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On Eve Of Town Meeting Day, Judge Denies Request To Halt Forced Act 46 Mergers

State Board of Education Chair Krista Huling looks over a school district map during a meeting to review Act 46 mergers. A judge has denied a request from more than 30 school districts to temporarily halt the Act 46 merger process.
Howard Weiss-Tisman
VPR file
State Board of Education Chair Krista Huling looks over a school district map during a meeting to review Act 46 mergers. A judge has denied a request from more than 30 school districts to temporarily halt the Act 46 merger process.


A Franklin County judge has dealt a setback to the dozens of Vermont school districts contesting an order that could force them into involuntarily mergers as early as this July.

More than 30 school districts have joined lawsuits challenging the constitutionality of an order by the State Board of Education last November that will require them to merge into larger governance entities.

Judge Robert Mello Monday denied districts’ requests for a temporary injunction, which would have halted indefinitely the merger order.

Lawyers for the districts argued last month that the law that gave rise to the forced mergers, called Act 46, was unconstitutional. And they said forcing districts to move forward with the merger process while the civil case was still pending would cause “irreparable harm” to the districts and their students.

But in a 25-page ruling issued Monday, Mello said districts failed to meet the high threshold needed to qualify for a temporary injunction. And while the judge hasn’t issued a final ruling in the case, his decision Monday indicates he isn’t looking favorably upon the plaintiffs’ arguments.

Attorney General TJ Donovan, whose office is defending the state of Vermont in the case, said Mello’s ruling suggests that “plaintiffs are unlikely to succeed on their claims.”

At issue is whether the Legislature can delegate to the State Board of Education the authority to impose forced mergers.

Lawyers for the school districts contesting the merger orders concede the Legislature has the legal authority to disband or merge school governance entities. They say the Legislature cannot, however, delegate that authority to an unelected board that oversees education issues in the state.

Mello, however, said Act 46 doesn’t delegate legislative authority, but rather assigns to the state board “the implementation of legislatively mandated policies, guided by specific goals and standards.”

“In this case, the delegating legislation provided the Board with sufficient statutory guidance, and the Board’s related regulations are consistent with the delegation,” Mello wrote.

Lawyers for the school districts also argued the state board’s merger orders were “capricious,” and that board members had rejected proposed alternative governance structures that would have been preferable to forced mergers.

But Mello undercut that argument as well.

“… (A) review of the Board’s Final Report indicates that it accepted and considered a variety of evidence and evaluated that evidence in light of statutory guidelines,” Mello wrote.

Mello’s denial of the temporary injunction comes as a blow to the districts fighting the merger order, many of which had postponed school budget votes pending the judge’s ruling.

But David Kelley, one of the lawyers representing the school districts, is not ready to wave the white flag. Kelley said the issue of debt transfers - one school district being forced to assume debt incurred by another district as a result of the merger order - has particular legal traction.

Kelley said Vermont laws clearly “require the electorate to vote before it can incur bonded debt.”

“And we have an unelected executive agency and board basically writing decisions, articles of agreement , that are doing that in contradiction of existing statute,” Kelley said Monday. “And so I think when we drill down deeper and these issues come into focus, I think the merits of our case will become clearer.”

Lawmakers passed Act 46 in 2015, as part of an attempt to create larger districts across the state. Supporters of the legislation said it would improve educational opportunities for students, by allowing larger districts to share common resources among member schools. And they said it would curb the rate of growth in education spending by creating new economies of scale.

Critics of the law, however, say larger districts erode the local control that has governed decision-making in public education since the state’s founding.

Donovan said Monday that Mello’s order should serve to clarify the landscape for districts that had been hoping to see Act 46 overturned.

“The ruling … provides helpful clarity for school districts as they plan for the mergers,” Donovan said in a written statement. “ The Attorney General’s Office remains committed to working with all parties in realizing Act 46’s goal to ensure that  Vermont’s children have a substantially equal opportunity to get a quality education.”

The Vermont Statehouse is often called the people’s house. I am your eyes and ears there. I keep a close eye on how legislation could affect your life; I also regularly speak to the people who write that legislation.
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