Brigham v. State (96-502); 166 Vt. 246; 692 A.2d 384
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
Amanda Brigham, et al. Supreme Court
On Appeal from
v. Lamoille Superior Court
State of Vermont December Term, 1996
John P. Meaker, J.
Robert A. Gensburg, St. Johnsbury, Joshua Diamond of Diamond &
Associates, Inc., Montpelier, Franklin L. Kochman of Kochman & Smith,
Burlington, Mitchell L. Pearl of Langrock Sperry & Wool, Middlebury, David
Putter, Montpelier, and Peter Welch of Welch, Graham & Manby, White River
Junction, for plaintiffs-appellees
Jeffrey L. Amestoy, Attorney General, and Geoffrey A. Yudien and
Ronald A. Shems, Assistant Attorneys General, Montpelier, for
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
PER CURIAM. In this appeal, we decide that the current system for
funding public education in Vermont, with its substantial dependence on
local property taxes and resultant wide disparities in revenues available
to local school districts, deprives children of an equal educational
opportunity in violation of the Vermont Constitution. In reaching this
conclusion, we acknowledge the conscientious and ongoing efforts of the
Legislature to achieve equity in educational financing and intend no
intrusion upon its prerogatives to define a system consistent with
constitutional requirements. In this context, the Court's duty today is
solely to define the impact of the State Constitution on educational
funding, not to fashion and impose a solution. The remedy at this juncture
properly lies with the Legislature.
When we consider the evidence in the record before us, and apply the
Education and Common Benefits Clauses of the Vermont Constitution to that
evidence, see Vt. Const. ch. I, art. 7 and ch. II, § 68, the conclusion
becomes inescapable that the present system has fallen
short of providing every school-age child in Vermont an equal
educational opportunity. This duty was eloquently described in Brown v.
Board of Education, 347 U.S. 483, 493 (1954):
[E]ducation is perhaps the most important function of state and local
governments. . . . It is required in the performance of our most basic
public responsibilities . . . . It is the very foundation of good
citizenship. Today it is a principal instrument in awakening the child to
cultural values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these days, it is
doubtful that any child may reasonably be expected to succeed in life if he
is denied the opportunity of an education. Such an opportunity, where the
state has undertaken to provide it, is a right which must be made available
to all on equal terms.
I. PROCEDURAL HISTORY
This declaratory judgment action against the State of Vermont was
filed in the Lamoille Superior Court by three sets of plaintiffs alleging
both distinct and overlapping claims: (1) two students from the Whiting and
Hardwick School Districts, respectively, who claimed that the State's
method of financing public education deprived them of their right under the
Vermont and federal constitutions to the same educational opportunities as
students who reside in wealthier school districts; (2) several property
owners from "property poor" school districts, who claimed that the current
school financing scheme compels them to contribute more than their just
proportion of money to fund education, in violation of these constitutions;
and (3) two school districts, Brandon and Worcester, which claimed that the
current financing scheme deprives them of the ability to raise sufficient
money to provide their students with educational opportunities equal to
those afforded students in wealthier school districts, and compels them to
impose disproportionate tax rates in violation of the United States and
In response to the State's motion for summary judgment, the trial
court ruled that plaintiffs' claims predicated on the federal constitution
were barred by the United States Supreme Court decision in San Antonio
Independent School District v. Rodriguez, 411 U.S. 1 (1972), which held
that there is no fundamental right to an education under the United States
Constitution, that state education-funding schemes are therefore subject
only to "rational basis" scrutiny under the Equal Protection Clause of the
Fourteenth Amendment, and that interdistrict
funding disparities are rationally related to the legitimate state purpose
of fostering local control over education funding and programs. Id. at 37,
44, 48-49, 55. Although the Rodriguez Court conceded that "some
identifiable quantum of education" might deserve constitutional protection
to ensure the "basic minimal skills necessary" for the exercise of free
speech rights and participation in the political process, id. at 36-37,
plaintiffs here have not alleged that public education in Vermont is
fundamentally inadequate or fails to impart minimal basic skills.
The trial court also rejected plaintiffs' claim that Chapter II, § 68
of the Vermont Constitution establishes a fundamental right to education.
That provision, in relevant part, provides:
Laws for the encouragement of virtue and prevention of vice and
immorality ought to be constantly kept in force, and duly executed;
and a competent number of schools ought to be maintained in each
town unless the general assembly permits other provisions for the
convenient instruction of youth.
Vt. Const. ch. II, § 68.
Plaintiffs alleged that the constitutional language, the case law, and
the history of Vermont establish that this provision guarantees a
fundamental right to education, and by extension a right to equal
educational opportunities, and that the current funding disparities must,
therefore, be strictly scrutinized under the Common Benefits Clause of the
Vermont Constitution. (FN1) The State must demonstrate, in other words,
that the current financing scheme advances a compelling governmental
interest and is narrowly tailored to serve that interest. Veilleux v.
Springer, 131 Vt. 33, 40, 300 A.2d 620, 625 (1973). The trial court
rejected this argument, ruling that § 68 does not provide "any rights . . .
to Vermont citizens." Accordingly, the court granted judgment for the
State with respect to the claims predicated on § 68.
The court denied summary judgment as to plaintiffs' remaining claims
that (1) the current
educational financing system was not rationally related to a legitimate
governmental purpose, and therefore violated the right to equal protection
of the laws under Chapter I, Article 7, see Choquette v. Perrault, 153 Vt.
