Editorial: Fighting Inequality; Gensburg’s Contributions to Vermont

Saturday, November 25, 2017

Robert Gensburg, who died earlier this month at age 78, was hardly a household name, but he deserved to be. It’s hard to think of a more influential figure in Vermont over the past 20 years, and perhaps for much longer.

Gensburg, who lived in Lyndon and practiced in St. Johnsbury, was the lead lawyer for the plaintiffs in Brigham v. State of Vermont, the landmark 1997 case that led to the state Supreme Court’s unanimous and unequivocal declaration that all Vermont children are entitled to equal educational opportunity. The ruling struck down the state’s inequitable school funding system, with its vast disparities in tax rates and educational opportunities from town to town that resulted from vast differences in property wealth.

Brigham led directly to the passage by the Legislature of Act 60, which established a statewide system of equalized education funding. As the Public Assets Institute, a Montpelier-based think tank, noted on the occasion of the law’s 20th anniversary this year, its passage meant that geography was no longer destiny for Vermont schoolchildren. Despite the law’s complexity and the complaints it prompted that local control of schools had been eroded, Act 60 and its successor, Act 68, have largely accomplished their purpose, and thousands of Vermont children and their parents owe Gensburg and his ACLU legal team a large measure of gratitude.

The Brigham case hinged on Article 7 of the Vermont Constitution, the so-called common benefits clause, which states in part that: “Government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” (In 1999, in Baker v. State of Vermont, the Supreme Court again relied on Article 7 in ruling that the state was required “to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law.”)

In remarks prepared last February to celebrate the anniversary of the Brigham decision, Gensburg wrote: “In my opinion, there is no constitutional principle that is more important than Article 7. It is the foundational requirement for living under the rule of law. There are few instances in which that has been made as clear as in the Brigham decision and the Baker case that followed it. It is a good rule for government to live by.”

To those who knew him, Gensburg’s appreciation of and reliance on the common benefits clause was fitting. Former ACLU of Vermont executive director Allen Gilbert said, “I never encountered anyone with a stronger, deep-in-the-bones belief in equal treatment under the law than Bob Gensburg.” In fact, Gensburg was said to carry a copy of the Bill of Rights in his wallet.

That commitment to justice and the rule of law did not end at the Vermont state line. For many years, Gensburg, along with another Vermont lawyer, David Sleigh, represented Abdul Zahir, an Afghan who was held for 14 years at Guantanamo Bay as a terror suspect — an apparent case of mistaken identity — before being released last January. Gensburg represented Zahir for free and paid his own expenses to travel to Cuba. Meanwhile, Gensburg said, the U.S. government was tapping his phones and intercepting his emails.

Several tributes to Gensburg published in recent days have noted that his professional brilliance was happily married to personal modesty, even humility, and that he was always anxious to share credit for his achievements.

Gensburg’s life serves as a beacon lighting the way forward for lawyers who are committed to using their legal gifts to promote justice and equal treatment under the law. He demonstrated just how powerful a tool for good those skills can be in the right hands.