Stowe, Elmore-Morristown schools

The Elmore-Morristown and Stowe school districts are suing the Vermont State Board of Education over its order that the two districts merge into one.

The lawsuit argues that the state board’s decision to dissolve the existing school districts violates the Vermont Constitution. It seeks a stay, preventing the state board from enforcing its Nov. 30 decision to force Stowe and Elmore-Morristown to merge.

The lawsuit was filed Friday in Washington County Superior Court by Bob Luce and William Clark, lawyers with the firm Downs, Rachlin and Martin.

The state board last month adopted a statewide education plan for smaller school districts that had not yet voluntarily merged into larger districts with at least 900 students. Districts that size are the goal of Act 46, a state law passed in 2015.

“Its goals are noble,” the lawsuit says of Act 46. “It seeks to provide equity, opportunity, efficient, transparency and accountability, and value in education for all parents, students and taxpayers across the state.”

However, the lawsuit argues that the state board’s process for evaluating Stowe’s and Elmore-Morristown’s proposed alternative governance structure “was opaque, arbitrary and capricious, and the outcome of the process, if affirmed, would be counterproductive to the goals of Act 46.”

“We are already meeting the goals of Act 46. … Merging these two districts would disrupt existing collaboration initiatives, shift financial burdens from Stowe to Elmore and Morristown and raise taxes for Elmore-Morristown residents,” Tracy Wrend, superintendent of the Lamoille South Supervisory Union, said in a statement. “The secretary of education agreed with our conclusion and recommended that the districts … remain separate.”

David Bickford, a member of the Elmore-Morristown school board and a retired superintendent, added that the state board’s decision violated due process and Act 46.

“The state board was unwilling to consider the merits of (the Elmore-Morristown and Stowe) proposal and made no findings to support their decision,” Bickford said in a statement. “Members of the state board had not even reviewed our proposal when they voted to reject it. Instead, the state board adopted a dismissive attitude towards any alternative proposals offered by local communities. … It is incredibly disappointing to see the State Board of Education put politics ahead of our children’s best interests.”

Unconstitutional, lawyers argue

The lawsuit alleges the State Board of Education committed four violations of Vermont and U.S. law.

• The state board’s process in considering the Elmore-Morristown and Stowe merger was “arbitrary and capricious,” violating due process protections of Article 4 of the Vermont Constitution and the 14th Amendment to the U.S. Constitution.

• It violated those same laws by failing to determine whether the forced merger was actually necessary, which in turn violates the terms of Act 46. The suit says the state board failed to determine if merger was the best way to meet Act 46 goals or whether the two districts’ proposed alternative governance structure was better.

• It also violated the same laws as well as the lesser-known Act 49, which the lawyers argue “specifically prohibited the state board from imposing more stringent requirements on alternative governance structure proposals than those laid out in Act 46.” Namely, the lawsuit contends the board focused solely on the feasibility of merging, and not on whether it was necessary and the best idea.

• The merger violates separation-of-powers principles in the Vermont Constitution “because only the Legislature has the power to dissolve school districts.” The lawsuit cites a century-old Vermont Supreme Court decision that municipal charter changes need to be approved by the Legislature, not an executive agency.

“Just like towns and cities, a school district is a municipal corporation under Vermont law,” the lawsuit asserts.

Doubt on state board

The lawyers contend that members of the state board, at their Nov. 15 meeting, showed a bias against alternative governance structure proposals.

For instance, the lawyers quote board member John Carroll of Norwich as saying the state board had “unintentionally taken a dismissive attitude” toward proposals like the one from Stowe and Elmore-Morristown.

At a later meeting, board member Oliver Olsen of South Londonderry expressed concern that Morristown could shoulder a disproportionate debt, knowing that Stowe is looking at $20 million or more in school renovations. Olsen also called it “a little sort of perverse” that taxes have already gone up in Elmore and Morristown, and would go up more after the merger, while Stowe taxes would go down.

The lawsuit quotes Olsen as saying, “I worry that this shift in the structure is going to create a financial imbalance that [sic] going to throw—you know, there isn’t a wound, but if there were, we’d be throwing salt in it, and I’m really worried about folks in those two communities, specifically Morristown and Elmore.”

Gov. Phil Scott told the Stowe Reporter two weeks ago, said, “I think that we’ve gotten to a point where the state board has too much power. I think it should fall to the administration, to the secretary (of education), but that’s not something that’s going to happen overnight.”

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