Act 46: Fix it all or repeal it all


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 46 problem.

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.


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