Here we go again

By Allen Gilbert

Editor’s note: Allen Gilbert of Worcester, 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.

Don Keelan’s commentary printed in this publication July 31 — “The ‘welcome to Vermont’ tax” — had a number of interesting insights and ideas concerning the state’s tax situation. He focused mainly on the recent increase in the state’s property transfer tax, especially as it affects nonresidents. He thinks it’s “unacceptable” for “the Legislature to place a target on their [nonresidents’] backs and go after them for more and more taxation.”

Looking for alternatives, Keelan says that the education tax system in effect “some 50 years ago,” the “foundation formula”, was “able to fund certain districts needing financial help and take care of the state’s infrastructure.” Why not return to that system?

The problem with returning to the antiquated “foundation formula” (which was in effect until 1997) is that it would be illegal. The flawed “foundation” system is what led to the Brigham school funding lawsuit, filed in 1995, on the issue of equity. Two years later, in a unanimous decision, the Vermont Supreme Court said the provision of public education to children is a state responsibility and that the state’s “common benefits” clause (Article 7 of the Vermont Constitution) requires that it be provided on an equal basis.

In the opinion, the justices gave an example of the tax inequity that resulted because of the “foundation formula.”  It noted two towns that had nearly identical spending per pupil, Stannard and Sherburne (the latter renamed “Killington” in 1999). A Stannard family in a house valued at $85,000 (remember, this was 1995) paid $2,040 in property taxes. A Sherburne family in a house of equal value paid $247.

“The state has not provided a persuasive rationale for the undisputed inequities in the current education funding system,” the justices said. The system was simply “constitutionally deficient.” They wrote, “Labels aside, we are simply unable to fathom a legitimate governmental purpose to justify the gross inequities in educational opportunities evident from the record.”

I bring up this issue because the idea that we can solve our education funding problems by returning to a system deemed deficient and unconstitutional keeps popping up. It happened this spring during deliberations of the education fund “yield bill” in the House Ways and Means Committee, and then again during deliberations in the Senate Finance Committee.

It was brought up in a May 3 commentary in VTDigger that suggested ways for school districts to “become thrifty.” It wormed its way into Act 183 (H.887), the final version of the “yield bill,” in the section setting up a commission to study the future of Vermont public education.

The Brigham decision’s embrace of the state constitution’s “common benefits” clause as the foundation of equity isn’t a right that stops at the schoolhouse gate. Were that right challenged, and overturned, other equity rights could be challenged. This includes the Baker decision, the Vermont Supreme Court decision in 1999 that ensured marriage rights for gay couples.

All this begins to sound too much like what’s been happening on the national level, with the U.S. Supreme Court overturning rights (such as abortion rights) we thought inviolable. We don’t want to go there. We must realize the dangers of supporting a return to education “foundation formula” inequity — and who knows what else.

Yes, school budgets have risen sharply. But I think the Commission on the Future of Public Education in Vermont is going to find that’s not because a benefit, such as education, has to be provided on an equitable basis.