The suit alleges, in part, that the education funding formulas and penalties currently used force the town of Whitingham to violate the state constitution’s equality clause.
Valente said that was caused in part by the state’s per-pupil method of accounting for spending. “The lawsuit will show how Whitingham is exactly the wrong size to take advantage of the advantages built into the funding laws. South Burlington, for example, may offer English 4, and may have 20 kids in that class. Whitingham, if it wanted, would have to pay the same for that teacher with maybe four students in class. The town makes an effort to provide a good education, but it is not able to take advantage of spreading out those costs over more students. When it looks on paper that Whitingham is spending a lot of money per pupil, penalties are triggered.”
Valente added that state mandates also drive up the per-pupil costs, and the state system penalizes school districts similar to Whitingham.
“We have to show how a high tax rate doesn’t mean Whitingham has a gold-plated school with unicycle and juggling classes,” Valente said. “What we’re saying is that the system doesn’t achieve what the Supreme Court told the Legislature to do (in Brigham). What we’re saying is that when you have a small town like Whitingham, not too small but small enough, when you add extra curricula, you have to add a penalty just for doing things. Whitingham has fewer AP courses, fewer extracurricular things than many schools in Vermont. South Burlington has a lower per-pupil spending, because they have a bunch of kids. It’s raw numbers. A student could take five AP classes in South Burlington or choose from eight sports teams, while there is only one AP class in Whitingham, with only three sports teams.”
Valente cautioned that the case would probably be won on appeal to the state Supreme Court, not in the lower court, and that it could take months before the process played out.
“The (Windham County) court is planning for a four-day trial,” said Valente. “It’s going to be slow, because in a general manner civil lawsuits are slow. We were not able to get an injunction, which would have kicked it direct to the Supreme Court. It’s likely the judge will find against us. The real change will come when it moves to the Supreme Court. What we are asking the Supreme Court to do is re-analyze the entire situation based on what the Vermont Constitution says to do.”
Valente said it was possible the Legislature could change how education funding works in Vermont, which would weaken Whitingham’s suit. “It’s theoretical that the Legislature could change the law at the worst possible time, between when we make our argument and when the court decides,” said Valente. “I think it’s a small probability that happens, but I want to make it clear that could happen. What’s more likely to happen is that if the excess spending penalty goes away, we would know that by the time we get to the Supreme Court and incorporate that into our argument.”
Valente added that legislators tend to act when larger towns are affected negatively. “People in Montpelier tend to notice more when Burlington taxes go up, as opposed to when Whitingham taxes go up. Folks up there say ‘You mean we have to pay for our swim team this year?’”
Selectboard member Greg Brown asked about the town’s user fee payment to the school district. “Is it a liability to our lawsuit? Are we opening ourselves up to the state to look at our funding practices?
“If the town is making the payments to the school and those are for educational purposes, that raises a red flag to our argument,” said Waite. “The state could potentially say you have this other funding stream through the municipal budget. It seems like there is some vulnerability in making that form of payment to the school, and there is some potential legal liability, It could be something that ordinarily wouldn’t attract attention, but given the case now, it could be unwanted attention.”
“The changes you do here at Town Meeting are probably not going to have a very big impact,” added Valente. “The most important information is the last fiscal year, 2017.”
“I would see it as a feather in our cap to show that we’ve had to do this to work with funding laws,” said school board member Seth Boyd. “I think we could put together a list of benefits it provides.”
“If it did become an issue in the lawsuit, we do exactly that to address it,” said Valente.
“If the town is going to use municipal funds to pay for the school,”said Waite, “it should be receiving a benefit commensurate with the service it provides, then that is allowed by the law. If the payment is in excess under the law, it should not be allowed under the law.”
Valente, who grew up in Marlboro and now practices in Brattleboro, noted that they had added a third attorney and an expert witness to help with the suit. He also said there are approximately 80 towns in Vermont with circumstances similar to Whitingham’s.
Boyd, whose daughter is one of the plaintiffs in the suit, thanked them for their efforts in the suit.
“I also want to thank the selectboard, who pushed it, and the voters who supported it. I think we are dug in deeper with the state than ever before, and I think there will be some positive results, win or lose the suit.”