45, 52, 569 A.2d 455, 459 (1989) ("when no fundamental right or suspect
class is involved, state law need only reasonably relate to a legitimate
public purpose"), and (2) it compelled the taxpayer-plaintiffs to
contribute disproportionate sums to fund education, in violation of their
rights under Chapter I, Article 9.(FN2) In explaining its decision to deny
summary judgment on these claims, the court stated that it was "unclear"
whether the parties agreed on precisely what constitutes equal educational
opportunities, or how the relative wealth of a district affects those
opportunities. It consequently set the case for trial to develop a factual
The parties moved jointly for permission to appeal the judgment except
for that portion disposing of plaintiffs' federal equal protection claims.
See V.R.A.P. 5(a). The trial court denied the motion. The parties
thereupon renewed their motion with this Court, and we granted the motion.
See V.R.A.P. 5(b)(1).
In our view the material facts are not in dispute. Public schools in
Vermont are financed principally by two means: funds raised by cities and
towns solely through assessments on property within them, as authorized by
16 V.S.A. § 511, and funds distributed by the State under a complex aid
formula, currently known as the Foundation Plan. See id. §§ 3441-3449.
The purpose of a foundation formula is to enable each school district to
spend an amount per pupil that will provide at least a minimum-quality
education program, known as the foundation cost. See id. §§ 3492-3494; see
generally A. Odden & L. Picus, School Finance: A Policy Perspective 173-82
(1992). In Vermont this is the amount necessary for elementary students to
receive an education that complies with public school approval standards.
See 16 V.S.A. § 3492. To enable the formula to work, the Legislature
annually establishes a foundation tax rate as a reasonable rate of local
property taxation to raise the foundation cost. See id. § 3495(a).
Basically, state aid is calculated as the difference between the foundation
cost for all students in a district and the amount the district can raise
itself at the foundation tax rate. See id. § 3497(a).
There are a number of adjustments to this basic formula that generally
reduce its equalizing effect. Further, a substantial amount of state
financing of education is supplied through categorical grant programs based
on different distribution formulas which may not reflect the ability of a
school district to raise money itself.(FN3) For example, the State funds
all of the employers' share of teachers' retirement pensions for all
districts, irrespective of the ability of a district to pay those costs.
From an equity standpoint, the major weakness of a foundation formula
distribution system is that it equalizes capacity only to a level of a
minimally adequate education program. Odden & Picus, supra, at 175.
Vermont has adopted a limited ability for districts to receive some
assistance with costs above foundation costs, primarily to help with debt
service from capital construction projects. See 16 V.S.A. §§ 3441(9),
(16), 3497(d). School districts with greater property wealth, however, can
more easily spend above foundation costs to improve education, and the
record before us shows that they usually make these expenditures. Thus, a
foundation-formula, state-aid program can boost the capacity of the poorest
districts, but still leave substantial deficiencies in overall equity. See
Odden & Picus, supra, at 175-77. Many of the states in which the highest
court has held that the educational financing system does not meet
constitutional minimums had foundation state-aid programs in effect at the
time of the decision. See Roosevelt Elementary Sch. Dist. No. 66 v.
Bishop, 877 P.2d 806, 809-10 (Ariz. 1994); Tennessee Small Sch. Sys. v.
McWherter, 851 S.W.2d 139, 143, 156 (Tenn. 1993); Edgewood Indep. Sch.
Dist. v. Kirby, 777 S.W.2d 391, 392, 397 (Tex. 1989).
Although the foundation state-aid plan was adopted fairly recently,
the criticism of it has grown in recent years.(FN4) It is, however, well
beyond our limited role to evaluate the imperfections in the state-aid
formula. Even if we are to assume that it is working adequately to
accomplish its purpose, we must confront the constitutionality of the
system in light of the limited nature of the Foundation Plan's purpose.
The object of the Plan is not equality of educational opportunity
generally, or even equality of local capacity to facilitate opportunity. It
is only to equalize capacity to produce a minimally adequate education,
assuming the voters can sustain the state-selected tax rate.
That the foundation formula does not eliminate wealth disparities is
by the record before us. Notwithstanding the fact that state aid has
increased substantially in recent years, the percentage of the local
contribution to education revenues has remained exceptionally high. In
fiscal year 1994, public education revenues raised through local property
taxes represented over 60% of the total cost of public education, one of
the highest local shares in the nation. Furthermore, notwithstanding the
considerable financial commitment by the State, there remain wide
differences among school districts in per-pupil spending. At the extremes,
in fiscal year 1995 the Town of Eden spent $2979 per student, compared with
the Town of Winhall, which spent $7726, or 260% more than Eden.(FN5) In
December 1994, the top 5% of school districts spent from $5812 to $7803 per
student, while the bottom 5% spent from $2720 to $3608. Thus, some school
districts in Vermont commonly spend twice as much or more per student as
The correlation between spending disparities and taxable property
wealth within the districts is also well established. As summarized in a
recent Department of Education analysis of school financing during fiscal
year 1995, "A statistically significant relationship exists between [the]
wealth of a school district and its spending per student. Based largely on
this relationship, there continue to be large disparities in per pupil
spending across school districts." Vermont Department of Education, A
Scorecard for School Finance FY 95, at i (1996). The data dramatically
bear this out. In fiscal year 1995, for example, the Town of Richford's
property tax base was approximately $140,000 per student, second lowest in
the State, and its average student expenditure was also among the lowest at
$3743. By contrast, the Town of Peru
enjoyed a tax base of approximately $2.2 million per student, and its
per-pupil expenditure was $6476. Of course, property wealth does not
invariably correlate with student expenditures. Stannard's property tax
base in fiscal year 1995 was somewhat over $118,000 per student, compared
with Sherburne's of $2.5 million. Notwithstanding the vast disparity in
property wealth, Stannard's average expenditure per pupil, $5684, was
nearly equal to Sherburne's of $5731. Not surprisingly, however, there was
a huge disparity in their effective tax rates: on an $85,000 home, the tax
in Sherburne was $247; in Stannard, it was $2040. It is thus readily
apparent, as the Department of Education has noted, "that spending per
pupil . . . tends to be highest in resource-rich districts who benefit
further with low school tax rates . . . [while] [c]onversely, towns with
limited resources spend less per student [and] pay higher tax rates." Id.
