Athens School District v. Vermont State Board of Education

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2020 VT 52

Nos. 2019-185 & 2019-241

Athens School District et al. Supreme Court

On Appeal from
v. Superior Court, Franklin Unit,
Civil Division

Vermont State Board of Education et al. January Term, 2020

Robert A. Mello, J.

David F. Kelley, Craftsbury Common, Stephen F. Coteus and Nicholas A.E. Low of Tarrant,
Gillies & Richardson, Montpelier, and Ines McGillion of Ines McGillion Law Offices, PLLC,
Putney, for Plaintiffs-Appellants.

Thomas J. Donovan, Jr., Attorney General, and David Boyd and Eleanor L.P. Spottswood,
Assistant Attorneys General, Montpelier, for Defendants-Appellees.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Plaintiffs—a number of independent school districts, school

boards, parents, students, and citizens—challenge the implementation of Act 46, as amended by

Act 49, regarding the involuntary merger of school districts. The Legislature enacted those laws

in 2015 and 2017, respectively, to improve educational outcomes and equity by designing more

efficient school governance structures in response to long-term declining student enrollment and

balkanized educational governance and delivery systems. In separate decisions, the civil division
dismissed several counts of plaintiffs’ amended complaint and then later granted defendants’1

motion for summary judgment on the remaining counts. In these two consolidated appeals,

plaintiffs argue that: (1) the State Board of Education and the Agency of Education failed to carry

out the plain-language mandate of Act 46; and (2) the Board’s implementation of the law, as

manifested in its final order, violated other statutes in Title 16 and several provisions of the

Vermont Constitution. We conclude that the Agency’s and Board’s implementation of the law

was consistent with the challenged Acts and other statutes in Title 16, did not result from an

unlawful delegation of legislative authority, and did not violate any other constitutional provisions.

Accordingly, we affirm the civil division’s decisions.

I. The Law

¶ 2. Before addressing plaintiffs’ arguments, we review the relevant law. In response

to declining student enrollment and a large number of independent school districts, the Legislature

passed acts in 2010 and in 2012 to incentivize voluntary mergers of school districts. See 2009,

No. 153 (Adj. Sess.), §§ 1-4 (making legislative findings,2 establishing voluntary school district

merger program, and setting forth financial incentives for merging); 2011, No. 156 (Adj. Sess.),

§§ 8, 13, 15-17 (amending Act 153 and establishing conditions for modified unified union school

districts). The voluntary merger incentives available in these Acts led to a minimal decline in the

number of school districts from 276 to 267. See D. French, Vt. Agency of Educ., Report on Act

1
Defendants are the Vermont State Board of Education, members of the Board, the
Vermont Agency of Education, and the Secretary of the Agency.
2
The Legislature found that the voluntary merger of education governing units would
increase educational opportunities for students, increase economies of scale, enhance cost
efficiencies at a time of declining enrollment, and assist schools in obtaining standardized metrics
for evaluating programs, identifying system improvements, and analyzing the costs and benefits
of resource allocations. 2009, No. 153 (Adj. Sess.), § 1. The Legislature also found that
encouraging voluntary merger of school districts would allow governance changes while
preserving the authority of voters to make local decisions. Id.
2
46 of 2015 14 (Jan. 2019), https://education.vermont.gov/sites/aoe/files/documents/edu-

legislative-report-act46-merger-activity-2019.pdf [https://perma.cc/ZAS8-AV8Y].

¶ 3. In 2015, the Legislature passed Act 46. See 2015, No. 46. In support of the Act,

the Legislature found that: (1) Vermont’s K-12 student population had declined from 103,000 in

1997 to 78,300 in 2015; (2) “[t]he number of school-related personnel had not decreased in

proportion to the decline in student population”; (3) during that same period, increased poverty,

mental health needs, and drug addiction required the “public schools to fulfill an array of human

services functions”; (4) given the thirteen different types of school district governance structures

in the state, “elementary and secondary education in Vermont lack[ed] cohesive governance and

delivery systems”; (5) as a result, many school districts in Vermont were “not well-suited to

achieve economies of scale” and lacked “the flexibility to manage, share, and transfer resources”;

(6) a 1999 law enacted to protect small school districts from large tax increases due to declining

student populations had “inflated the equalized pupil count in some districts by as much as 77

percent, resulting in artificially low tax rates in those communities”; (7) national literature

indicated that the optimal student population for student learning is 300-500 for elementary schools

and 600-900 for high schools; (8) national literature indicated “that the optimal size for a school

district in terms of financial efficiencies is between 2,000 and 4,000 students”; (9) seventy-nine

Vermont school districts had an average daily student population of one hundred or less; (10) the

intent of the Act was not to close small schools, “but rather to ensure that those schools have the

opportunity to enjoy the expanded educational opportunities and economies of scale that are

available to schools within larger, more flexible governance models”; and (11) having “multiple

public schools within a single district not only supports flexibility in the management and sharing

of resources, but it promotes innovation,” such as developing “a specialized focus, which, in turn,

increases opportunities for students to choose the school best suited to their needs and interests.”

Id. § 1.

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 ¶ 4. In light of these findings, the Legislature stated that, by enacting Act 46, it intended

“to move the State toward sustainable models of education governance.” Id. § 2. It further stated

that Act 46 was designed to encourage local decisions and actions that: (1) “provide substantial

equity in the quality and variety of educational opportunities statewide”; (2) help students to

achieve or exceed state education quality standards; (3) “maximize operational efficiencies

through increased flexibility to manage, share, and transfer resources, with a goal of increasing the

district-level ratio of students to full-time equivalent staff”; (4) “promote transparency and

accountability”; and (5) “are delivered at a cost that parents, voters, and taxpayers value.” Id.

¶ 5. We now turn to the relevant substantive sections of Act 46. Under § 5, by July

2019, the State was to “provide educational opportunities through sustainable governance

structures designed to meet the goals set forth in Sec. 2 of this act pursuant to one of the models

described in this section.” Id. § 5(a). The section then defines what is a “[p]referred structure”

and indicates when an “[a]lternative structure”—defined as “a supervisory union with member

districts”—may meet the State’s goals. Id. § 5(b)-(c). The preferred educational governance

structure is a school district that: “(1) is responsible for the education of all resident

prekindergarten through grade 12 students; (2) is its own supervisory district; (3) has a minimum

average daily membership [defined, in relevant part, by § 4001(1) of Title 16 as full-time

equivalent enrollment of students who are legal residents of the district] of 900; and (4) is

organized and operates according to one of the [following] four most common governance

structures”: operates the schools for all resident pre-K-12 students; operates schools for all resident

pre-K-8 students and pays tuition for all resident 9-12 students; operates schools for all resident

pre-K-6 students and pays tuition for all resident 7-12 students; or operates no schools and pays

tuition for all pre-K-12 students. Id. § 5(b).

