On June 5, 2024
Opinions

A right is never permanently won

By Allen Gilbert

Editor’s note: Allen Gilbert is a former journalist, teacher and ACLU-VT executive director. He chaired his school board in Worcester when it joined the education funding lawsuit that resulted in the Brigham v. State decision by the Vermont Supreme Court in 1997. Gilbert is the author of “Equal Is Equal, Fair Is Fair,” a book about equity issues in Vermont.

Trying to unwind the education funding conundrum that the state landed in this year is complex. It’s a situation with several roots going back nearly 10 years — the not-so-successful school district consolidation law, ill-defined special education reform and a new “equalized pupil” funding formula that’s hard to understand.

While victory is said to have a thousand fathers but failure is an orphan, many fingers have been pointed in many directions this year to try to explain what has happened to cause so many school budgets to fail. The Legislature has been flummoxed for a solution. And as is often the case with defeat, suggestions have been offered that would make things not better but worse for many towns, and perhaps rip into a 1997 Vermont Supreme Court decision.

Here’s how things could get worse.

In a recent commentary, by Tom Evslin, he offered a “suggestion” to “change incentives so school districts become thrifty.” His suggestion was “that the Legislature determine the cost per student for a quality education and give that amount to each district. A district that wants to spend more must raise the extra money locally.” 

It is ironic Evslin offered this suggestion having, in the paragraph before the suggestion, referenced the Vermont Supreme Court’s 1997 ruling in the Brigham v. State school funding case. The justices said that ”the current system for funding public education in Vermont, with its substantial dependence on local property taxes and resultant wide disparities in revenues available to local school districts, deprives children of an equal educational opportunity in violation of the Vermont Constitution…”

Evslin quoted the justices correctly, but that statement was only the beginning of the Brigham decision. 

The Court unanimously recognized that “money is clearly not the only variable affecting educational opportunity, but it is one that government can effectively equalize” and that “there is no reasonable doubt that substantial funding differences significantly affect opportunities to learn.” 

The justices then bluntly stated: “The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence. It requires no particular constitutional expertise to recognize the capriciousness of such a system.”

The system Evslin suggests — one providing a basic state grant per pupil, which towns could augment with local funds should they choose — would re-establish the state’s old “Foundation Formula,” which the Court had found violated Article 7, the “common benefits clause,” of the Vermont Constitution.

I agree with a number of the other points Evslin makes in his commentary. But the suggestion that the state’s problems can be solved by returning to the “Foundation Formula” is wrong because it would lead to further inequity and is, as a matter of law, illegal. It was worrisome to come upon this suggestion. This was the second time during this legislative session that it was suggested we leave behind the notion of education funding equity and return to an inequitable funding system. The first time was in House Ways and Means Committee discussions in April, when Rep. Scott Beck, R-St. Johnsbury and a teacher at the academy there, suggested the same sort of system: that if a town wanted to add to a per-pupil amount set by the state, the town could raise extra funds from local homestead property taxes. The language Beck had developed was in early drafts of the committee’s school tax bill (the “Yield” bill). It was rejected in the version sent to the Senate. Undeterred, Beck pitched his plan once more, this time to the Senate Finance Committee, on May 2, a week before the legislative adjournment date.

There is a truism that a right, such as school funding equity, is never permanently won. We have seen recently how courts have overturned important precedents, removing a right assumed permanent. Were that to happen with Brigham, one would have to worry what could happen with other decisions based on the equity guarantee in Article 7 of the Vermont Constitution. Trying to solve a challenging financial issue created by numerous decisions on many levels of government could, ultimately, result in the erosion of the Common Benefits clause, an equity right established in the Vermont Constitution nearly 250 years ago. It would be an unfortunate legacy for us all, if that were to happen.

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