The Athens Case Revisited

by David Kelley

GREENSBORO – Antonin Scalia said the United States Supreme Court wasn’t “final because it was right,“ but rather, it was “right because it was final.” Of course, history is the final tribunal, and it has a habit of rendering some pretty harsh reversals. It’s too soon to know how history will judge the Vermont Supreme Court’s decision in Athens School District v. State Board of Education, but as one of the attorneys assisting the appellants, I suspect time will treat the decision critically.

In Athens, the three-member majority acknowledged the court’s duty “is to effectuate the Legisla­ture’s intent.” The legislators who wrote Act 46 tried to explain those intentions. One member of the senate education committee told the full Senate at the time of passage, “Our bill says if your small school does it well, financially and with outcomes, you don’t have to change a thing.” Another Senator proclaimed that if a small school was efficient and people thought their children were getting “a proper education, then this bill seeks to leave you alone.” The chair of the senate education committee told the full Senate, “If you can demonstrate that you are providing a high-quality education at an affordable price, you’re home free.”

Notwithstanding those expres­sions of intent, some of the best and most efficient small schools in the State were forced to merge. The future of many small, rural schools in Vermont was put in the hands of larger neighbors with more votes. Bigger towns were given the power to siphon students and money away from their smaller, politically weaker neighbors and, ultimately, to close a smaller community’s school without the checks and balances a democracy needs to avoid a “tyranny of the majority.”

During the legislative debates over Act 46, there was no more zealous proponent of the bill than David Sharpe, who was then the chair of the house education committee. After the bill was passed, and the reality of its consequences started to sink in, Sharpe wrote, “Now several years into implementing the plan in Addison County, we have not seen the promised reduction in adminis­trative staff in school buildings or in the superintendent’s offices. What we are seeing instead are proposals to close community schools against the specific intent of the legislation and the wisdom of many community members.”

Without referencing expressions of intent by the authors of Act 46, the Vermont Supreme Court’s majority disagreed with the Athens School District and the other appellants. The court’s majority asserted that Section 5 of Act 46 allowed districts to remain unmerged, in the court’s words, “only when certain require­ments are met” [emphasis added]. That is not, however, what the legis­lature or Section 5 said. Section 5 actually stated that single member districts could meet the state’s goals, “particularly if” they had certain characteristics. Further, the court conflated Sec. 8 of the Act (proposals to create union school districts) with Sec. 9 (proposals by individual districts to retain their current gover­nance structure).

No single word in Act 46 was more important than the word “necessary.” It was the litmus test for considering Sec. 9 proposals when a district sought to retain its current governance structure. Pursuant to Sec. 10(a), the Agency and Board were expected to merge school districts “to the extent necessary” to promote the goals of the Act. In the majority opinion, the court writes, “The term ‘where necessary’ in Sec. 10(b) means nothing more than requiring the board to merge and realign districts according to the mandates of Act 46, which presumes the necessity of merging districts …” [emphasis added].

The three-member majority overlooked the fact that Sec. 10(b) also, very importantly, directed the board to adhere to the provisions of 10(a) – that forced mergers are to be used “to the extent necessary” to meet the goals of the act. Using the word “necessary” in two separate contexts may have been confusing, but the majority did not distin­guish between those contexts. The law didn’t presume the necessity of merging districts. Finding the merger necessary to meet the goals of the act was a condition of forcing a merger. The state board never did that. Instead, the board freely acknowledged that it forced mergers wherever “possible and practicable.” If that is what the Legislature had intended, they could have said so.

In his dissenting opinion, Justice Eaton (with Justice Cohen concurring) did recognize this important distinction as well as the intent expressed by legislators who wrote the law. Justice Eaton wrote: “To allow involuntary mergers to proceed for towns where it is not necessary violates the intent of the statute and puts at risk the voices of small towns in the future education of their children.” Poignantly and prophetically, Justice Eaton ended his dissent with lyrics from Joni Mitchell’s Big Yellow Taxi: “Don’t it always seem to go that you don’t know what you’ve got ‘til it’s gone.”

It now remains to be seen how much the Athens decision will rend the fabric of our small, rural commu­nities, and history will have to judge whether the court was right because it was right, or right simply because it was final. But history itself is never final, and the general assembly could still pass a law that says no small, rural town’s elementary school can be taken from them without the consent of that community. Justice Ginsberg once said of her good friend Justice Scalia, “We are different, but we are one.” And in the end, the same can be said of us. Even if we read the law differently, we are one.

[The author is one of several attorneys who represented 33 school districts, including Coventry, Calais, Greensboro and Stannard, that appealed the State Board of Educa­tion’s decision to forcibly merge districts pursuant to Act 46. On July 10th, in a 3-2 opinion, the Vermont Supreme Court upheld the mergers.]