¶ 6. Where the preferred structure is not “possible or not the best model to achieve

Vermont’s education goals in all regions of the State,” an alternative structure—“a supervisory

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union composed of multiple member districts, each with its separate school board”—“can meet

the State’s goals, particularly if” (1) the member districts are collectively responsible for educating

all resident pre-K-12 students; (2) “the supervisory union operates in a manner that maximizes

efficiencies through economies of scale and the flexible . . . sharing of nonfinancial resources

among the member districts”; (3) “the supervisory union has the smallest number of member

school districts practicable . . .”; and (4) “the combined average daily membership of all member

districts is not less than 1,100.” Id. § 5(c).

¶ 7. Section 6(a) of Act 46 sets forth the conditions that a newly formed district had to

meet on or before July 1, 2017, to receive the enhanced tax incentives in § 6(b). Section 7(a) sets

forth the conditions that a newly formed district had to satisfy on or before July 1, 2019, to receive

the tax incentives in § 7(b). Section 8 concerns the Board of Education’s evaluation of proposals,

including those submitted under §§ 6-7, to create a newly formed union school district, to

determine if the proposal is designed to create a sustainable governance structure that meets the

goals set forth in § 2. Under § 8(b), the Board may approve a supervisory union that is an

alternative structure only if the proposal (1) is the “best means” of meeting the § 2 goals in that

“particular region,” and (2) “ensures transparency and accountability,” including “in relation to

the supervisory union budget, which may include a process by which the electorate votes directly

whether to approve the proposed supervisory union budget.”

¶ 8. Section 9 requires a district school board that has a governance structure different

from the preferred structure identified in § 5(b) or that did not expect to have such a structure in

place before July 1, 2019, to take the following actions on or before November 30, 2017:

(1) evaluate its current ability to meet or exceed the § 2 goals; (2) meet with the boards of one or

more other districts to discuss ways to promote the § 2 goals throughout the region; and (3) submit

a proposal on behalf of itself or jointly with other boards both indicating whether it intends to

5
retain its current governance structure or form a different governance structure and demonstrating

that its chosen governance structure meets or exceeds § 2 goals.

¶ 9. In order to provide educational opportunities through sustainable governance

structures set forth in § 5(b), § 10(a) requires the Secretary of Education (1) to review the

governance structures of the school districts and supervisory unions as they would exist on July 1,

2019, and consider any § 9 proposals; and (2) develop on or before June 1, 2018, “and present to

the State Board of Education a proposed plan that, to the extent necessary to promote the purpose

stated [therein] would move districts into the more sustainable, preferred model of governance set

forth in Sec. 5(b).” That subsection further provides, in relevant part, that if it is “not possible or

practicable” to realign some districts, “where necessary,” into a preferred structure, “then the

proposal may also include alternative governance structures as necessary” as long as the proposed

alternative governance structure is designed to promote the purpose stated therein. Id. § 10(a)(2).

Under § 10(b), on or before November 30, 2018, the Board was required to review and analyze

the Secretary’s plan and, after taking any testimony or asking for any additional information,

approve the proposed plan in its original or an amended form and publish “its order merging and

realigning districts and supervisory unions where necessary.” Section 10 is not applicable to

districts that began to operate as a unified union school district between June 2013 and July 2019

and that either voluntarily merged into a preferred education governance structure as identified in

§ 5(b) or were eligible to receive incentives under Act 153 or Act 156. Id. § 10(c).

¶ 10. In sum, Act 46 established a multi-year, two-phased process to provide school

districts multiple opportunities “to unify existing governance units into more ‘sustainable

governance structures.’ ” 2017, No. 49, § 1(a) (making findings regarding Act 46 and noting that

Legislature intended these governance changes to revitalize small schools by promoting “equity

in their offerings and stability in their finances”). The first phase built upon existing incentives in

prior laws for school districts to merge voluntarily into preferred governance structures as defined

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therein. 2015, No. 46, §§ 6-7. The second phase—the subject of plaintiffs’ claims—established

the process for districts that had not, and elected not to, voluntarily merge into preferred

governance structures by specified dates. Id. §§ 9-10. Both phases are guided by the goals set

forth in § 2 of Act 46 and the preferred and alternative governance structures defined in § 5. The

second phase is also guided by § 9, which requires every nonpreferred structure to self-evaluate

and to submit a proposed future alternative structure, as well as § 10, which describes the process

culminating in the Board’s final merger order.

¶ 11. In 2017, in response to some districts resisting merger or experiencing difficulties

satisfying Act 46’s requirements, the Legislature passed Act 49, which provided more flexibility

in adopting alternative governance structures by offering additional incentives and exemptions if

newly created districts received voter approval on or before November 30, 2017. 2017, No. 49,

§§ 2-4. Act 49 also directed the Board to adopt rules concerning the submission of § 9 proposals,

which the Board promulgated as Rule Series 3400. Id. § 20 (allowing Board to “adopt rules

designed to assist districts in submitting alternative structure proposals,” but prohibiting Board

from imposing “more stringent requirements than those in the act”); see also Series 3400:

Proposals for Alternative Structures Under Act 46, Code of Vt. Rules 22 000 037 [hereinafter Rule

3400], https://education.vermont.gov/sites/aoe/files/documents/edu-state-board-rules-series-

3400.pdf [https://perma.cc/ZM42-XQF9].

¶ 12. In Act 49, the Legislature found that 105 Vermont towns had “voted to merge 113

school districts into slightly larger, more sustainable governance structures,” thereby creating

twenty-three new unified school districts and resulting in approximately sixty percent of Vermont

children living in school districts satisfying Act 46’s goals. Id. § 1(c). While lauding the fact that

these larger, more flexible union districts had “begun to realize distinct benefits”—including the

ability to offer choice among elementary schools within a district, greater flexibility in sharing

staff and resources, the elimination of bureaucratic redundancies, and flexibility to create magnet

7
schools offering a particular area of specialization—the Legislature expressed concern that, due to

complications ranging from geographic isolation to differing operational models or levels of debt,

significant areas of the state had experienced difficulty satisfying Act 46’s goals. Id. § 1(d)-(e).