The undisputed evidence thus amply supports plaintiffs' claim that
wide disparities in student expenditures exist among Vermont school
districts and that these disparities correlate generally with taxable
property wealth within the districts. The record is relatively less
developed with respect to plaintiffs' further assertion that funding
disparities result in unequal educational opportunities, and specifically
that "[c]omparatively low expenditures for education cause comparatively
diminished educational opportunities for the students attending the
affected schools." The essential point, however, is undisputed. The trial
court noted the State had "concede[d] that the present funding scheme
denies children residing in comparatively property-poor school districts
the same `educational opportunities' that are available to students
residing in wealthier districts." The State has not only failed to
challenge this finding, it affirmatively relies on it to demonstrate that,
contrary to the judgment of the court below, no genuine issue of material
fact remains to be resolved at trial.
Having conceded that the current funding system fails to afford
Vermont schoolchildren equal educational opportunities, it is immaterial --
the State contends -- whether the parties agree on the precise nature of
the educational "opportunities" affected by the disparities. Indeed, in
their oral arguments before this Court the parties assumed that unequal
funding yields, at a minimum, unequal curricular, technological, and human
resources. School districts of equal size but unequal funding would not
have the capacity, for example, to offer equivalent foreign language
training, purchase equivalent computer technology, hire teachers and other
professional personnel of equivalent training and experience, or provide
equivalent salaries and benefits.
In this respect the State concedes the obvious. While we recognize
that equal dollar resources do not necessarily translate equally in effect,
there is no reasonable doubt that substantial funding differences
significantly affect opportunities to learn. To be sure, some school
districts may manage their money better than others, and circumstances
extraneous to the educational system may substantially affect a child's
performance. Money is clearly not the only variable affecting educational
opportunity, but it is one that government can effectively equalize.
We now turn to the chief contention of this dispute, namely whether
the disparities in educational opportunities outlined above violate Vermont
law. We find the law to be unambiguous on this point. Whether we apply
the "strict scrutiny" test urged by plaintiffs, the "rational basis"
standard advocated by the State, or some intermediate level of review, the
conclusion remains the same; in Vermont the right to education is so
integral to our constitutional form of government, and its guarantees of
political and civil rights, that any statutory framework that infringes
upon the equal enjoyment of that right bears a commensurate heavy burden of
justification. The State has not provided a persuasive rationale for the
undisputed inequities in the current educational funding system.
Accordingly, we conclude that the current system, which concededly denies
equal educational opportunities, is constitutionally deficient.
We are cognizant that, in so holding, we do not write on an entirely
blank slate. Numerous state courts have in recent years considered
constitutional challenges to locally funded educational systems. Some have
declared property-tax-based systems similar to Vermont's to
be unconstitutional. See P. Enrich, Leaving Equality Behind: New
Directions in School Finance Reform, 48 Vand. L. Rev. 101, 102 n.5 (1995)
(collecting cases). Almost without exception, these cases have held that
education is an important or fundamental right under the applicable state
constitution and that gross funding inequities resulting from interdistrict
property-wealth disparities violate a constitutional right to equal
educational opportunity. See, e.g., Edgewood, 777 S.W.2d at 397 ("Children
who live in poor districts and children who live in rich districts must be
afforded a substantially equal opportunity to have access to educational
funds."); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 336
(Wyo. 1980) ("We . . . proscribe any system which makes the quality of a
child's education a function of district wealth."), cert. denied, 449 U.S. 824 (1980); Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983)
("For some [school] districts to supply the barest necessities and others
to have programs generously endowed does not meet the requirements of the
constitution."). Other state courts have upheld the constitutionality of
their education financing systems despite wide interdistrict funding
disparities, generally concluding that they promote local control of
education, see, e.g., Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005,
1023 (Colo. 1982), or warrant judicial scrutiny only upon a showing of
"gross . . . inadequacy." Board of Educ. v. Nyquist, 439 N.E.2d 359, 369
(N.Y. 1982), appeal dismissed, 459 U.S. 1138-39 (1983); see also Enrich,
supra, at 102 n.5 (collecting cases).
Although informative, all of these cases are of limited precedential
value to this Court because each state's constitutional evolution is unique
and therefore incapable of providing a stock answer to the specific issue
before us.(FN6) Similarly inapposite is the United States Supreme
Court's ruling in Rodriguez, which was based on the virtual absence in the
United States Constitution of an education clause, as well as
considerations of federalism, which understandably deterred the Court from
defining educational rights applicable in all fifty states. 411 U.S. at
33-35, 40-44. Neither constraint is applicable to this Court. An
understanding of the constitutional issue presented requires, rather, a
review of the specific historical and legal origins of the right to
education in Vermont.
A. The Right to Education in Vermont
From its earliest days, Vermont has recognized the obligation to
provide for the education of its youth. That obligation begins with the
Education Clause in the Vermont Constitution. A provision for the
establishment of public schools was contained in the first Vermont
Constitution of 1777. That section, in part, provided: "A school or
schools shall be established in each town, by the legislature, for the
convenient instruction of youth . . . ." Vt. Const. of 1777, ch. II, § 40.
