By JEFF EPSTEIN
[email protected]
WESTMINSTER, Vt. — The Vermont school district plaintiffs — Westminster, Athens, Grafton and several other towns — have received at least a partial answer to their joint lawsuit against the state Board of Education, and it is not what the school districts hoped to hear.
Superior Court Judge Robert Mello issued a ruling late Friday dismissing three of the six counts the plaintiffs raised against the state. These were the arguments that the forced district mergers, as ordered by the board under Act 46 and 49, were in violation of various parts of the Vermont Constitution and the U.S. Constitution.
Mello specifically ruled against plaintiffs’ argument that the Vermont General Assembly could not delegate its authority over school consolidation to the Board of Education, saying the legislature did not abandon its legislative function as a “whole cloth” delegation of its authority, but only delegated the administration of the law to an executive agency, which is allowed.
He also affirmed, as the Vermont Supreme Court has previously held, that under the Vermont Constitution public education is controlled by the state, not municipalities.
Finally, Mello said that the plaintiffs were not denied due process, because the Board of Education followed procedures to solicit and consider alternative governance structures from the districts, and allowed them to provide input to the consideration process, including providing notices of meetings. Furthermore, he said, the due-process provisions of the U.S. Constitution’s 14th Amendment and the Vermont Constitution Chapter 1, Article 4 may not even apply, as individual property rights were not at issue.
So, on those points, the Superior Court case is now over, and the plaintiffs may appeal to the Vermont Supreme Court.
On the three remaining counts, which allege different violations of the Vermoant Constitution, Mello said he could neither dismiss nor grant them as they may “require the presentation of facts that have yet to be established, and therefore do not present questions which are subject to dismissal at this time.”
Those counts were denied, which means they may ultimately be appealed to the Supreme Court at a later date. Apparently, a split ruling such as this is somewhat unusual, as Mello noted the Supreme Court has a policy of “avoiding piecemeal appeals.” However, he said, given the looming state deadline of June 30, he thought it was important to clear the way for an appeal on the three dismissed counts as soon as possible.
Plaintiffs could not be immediately reached for comment on the ruling.
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