The Legislature forewarned, however, that nothing in Act 49 “should be interpreted to suggest that

it is acceptable for a school district to fail to take reasonable and robust action to seek to meet the

goals of Act 46.” Id. § 1(f). The Legislature pronounced that Act 49 was “designed to make useful

changes to the merger time lines and allowable governance structures under Act 46 without

weakening or eliminating the Act’s fundamental phased merger and incentive structures and

requirements.” Id.

II. The Administrative and Judicial Proceedings

¶ 13. In June 2018, following the deadline for § 9 proposals by school districts that had

not merged—and were not planning to merge—into preferred governance structures by the

statutory deadlines, the Secretary submitted to the Board a 189-page proposed statewide plan for

the merger of school districts. The proposed plan addressed in detail the forty-three § 9 proposals

it had received from districts and groups of districts and included a 201-page analysis of common

data points for those districts that had submitted proposals.

¶ 14. Beginning in September 2018, the Board held five public meetings to review the

Secretary’s proposed plan and provided districts that had submitted § 9 proposals an opportunity

to identify any claimed errors in the Secretary’s report. In November 2018, the Board issued its

Final Report of Decisions and Order, in which it merged forty-two districts located in thirty-six

towns to form eleven new union school districts, enlarged an existing union school district by two

new members, merged one elementary school district into a modified unified union school district,

conditionally required an additional four such transitions, and declined to alter the governance

structures of forty-seven districts. The final order was accompanied by default articles of

agreement that applied to newly created districts. See 2017, No. 49, § 8 (amending § 10 of Act 46

8
and requiring statewide plan to include articles of agreement “to be used by all new unified union

school districts created under the plan unless and until new or amended articles are approved”).

¶ 15. In January 2019, plaintiffs filed a lawsuit in the civil division, pursuant to Vermont

Rule of Civil Procedure 75,3 challenging the Board’s implementation of Act 46, as amended by

Act 49. In their seventy-page amended complaint that included multiple counts, plaintiffs asked

the court to vacate all or part of the Board’s final order. After considering the public interest and

potential harm to the parties and evaluating the likelihood of plaintiffs succeeding on their claims,

the civil division denied plaintiffs’ motion for a preliminary injunction in a March 2019 decision.

The following month, in response to defendants’ motion, the court dismissed plaintiffs’ counts

alleging due-process violations and an unconstitutional delegation of legislative powers to the

Board; however, the court concluded that material facts had not been established with respect to

plaintiffs’ other counts. In a June 2019 decision addressing the parties’ cross-motions for summary

judgment, the civil division granted summary judgment to defendants on plaintiffs’ remaining

counts.4

III. Plaintiffs’ Appeal

¶ 16. On appeal to this Court, plaintiffs argue that: (1) the Secretary and the Board failed

to implement the plain language of Act 46; (2) the Board’s final order is based on a flawed

interpretation of Act 46 that violates provisions of Vermont statutory law and the Vermont

Constitution; and (3) the order contravenes this Court’s decision in Brigham v. State, 166 Vt. 246,

692 A.2d 384 (1997) (per curiam), construing the Vermont Constitution’s Common Benefits

Clause.

Rule 75 allows review of a state agency’s or subdivision’s actions or failure to act not
3

reviewable under Vermont Rule of Civil Procedure 74. See V.R.C.P. 75(a).
4
The court initially denied defendants’ motion for summary judgment as to one particular
district’s specific claim for relief concerning one of the counts; however, all parties later agreed
that any remaining claims were moot and that the court could enter a final judgment on all counts.
9
 A. Standard of Review

¶ 17. There are no material facts in dispute, but the parties disagree about the appropriate

standard of review for this Court to apply. In their principal brief, plaintiffs state simply that they

are raising purely legal issues for this Court’s nondeferential review. See Hallsmith v. City of

Montpelier, 2015 VT 83, ¶ 9, 199 Vt. 488, 125 A.3d 882 (“We review questions of law, including

whether the requirements of due process have been satisfied, de novo.” (quotation omitted)).

Defendants contend that this Court should apply a highly deferential standard in reviewing the

Board’s actions because this is a quasi-legislative process set forth in Act 46 that required the

Board to engage in a generalized rather than an individualized implementation of legislative

policy. See In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39,

¶ 20, 207 Vt. 274, 187 A.3d 1125 (“Even when conducting an evidentiary hearing, the court owes

deference to agency interpretations of policy or terms when: (1) that agency is statutorily

authorized to provide such guidance; (2) complex methodologies are applied; or (3) such decisions

are within the agency’s area of expertise.” (quotation omitted)); see also In re Williston Inn Grp.,

2008 VT 47, ¶ 12, 183 Vt. 621, 949 A.2d 1073 (mem.) (“We have long extended this principle of

deference to agency interpretations of statutes which the Legislature has entrusted to their

administration.”). Plaintiffs respond that no deference is owed to the Board because its expertise

lies in education policy rather than merging or dissolving municipal entities.

¶ 18. Plaintiffs’ primary claims of error in this appeal are that the Board’s interpretation

of the enabling statute exceeded the legislative delegation set forth therein and that, if it did not,

the delegation constituted an unconstitutional delegation of legislative authority. Regarding the

Board’s implementation of Acts 46 and 49, this Court has “long extended [the] principle of

deference to agency interpretations of statutes which the Legislature has entrusted to their

administration.” Williston Inn Grp., 2008 VT 47, ¶¶ 12-13 (noting that this principle arises out of

separation-of-powers concerns in addition to consideration of agency expertise); accord C&S

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Wholesale Grocers, Inc. v. Dep’t of Taxes, 2016 VT 77A, ¶ 10, 203 Vt. 183, 155 A.3d 169; see

Gasoline Marketers of Vt., Inc. v. Agency of Nat. Res., 169 Vt. 504, 508, 739 A.2d 1230, 1233

(1999) (“[A]bsent a clear and convincing showing to the contrary, decisions made within the

expertise of administrative agencies are presumed to be correct, valid, and reasonable . . . .”).

Accordingly, to the extent the language of the enabling statute is ambiguous or subject to multiple

reasonable interpretations, we will not substitute our judgment for the Board’s reasonable

interpretation of its authority pursuant to that statutory language.

