Sadie Boyd, a Twin Valley Student and daughter of former Twin Valley School Board Chair Seth Boyd, along with Whitingham property tax payer Madeleine Klein, are named as plaintiffs in the suit, along with the town of Whitingham.
Attorney James Valente says the lawsuit does not seek to overturn the Supreme Court’s 1997 Brigham decision. “Theoretically, it could happen,” he says. “What we’re really saying is that the system the Legislature devised to equalize has not been successful in achieving the equality the Supreme Court required under Brigham.”
Under the Vermont Constitution’s education clause “a competent number of schools ought to be maintained in each town” unless the Legislature “permits other provisions for the convenient instruction of youth.” And under the Brigham decision the intent of Vermont education funding law “is to make education opportunity available to each student in each town on substantially equal terms” and “the state must ensure substantial equality of educational opportunity throughout Vermont.”
The plaintiffs argue that the state’s education funding law violates the Vermont Constitution and Brigham in several ways, each connected to the system’s dependence on a per-pupil basis for collecting and distributing funds. “The state’s use of education spending, the number of equalized pupils, and the penalty system causes wide variation between different municipalities; homestead property tax rates.”
In Whitingham, according to the suit, the system creates a situation in which Whitingham taxpayers pay a high price for a low quality education. The suit presents a disturbing picture of education at Twin Valley schools, with test scores below the statewide average in 11 out of 14 standardized tests, and dropout rates above the state average. According to the suit, few Twin Valley students took advanced placement tests, and only one AP class is being taught in the current school year. And Twin Valley students have fewer options for elective courses than students at larger high schools. “There are 42 courses listed in the 2017-2018 course catalog that are not being taught. Those 42 courses (not being taught) include seven science courses, seven English courses, and four social studies courses. Of the five technology courses listed in the catalog, zero are being taught in 2017-2018.”
There are 69 courses taught for Twin Valley Middle High School’s 225 students in the current year, which attorneys contrast with the number offered to Champlain Valley Union High School’s 1,200 students. “Champlain Valley Union High School … offers more than 150 courses, and does so with lower per-pupil spending and lower education property tax rates than Whitingham.”
Twin Valley students also fall behind in sports activities, according to the suit, offering only soccer in the fall, basketball in winter, and golf, track and field, and baseball/softball in spring. Montpelier High School, with 325 students, offers 12 different sports over the school year, and Bellows Free Academy in St. Albans offers its 900 students 15 choices of sports. Champlain Valley Union High School offers 14. “Each of these schools provides a greater educational opportunity to its students and does so with lower per -pupil spending and lower education property tax rates than Whitingham.”
For Whitingham taxpayers, the per-pupil-based funding system has resulted in higher tax rates as the number of students has fallen, and significantly higher tax bills. Klein’s tax bill has increased by $2,258 since 2014, including $2,133 in the current fiscal year alone.
Attorneys explain that the increases are largely due to mandated costs that are out of the control of local authorities, and not evenly distributed throughout the state, such as special education. But attorneys note that the single greatest factor contributing to this year’s 30-cent increase in Whitingham’s education tax rate is the state’s excess spending penalty, which accounts for about 43% of the increase. “The increase is not due to an increase in education expenditures. In fact, Whitingham’s education expenditures fell by $290,262.”
Arguing in favor of an injunction against the enforcement of the state’s funding system, attorneys claim each of the plaintiffs will continue to suffer irreparable harm if the education law continues.
Count one of the suit claims the education funding system deprives Sadie Boyd of an equal educational opportunity and discriminates against her “without serving a compelling governmental interest.” Attorneys note that, according to the Supreme Court’s decision in Brigham, “the state must ensure substantial equality of educational opportunity throughout Vermont.” But by distributing funding on a per-pupil basis “rather than the actual funding needs of Whitingham’s students, the current education system fails to ensure the substantial quality of educational opportunity for Boyd.”
Attorneys argue that because the system distributes funding on a per-pupil basis, rather than the actual funding needed to educate Whitingham students, the state fails to ensure the “substantial equality of educational opportunity” required under the Brigham decision. “Because the state funds on a per-pupil basis, Boyd has been deprived of the educational opportunities afforded to the students at larger and smaller schools. Unlike students at larger schools Boyd does not benefit from economies of scale, and unlike students at smaller schools, Boyd does not benefit from the small schools support grant. Accordingly, each dollar of per-pupil education funding goes further at larger and smaller schools than it does at Boyd’s school.”
The suit also notes that the Act 68 excess spending penalty “exacerbates the inequity suffered by Boyd. Whereas the state provides additional funding to smaller schools to help them overcome inefficiencies, the state penalizes Boyd for attending a slightly larger small school.”
Count two of the suit claims the system unconstitutionally requires Klein to contribute disproportionately to its funding. “Klein pays significantly more in education property taxes than similarly situated taxpayers in other municipalities, based only on the happenstance of her residence. This is so, even though the education property tax is a statewide tax, and even though the quality of education is well below average.”
The excess spending penalty introduced under Act 68 compounds the inequity, according to the suit. “(The penalty) requires her to pay two dollars to provide one dollar’s worth of additional benefit to Whitingham’s students.”
The state hasn’t yet responded to the suit, however, Valente anticipates that one of the state’s claims may be that Act 46, a state law requiring districts to merge their governance structures, will address the per-pupil funding inequities when it is fully implemented. But Valente says Whitingham and Twin Valley may provide a poor argument for the ultimate success of Act 46. “Twin Valley was one of the first to merge, they beat Act 46 to the punch. And even still, they find themselves in this predicament. And there’s a town like Whitingham in every county in Vermont.”
Valente says his personal opinion is that the ultimate solution to the state’s education funding inequities lies in a new approach which recognizes that equal outcomes for students may have different costs at different schools, depending on geographic and demographic variations, and even social problems like opiate addiction in families. “I think the solution has to focus more on the improvement of individual students as they go through schools,” he says.