Lawyer marks Vermont school funding act’s 20th anniversary
LYNDON, Vt. (AP) – It was 20 years ago that the Vermont Supreme Court ruled in the landmark Brigham vs. State of Vermont case, and the way public education was funded in Vermont was forever changed.
Act 60, known as “The Equal Educational Opportunity Act,” was made law just four months after the Supreme Court ruling, and aimed to make education spending across the state fair regardless of a district’s property wealth.
The Brigham case, brought by the Vermont chapter of the American Civil Liberties Union, argued that Vermont’s foundation formula was unconstitutional.
Robert Gensburg, the lead attorney for Vermont’s ACLU in the case brought in 1996, ruled on by the Supreme Court in 1997, this week reflected on the famous case and how it changed Vermont’s public school landscape.
Gensburg also weighed in on Act 46, the state’s 2015 law requiring school districts to consolidate across Vermont with the goals of cost efficiency and making opportunities for public school students across Vermont more equitable.
Gensburg questions the motive behind Act 46, and does not believe it will improve things much for taxpayers or students in the end, he said during an interview this week at his home in Lyndon.
“The key to understanding the Brigham case is that schools, and providing education is an obligation of the State of Vermont, it is not an obligation of the school districts in the State of Vermont, the state delegates its obligation and its authority to the school districts to carry out the state’s duty,” he explained. “The reason that is important is because if there is discrimination in the funding system, which there clearly was prior to Act 60, that discrimination falls on the state and not on the local communities.”
At the time, the most extreme example in 1995 was in the tiny town of Stannard.
The school tax on an $85,000 home in Stannard was $2,040 because of their high tax rate at the time, while in Stratton, the annual school tax was almost non-existent because of their very low rate – $17 for the year – the Brigham case presented, along with many other examples of disparity, making the case “crystal clear,” Gensburg said.
“What we found when we looked at all the numbers was that as a general proposition, property poor towns, towns with a relatively small grand list, taxed high and spent low and they were forced into that situation by the funding system we had in place,” he said. “So we claimed, successfully, in the Brigham case, that the funding system violated what’s called the Common Benefits Clause of the Vermont Constitution.”
Gensburg said, “We never got to try the case because we won on a summary judgment motion, but if we had a factual trial, the evidence really would have been pretty powerful, the curriculum, the physical quality of the schools and so on and so forth were dependent on expenditures per pupil, so one of the things I take away from that when people say money doesn’t count – it counts a great deal – and they’re wrong.”
“I was disappointed (there was no trial), we really had prepared a very, very persuasive case. But what the Supreme Court said was that the data, the numbers are so clear, you don’t even need a trial to figure out that this is not right,” Gensburg said.
Gensburg said, “We now come to Act 46 and the decision at the legislative level to force, to the extent possible, school districts to consolidate to spend less money.”
“The savings that will result from school district consolidation will be minimal, and Act 46 is probably the biggest attack on local control of education ever since we brought the Brigham case,” Gensburg said.
He said he respects the Legislature for taking care to not violate the principles of the Brigham ruling.
“Act 46 in and of itself does not implicate the Brigham decision, you can have forced or semi-voluntary consolidation and not trigger an inequitable financing system,” Gensburg said.
The way public education is funded today because of changes made at the state level after the Brigham ruling has led to a much more level playing field for Vermont’s public schools, said Gensburg.
Pre-Act 60, Gensburg said, “The money that was available because of the tax system is what was creating the disparity in the quality of education that was being provided in the different school districts and that is no longer the case.”
When Act 46 came along, Gensburg said he wanted to make sure the Brigham principle was not violated, and it hasn’t been.
But he remains concerned about the effect of the law’s requirements on rural communities, even though the law specifically states its intent is not to shutter small schools.
“In such a rural area, the school is really a social center of the community and to the extent these small schools in these small communities are being destroyed, there is an element of destruction in the community itself,” Gensburg said. “All of these small towns, Walden and Sutton and Newark and Burke, those people really care about their schools … it’s a community thing and so when you close a school, you close a part of the community.”
Gensburg said he never thought the Small Schools Grant program was sufficient, and he believes the state should help small schools more, not less.
He has been paying attention to Act 46 and quoted a few oft-used sound bites, “Act 46 is being driven by the understanding that the costs are ‘out of control,’ and are making Vermont ‘unaffordable.’ “
Yet, he points out, “Every year as the school budgets go up, 95 percent of them pass. Why is that? It’s because the majority of the people in the school district want to have the best schools they possibly can.”
Today’s public schools are providing everything from breakfast and lunch programs to health services and social work programs, and those things add to the costs. “We ask the schools to do much more than educate the children, and that’s part of the cost driver,” Gensburg said.
“What I’ve heard people who ought to know better say is with declining school populations, the budget should be declining, it doesn’t work that way, and my favorite example of that is if you have a student-to-teacher ratio with 20 kids in a class and the next year it’s 19, you can’t get rid of five percent of your teachers, it doesn’t work that way,” he said.
Gensburg worries that the school districts having the hardest time financially “are the small schools.”
“I live in a town with a school population of 800 or 900, and I personally have an obligation to see to it that the kids going to school in Newark, the next town over, have as good a chance at a good education as the kids going to school in my community. That’s not because I’m a citizen of Lyndon, it’s because I’m a citizen of the state, and if that means providing more money to the Newark, that’s what we should be doing.”
Of Act 46, Gensburg said, “I think the whole approach is wrong.”
“Not only do I think the approach is wrong, I think it’s premised on a false issue,” he said.
After about three dozen school budgets were shot down on Town Meeting Day in 2014, the call for property tax relief was heard in Montpelier the next session.
“You know people who grumble are heard more than people who are satisfied who don’t say anything and who just sit there quietly,” he said.
There is, Gensburg believes, a silent majority who support public education fiercely.
At the time Gensburg and the other attorneys working on the ACLU case were researching their case, they came across a historical account from around 1820, said Gensburg, and he remembers the language still, “It just struck me that the writer said that the people of Vermont beggar themselves to maintain their schools.”
His prediction for the future?
“I think the impetus behind Act 46 which I disagree with is proceeding ahead and one way or another will force more school consolidations to the detriment of students.”
Asked if bigger isn’t better, Gensburg responded with a knowing grin, “Hardly ever.”