The Brigham Decision as the Route to Education Reform

By now everybody knows, or thinks they know, what the Vermont's five-person Supreme Legislature has decreed in the Brigham (educational funding) case. Without wasting time and space examining the highly dubious line of reasoning and truly astounding legal process used by the Supreme Court, the results can be summarized briefly.

1. There is, under the Vermont Constitution of 1786, a fundamental right to something called "educational opportunities". You won't find it there, but the Court, with its legal and historical superpowers, did.

2. It is the responsibility of the state, not the towns, to ensure that the access of every child to such opportunities is the same as that of every other child, at least to the extent that the law can make it the same.

3. Whatever "educational opportunities" may be, they are measured exactly and precisely by the amount of money spent by taxpayers on public schools. "Money," said the Court, "is clearly not the only variable affecting educational opportunity, but it is one that government can effectively equalize."

4. Since even with the various types of state aid, the amount spent per pupil in local public schools varies widely from town to town, the students in the lower-spending districts are not equally enjoying the fundamental right discovered by the Court.

5. The fact that students in every school enjoy some minimum level of educational opportunities is not an adequate defense of the system, because other students in higher spending districts have greater educational opportunities, and thus unequal enjoyment of a constitutional right.

6. Therefore, the General Assembly must create a new system in which, to use the Court's language, "children who live in property-poor districts and children who live in property-rich districts should be afforded a substantially equal opportunity to have access to similar educational revenues."

What the Court meant on the foregoing points is beyond controversy. Here is the really sticky wicket. According to the Court, "equal opportunity does not necessarily require precisely equal per capita expenditures, nor does it allow a system in which educational opportunity is necessarily a function of district wealth."

Robert Gensburg, lead counsel for the plaintiffs, said last week that "if the state is passing out a state benefit, then the equal protection clause requires that the benefit be distributed equally among all the people... What the case says is that every child in Vermont is entitled to the same educational opportunities that the other children in Vermont are receiving in our public school system..."

Since Gensburg argued successfully that educational opportunity is measured by dollars spent, it is clear that he, and the Court, believe that "substantially equal" spending per child is constitutionally required. Gensburg added that if the legislature didn't achieve this by September, he would be back in court about it.

At the same meeting Prof. Peter Teachout of Vermont Law School hopefully opined that "communities that are willing to tax themselves at a higher rate in order to spend more on their schools can still do so under the court's decision." But the result of that thinking is that the voters in property-rich towns might vote to spend more than the voters in property-poor towns, which is precisely what the Court struck down. The state, which bears the constitutional responsibility, cannot allow local voters to thwart the rights of pupils.

What will the Supreme Court accept as fulfillment of its mandate by its junior partner, the General Assembly? Here are some schemes that ought to pass muster on the Court's standard.

1. Muddling Through: The State caps local spending for education, "recaptures" tax revenues from the "gold" towns, distributes the proceeds to "poor" towns until all towns have an equal revenue base per pupil, and then requires all towns to raise and spend the same amount per pupil from that base. This keeps the present system and its bureaucrats and power relationships alive indefinitely, while avoiding anything resembling educational reform.

2. The State-run education system: End local property tax funding for education. The State takes responsibility for paying all costs of education in a giant state-controlled school system. This would presumably require a statewide property tax and a statewide teacher's contract. Local control would be reduced to such site-based management of schools as the state would allow, but local voters would not deal with raising money. The Court, as we know from its opinion, is interested only in "opportunities"; it has no interest in what is bought with the tax dollars so long as the amount spent per pupil is "substantially equal".

3. Ultimate Local Control: End local property tax funding for education. The State levies a statewide property tax or other major revenue producer and hands out equal tuition checks to the parents of every child - say $4000 per elementary pupil, $5000 for junior high, and $7000 for high school. The parents can cash in their tuition checks to any recognized school - public, independent, or religious. Public schools would become de facto charter schools, bidding for pupils; they would no longer be funded by local government revenue.

Are there other schemes the Court would buy? Undoubtedly. But it seems obvious that "local (government) control" in the form of raising local taxes for education will soon be gone for good. If its departure means a complete state takeover of public education, it is likely to be a costly disaster for our taxpayers, communities and children alike.

On the other hand, if the control taken from local school boards is not swallowed up by the state, but is instead converted into the power of choice for parents - as Rutland Mayor Jeff Wennberg has been quick to suggest - then the result of this decision could be an extraordinary leap forward for the children of Vermont.

February 1997