The clause was amended in 1786 as part of a comprehensive constitutional
revision. The amendment modified the language of the section and combined
it with the so-called "Virtue" Clause which followed the Education Clause
in the original Constitution, to read as follows: "Laws for the
encouragement of virtue, and prevention of vice and immorality, ought to be
constantly kept in force, and duly executed: and a competent number of
schools ought to be maintained in each town, for the convenient instruction
of youth . . . ." Vt. Const. of 1786, ch. II, § 38. This amended version
roughly corresponds with the
education clause in Chapter II, § 68 of our current Constitution.
Two points are striking about this constitutional provision. First
and foremost is its very existence. It is easy to forget from the
perspective of two centuries the daunting task that confronted the creators
of Vermont's initial government and law. They were compelled to create an
entirely new Constitution setting forth, at a minimum, a declaration of
fundamental human rights and a basic frame of government. The fact that
they chose, in this statement of first principles, to include a right to
public education -- particularly in light of the relative paucity of
state-supported public schools in existence at the time -- is remarkable.
The important point is not simply that public education was mentioned
in the first Constitution. It is, rather, that education was the only
governmental service considered worthy of constitutional status. The
framers were not unaware of other public needs. Among the first statutes
enacted by the General Assembly in 1779 were two separate acts for the
maintenance and support of the poor and infirm. One, entitled "An Act for
Relieving and Ordering Idiots, Impotent, Distracted and Idle Persons,"
specifically required towns to "make necessary provision for the relief,
support and safety" of persons who, because of "[p]rovidence . . . age,
[or] sickness," were "uncapable to provide for themselves." Acts and Laws
of Vermont 1779, at 15-16. The other statute, entitled "An Act for
Maintaining and Supporting the Poor," required towns to "take care of,
support, and maintain their own poor," id. at 97, giving rise to what has
euphemistically been called "poor farms."
Despite the obvious public concern for those least able to care for
themselves, the framers made no provision in the Constitution for public
welfare or "poor relief" as it was then known. Indeed, many essential
governmental services such as welfare, police and fire protection,
transportation, and sanitation receive no mention whatsoever in our
Constitution. Only one governmental service -- public education -- has
ever been accorded constitutional status in Vermont.
The Education Clause is also instructive in what it does not provide.
Although it requires
that a school be maintained in each town unless the Legislature permits
otherwise, it is silent on the means of their support and funding. The
Legislature has implemented the education clause by authorizing school
districts to raise revenue through local property taxes. But neither this
method, nor any other means of financing public education, is
constitutionally mandated. Public education is a constitutional obligation
of the State; funding of education through locally-imposed property taxes
An examination of the Education Clause in its historical context
proves enlightening, as well. Vermont did not exist as a political entity
prior to 1777. Before the Revolution, the territory was known as the
Hampshire Grants and was torn by the competing claims of New Hampshire and
New York. It was occupied by an amalgam of settlers from neighboring
colonies whose loyalties often lay elsewhere. See G. Aichele, Making the
Vermont Constitution: 1777-1824, 56 Vt. Hist. 166, 167 (1988); State v.
Elliott, 159 Vt. 102, 112-13, 616 A.2d 210, 216 (1992), cert. denied, 507 U.S. 911 (1993). This changed dramatically in 1777, when the people of
Vermont, emboldened by events in the colonies, issued their own declaration
of independence, created the independent Republic of Vermont, and adopted
their own constitution. "Thus Vermont became the first self-created
state." Records of the Council of Censors of the State of Vermont 1 (P.
Gillies & D. Sanford eds., 1991). It was not until 1791 that Vermont would
enter the union as the fourteenth state.
With the formal creation of the Vermont Republic all of the
institutions of self-government that had long existed in the original
thirteen colonies had to be created anew. More important, all of the
habits and values of a self-governing people had to be freshly invigorated
and reinforced. As one historian of this period observed, "The creators of
Vermont . . . could not appeal to a colonial past . . . . [T]he new state's
leaders had to convince not only the `powers of the earth,' but also the
people of Vermont and themselves, that they were entitled to statehood."
P. Onuf, State-Making in Revolutionary America: Independent Vermont as a
Case Study, 67 J. Am. Hist. 797, 802 (1981).
Thus, for the founders of the frontier Republic of Vermont the
fostering of republican values, or public "virtue" as it was commonly known
in the eighteenth century, was not the empty rhetoric it often seems today;
it was an urgent necessity -- a matter literally affecting the survival of
the new Republic. This urgency was reflected in the Constitution, one
provision of which instructed that "frequent recurrence to fundamental
principles, and a firm adherence to justice, moderation, temperance,
industry and frugality, are absolutely necessary to preserve the blessings
of liberty." Vt. Const. of 1777, ch. I, art. 16. Another constitutional
provision, the so-called "Virtue" Clause, declared that "[l]aws for the
encouragement of virtue, and prevention of vice and immorality, shall be
made and constantly kept in force." Id. ch. II, § 41. Republican theory
of the eighteenth century held that public "virtue" -- in the broad sense
of moral restraint, public responsibility, and ethical values -- was the
bedrock and essential ingredient of self-government. See G. Wood, The
Creation of the American Republic, 1776-1787 68 (1969) ("The eighteenth
century mind was thoroughly convinced that a popularly based government
`cannot be supported without Virtue.'"). As John Adams wrote, "`Liberty' .
. . `can no more exist without virtue and independence than the body can
live and move without a soul.'" B. Bailyn, The Ideological Origins of the
American Revolution 135 (1992) (quoting John Adams).(FN7)
In 1786, as noted, the Virtue and Education Clauses were combined to
form a single section. Nothing could be more indicative of the close
connection in the minds of the framers between virtue and all that that
implied -- civic responsibility, ethical values, industry, self-restraint
-- and public education than this textual union within the Constitution.
