Commentary: Act 46: Fix It All, or Repeal It All

by Rob RoperRob Roper

This week (January 24-30) is national School Choice Week, celebrating the great steps forward school choice has made in states around the country. Confronted with many of the same concerns Vermonters are facing about the high cost and quality of their schools, sates from Florida to Texas to Wisconsin to Nevada have expanded options and access to resources for parents to choose the best educational setting for their children.

Sadly, Vermont is heading in the other direction, throwing away a national leadership position we have held on school choice for a century and a half — by accident! At least that’s what our legislators are saying, and most seem to be sincere.

Act 46, the law passed just last year ostensibly to curb education costs (thereby reducing property taxes) and restructure the public school bureaucracy to create larger and more efficient districts, is in the words of one of its lead authors, “a mess.” Both halves of Act 46, cost containment and governance restructuring, have blown up. Neither aspect of the law is doing what it was supposed to do.

The cost containment side of the fiasco has garnered the most attention. The people who drafted the spending penalties school district face failed to consider factors like the rising cost of health insurance, and the mandate they themselves recently passed forcing school districts to pay for expensive universal pre-k programs. This has made it difficult to impossible for many school districts to conform to the new budget limitations, they would argue through no fault of their own.

Adding to the chaos, the Administration misinterpreted legislative intent as to how costs under the threshold formula were to be calculated, and provided school districts with incorrect data necessary to formulate their budgets.

On the governance front, Act 46’s major unintended consequence is the potential destruction of Vermont’s 150-year-old tradition of “tuitioning” – full school choice – for ninety plus towns that don’t operate a public school. Since passage of Act 46, two such towns, Westford and Elmore, have lost school choice because a majority of their voters felt they had no other practical options under the law but to give it up. Many other choice towns find themselves in similar binds facing similar votes.

This was not the intent of the legislature. To hear the people who wrote and passed the law tell it, towns like Westford and Elmore were supposed to be able to merge with other districts yet still retain their choice. During a discussion in the Senate Education Committee, for example, Sen. Philip Baruth (D-Chittenden), the Majority Leader in the Senate, said, “Last year, as I remember it, everybody left the building thinking that these mergers would not change anybody’s choice situation. And that it would be like it is now. We’d have towns side by side, one that could tuition and one that cant.”

Sen. Anne Cummings (D-Washington), Chair of the Senate Education Committee, agreed with Baruth, as did every other senator in the room. The State Board of Education, however, chose to interpret the law differently, much as the Administration misinterpreted how to calculate the spending caps. This unleashed bitter and divisive battles between communities forced to the table by a deeply flawed law to discuss merging school districts of very different structures and cultures.

So the legislature is scrambling, but only to solve half of the Act 46problem.

The Senate has voted to repeal the spending caps entirely, and the House is currently trying to find a way to raise the penalty threshold, but not eliminate it entirely. Either solution throws the cost containment aspect of the law, and expectations for lower property taxes, out the window. For school choice, there appears to be little urgency for a fix.

Bills have been presented in the House and Senate that would protect and preserve Vermont’s school choice where it exists. To its credit, the Senate Education Committee has at least begun a conversation about the issue. Unfortunately, the House Education Committee Chair, Dave Sharpe (D-Bristol), has flat out refused to discuss, let alone fix, the school choice issue. He likely has the support of Speaker of the House, Shap Smith (D-Morristown).

School Choice Week would be a good time for Vermont’s remaining school choice towns to speak up, tell their stories, and demand the legislature fix Act 46 to do what they promised it would do when passed – protect and preserve school choice in Vermont – by either amending the law appropriately, or repealing the law entirely.

– Rob Roper is president of the Ethan Allen Institute. He lives in Stowe.

{ 2 comments… read them below or add one }

Mike Powers February 1, 2016 at 3:21 pm

Isn’t Ito interesting how politicians say one thing but in actuality mean the opposite. Remember, “Everyone can keep their own doctor”! Now we have “School choice will not be taken away”! Makes you wonder about the real original intent!! A pox on all their houses.


Jay Denault February 3, 2016 at 6:39 am

Act 46 is exactly what it was intended to be, a school consolidation bill deliberately crafted to consolidate and close Vermont’s small schools. Act 46 contains language which uses coercion, threat, and intimidation in the deliberate attempt to influence the outcome of a public vote. Act 46 section 13 provides relief from 16 V.S.A. 3448b which requires the refund of State Construction Aid, and a percentage of the selling price of a school building to the State in the event a school is closed. This relief however is afforded to those Towns who’s citizens vote in favor of “merger” no later than July 1 2017, after which date said relief is repealed. In addition Act 46 section 10 increases this threat to voters by mandating “merger” by 2018 while keeping the requirement to refund State Construction Aid intact. As a result the voters of a Town which has a small successful school like Franklin, will be required to cast their vote on the issue of “merger”. Every registered voter will be “threatened” upon entering the voting booth by realizing if they choose to vote “no” to prevent the closure of of their school they will be severely financially punished by having to refund
$311,500.00 in State Construction Aid. In addition the Franklin school has a balance of $255,000.00 on a roof bond scheduled to be paid in full by 2023. Act 46 section 16 describes the availability of “incentives”, stating “incentives shall be available however only if the “merger” receives final approval of the electorate prior to July 1 2017″. This is a clear case of coercion/bribery in an effort to influence the outcome of a public vote. In light of these facts, Act 46 is in glaring violation of the Federal law 18 U.S. Code 594 “Intimidation of Voters”. A formal “criminal complaint” has been filed with the U.S. Dept. of Justice, Chief Civil Division, and is pending at this time. Act 46 is a severely defective piece of legislation and the longer it stays in force the greater the damage will be for Vermont.


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