Statement to the Vermont State Board of Education
by Mill Moore, Executive Director
Vermont Independent Schools Association
October 20, 2015
Reports reaching me from heads of independent schools around Vermont speak of confusion and misinformation among superintendents, members of school boards and involved citizens concerning the school choice provisions in Act 46 — particularly with respect to Section 4.
Superintendents and board members believe their options for retaining school choice have been altered, if not altogether eliminated.
Among the more startling reports are of a superintendent telling school choice districts they must designate a high school and instances of superintendents or school board members believing that school choice is no longer an option for existing choice districts.
All of these instances are incorrect.
Though Act 46 itself is very clear, this Board’s September 15 statement, and subsequent news reports, have created confusion instead of clarity.
Two problems: First, this Board’s statement that “There is no authority in Act 46 that authorizes a newly formed district/preferred model, to both operate and pay tuition, for the same grade level(s).”
Second, the quotation attributed to Chairman Morse in a VPR news account: “You either have to continue to run and operate a school, or offer choice. You cannot do both under the current statute.”
Contrast those statements with this paraphrase from Section 4(a): "All governance transitions … shall preserve the ability of a district that … provides … education … by paying tuition to continue … and shall not require the district to limit the options available to students if it ceases to exist as a discrete entity."
And from Section 4(c): "Nothing in this act shall be construed to restrict or repeal, or to authorize, encourage or contemplate the restriction or repeal of the ability of a school district that … provides for the education of all resident students … by paying tuition … or by operating a school."
I want to emphasize, a few words in that last sentence: "nothing shall … encourage the restriction or repeal of the ability of a school district …" . A school district must be left to work out its policy on its own.
Counter-arguments, such as Deborah Bucknam’s op-ed published in several news outlets recently, now are raising very substantial doubt of this Board’s interpretation of Section 4 concerning mixed choice and operating district mergers.
Several other attorneys with whom I have consulted are unable to reconcile the Board’s statement with the language in the Act. Each of these attorneys says Section 4 is absolutely clear: the Board’s interpretation is inconsistent with the Act.
One of the attorneys with whom I consulted is my association’s legal counsel: Elizabeth Grant of Grant Norten Associates in Montpelier. Grant is a very experienced attorney with a practice in education law. She is a former General Counsel to the Department of Education.
In a letter, Grant writes: “Act 46’s language explicitly protects the rights of the merging entities to continue their systems in place at the time of the merger. Merging districts cannot be forced to change their systems or to limit the options available to their students.”
Part of Attorney Grant’s analysis is that one need not be a skilled interpreter of statutory construction to comprehend Section 4. She wrote: “In our opinion, few statutes are so manifestly clear.” And, she adds, Act 46, Section 4 provides plain language that is remarkably unambiguous and does not require a resort to legislative history or any other approach to determining its meaning.”
I will not read more of Grant’s letter, but I request it be placed on the record as evidence of a thorough and expertly reasoned legal analysis reaching a conclusion contrary to this Board’s opinion.
This much is clear: We have no consensus on Act 46. The understanding of Section 4 is in dispute.
But, no matter what one’s position may be, I hope members of this Board will agree that misunderstanding and misinformation can only lead to bad results.
And, because the work that school boards must do during the next few months will be a critical period of foundation building in their communities, those boards must have an accurate and thorough understanding of Act 46. Now — not weeks or months from now.
In view of this urgent need, the Vermont Independent Schools Association asks this Board to do two things:
- Adopt a neutral position on whether Act 46 permits mixed choice and operating districts and revise the Board’s September 15 statement accordingly; and,
- Make no policies or decisions based on opinions of the constitutionality of any provision in Act 46. Statutes must be presumed constitutional as enacted and executive branch officials must support the statutes.
Meanwhile, plans must be written and decisions must be made.
For now, I hope an explicitly-made neutral position from this Education Board will enable a better Act 46 planning and compliance process.