No explanation for the 1786 modification survives, but the logical
connection is self-evident. The amalgamation was perfectly consistent with
the commonly held view of the framers that virtue was essential
to self-government, and that education was the primary source of virtue.
In a "history" of Vermont published several years after its founding, Ira
Allen, youngest brother of Ethan Allen and a storied figure in his own
right, explained the relationship as follows:
The greatest legislators from Lycurgus down to John Lock[e], have
laid down a moral and scientific system of education as the very
foundation and cement of a State; the Vermonte[rs] are sensible of
this, and for this purpose they have planted several public schools,
and have established a university, and endowed it with funds . . . to
draw forth and foster talents. The effects of these institutions are
already experienced, and I trust that in a few years the rising
generation will evince that these useful institutions were not laid in
vain; . . . our maxim is rather to make good men than great scholars:
let us hope for the union, for that makes the man, and the useful
I. Allen, The Natural and Political History of the State of Vermont, in 1
Collections of the Vermont Historical Society 319, 482 (1870) (emphasis
added). In thus characterizing education as the "cement of [the] State,"
Allen was expressing "a central tenet of republicanism: no democracy can
survive without a virtuous citizenry . . . `and to inspire it ought to be
the principal business of education.'" J. Nelson, Adequacy in Education:
An Analysis of the Constitutional Standard in Vermont, 18 Vt. L. Rev. 7,
35-37 (1993) (quoting C. Montesquieu, The Spirit of the Law, bk. IV, ch. 5,
5, quoted in A. Hubsch, Education and Self-Government: The Right to
Education Under State Constitutional Law, 18 J.L. & Educ. 93, 95 n.1
(1989)). Because human nature was not viewed by the framers as naturally
inclined to virtue, Allen and his contemporaries "saw education as the
state's tool to insure self-preservation." Id. at 37. As Moses Mather
concisely observed in 1775: "`The strength and spring of every free
government . . . is the virtue of the people; virtue grows on knowledge,
and knowledge on education.'" Wood, supra, at 120 (quoting M. Mather,
America's Appeal to the Impartial World 66-67 (1775)). Thus understood,
the Education Clause assumes paramount significance in the constitutional
frame of government established by the framers: it expressed and
incorporated "that part of republican theory which holds education
essential to self-government and which recognizes government as the source
of the perpetuation of the attributes
of citizenship." Hubsch, supra, at 97-98 (footnote omitted).
The State places great store in the fact that the 1786 amendment which
combined the virtue and education sections also modified the text of the
Education Clause from its original "schools shall be established" to its
current "ought to be maintained." Vt. Const. of 1777, ch. II, § 40; Vt.
Const. of 1786, ch. II, § 38. From this it infers that the framers
intended to relegate education to a mere discretionary ideal. The
framers, however, drew no distinction between "ought" and "shall" in
defining rights and duties. The Declaration of Rights set forth in the
revised Constitution of 1786 declared, for example, "[t]hat all elections
ought to be free and without corruption," Vt. Const. of 1786, ch. I, art. 9
(emphasis added), that search warrants unsupported by probable cause "ought
not to be granted," id. ch. I, art. 12 (emphasis added), that the right to
trial by jury "ought to be held sacred," id. ch. I, art. 14 (emphasis
added), and that freedom of the press "ought not to be restrained," id. ch.
I, art. 15 (emphasis added). The contention that the framers intended
these fundamental freedoms to be mere aspirational ideals rather than
binding and enforceable obligations upon the State cannot be seriously
The State also suggests that placement of the education clause in
Chapter II, setting forth the "Frame of Government," rather than Chapter I,
which contained the Declaration of Rights, implies that education was not
considered by the framers to be an individual right. The argument is
equally unpersuasive. Chapter II of the original Constitution enumerated
any number of individual rights besides education, including the right to
trial by jury, Vt. Const. of 1777, ch. II, § 22, the right to bail, id. ch.
II, § 25, and the right to hold and acquire land. Id. ch. II, § 38. From
the perspective of the framers, Chapter II represented a perfectly logical
place to provide for education. We have already touched upon the essential
role of education in the framers' theory of self-government. Considered in
this light, the education clause properly belonged in that part of the
Constitution setting forth the frame of government, and the essential
conditions of its survival.
Apart from its prominence in the Constitution, the importance of
education to self-
government and the State's duty to ensure its proper dissemination, have
been enduring themes in the political history of Vermont. From the
beginning of the Republic, Vermont's chief executives have used the
occasion of their inaugural addresses to elaborate upon the State's
affirmative obligation to cultivate the essential attributes of citizenship
through public education. Addressing the General Assembly in 1802,
Governor Isaac Tichenor observed: "It is on the progress and influence of
education, knowledge, virtue and religion, that all orders of men will
receive the most substantial benefits that can accrue, either to
individuals or to societies." 1802 Journal of the General Assembly of the
State of Vermont, 19. Governor Samuel Crafts, speaking in 1828, echoed
these sentiments: "As our social and political institutions can be
sustained and perpetuated, only by the general virtue and intelligence of
the community; it is our indispensable duty . . . to make such provision
for instruction, as will qualify our youth to discharge the important trust
which will be committed to their care." 1828 Journal of the General
Assembly of the State of Vermont, 12. Similarly, Governor Erastus
Fairbanks, on the eve of the Civil War, declared: "[A] proper system of
instruction is recognized as one of the first duties of the State. . . .
