she hadn’t seen it or had access to it.
“The secretary is really thinking about a future of education. I guess it would be my hope that it would be a very distant future,” she added.
Sen. Phil Baruth, D/P-Chittenden, the chair of the Senate Education committee, also said he had been assured that a statewide school district was, at this point, simply a “thought experiment.”
“He’s new. He’s trying his best to think things through from the beginning, as opposed to coming in and just patching up the tires. So I give him credit for that,” he said.
Posted Wednesday, January 9, 2019 7:42 pm
POWNAL — The Pownal School Board signaled its intention at a meeting Tuesday night to join a high-profile Act 46 lawsuit, spelling confusion as the Southwest Vermont Supervisory Union begins preparations for a merger of elementary districts ordered to take effect by July 1.
The board voted unanimously, with member Todd Steinhoff absent, to become the 32nd Vermont school district, and the first in Bennington County, to join the suit. However, because the meeting was warned as a budget meeting and not a board meeting, a new vote has been scheduled for tonight at 5:30 in the school library.
The supervisory union's attorney, through SVSU Superintendent Jim Culkeen, voiced concern about the vote's legality on Wednesday, board chairwoman Cindy Brownell said.
"We're not sure where it's going to go," Brownell said at Tuesday's meeting. "But there's been a lot of concern from taxpayers."
She pointed out that Pownal voters rejected a merger under Act 46 in a November 2017 vote, but are still being forced to participate in a merger with the other elementary school districts of Shaftsbury, Woodford and Bennington.
The vote calls into question the timing of the organizational meeting for the new union district, which has been scheduled for Jan. 15. A motion filed by the Vermont Attorney General's office in Washington County Superior Court seeks to push back the deadline for the required organizational meetings of the merged school boards that have filed suit.
The motion also asks for additional time to respond to the legal challenge filed last month against Act 46, and seeks an extension of time to resolve the lawsuit, particularly the suit's request for a preliminary injunction against the implementation of the forced merger of school districts under the law.
This motion reflects an agreement between the AG's office and the plaintiffs to postpone new union district board meetings, said Charles Merriman, one of the plaintiff's attorneys in the lawsuit.
Both parties have agreed that organizational meetings relating to the plaintiffs' districts would be warned to begin in the third week of February, according to the AG's motion.The court has not yet ruled on the plaintiff's suit for a preliminary injunction and stay, and no hearing has yet been scheduled.
Act 46, enacted in 2015, identified the preferred model of governance for the state's schools as a unified union school district responsible for pre-K through grade 12 education.
"It's a giant step forward," Brownell said, referring to the vote. "But it may not mean anything. We have to take it."
The district is the only one in the SVSU to decide to legally challenge the required Act 46 merger, which was announced in a final plan issued by the state Board of Education in late November 2018.
The legal challenge was initially brought by 31 school boards across the state — predominantly of small rural schools — in Washington Superior Court in December 2018, setting up a legal confrontation over the Act 46 forced mergers that are now underway in school districts.
The lawsuit, filed by attorneys Merriman, David Kelley, and Ines McGillion, claims that the state Agency of Education and the state Board of Education had misinterpreted their powers under Act 46 and were acting in an unconstitutional way in forcing many town school districts to merge, losing their independence and representation in the process.
Pownal will have to file a request with the court to be added as a plaintiff in the suit.
Joining the 31 school districts were seven select boards, one planning commission, taxpayers, parents and students, from Westminster to Montgomery.
Windham County school districts have also joined the challenge, including Athens, Grafton, Westminster, Bellows Falls Union High School and Windham, as well as several parents, students and grandparents.
Ted Fisher, spokesman for the Agency of Education, declined to comment, citing pending litigation.
Phone calls and emails to the SVSU administration and Nelson Brownell, chairman of the SVSU school board, were not returned by press time.
Pownal has been in communication with attorneys about joining the lawsuit for about three to four weeks, but the board has been talking about joining the suit for a while, Brownell said.
The board feels strongly about the fact that the town voted against a merger under Act 46, but is still being forced to merge, she said. The board is also unhappy about sharing significant debt from the Bennington under a merger, she said.
"We felt that it was necessary to take this step, in the interest of the people in Pownal," she said when reached Friday. Several people also contacted the board, saying they didn't understand why a merger was going forward, considering the town had voted against merging.
"I guess that kind of pushed us towards [thinking], 'well, we better do something,'" she said.
