MIDDLEBURY — Constitutional and other questions involving the compelled consolidation of dozens of Vermont school districts are now squarely before the state’s highest court following an historic hearing at Middlebury College on Wednesday.
The Vermont Supreme Court took center stage — literally and figuratively — as a college auditorium was converted into a makeshift courtroom that attracted a considerable crowd.
The audience included two former justices — John Dooley and Marilyn Skoglund — and former governor Jim Douglas. It also included a mix of college and high school students, as well as residents, who traveled from Franklin and Dummerston and pretty much everywhere in between.
As expected, no one left with a better sense of how or when the consequential case may end, though a ruling isn’t expected any time soon.
The hour-long hearing opened when justices strode onto the stage in Wilson Hall and ended when David Kelley ran out of time even as the lawyer representing 33 separate school districts complained the concept of forced mergers turned “something fundamental about Vermont and democracy upside down” and urged justices to “correct that error.”
Kelley and Assistant Attorney General David Boyd took turns standing at a podium with their backs to the audience while addressing the five justices who will collectively decide whether to turn back the clock on a law — Act 46 — that encouraged, motivated, and last year compelled school district mergers.
It’s the latter aspect of the now-five-year-old law that remains in dispute more than six months after new districts created by order of the state Board of Education were launched.
Kelley, who got the first and last word during Wednesday’s hearing, argued that should never have happened. Kelley cited what he characterized as “five reversible errors” for the court should consider.
Reiterating arguments rejected by Superior Court Judge Robert Mello last year, Kelley claimed the state board violated the plain language of Act 46, as well as decades-old education laws, and various provisions of the Vermont Constitution.
Using up most, but not all of his allotted 30 minutes, Kelley maintained the state board never made what he argued was a required finding that the forced mergers that affected his clients were “necessary.”
“The plain, unambiguous language of Act 46 required forced mergers to be necessary,” he said — an assertion that was later rebutted by Boyd and the source of questions from justices who quizzed, and occasionally corrected, both lawyers during their presentations.
Kelley delivered a more emotional performance, and was fact-checked more frequently by justices for some of his assertions.
According to Kelley, mergers were compelled and in many cases debt was transferred without the consent of local voters and often despite their decision to remain separate.
“A right as fundamental as much of the bedrock of democracy as the right to vote does not get repealed by implication,” he said. “If we are going to repeal the right to vote we need to do it forthrightly, in the sunlight, not in the shadows by implication.”
Citing statements made by some senators at the time, Kelley noted the intention wasn’t to merge districts wherever possible and the expectation was districts that could demonstrate they were meeting the goals of the law would be left alone. Moreover, he maintained the state board was ill-suited to essentially create new municipalities.
“We don’t delegate this kind of discretion to an executive agency,” he said.
Justice Karen Carroll, noted that has been the case with respect to voluntary mergers long before Act 46, while Justice Harold Eaton wondered whether some of the constitutional questions raised by Kelley would have been cured if the Legislature had voted to approve the statewide plan prepared by the state board.
“I think that would have been constitutional,” Kelley replied.
Justice Beth Robinson twice corrected Kelley for statements that were oversimplified to the point of inaccuracy.
At one point Kelley asserted the forced merger in what was the Washington Central Supervisory Union led to East Montpelier transferring $8 million in debt to Calais.
Numbers aside, Robinson noted that wasn’t what happened. The debt, she said, was absorbed by the new five-town district of which Calais was one.
Robinson also sought to clarify Kelley’s assertion that a merger of differently sized school districts would allow voters in large towns to close school in smaller ones, noting the decision to close a school would be made by voters in the unified district.
Kelley said that didn’t make those small schools any less vulnerable in the estimation of his clients.
“I don’t believe that’s the Vermont way,” he said. “We have been a state where neighbors have stood by each other, not on top of each other.”
Boyd was comparatively brief. He argued Kelley’s contention that forced mergers must be “necessary” was inaccurate and noted educational interests of regions and the state — not individual districts — were weighed when evaluation potential mergers.
Boyd also noted the quotes from senators suggesting high-performing districts needn’t worry about merger involved a Senate bill that did not pass — not the House version that did.
“The plaintiffs are asking the court to rewrite Act 46 based on statements of senators who asked the Legislature to do just that and the Legislature declined,” he said.
Boyd fielded his share of probing questions from justices.
“Other than a lawsuit, what’s the check on the state board’s decision to order a forced merger?” Eaton asked at one point.
Boyd said the answers was electing legislators who think differently from the ones responsible for passing Act 46.
“This is fundamentally a democratic process,” he said. “The state Legislature decided there was a statewide problem they needed to address — a major decline in enrollment that was unevenly distributed around the state.”
Their answer, Boyd said, was a law some may not like, but he believed lawfully directed the state board to craft a plan for dealing with that problem that necessarily involved creating larger school districts.