[I]t is only as the youth of the country shall be properly instructed,
morally and intellectually, for the duties of citizens, that our free
institutions, in the hands of the coming and future generations, are to be
preserved intact." 1860 Journal of the Senate of the State of Vermont, 18.
The courts of this State have been no less forthright in declaring
education to be a fundamental obligation of the State. In 1860, this Court
gave voice to that duty with unequivocal clarity:
From the earliest period in this State, the proper education of all
the children of its inhabitants has been regarded as a matter of vital
interest to the State, a duty which devolved upon its government . . . .
The constitution of the State especially enjoins upon the legislature the
duty of passing laws to carry out this object . . . .
. . . .
. . . [T]he whole subject of the maintenance and support of common
schools has ever been regarded in this State as one not only of public
usefulness, but of public necessity, and one which the State in it
sovereign character was bound to
Williams v. School Dist. No. 6, 33 Vt. 271, 274-75 (1860). Similar
statements in later decisions abound. See, e.g., Buttolph v. Osborn, 119
Vt. 116, 119, 119 A.2d 686, 688 (1956) ("It [is] clear that education is a
function of the state as distinguished from local government."); Vermont
Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 266, 247 A.2d 68, 71 (1968)
("[O]ur Constitution imposes on the General Assembly a duty in regard to
education that is universally accepted as a proper public purpose."),
appeal dismissed, 396 U.S. 801 (1968); Palmer v. Bennington Sch. Dist., 159
Vt. 31, 37, 615 A.2d 498, 502 (1992) (discussing importance of education in
preserving representative government and noting "state's commitment to this
essential government function").
Notwithstanding its long and settled history as a fundamental
obligation of state government, the State contends that the primary
constitutional responsibility for education rests with the towns of
Vermont, that its funding must be derived from whatever sources are
available locally, that the only substantial tax available to towns is the
property tax, and therefore that funding inequities are an inevitable --
but nevertheless constitutional -- consequence of local disparities in
property wealth. The State asserts that its only responsibility, if any,
is to ameliorate inequities if they become too extreme, and that it has
acted responsibly in this role. This argument fundamentally
misunderstands the State's constitutional responsibility -- outlined above
-- for public education. The State may delegate to local towns and cities
the authority to finance and administer the schools within their borders;
it cannot, however, abdicate the basic responsibility for education by
passing it on to local governments, which are themselves creations of the
The State's position confuses constitutional ends -- the obligation to
maintain a "competent number of schools . . . in each town," Vt. Const. ch.
II, § 68, -- with legislative means, that is, the methods it has employed
to fulfill its obligation. As noted, our Constitution
nowhere states that the revenue for education must be raised locally, that
the source of the revenue must be property taxes, or that such revenues
must be distributed unequally in conformity with local wealth. To be sure,
these are longstanding and traditional components of the educational
financing system in Vermont, but none of these represents a constitutional
imperative. They are choices made by the government of the State of
Vermont, and choices for which it bears ultimate responsibility.
The wisdom of the original constitutional structure becomes most
apparent when considered in a modern context. Chapter II, § 68 states in
general terms the State's responsibility to provide for education, but is
silent on the means to carry it out. What the State characterizes as the
basic constitutional structure of the system is really the legislative
means of implementing it, which can and should be modified if it no longer
fulfills its purpose. Means and methods that were effective in a rural
society with limited development of property resources and largely local
industries may become ineffective with the advent of major ski resorts and
sizable industrial developments. The towns where the employees of these
businesses actually live and educate their children bear the financial
burden of development, while reaping none of the tax advantages.
Whether this dysfunction between means and ends ultimately denies the
citizens of Vermont the "common benefit," Vt. Const. ch. I, art. 7, of the
education constitutionally guaranteed is the question to which we now turn.
B. The Right to Equal Educational Opportunities
It is against the foregoing legal and historical backdrop that the
sharp disparities among school districts in per-pupil spending, and the
resultant inequities in educational opportunities, must be constitutionally
evaluated. We have held that the Common Benefits Clause in the Vermont
Constitution, see ch. I, art. 7, is generally coextensive with the
equivalent guarantee in the United States Constitution, and imports similar
methods of analysis. Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550
(1993); State v. George, 157 Vt. 580, 588, 602 A.2d 953, 957
(1991). As a general rule, challenges under the equal protection clause
are reviewed by the rational basis test, whereby "distinctions will be
found unconstitutional only if similar persons are treated differently on
`wholly arbitrary and capricious grounds.'" Smith v. Town of St.
Johnsbury, 150 Vt. 351, 357, 554 A.2d 233, 238 (1988) (quoting Colchester
Fire Dist. No. 2 v. Sharrow, 145 Vt. 195, 199, 485 A.2d 134, 136 (1984)).
Where a statutory scheme affects fundamental constitutional rights or
involves suspect classifications, both federal and state decisions have
recognized that proper equal protection analysis necessitates a more
searching scrutiny; the state must demonstrate that any discrimination
occasioned by the law serves a compelling governmental interest, and is
narrowly tailored to serve that objective. Rodriguez, 411 U.S. at 16-17;
Veilleux, 131 Vt. at 40, 300 A.2d at 625.