With Pownal joining the suit, the transitional board meeting for the new union district that would include Pownal — scheduled for Jan. 15 — should be cancelled, Merriman said.
"If this isn't cancelled, we the plaintiffs will fight that issue separately," he said. "We will dispute the legitimacy of that meeting."
The intention behind the agreement to push the meetings back, he said, is to allow the court time to address the issue of the motion to stay.
The meeting was listed on the SVSU's website as of mid-afternoon Wednesday.
Multiple factors influenced the districts to join the lawsuit, including having to share the debt of other districts, Merriman said.
"The reason that passions me the most is twofold," he said. For one, he said, Act 46 has been implemented contrary to its stated intention to encourage and support local decisions and actions.
"You are not encouraging and supporting local decisions and actions when you as a bureaucrat tell a duly elected board to merge, over its judgement," he said. "Even more so, you're not encouraging and supporting these local decisions and actions when those communities actually came together in many instances and voted against merger."
The lawsuit seeks a finding that Act 46 is unconstitutional as applied, Merriman said.
"We're just looking for the democratic process to be respected," he said. " We want to see towns who voted not to merge, for that vote to be respected."
Merriman said he did not think any other districts are currently signing on to join the lawsuit.
Margaret MacLean, a volunteer working on Act 46-related issues with school districts, said people are most upset about the processes in relation to Act 46.
The state board, she said, did not consider alternatives districts presented to mergers "on their merits."
"And then there's the issue of debts," she said.
Article 5 of the Articles of Agreement governing the implementation of Act 46 mergers require the new union district to assume all debt of the forming districts, including capital debt; the new union district cannot change this article.
MacLean clarified that, from her perspective, there's no need for Act 46 to be scrapped.
"I don't think anyone has a problem with the goals of the law," she said. "I think if people voluntarily choose to merge, that's their decision."
But she said, people should not be forced into mergers if they did not vote to do so.
MacLean said the hope is that the injunction is granted, and stays in place until the underlying legal issues are resolved.
Patricia LeBoeuf can be reached at firstname.lastname@example.org, at @BAN_pleboeuf on Twitter and 802-447-7567, ext. 118.
Posted Thursday, December 20, 2018 6:42 pm
MONTPELIER — The legal challenge brought by 31 school boards across the state — representing predominantly small rural schools — was filed Thursday in Washington Superior Court, setting up a legal confrontation over the Act 46 forced mergers of school districts now underway.
The lawsuit, filed by attorneys David Kelley, Charles Merriman and Ines McGillion, claimed the state Agency of Education and the state Board of Education had misinterpreted its powers under Act 46, and was acting in an unconstitutional way in forcing many town school districts to merge, losing their independence and representation in the process.
Joining the 31 school districts were seven select boards, one planning commission, taxpayers, parents and students, from Westminster to Montgomery. The attorneys for the appeal, Athens School District et al vs. the State Board of Education et al, said they would be filing a companion request for an expedited hearing and a stay on Friday, with hopes that Washington Superior Court Judge Mary Miles Teachout could hold a hearing as soon as Monday.
The Athens et al lawsuit is the second legal challenge filed in recent days regarding the forced merger of school districts under Act 46. Stowe, Elmore and Morrisville filed their own lawsuit last week, and Kelley said he expected a third lawsuit from Huntington would be filed in the next few days.
Kelley, a Craftsbury Common lawyer and former chairman of his town's school board, said he hoped for a quick day in court.
"The issues are compelling and immediate," said Kelley, who said that in his 40 years of practicing law, including being involved in the bankruptcies of Vermont ski areas, this was the most complicated legal challenge he'd worked on.
"There are so many appellants and we raise a wide spectrum of issues," he said. "Act 46 was not a well-written law."
Windham County school districts joining the challenge include Athens, Grafton, Westminster, Bellows Falls Union High School, and Windham, as well as several parents, students and grandparents from Westminster and Dummerston.
"If upheld, the Board's 'casual dismissal of statute' will have lasting impacts for decades, perhaps even centuries, to come," Kelley wrote. "It is already tearing communities apart and pitting towns against each other. 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."
Ted Fisher, a spokesman for the Vermont Department of Education, said the agency did not comment on pending lawsuits.
The legal challenge is an appeal of a final decision in late November outlining all the forced mergers it was imposing on school districts.
Jack Bryar of Grafton, a member of both the Grafton School Board and the Bellows Falls Union School Board, said Act 46 is "unhinged from any reality" of how Vermont school boards run their schools.