¶ 19. We recognize, of course, that our ultimate goal in interpreting a statute “is to

effectuate the Legislature’s intent.” Negotiations Comm. of Caledonia Cent. Supervisory Union

v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 14, 206 Vt. 636, 184 A.3d 236. If the statutory

language is clear, we will enforce the statute according to the plain meaning of its terms. Id. If

the statutory language is not clear, “we seek to determine legislative intent by considering the

entire statute, including its subject matter, effects and consequences, as well as the reason and

spirit of the law.” Id. (quotation and alteration omitted). “Provisions that are part of the same

statutory scheme must be read in context and the entire statutory scheme read together to ascertain

legislative intention from the whole of the enactments.” Id. (quotation omitted).

¶ 20. In this case, our analysis of plaintiffs’ challenge to the Agency’s and Board’s

implementation of the statute does not rest upon deference to the Agency or Board because, as we

explain below, the statute plainly does not require the necessity finding for which plaintiffs

advocate. With respect to plaintiffs’ constitutional challenges, we give no deference when

“reviewing a constitutional challenge to the application of a statute.” State v. Roya, 167 Vt. 594,

595, 708 A.2d 908, 909 (1998) (mem.).

B. Statutory Challenges

¶ 21. In this section, we address plaintiffs’ arguments that: (1) the enabling statute

requires a threshold finding of necessity that the Board did not make; (2) the Board failed to

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discharge its responsibility to conduct a fair review of § 9 proposals; (3) because Act 46 includes

a provision specifically calling for forced mergers through 16 V.S.A. § 165, § 10 cannot be

understood to require forced mergers when it never expressly provides for such; and (4) Act 46

does not expressly override or repeal other sections of Title 16 calling for districts to vote before

assuming another district’s debt.

¶ 22. Plaintiffs first argue that the Agency and the Board erroneously interpreted Act 46

as establishing a two-phase process that incentivizes voluntary mergers in phase one and then, for

those districts that did not merge, forces involuntary mergers into preferred structures whenever

possible or practicable, without determining if the forced mergers are “necessary.” In making this

argument, plaintiffs focus on § 10(a)-(b) of Act 46. In plaintiffs’ view, § 10(a)(2) permits the

Secretary to propose involuntary mergers in its statewide plan, but §10(b) allows the Board’s final

order to call for involuntary mergers only when possible, practicable, and necessary. According

to plaintiffs, both the Secretary and the Board called for involuntary mergers whenever possible

and practicable, without analyzing whether the mergers were necessary. In particular, plaintiffs

cite to the Board’s statement in its overview of its final order that it had “chosen to hew as closely

to the intent of the Act as that authority will allow, creating preferred structures wherever possible,

and in all other cases, creating sustainable governance structures with the fewest number of

districts possible and practicable.” Plaintiffs also argue that the Secretary and the Board

disregarded their statutory duty to review § 9 proposals and give districts an opportunity to amend

those proposals, thereby effectively repealing that section. Specifically, plaintiffs point to the

Agency’s comment with respect to one particular § 9 proposal that the proposal was not strong

enough to overcome the Legislature’s stated preference for larger governance structures.

¶ 23. Plaintiffs’ arguments are inconsistent with the legislative intent underlying Acts 46

and 49 and cannot be reconciled with the various sections in those acts considered together. As

noted, the Legislature enacted Act 46 after its attempts in previous laws to incentivize only

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voluntary mergers failed to significantly reduce the number of districts by merging them into

larger, more sustainable, preferred governance structures. The Legislature documented in the

Act’s legislative findings the negative statewide impact on K-12 education resulting from schools

not being in sustainable governance structures. It determined that merging districts into

sustainable governance structures was necessary to achieve the goals stated, including economies

of scale and greater educational opportunities. Essentially, Act 46 established the presumption

that preferred structures are the best means of satisfying the Act’s goals, and it placed on those

districts objecting to merger into possible and practicable preferred structures the burden of

establishing that their proposed alternative structures provided a superior means of meeting those

goals. In short, where merger into a preferred governance structure was possible and practicable,

the Legislature presumed that merger was the best means of achieving Act 46’s goals, unless

shown otherwise.

¶ 24. An examination of the interplay among Act 46’s provisions supports this

construction of Act 46 and demonstrates that the Legislature did not create a “necessity” threshold

for the Board to force mergers. Section 5 provides that “the State shall provide educational

opportunities through sustainable governance structures designed to meet” the § 2 goals “pursuant

to” either a preferred structure as described therein, or an alternative structure where a preferred

structure “may not be possible or the best model to achieve Vermont’s education goals in all

regions of the State.” 2015, Act 46, § 5(a)-(c) (emphasis added). The Board may approve an

alternative structure creating, expanding, or continuing a supervisory union “only if the Board

concludes that this alternative structure,” in part, “is the best means of meeting” the § 2 goals “in

a particular region.” Id. § 8(b) (emphasis added). Section 10(a) of Act 46 requires the Agency to

review the governance structures across the state, including any § 9 proposals, and to develop a

statewide plan “that, to the extent necessary” to provide educational opportunities through

sustainable governance structures “would move districts into the more sustainable, preferred

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model of governance set forth in Sec. 5(b).” Id. § 10(a). Where “it is not possible or practicable”

to meet “all aspects of Sec. 5(b), then the proposal may also include alternative governance

structures as necessary,” provided that, in part, the proposed alternative structure is designed to

“provide educational opportunities through sustainable governance structures . . . pursuant to one

of the models described in Sec. 5.” Id. The Board “shall approve” the Agency’s proposal that

adheres to § 10(a) and “shall publish . . . its order merging and realigning districts and supervisory

unions where necessary.” Id. § 10(b).

¶ 25. Plaintiffs’ attempt to convert the last two words of § 10(b) into a mandate

preventing the Board from merging school districts into sustainable governance structures, without

local approval, absent a finding of necessity, is inconsistent with these provisions when read

together. The term “where necessary” in § 10(b) means nothing more than requiring the Board to

merge and realign districts according to the mandates of Act 46, which presumes the necessity of

merging districts into preferred or alternative governance structures to achieve its stated goals.

More specifically, viewed in the context of the relevant provisions, those two words indicate only

that the Board was required to take action by merging schools into either a preferred governance

structure or, if an objecting district established that the preferred structure is not the best means of

promoting § 2 goals in that region, an alternative structure that meets specific criteria. There is no

mandatory threshold necessity finding separate from Act 46’s directive that the Board take all

feasible actions, whenever possible and practicable, to merge schools into preferred or alternative

governance structures within each region.

