On February 26, 2015

Lawmakers reminded of findings in Brigham case

Robert Gensburg, lead attorney in the landmark education funding decision Brigham vs. State of Vermont, testified before the House Education Committee on Thursday.

By Amy Ash Nixon, VTDigger.org

As the House Education Committee gets to work on the finer points of a committee bill aimed to tackle both governance issues and cost concerns, an important history lesson has been brought to bear.

Robert Gensburg served as the lead attorney in the landmark education equity case that was taken to the Vermont Supreme Court in 1997, a ruling which led to the overhaul of how Vermont’s public schools are funded. Gensburg testified about the Brigham vs. State of Vermont case Thursday, Feb. 12.

Gensburg said in a memo that the Brigham plaintiffs alleged Vermont’s education financing system violated the Vermont Constitution. The plaintiffs asserted that “depriving students residing in ‘property-poor’ school districts of their right to the same educational opportunities as students in wealthier school districts.”

At the time, education was funded through “the foundation plan,” which forced “property owners in ‘property poor’ school districts to contribute an unjust proportion of tax dollars to fund education,” and deprived them of “the ability to raise sufficient money to provide educational opportunities equal to those in wealthier school districts and compelling the districts to impose disproportionately high tax rates.”

Gensburg opened his testimony praising the Legislative Council for its summary of the nearly 20-year-old case.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said, “The fact the law remains largely intact 17 years later is testimony to the state’s commitment to equal access to school resources for children in all districts… The judgment of education finance analysts that Vermont has the fairest funding system in the country is something we should all be immensely proud of.”

Gensburg described two outliers prior to the enactment of Act 60: Winhall, which had a school tax rate of 2 cents in 1995 and for a house valued at $85,000, the tax was $17; and Stannard, where the school tax rate was $2.40 and the tax on the same value home was $2,040.

School expenditures per pupil ranged from $4,000 to $7,000 at the time, he said.

“The six of us who tried this case felt that these kinds of disparities to pay for the same state benefit, if you will … violated the state constitution,” Gensburg testified.

Gensburg brought the Brigham case back to one simple point: “However you structure it, there must be equality in access to education funding,” for all children in Vermont’s public schools, he stressed. “That’s the basic holding in the Brigham case. What Brigham stands for is equity, pure and simple.”

Rep. Alice Miller, D-Shaftsbury, asked Gensburg if the state’s small schools grant somehow violates the spirit of Brigham, and he said it does not.

“My understanding of the small schools grant is it was intended to equalize the ability of small schools,” who suffer from “diseconomies of scale,” Gensburg said. “It takes more money in a school with 13 kids to provide the same opportunities that you would provide in a school with 250 children. The small schools grant was intended to sort of bridge that gap to help the really small schools bring up the education they could provide to their students.”

Gensburg listened to a few examples about differences of opportunities in schools of different sizes, and said he agreed with the committee that the only way to change that was to have larger districts — where kids would have more opportunities.

That is exactly the direction the committee’s draft bill is headed. As proposed, it would push school districts to join larger supervisory districts. The hope is that fiscal efficiencies as well as improved educational opportunities for students can be achieved as a result.

At the time of the Brigham case, the argument was rich versus poor towns, and now the debate has shifted to the differences between small rural schools that give students fewer opportunities and larger systems with more opportunities.

Miller said the committee has taken much conflicting testimony and that whatever it does will be opposed by someone.

“Can we do nothing, change nothing, but simply say to our supervisory unions, our districts ‘here is your share, good luck. You’re all getting the same, that’s all you can spend. You can’t spend any more than we have.’ Would that be constitutional?” asked Miller.

“That would be constitutional,” responded Gensburg. “I’m not sure I’d vote for it.”

“That’s exactly the dilemma,” observed Rep. Ann Manwaring, D-Wilmington.

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