Anti-Act 46 groups threaten to sue state board, AoE

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Act 46 skeptics are preparing for a lawsuit.

An attorney volunteering with the Alliance of Vermont School Boards Members has sent a letter to the Vermont Agency of Education and the State Board of Education threatening to sue in the event of forced mergers. The "litigation hold letter" puts the state on notice it could be subject to a suit and instructs it to preserve any documents that could be subject to the discovery process if the matter goes to court.

The letter, signed by Greensboro attorney David Kelley, also places a public records request for all AoE and state board documents relating to the secretary of education's proposed plan under Act 46. Under the law, the secretary was tasked with recommending what to do with districts that have not voluntarily merged. The board will have the final say, and the letter is an explicit attempt to influence the body as it enters the final phase of the law.

"When you issue your final plan by November 30, 2018, I would encourage you to reject all forced mergers, and I am hopeful that you will pursue that course," the letter states.

State Board Chair Krista Huling said the letter - which comes as school districts resisting mergers try a range of options, including shuttering schools - is no surprise.

"Almost every meeting we've had, people are threatening lawsuits," she said.

She added that the board is committed to going through the process with an open mind. And she said the threat of going to court wasn't going to sway them one way or another.

"It's their prerogative to do that, but I don't think it's going to influence our decision-making," she said.

The alliance formed last year as a rival lobbying group when Vermont School Boards Association members unhappy with the association's stance on the consolidation law splintered off. The secretary's plan, released earlier this summer, recommended 18 forced mergers covering dozens of school districts.

Margaret MacLean is working with Vermonters for Schools and Community, another anti-Act 46 group, to coordinate opposition to forced mergers, including to recruit plaintiffs. She argues, as the letter does, that the secretary's plan hasn't given enough credit to communities that asked the state to accept alternatives to mergers under the law.

"I think that from the beginning communities have in good faith asked, tried, made every effort to work in partnership with the state," she said. "And they have complied with the legal process to present an alternative proposal. And they deserve to have those proposals looked at on their merits."

At least five school boards have voted to join a lawsuit as plaintiffs in the event of a forced merger, MacLean said, and another 30 could take a vote sometime within the next few weeks.

The letter argues communities could sue on several grounds, including that forced mergers violate the federal and state "takings" clause.

"The State Board cannot reassign ownership of school facilities or other property from the towns that own those properties, or reassign debt among the citizens of different towns, without due process and just compensation," it states.

The agency doesn't comment on litigation or the possibility of pending litigation, spokesperson Ted Fisher said, but officials are responding to the group's public records request.

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