¶ 26. In Act 46, the Legislature intended to require the establishment of preferred or

approved alternative governance structures to achieve its stated goals, even if that meant forcing

involuntary mergers. Considered in this context, the word “necessary” in § 10(b) reflects the

Legislature’s recognition that the Board will have to take certain merger actions to achieve Act

46’s goals. As with plaintiffs, the dissent’s focus on the term “where necessary” in § 10 essentially

14
eliminates the presumption in § 5 that preferred structures further the statute’s goals and that

alternative structures are permitted only when certain requirements are met, which was not the

case here.

¶ 27. Plaintiffs’ suggestion that § 9 proposals were not properly considered is without

merit. The Secretary’s proposed plan included several hundred pages of appendices discussing

the § 9 proposals. Moreover, the Board gave every district that submitted an alternative proposal

the opportunity to identify any errors that the Secretary made, to discuss any alternative proposal

with the Board, or to amend any such proposal. In the end, the Board merged forty-two districts

located in thirty-six towns to form eleven new union school districts, but it left forty-seven districts

with their current governance structures.

¶ 28. We also reject plaintiffs’ assertion that § 40 of Act 46, which amended 16 V.S.A.

§ 165(b), provided the exclusive means of forcing involuntary mergers of school districts.

Subsection 165(b) requires the Secretary to determine every two years whether students in each

public school are being provided substantially equal educational opportunities with respect to other

public schools. If within the next two-year period a school fails to meet statutory performance

standards following the Secretary’s recommended actions and technical assistance, the Secretary

must recommend to the Board one or more of the actions specified therein. Among other things,

§ 40 of Act 46 added as one of those specified actions that “the State Board require two or more

school districts to consolidate their governance structures.” 16 V.S.A. § 165(b)(5). According to

plaintiffs, the fact that the Board used the word “require” in this context, but not in § 10(b), and

that 16 V.S.A. § 165(c) affords affected school districts the opportunity for a hearing before the

Board can force merger under § 165(b)(5), demonstrates that this is the only context in which the

Legislature intended the Board to force mergers.

¶ 29. This argument is untenable because these laws address distinct matters. As

discussed above, the second phase of Act 46, at the heart of which is § 10, required the Board to

15
adopt a regionally focused statewide plan by November 2018 pursuant to the policy goals stated

in the Act. Under that phase of the Act, alternative structures for individual districts are permitted

only if they are found to be the best means of meeting those goals in a particular region. In contrast,

§ 40 of Act 46, which is not set to take effect until July 2020, addresses the specific situation when

the Secretary determines that an individual school is not meeting statutory performance standards.

There is nothing illogical, as plaintiffs suggest, about addressing the failure of a specific school to

meet performance standards differently than the process for altering statewide education

governance structures on a regional basis to better meet explicitly stated legislative goals.

¶ 30. For similar reasons, we do not find persuasive any of plaintiffs’ arguments

suggesting that the Board’s implementation of Act 46 conflicted with other sections of Title 16.

In construing statutes to give effect to legislative intent, we seek “to harmonize statutes and not

find conflict if possible.” Gallipo v. City of Rutland, 173 Vt. 223, 235, 789 A.2d 942, 951 (2001).

If that is not possible, specific and more recent statutes regarding the same subject matter control

over more general and older statutes. State of Vt. Agency of Nat. Res. v. Parkway Cleaners, 2019

VT 21, ¶ 40, __ Vt. __, 210 A.3d 445; State v. Lynch, 137 Vt. 607, 610, 409 A.2d 1001, 1003

(1979).

¶ 31. Plaintiffs argue that specific provisions of Chapter 11 of Title 16 unambiguously

require reciprocal votes from each involved district before any merger of districts or transfer of the

districts’ debts and assets. According to plaintiffs, the Legislature intended Acts 46 and 49 to

encourage more-consolidated school districts but to leave intact the voting rights of individual

communities on whether to merge their school districts with neighboring ones. Essentially,

plaintiffs are arguing that Acts 46 and 49 did not in fact provide for involuntary mergers but rather

anticipated giving individual communities a veto power over proposed mergers, pursuant to

provisions in Chapter 11 of Title 16. For the reasons discussed above, we find this interpretation

contrary to the plain language and spirit of Acts 46 and 49.

16
 ¶ 32. In support of their argument, plaintiffs point to 16 V.S.A. §§ 706d, 706f and 721,

provisions which are part of a statutory procedure that has remained largely unchanged since first

enacted over forty years ago. 1967, No. 277 (Adj. Sess.), §§ 10, 12, 35. In contrast to the

involuntary mergers of districts to form supervisory districts contemplated by the second phase of

Act 46, §§ 706d and 706f concern the voluntary formation of a union school district by vote after

a local study committee recommends merging multiple districts. Section 706 provides that the

boards of two or more school districts can form a study committee to evaluate whether to form a

single union district. If the Board approves a committee report recommending merger, see 16

V.S.A. §§ 706b, 706c, then each school district designated “as necessary to the proposed union

school district shall vote, and any school district designated . . . as advisable to be included may

vote on the establishment of the proposed union school district.” 16 V.S.A. § 706d. Section 706f

specifies the contents of a warning on the vote to establish the union. Section 721 concerns the

process for the inclusion of additional school districts into an existing union district with the

Board’s approval when initiated either by a district outside the union or by the union district itself.

¶ 33. Section 721 neither addresses nor prohibits involuntary mergers, as contemplated

by Act 46. Further, the fact that some longstanding provisions in Title 16 require local approval

for mergers under certain circumstances does not demonstrate they are applicable under Acts 46

and 49 or that local approval is a necessary element of legislatively authorized mergers. See

Opinion of the Justices, 246 A.2d 90, 93 (Del. 1968) (“The fact that, heretofore, no consolidating

of districts or imposition of taxes could be made without an affirmative vote of the residents of the

particular district, does not mean that ever thereafter the General Assembly is bound to preserve

that practice.”).

¶ 34. In short, none of the provisions that plaintiffs rely on are applicable in situations

involving involuntary state-initiated mergers into preferred governance structures pursuant to the

second phase of Act 46. See 2015, No. 46, § 5(b) (defining preferred governance structure that is,

17
among other things, “its own supervisory district”); id. § 8(b) (providing that “Board “shall

approve the creation, expansion, or continuation of a supervisory union only if the Board concludes

that the alternative structure . . . is the best means of meeting the [§ 2] goals . . . in a particular

region”). Notwithstanding the constraints of the Chapter 11 provisions applicable in different

circumstances, § 10(b) of Act 46 authorizes the Board to issue an order merging existing school

districts consistent with the goals of the Act, even in situations where one or more of the included

districts objects to the merger. Plaintiffs have not demonstrated that the Board failed to apply any

Title 16 provisions in circumstances in which they were applicable.