This is not a case, however, that turns on the particular
constitutional test to be employed. Labels aside, we are simply unable to
fathom a legitimate governmental purpose to justify the gross inequities in
educational opportunities evident from the record. The distribution of a
resource as precious as educational opportunity may not have as its
determining force the mere fortuity of a child's residence. It requires no
particular constitutional expertise to recognize the capriciousness of such
The principal rationale offered by the State in support of the current
financing system is the laudable goal of local control. Individual school
districts may well be in the best position to decide whom to hire, how to
structure their educational offerings, and how to resolve other issues of a
local nature. The State has not explained, however, why the current
funding system is necessary to foster local control. Regardless of how the
State finances public education, it may still leave the basic
decision-making power with the local districts. Moreover, insofar as
"local control" means the ability to decide that more money should be
devoted to the education of children within a district, we have seen -- as
another court once wrote -- that for poorer districts "such fiscal freewill
is a cruel illusion." Serrano v. Priest, 487 P.2d 1241, 1260 (Cal. 1971).
We do not believe that the voters of Londonderry necessarily care more
than their counterparts in Lowell simply because they spend nearly twice as
much per student ($6005 as compared to $3207 in fiscal year 1995). On the
contrary, if commitment to learning is measured by the rate at which
residents are willing to tax themselves, then Lowell, with a property base
of less than one-third per student than that of Londonderry, and a property
tax nearly twice as high, should be considered the more devoted to
In short, poorer districts cannot realistically choose to spend more
for educational excellence than their property wealth will allow, no matter
how much sacrifice their voters are willing to make. The current system
plainly does not enhance fiscal choice for poorer school districts.
The State also appears to argue that the current system must be upheld
because, even conceding the Constitution provides a basic right to
education, there is no evidence the framers intended that the right be
distributed equally. The answer to this argument is twofold. First,
although the documentary evidence of the framers' particular intentions in
this regard is negligible, as early as 1828 the scope of the State's duty
to educate was defined in terms of fundamental equality.
Our youth can be considered in no other light, than as children of the
state, having a common interest in the preservation of, and in the benefits
to be derived from, our free institutions -- and possessing also, whether
rich or poor, equal claims upon our patriotism, our liberty and our
justice. It is, therefore, our paramount duty to place the means for
obtaining instruction and information, equally within the reach of all.
Inaugural Address of Governor Samuel Crafts, 1828 Journal of the General
Assembly of the State of Vermont, 12 (emphasis added). Thus, while the
political means, or the political will, to effectuate the goal of
educational equality may have been absent for many years, the principle has
long been present.
The second response to the State's argument is simply that equal
protection of the laws cannot be limited by eighteenth-century standards.
While history must inform our constitutional analysis, it cannot bind it.
Yesterday's bare essentials are no longer sufficient to prepare a
student to live in today's global marketplace. To keep a democracy
competitive and thriving, students must be afforded equal access to all
that our educational system has to offer. In the funding of what our
Constitution places at the core of a successful democracy, the children of
Vermont are entitled to a reasonably equal share.
The State additionally asserts that the current educational state-aid
program, the Foundation Plan, serves the rational purpose of ameliorating
disparities among school districts while preserving a maximum level of
local control over spending. We do not question the laudatory objectives
of the Foundation Plan. As noted earlier, however, the notion that
property-tax-based funding allows local school districts the flexibility to
devote more money to education is, for many districts, largely illusory.
Moreover, there is no necessary or logical connection between local control
over the raising of educational funds, and local decisionmaking with
respect to educational policy.
Nor are we persuaded that the Foundation Plan sufficiently improves
the financial position of property-poor districts as compared to
property-rich districts to eliminate any constitutional claim of
discrimination. The Constitution does not, to be sure, require exact
equality of funding among school districts or prohibit minor disparities
attributable to unavoidable local differences. As we have seen, however,
that is not the situation we confront. On the contrary, the evidence
discloses substantial interdistrict funding disparities, despite the
efforts of the State through the comprehensive state-aid program.
Finally, the State contends that the Common Benefits Clause is simply
not offended by the unequal treatment of public schoolchildren residing in
different districts so long as all are provided a minimally "adequate"
education. The basis for such an argument is not entirely clear. We find
no authority for the proposition that discrimination in the distribution of
a constitutionally mandated right such as education may be excused merely
because a "minimal" level of opportunity is provided to all. As Justice
Marshall observed, "The Equal Protection Clause is not addressed to . . .
minimal sufficiency but rather to the unjustifiable inequalities of
state action." Rodriguez, 411 U.S. at 89 (Marshall, J., dissenting).
The evidence demonstrates, in sum, that the system falls well short of
achieving reasonable educational equality of opportunity. Therefore, we
hold that the student and school district plaintiffs are entitled to
judgment as a matter of law that the current educational financing system
in Vermont violates the right to equal educational opportunities under
Chapter II, § 68 and Chapter I, Article 7 of the Vermont Constitution.
In so holding we emphasize that absolute equality of funding is
neither a necessary nor a practical requirement to satisfy the
constitutional command of equal educational opportunity. As plaintiffs
readily concede, differences among school districts in terms of size,
special educational needs, transportation costs, and other factors will
invariably create unavoidable differences in per-pupil expenditures. Equal
opportunity does not necessarily require precisely equal per-capita
expenditures, nor does it necessarily prohibit cities and towns from
spending more on education if they choose, but it does not allow a system
in which educational opportunity is necessarily a function of district
wealth. Equal educational opportunity cannot be achieved when
property-rich school districts may tax low and property-poor districts must
tax high to achieve even minimum standards. Children who live in
property-poor districts and children who live in property-rich districts
should be afforded a substantially equal opportunity to have access to
similar educational revenues. Thus, as other state courts have done, we
hold only that to fulfill its constitutional obligation the State must
ensure substantial equality of educational opportunity throughout Vermont.
