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Jim Kenyon: The Strafford Advantage

Published: 9/25/2016 12:37:26 AM
Modified: 9/25/2016 12:37:26 AM

Few people, if any, have a better understanding of what Brigham v. State of Vermont stands for than St. Johnsbury attorney Robert Gensburg.

After the landmark 1997 ruling, Ross Sneyd of The Associated Press wrote, “Nearly single-handedly and with no pay, it was this soft-spoken tax lawyer who persuaded the Supreme Court to declare Vermont’s educational funding system unconstitutional.”

Nearly 20 years later, Brigham remains the state constitutional test used to determine whether Vermont schoolchildren, no matter where they live, enjoy equal educational opportunity.

Brigham is “part of the fabric of the state now,” said Gensburg when we talked at his office last Wednesday. But that doesn’t mean that Brigham isn’t occasionally put to the test. Every so often, a “community looks for an advantage,” Gensburg said.

Hello, Strafford.

Two weeks ago, I wrote about a little-known provision in state education law known as the “Strafford Amendment.” Tucked inside a larger bill, it passed near the end of the 2012 legislative session with hardly any notice.

Rep. Sarah Buxton, a Tunbridge Democrat, sponsored the proposal after being approached by Paul Perkins, an attorney who chaired the Strafford School Board at the time. Buxton’s district doesn’t include Strafford, but she serves on the House Education Committee.

The Strafford School Board was worried that legislation enacted a couple of years earlier could create a financial hardship for families in town who send their kids to Hanover High School.

Like many communities without their own high school, Strafford has long offered teens their pick of schools. Then, in the early 1990s, Strafford took the unusual step of making Thetford Academy its “designated” high school. It guarantees that Thetford Academy will accept all Strafford students and makes the town responsible for their full tuition, which totals $17,998 this year.

Under state law, however, parents who are “dissatisfied with the instruction” provided at their town’s designated high school can petition their school board for a waiver.

This year, Strafford granted 15 waivers for students who wanted to attend Hanover High. But the waiver comes with a catch: Strafford parents must agree to pay the difference in tuition between Thetford Academy and Hanover High, which this year comes to $1,277.

The change in state education law that prompted Perkins to contact Buxton threatened this longstanding arrangement. It capped what towns could pay to “nondesignated” high schools, such as Hanover, at the statewide average for union high schools. As a result, the cost to families with a student at Hanover was about to go from $200 to $6,000 a year, Perkins warned in a 2012 email to Buxton.

To “level the playing field,” Buxton proposed the Strafford Amendment, which allowed Strafford to continue paying the Thetford tuition rate for Strafford students attending Hanover, leaving parents to make up the difference.

It’s not a bad deal for Strafford families with the ability to pay, particularly if they buy into the notion that Hanover High is an elite school. Without the amendment, they’d be spending an additional $3,225 this year.

Which brings me back to Gensburg, who at age 77 continues to work full time. For our meeting, I brought along a copy of the Strafford Amendment. It didn’t take Gensburg long to render his opinion — the amendment is only a paragraph.

By carving out the exception, the Legislature effectively created one set of rules for Strafford and another set for the other 90 towns in the state that offer school choice, Gensburg said. To pass constitutional muster, “there has to be some reason that Strafford should have this benefit and the other towns shouldn’t,” he said.

The benefit? I can think of a couple.

This year, by requiring parents to pay the difference between attending Thetford Academy and Hanover High, the town is saving about $20,000. That’s money that can be used to reduce property taxes, or enhance support of the town’s K-8 school.

“Strafford has succeeded in having its cake and eating it, too,” Gensburg said. He called the Strafford Amendment a “flat-out violation” of the state constitution’s Common Benefits Clause that was the basis of the Supreme Court’s ruling in Brigham. That clause is regarded as the state’s equivalent of the federal government’s Equal Protection Clause.

On Friday, Buxton said lawyers who work for the Legislature have told her that they don’t consider the Strafford Amendment to be in violation of the Common Benefits Clause.

I relayed Gensburg’s assessment to the Vermont Agency of Education. “Regarding the constitutionality of the Strafford Amendment, we are unable to comment,” a spokeswoman emailed.

I suppose an individual or group could bring a court challenge, which might be what state education officials are worried about.

Buxton, a Vermont Law School graduate, told me that it shouldn’t have to come to that: State education law allows towns to designate up to three high schools.

Strafford could simply add Hanover High to its list. But that would mean Strafford picking up the full tuition tab ($19,275, this year) for its students at Hanover High — just like taxpayers in Sharon, Tunbridge and other school choice towns already do.

“If I was on the Strafford School Board, I would seriously consider changing the policy,” Buxton told me.

Are Strafford taxpayers willing to take on the additional financial burden and, in the process, provide the Hanover High option to students from families who don’t have the ability to pay?

Or will the town continue with its we’ve-always-done-it-this-way-so-why-change-now approach to school choice?

The choice belongs to Strafford.

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