¶ 35. Nor have plaintiffs demonstrated that the Board misinterpreted the provisions set

forth in Act 46, as amended by Act 49, or exceeded its authority in implementing those laws. The

Board’s interpretation of those Acts is entirely reasonable and supported by the plain language of

the provisions contained therein, as well as the underlying purposes and spirit of those laws. To

the extent that any of the provisions in those Acts may be considered ambiguous with respect to

the Agency’s or Board’s delegated authority, we conclude that the Board reasonably interpreted

those provisions in implementing the Acts.5

5
Plaintiffs are essentially asking this Court to rewrite Act 46 in a way in which the
Legislature declined to do when urged to do so. In 2016, the Board proposed rules recognizing
that alternative structures are permissible when preferred structures are not “possible or the best
model.” Rules 3430.2, 3430.2.1. Rule 3430.2.1 recognizes that alternative structures can meet
§ 2 goals “ ‘particularly if’ ” they have “ ‘the smallest number of member school districts
practicable,’ ” which means that, to the extent current governance structures allow, districts merge
even within proposed alternative structures. Rule 3430.2.1 (quoting 2015, No. 46, § 5(c)); Rule
3430.2.2. Rule 3450.3 explains that a proposed alternative structure should demonstrate it is the
best means of meeting § 2 goals in a particular region, as required by § 8(b). In 2017, opponents
of the second-phase involuntary-merger process sought to eliminate references in Act 46 to
preferred structures and the requirement that the Board find that a proposed alternative structure is
the best means of meeting Act 46 goals for that region. See H.15, 2017-2018 Gen. Assem., Bien.
Sess. (Vt. 2017) (proposing this in statement of purpose); S.15, 2017-2018 Gen. Assem., Bien.
Sess. (Vt. 2017) (same). Opponents sought to make the criteria for the two types of structures
identical and to weaken the requirement that alternative structures have the smallest number of
member districts practicable. H.15 (proposing this in statement of purpose), § 1 (proposing
amendment to § 5(c)(3)); S.15 (proposing this in statement of purpose), § 1 (proposing amendment
to § 5(c)(3)). Instead, the Legislature passed Act 49, which did none of those things. Nor did the
18
 C. Constitutional Challenges

¶ 36. In this section, we consider plaintiffs’ arguments invoking the unlawful-delegation

doctrine and the Vermont Constitution’s Education and Common Benefits clauses. Plaintiffs first

argue that even if the Agency and the Board in fact acted within the authority delegated to them in

Acts 46 and 49, then that delegation—which plaintiffs characterize as giving those executive

entities the “sole discretion” to dissolve and form school districts—violated the separation-of-

powers principle established in the Vermont Constitution. Noting that school districts are

considered municipalities in Vermont, plaintiffs assert that the Legislature has the exclusive

prerogative under the Vermont Constitution to dissolve and create school districts. They contend

that the delegation in this case violates the Constitution and this Court’s precedent by giving the

Board the authority to: (1) create new school districts and decide what territory—composed of

existing smaller school districts—will be included within their limits; and (2) create articles of

agreement by which the Board established the size, composition, and powers of the new districts’

governing boards. As explained below, we conclude that the Legislature provided in Acts 46 and

49 more than sufficient guidance to the Agency and Board to avoid an unconstitutional delegation

of its legislative power concerning the creation, dissolution, and reorganization of school districts

in the state.

¶ 37. In responding to plaintiffs’ unlawful-delegation argument, we first examine some

basic principles. To avoid an unconstitutional reach of the judiciary’s own powers as a co-equal

branch of government, this Court “presume[s] a statute is constitutional absent clear and

irrefragable evidence to the contrary.” State v. Curley-Egan, 2006 VT 95, ¶ 27, 180 Vt. 305, 910

Legislature make changes sought by plaintiffs in 2018 or 2019, after the Board issued its final
order. We decline plaintiffs’ invitation to construe Act 46 in a manner unsupported by the interplay
of its provisions and not adopted by the Legislature.
19
A.2d 200 (quotation omitted) (concluding that Legislature did not unconstitutionally delegate its

police power in giving University of Vermont police statewide jurisdiction).

¶ 38. The Vermont Constitution pronounces that “[t]he Legislative, Executive, and

Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly

belonging to the others.” See Vt. Const. ch. II, § 5. Recognizing that there inevitably “must be a

certain amount of overlapping” of the separate branches’ powers and that “we must construe the

constitutional command consistent with efficient and effective governmental structures that are

able to respond to the complex challenges and problems faced by today’s state government,” we

have referred to “our separation-of-powers requirement as a relatively forgiving standard, tolerant

of such overlapping institutional arrangements short of one branch virtually usurping from another

its constitutionally defined function.” Hunter v. State, 2004 VT 108, ¶ 21, 177 Vt. 339, 865 A.2d

381 (quotations and alterations omitted) (quoting James Madison for principle that separation-of-

powers doctrine is violated when one branch exercises another branch’s power in manner that

usurps other branch’s constitutionally defined function); see also Carolina-Virginia Coastal

Highway v. Coastal Turnpike Auth., 74 S.E.2d 310, 316 (N.C. 1953) (noting that, without

delegation authority, “the Legislature would often be placed in the awkward situation of possessing

a power over a given subject without being able to exercise it”). Thus, “there can be no claim of

unconstitutional delegation of legislative power where a statute establishes reasonable standards

to govern the achievement of its purpose and the execution of the power which it confers.” In re

B & M Realty, LLC, 2016 VT 114, ¶ 28, 203 Vt. 438, 158 A.3d 754 (quotations and alteration

omitted); see also Rogers v. Watson, 156 Vt. 483, 493, 594 A.2d 409, 415 (1991) (recognizing

that delegation of discretionary authority is valid as long as Legislature provides “sufficient

standard or policy to guide” agency’s action); Vt. Home Mortg. Credit Agency v. Montpelier Nat’l

Bank, 128 Vt. 272, 278, 262 A.2d 445, 449-50 (1970) (recognizing that Legislature “may confide

20
a broad grant of authority to a subordinate agency in intricate matters affecting the general welfare

in natural resources, health, education and economics”).