He said one key challenge dealt with what he said was the "unlawful seizure of property" with the transfer of one town's school, and the awarding of it to another school district. "And it gives me their debt to share," he said.
Bryar said one of the stated goals of Act 46 — reduction of school spending — was a myth. "We have petitioned the state repeatedly to show us where the savings are," he said, noting one Windham County merged school district was now facing a 10 percent budget increase. "Chaos costs money and it's not the way to save money," he said.
A group of school board members across the state has formed The Alliance of Vermont School Board Members and has been raising money to challenge the state ruling.
Kelley said he and the other lawyers were working essentially as volunteers.
Merriman, a former assistant attorney general and chairman of his local elementary school board in Middlesex, said the culture of Vermont is really at stake.
"Vermont is founded on the town system, not the county system. And yes, there are real difficulties with the economics of education in a rural state. But what are we losing? We're losing an amazing amount of talent," Merriman said, referring to the hundreds of school board members. "Act 46 is a very superintendent-friendly act and it gives short shrift to democracy."
School districts and towns banding together to fight the decisions by the state Board of Education and the Agency of Education include the Athens School District, Barnard School District, Barnard Select Board, Bellows Falls Union High School, Berlin School District, Brighton School District, Brownington Select Board, Calais School District, Calais Select Board, Charleston School District, Coventry School District, Craftsbury School District, Dummerston School District, Franklin School District, Franklin Select Board, Glover School District, Grafton School District, Greensboro School District and Greensboro Select Board.
Also, Highgate School District, Irasburg Planning Commission, Irasburg School District, Irasburg Select Board, Jay/Westfield School District, Lakeview Union School District, Lowell School District, Middlesex School District, Montgomery School District, Montgomergy Select Board, Newbury School District, Newport Town School District, Richford School District, Sheldon School District, Stannard School District, Troy School District, Westminster School District, Windham School District, Worcester School District, and individuals Sarah, Matthew, Chloe and Ethan Silva, all of Montgomery; Jonathan, Ivy and Audrey Betts, all of Montgomery; Bruce, Elise Manning, Nellie and John Douglas Sterling; all of Westminster; Paul and Jo Jean Normandeau, both of Dummerston; Dorothy Naylor, Cameron Scott Thompson, both of Calais; and Ashley Randall of Lowell.
Contact Susan Smallheer at email@example.com or 802 254-2311, ext. 154.
Dan French of the State Board of Education listens to testimony
during a board meeting in Barre on Thursday. Photo by Glenn Russell/VTDigger
The State Board of Education has moved to forcibly merge several more districts.
On Thursday, the board voted to merge school boards in Barre City and Barre Town; and six Lake Region Union High school districts; and upheld its previous vote on the merger of Stowe and Elmore-Morristown districts.
The state board has now weighed in on all 43 alternative proposals put forward under Act 46. The controversial consolidation law requires the board to make the final call on all districts that have not voluntarily merged. Unconsolidated districts put forward so-called “alternative governance structure” proposals, most asked to remain basically as-is. In June, then-acting Secretary of Education Heather Bouchey submitted her recommendation for mergers.
The state board has until Nov. 30 to reorder districts, and it has been issuing provisional decisions on a rolling basis since October. A meeting is scheduled for Nov. 28 for the board to formally adopt its decisions, none of which are technically final yet.
The merger in Barre includes consolidation of Barre City, Barre Town, and Spaulding High school boards. Some Barre officials argued for a merger by pointing out a bulk of operations had already been consolidated to the supervisory union level. And others, meanwhile, said that the current arrangement worked well and that no one would choose to serve on a school board that would oversee a system of about 1,500 students.
Local officials tried one last-ditch effort to voluntarily consolidate the districts during last week’s general election. But in both Barre and Orleans Central, voters rejected mergers at the ballot box.
State board members who voted in the majority to consolidate the Barre Supervisory Union noted that, while Barre Town had voted against a merger, the city had voted in favor of it by much larger margins, and that, if the vote were combined, the total tally was pro-merger.
Huling also appeared struck by how much school spending in Barre City and Town had been centralized to the supervisory union level. Supervisory union budgets are not voted on directly by residents the way town school district budgets are, and proponents of Act 46 have argued that district consolidation could save money at the supervisory union level.
“We have have an SU budget that is on the order of about $14 million. And then each of our three district budgets are about $10 million. So the largest budget that we have is in the SU,” Barre superintendent John Pandolfo told state board members.
