On October 23, 2015

“Blind-sided” legislators should fix Act 46

By Rob Roper

A recent article about the new school district consolidation law, Act 46, quoted a state legislator whose reaction seems to be representative of many parents, local school board members, students, and law makers who value and hope to preserve Vermont’s 150-year-old school choice tuitioning system:

“I don’t think we can still have choice the way the bill is,” said Rep. Linda Martin (D-Wolcott), who voted for Act 46 amid assurances that choice had been protected but now fears it hasn’t. “I kind of feel like I was blind-sided,” she was quoted in Seven Days, Oct. 14.

Those assurances were widespread throughout the State House in the weeks and months leading up to the passage of Act 46. School choice in Vermont’s 93 tuitioning towns absolutely would be protected, which many legislators took to mean that they would be allowed to merge with non-choice “operating” districts and still maintain their historic choice status.

Many still believe that language in Act 46, Section 4, does, in fact, allow towns to keep their choice and merge with operating districts, despite a ruling by the State Board of Education (SBE) stating that school choice towns would be prohibited from keeping choice if they decided to merge with operating districts.

But, if preserving school choice really was the intent of Rep. Martin and her colleagues when they voted for the bill, the first thing they should do when they come back in January is pass clarifying language to reflect exactly this position, blocking any possible ruling by the State Board of Education or a future court that would prevent such mergers.

There is precedent for such legislation in regard to the town of Vernon, Vt. Vernon has maintained both full school choice and a public union high school since the 1950s. The legislature revisited this unique, successful and popular arrangement in 2006, confirming its legal viability.

Act 182 of 2006 Sec 28 states:

“Notwithstanding the restrictions of 16 VSA 822(c), a town school district which is a member of a union school district and which has historically paid tuition for resident grade 7-12 students attending public and independent schools outside the union high school district… may continue to do so…. It is the intent of the general assembly to authorize a town school district which has historically both belonged to a union school and provided for the education of its students by paying tuition to continue the practice…”

There is no reason that the Legislature in 2016 could not pass a legislative fix along the lines of allowing a town school district that has historically paid tuition for resident students attending public and independent schools to continue doing so after merging into larger, consolidated districts containing public schools. If the Legislature lets Vernon do it, they can certainly let everybody else.

Barring legislative action, there is also a local avenue districts have to preserve choice when considering consolidation, avoiding both the legislature and the SBE. Title 16, Chapter 21, § 822 states:

“(c)(1) A school district may both maintain a high school and furnish high school education by paying tuition: (A) to a public school … or (B) to an approved independent school or an independent school meeting school quality standards if the school board judges that a student has unique educational needs that cannot be served within the district or at a nearby public school. (2) The judgment of the [local] board shall be final….”

Given that every child is unique, a merging district could formulate articles of agreement binding board members to approve any request for tuition by any student who asks for it under this authority creating de facto school choice.

Precedent for this comes from the towns of Concord and Strafford. For example, Concord High School existed in the close orbit of St. Johnsbury Academy where many local residents preferred to send their children. Rather than face school closure at the hands of the voters, Concord agreed to grant tuition to any student who asked for it. For three years Concord essentially operated a public school while offering full school choice. This ended when the school board decided it would no longer honor this arrangement, and the voters promptly shut the place down, thus preserving their school choice.

Several school choice towns are currently contemplating abandoning the rare gift of school choice forever in hopes of collecting some very temporary (and questionable) relief from high property taxes. Before they give up choice in a merger, they really should be aware of all the options available. Don’t give up choice if you don’t have to. And it looks like you may not have to.

Rob Roper is president of the Ethan Allen Institute, he lives in Stowe.

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