¶ 39. The oft-stated distinction with respect to the unlawful-delegation doctrine is

“between ‘a delegation of the power to make the law which necessarily includes a discretion as to

what it shall be and the conferring authority or discretion as to its execution.’ ” Hunter, 2004 VT

108, ¶ 27 (quoting Vill. of Waterbury v. Melendy, 109 Vt. 441, 451, 199 A. 236, 241 (1938)).6

“The first cannot be done; to the latter no valid objection can be made.” Marshall Field & Co. v.

Clark, 143 U.S. 649, 694 (1892) (quotation omitted). “The discretion conferred can be ‘wide . . . in

the manner and method for the execution of statutes validly adopted.’ ” Hunter, 2004 VT 108,

¶ 27 (quoting Vt. Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 267, 247 A.2d 68, 72 (1968)).

The U.S. Supreme Court has recognized that as long as a legislative body “provides an

administrative agency with standards guiding its actions such that a court could ascertain whether

the will of [that body] had been obeyed, no delegation of legislative authority trenching on the

principle of separation of powers has occurred.” Skinner v. Mid-America Pipeline Co., 490 U.S.

212, 218 (1989) (quotations omitted); see Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472

(2001) (noting its repeated admonition that legislative body “must lay down by legislative act an

intelligible principle to which the person or body authorized to act is directed to conform”

(quotation and alteration omitted)).

6
Plaintiffs suggest that Melendy approves as constitutional only delegations of legislative
authority to local entities to deal with matters of local concern. That is not accurate. Although
this Court stated in Melendy that such delegations were an exception to the unlawful-delegation
doctrine, 109 Vt. at 448, 199 A. at 239, it did not suggest that that was the only type of lawful
delegation. In fact, we found the delegation in that case unconstitutional because the act in
question provided no “policy or plan for apportionment of the expense of flood control projects as
between the state and the municipalities sought to be assessed,” and provided no guidance
whatsoever to the Public Service Commission to determine how the benefits and assessments from
the act were to be distributed. Id. at 453, 199 A. at 242.
21
 ¶ 40. Accordingly, the legislative body “may not only give such authorizations to

determine specific facts, but may establish primary standards, devolving upon others the duty to

carry out the declared legislative policy.” Melendy, 109 Vt. at 451, 199 A. at 241; see also Cty.

Bd. of Educ. v. Goodpaster, 84 S.W.2d 55, 58 (Ky. 1935) (stating that unconstitutional delegation

of legislative power “means delegation of discretion as to what the law shall be, and does not mean

that the Legislature may not confer discretion in the administration of the law itself”); Carolina-

Virginia Coastal Highway, 74 S.E.2d at 316 (stating that “the legislative body must declare the

policy of the law, fix legal principles which are to control in given cases, and provide adequate

standards for the guidance of the administrative body or officer empowered to execute the law,”

and it “may delegate the power to find facts or determine the existence or nonexistence of a factual

situation or condition on which the operation of a law is made to depend, or another agency of the

government is to come into existence,” but “it cannot vest in a subordinate agency the power to

apply or withhold the application of the law in its absolute or unguided discretion”). As this Court

explained long ago:

Since legislation must often be adapted to complex conditions
involving a host of details, with which the lawmaking body cannot
deal directly, the Legislature may, without abdication of its essential
functions, lay down policies and establish standards while leaving
to selected instrumentalities the making of subordinate rules within
prescribed limits and the determination of facts to which the policy
as declared by the legislature is to apply.

State v. Auclair, 110 Vt. 147, 163, 4 A.2d 107, 114 (1939) (quotation omitted) (stating that

Legislature may vest agency with “wide discretion” as long as discretion is not “unrestrained and

arbitrary” in furtherance of fixed legislative policy).

¶ 41. Specifically, with respect to the delegation of legislative authority over the creation,

merger, or dissolution of school districts, courts overwhelmingly agree that such delegation,

especially when accompanied by extensive guidance such as in the instant case, does not violate

the separation-of-powers principle. See Annotation, Discretion of Administrative Officers as to

22
Changing Boundaries of School District, 135 A.L.R. 1096, § 2 (originally published in 1941 and

supplementing 65 A.L.R. 1523) (listing cases supporting proposition that state legislatures have

“almost unlimited power to abolish, divide, or alter” school districts and that “this broad

discretionary power to change the boundaries of school districts may be delegated by the

legislature to administrative bodies, to be exercised under certain conditions”); 16B McQuillan,

The Law of Municipal Corporations § 46:2 (3d. ed. 2019) (stating that legislative authority to

establish school districts and enact laws for their governance “is frequently delegated to some

extent” to other entities, including boards of education, and that legislature “has the power to

provide in any way that it chooses for the administration and management of public school affairs

in any district” in state “independent of local government” interest); see also Inhabitants of N.

Berwick v. State Bd. of Educ., 227 A.2d 462, 468 (Me. 1967) (stating that Legislature has power

“to divide or join towns into school districts as it pleases” by law “without referendum to the

people in the municipalities within the proposed district” and that it may “delegate such power to

some administrative body”).

¶ 42. Legislative action to “create and abolish school districts and change the boundaries

thereof . . . is usually provided for by general laws in which the Legislature formulated the policy

broadly, leaving the working out of the details to designated officers.” Berthot v. Gallatin Cty.

High Sch. Dist., 58 P.2d 264, 266 (Mont. 1936). Such laws “do not violate the provision against

delegating legislative power to administrative officers.” Id.; see also Schaefer v. Tea Area Sch.

Dist. 41-5, 2015 S.D. 87, ¶ 8, 871 N.W.2d 838 (stating that “creation, enlargement, consolidation,

alteration and dissolution of school districts is a legislative function” that legislature may delegate

to boards of education (quotation and alterations omitted)); Edgewood Indep. Sch. Dist. v. Meno,

917 S.W.2d 717, 740 (Tex. 1995) (rejecting argument that bill giving commissioner of education

extensive power to create rules and consolidate school districts was unconstitutional delegation of

legislative power, and noting that legislature “may delegate its powers to agencies established to

23
carry out legislative purposes, as long as it establishes reasonable standards to guide the entity to

which the powers are delegated” (quotation omitted)); Sch. Dist. No. 3 v. Callahan, 297 N.W. 407,

411 (Wis. 1941) (stating that “the formation of school districts and the power to exercise discretion

in determining whether such districts shall be altered by consolidation or otherwise is not such an

exclusive function as may not be delegated to the state superintendent”).

¶ 43. Vermont is no exception to these general principles. See Town of Barre v. Sch.

