Brigham v. State

Annotate this Case
Brigham v. State  (96-502); 166 Vt. 246; 692 A.2d 384

[Filed 05-Feb-1997]

       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
  to press.


                            No. 96-502


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
  defendant-appellant


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
  Vermont Constitutions.

       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
  record.

            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).

                                  II. FACTS

       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
  shown dramatically 

 

  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
  other districts. 

            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.
  at 11.  
       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.

                               III. DISCUSSION

       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
  is not.
  
       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
          citizen.

  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
  maintained.

       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 

 

    sustain.

  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
  State.

       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
  a system.

       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
  about education 

 

  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
  education.  
  
       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
  time.

 

       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




------------------------------------------------------------------------------
                                  Footnotes



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).