In the Northeast Kingdom, six school districts (Albany, Barton, Brownington, Glover, Irasburg, and Orleans) that all funnel into Lake Region Union High in the Orleans Central Supervisory Union will be consolidated.
Ironically, the lone district in Orleans Central that voted in favor of a merger last Tuesday – Westmore – will remain a standalone district. That’s because the district doesn’t operate a K-8 school like its partners in the supervisory union, and the state board cannot merge districts that have school structures.
Krista Huling, chair of the State Board of Education, listens to discussion
during a board meeting in Barre on Thursday, Nov. 15, 2018. Photo by Glenn Russell/VTDigger
In a presentation to the state board, Orleans Central superintendent Bev Davis and supervisory union board chair Amy Leroux both said the school board was fully behind a merger despite opposition from the communities themselves.
“How do you, as a board, resolve that dilemma. The people tell you one thing, and you think another?” state board member John Carroll asked.
“I’ve been thinking about that very much for the past week or so,” Leroux answered. “I unfortunately don’t have an answer.”
Both Davis and Leroux said a unified structure would make it easier to recruit and retain the necessary staff to better address inequities across the supervisory union’s member schools, especially its smaller buildings.
And state board member John O’Keefe asked the two officials if, with opposition to mergers so high in the communities, anybody had tried to run against school board members.
“No. That would be phenomenal. Again, that’s one other thing we struggle with – is finding someone to serve on the school boards,” Leroux said.
The board also went over earlier decisions, and in one case – a proposed merger between the Stowe and the Elmore-Morristown districts – nearly reversed course. The board had voted just two weeks ago to merge the two districts despite the secretary’s plan recommending they remain independent. The decision took local school officials in both districts by surprise, and representatives from both the Elmore-Morristown and Stowe board jointly attended the state board’s meeting Thursday to plead for autonomy.
David Bickford, from the Elmore-Morristown board, told state officials that a forced merger between the two communities would cause people on the ground to “retreat” from the considerable – and voluntary – work already done to bring the two districts closer together. And Stowe school board member Jim Brochhausen read off a litany of data points to argue the two districts already had basically the same curriculum and substantial equity in both academic offerings and outcomes.
Their presentation almost convinced the state board, who revisited their decision later in the meeting at the prompting of student member Callahan Beck.
Carroll made a motion to reconsider the board’s earlier vote, saying that while he hadn’t agreed with the secretary’s reasoning in her proposed plan, a study of the districts’ joint alternative governance proposal had made him rethink his earlier decision.
“There’s pretty compelling evidence that the AGS proposal of these communities, and their track record of years and years of collaboration, shows that the AGS is highly responsive to the objectives of the act,” he said.
But the board split 4-4, with Huling then breaking the tie to vote against reconsideration.
The Alliance of Vermont School Board Members is preparing to support schools and communities which are seeking strategies to avoid forced mergers. By joining together we can work more effectively
Announcing the establishment of a fund
to support litigation on behalf of
school districts who oppose forced mergers
as a result of Act 46
This week the Alliance of Vermont School Board Members, working in conjunction with Vermonters for Schools & Communities https://www.vtschoolsrock.org announce the establishment of a fund to support litigation on behalf of school districts who oppose forced mergers as a result of Act 46. At this time 21 school districts facing forced merger have announced their intention to take legal action to challenge forced merger by the Vermont State Board of Education.
“School districts object to forced merger. They are taking legal action because they believe the Agency of Education and State Board of Education rejected their applications to form alternative governance structures out of hand, without following the law. The districts believe that if the State Board of Education followed the alternative application process appropriately, many more applications for alternative governance would have been approved.” said Margaret MacLean of V4SC.
On behalf of AVSBM, V4SC, and many participating school boards, attorney David Kelley forwarded a "Litigation Hold" letter to the Agency of Education and the State Board on August 31. It warned the agency and board to preserve all documents related to their actions on the "Act 46 State-Wide Plan," the document recommending forced mergers. This is a first step in seeking an injunction to forestall the implementation of forced mergers which these groups argue would cause "Immediate and Irreparable harm."
For donations, please visit our “gofundme” page. Contributions to the Act 46 Defense Fund may also be made by check to the Alliance of Vermont School Board Members at P.O. Box 251, Westminster, Vt. 05158. Contributions are tax deductible. Further details, including a copy of Attorney Kelley's litigation hold letter can be found on the Alliance website.