See Rose v. Council for Better Educ., 790 S.W.2d 186, 211 (Ky. 1989) (state
constitution requires that educational opportunities be "substantially
uniform throughout the state"); McWherter, 851 S.W.2d at 156 (state
education financing system must provide "substantially equal educational
opportunities"); Edgewood, 777 S.W.2d at 397 (state constitution requires
"substantially equal access to similar revenues per pupil").
Finally, we underscore the limited reach of our holding. Although the
Legislature should act under the Vermont Constitution to make educational
opportunity available on substantially
equal terms, the specific means of discharging this broadly defined duty is
properly left to its discretion.
C. Remaining Claim
In addition to educational equity, the property-owner and
school-district plaintiffs have claimed a right to tax-rate equity; they
assert that taxpayers from property-poor districts are compelled to pay
higher tax rates, and therefore contribute disproportionate sums to fund
education, in violation of Chapter I, Article 9 of the Vermont
Constitution. Without explanation, the trial court denied summary judgment
on this point, thereby allowing the claim to proceed to trial. Although
the State appealed the ruling, it devoted such scant attention to the
subject in its briefs (two pages out of sixty) that we would be forced "to
undertake a search for error where it [was] not adequately briefed or
supported by the arguments." Rowe v. Brown, 157 Vt. 373, 379 n.7, 599 A.2d 333, 337 n.7 (1991). Accordingly, we decline to rule on this issue at this
Declaratory judgment entered for the student and school-district
plaintiffs on their claim that the current educational funding system
denies equal educational opportunities in violation of the Vermont
Constitution; remanded so that jurisdiction may be retained until valid
legislation is enacted and in effect, and for any further proceedings on
plaintiffs' remaining claim, if necessary.
BY THE COURT:
Frederic W. Allen, Chief Justice
Ernest W. Gibson III, Associate Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
FN1. That section, in pertinent part, provides: "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, or set of persons, who are a part only
of that community . . . ." Vt. Const. ch. I, art. 7.
FN2. That section, in part, provides: "That every member of society
hath a right to be protected in the enjoyment of life, liberty, and
property, and therefore is bound to contribute the member's proportion
towards the expence of that protection . . . ." Vt. Const. ch. I, art. 9.
FN3. A recent study of educational finance reform reported that for
fiscal year 1993, the grant allocations were as follows:
General State Aid --- $140,263,372
Special Education --- $ 44,243,446
Teachers' Retirement $ 19,000,000
Adult and Vocational
Education --- $ 7,320,722
Basic Education --- $ 1,259,193
School Construction - $ 8,250,000
Other --- $ 953,284
Total --- $222,180,065
Governor's Blue Ribbon Commission on Educational and Municipal Financing
Reform: Final Report and Recommendations 12 (1993). Although
appropriations have changed since 1993, the basic proportions appear to be
similar. If anything, the proportion provided by basic state aid has
decreased, with only 145 million dollars appropriated in fiscal year 1997.
See 1995, No. 178 (Adj. Sess.), § 173. Some equalization of funding has
been introduced into the formulas for school construction aid, see 16
V.S.A. § 3448(a)(7), and special education aid, see id. § 2963(c)(3).
FN4. The criticism of the Foundation Plan, like that of all the
plans before it, follows a predictable cycle. See Governor's Blue Ribbon
Commission on Educational and Municipal Financing Reform: Final Report and
Recommendations 11, 15 (1993).
FN5. The data summarized in this opinion were compiled by the
Vermont Department of Education and published in yearly "Scorecards for
School Finance" and other documents. The student-expenditure figures
reflect the current expense (CE) per average daily membership (ADM) of the
school district; it excludes local construction, transportation and special
education costs. 16 V.S.A. § 3441(1), (8). The wealth-per-student figures
reflect the fair market value of property in the district, or equalized
grand list (EGL), over the average daily membership. Id. § 3441(20). The
effective tax rate is a measure used by the Department of Education to
compare school tax rates in different districts.
FN6. It is, of course, appropriate to consider sister-state
interpretations of constitutional provisions similar to Vermont's. See
Benning v. State, 161 Vt. 472, 476, 641 A.2d 757, 759 (1994). Unlike the
education clauses in most other states, which can generally be classified
in one of several categories according to their operative language, the
education clause set forth in Chapter II, § 68 of the Vermont Constitution
is unique. See G. Ratner, A New Legal Duty for Urban Public Schools:
Effective Education in Basic Skills, 63 Tex. L. Rev. 777, 814-16 (1985)
(describing four general categories of state education clauses). The
original education clause in the Vermont Constitution of 1777 was derived
from a provision in the Pennsylvania Constitution of 1776. The
Pennsylvania provision was subsequently amended, however, and no longer
resembles Vermont's clause in any respect. See Danson v. Casey, 399 A.2d 360, 362 n.2 (Pa. 1979). Perhaps the closest education clause textually to
Vermont's is Connecticut's, which provides: "There shall always be free
public elementary and secondary schools in the state. The general assembly
shall implement this principle by appropriate legislation." Conn. Const.
art. VIII, § 1. In Horton v. Meskill, 376 A.2d 359 (Conn. 1977), the
Connecticut Supreme Court held that this provision created a fundamental
right to education, "that pupils in the public schools are entitled to the
equal enjoyment of that right," and that inequities in education funding
resulting from interdistrict wealth disparities failed to advance a
sufficiently compelling state interest. Id. at 374.
FN7. There is an extensive historical literature discussing the
centrality of "virtue" in eighteenth century republican theory. See, e.g.,
B. Bailyn, The Ideological Origins of the American Revolution 344, 351-52,
368-75 (1992); J. Burns, The Vineyard of Liberty 62-63 (1982); G. Wood, The
Creation of the American Republic, 1776-1787 65-70 (1969).