Dist. No. 13, 67 Vt. 108, 112-13, 30 A. 807, 808 (1894) (stating that “education of its youth is a

state work, created, controlled, and enforced by public laws” and thus Legislature “has the right

and power to determine when, how, and by whom its work shall be carried on”); see also Pierce

v. Whitman, 23 Vt. 626, 628 (1851) (citing eighteenth-century acts empowering towns to divide

their territories into school districts). Moreover, for more than fifty years, the Legislature has

delegated to the Board the power to approve or reject certain school district changes. See Appelget

v. Baird, 126 Vt. 503, 504, 236 A.2d 671, 672 (1967) (relying on statute giving Board authority to

determine whether proposed union school district was in state’s best interests).

¶ 44. In this case, Acts 46 and 49 provide more than sufficient guidance to satisfy the

lawful-delegation standard examined above. See B & M Realty, LLC, 2016 VT 114, ¶ 28 (finding

no unlawful delegation of legislative authority in planning and development act that identified

legislative purpose for planning generally, listed specific goals that regional plans must meet,

identified duties of regional planning commissions and established required elements of regional

plans, and specified procedural requirements for adopting plans, including opportunity for public

hearing and comment); see also Opinion of the Justices, 246 A.2d at 94 (finding no unlawful

delegation of legislative power to state board of education in school district reorganization act that

controlled board’s discretion by establishing general principles and standards and directing board

to adopt criteria according to specified factors); Penn Sch. Dist. No. 7 v. Bd. of Educ. of Lewis-

Cass Intermediate Sch. Dist., 165 N.W.2d 464, 471 (Mich. Ct. App. 1968) (rejecting unlawful

24
delegation argument where act declared policy and primary standard for statewide school district

reorganization and left it for state committee to develop detailed principles and procedures for

implementation of act); Chartiers Valley Joint Sch. v. Cty. Bd. of Sch. Dirs., 211 A.2d 487, 493-

95 (Pa. 1965) (concluding that legislative act providing clear policy objectives and procedures to

administrators for school district reorganization was not unconstitutional delegation of legislative

power, and stating that “rule against delegation of legislative power does not mean that

reorganization can be achieved only by statutory specification of actual geographic boundaries for

every administrative unit in the state”).

¶ 45. Acts 46 and 49 set forth detailed legislative findings and explicit policy goals.

Further, the laws specify preferred and alternative school district governance structures for the

Board to approve based on explicit conditions and criteria. Further still, the laws set forth detailed

processes and procedures by which the Agency and the Board must consider the state’s various

proposed school districts, all within the confines of the laws’ policies, goals, and criteria. Indeed,

it is difficult to imagine more specific guidance for the Board to apply its discretion within the

bounds of the authority delegated to it by the Legislature.

¶ 46. Faced with this sea of case law and legal authority contrary to their unlawful-

delegation position, plaintiffs cling to a thin reed—this Court’s five-paragraph 1913 advisory

opinion in In re Municipal Charters, 86 Vt. 562, 86 A. 307 (1913). In that case, the governor asked

this Court to advise him on the constitutionality of a 1910 law allowing villages to be chartered,

and village charters to be amended, on petition to the Public Service Commission “without

resorting to the General Assembly.” Id. at 563, 86 A. at 307. Relying on the constitutional clause

giving the Legislature the power “to ‘constitute towns, boroughs, cities, and counties,’ ” id.

(quoting Vt. Const. ch. II, § 6), this Court concluded that the 1910 law went too far in delegating

“to the Commission to determine the plan and frame of government of the proposed village, what

25
powers and functions it may exercise, and what shall be the limit of its expenditures and

indebtedness.” Id. at 564, 86 A. at 308.

¶ 47. Recognizing that Municipal Charters dealt with a specific constitutional clause not

at issue here, plaintiffs point out that another clause in the same constitutional provision empowers

the Legislature to “grant charters of incorporations, subject to the provisions of section 69,” Vt.

Const. ch. II, § 6, which in turn permits the grant of charters of incorporation to both “municipal”

and “educational” corporations, among others, Vt. Const. ch. II, § 69. Plaintiffs also cite to 1

V.S.A. § 126, which includes within its definition of “Municipality,” for the purpose of construing

statutes, a “town school district.”

¶ 48. For several reasons, Municipal Charters does not control the outcome in this case.

As noted, the Court in Municipal Charters considered an act that empowered the Public Service

Commission “to determine the plan and frame of government of the proposed village, what powers

and functions it may exercise, and what shall be the limit of its expenditures and indebtedness,”

86 Vt. at 564, 86 A. at 308, without any direction or standards. The Court acknowledged that one

section of the law enumerated the various potential powers and functions of a proposed village,

but it noted that the law “still left to the Commission to determine in its discretion what of those

powers and functions it will confer in the particular case.” Id. That is a far cry from the detailed

legislative policy, findings, purposes, goals, procedures, standards, and criteria set forth in Acts 46

and 49.

¶ 49. In any event, as the trial court noted, Municipal Charters concerned the

incorporation of municipalities, which the constitutional clause at issue expressly reserved to the

Legislature—not the reorganization of school districts. Notwithstanding that school districts are

treated as municipalities in some respects, the two have not always been treated the same under

the nondelegation doctrine. As noted above, the Vermont Legislature has a long history of

permitting the creation or merger of school districts without legislative approval, but it has never

26
done so with respect to the incorporation of municipalities. Moreover, state courts have generally

given state legislatures more leeway in delegating legislative power over the creation, dissolution,

or consolidation of school districts, as opposed to the incorporation of municipalities. Compare

16B McQuillan, supra, § 46:2 (stating that power to establish school districts is vested in state

legislature, but “is frequently delegated to some extent to quasi-corporations,” including boards of

education), with 1 McQuillan, supra, § 3:10 (stating that state legislatures “cannot delegate to

courts or other bodies . . . the power to create municipal corporations,” although legislatures may

pass general laws for incorporation of municipalities with fixed conditions on which they may be

created). For the above reasons, our advisory opinion in Municipal Charters does not control the

outcome of this case.

¶ 50. Nor do we find any merit to plaintiffs’ suggestion that the legislation authorizing

the Board to promulgate default articles of agreement constituted an unlawful delegation of

legislative power. The Board has a long history of reviewing articles of agreement. See, e.g.,

1967, No. 277 (Adj. Sess.), § 8 (requiring committee proposing union district to “prepare a report

in the form of an agreement between member districts,” and requiring Board to review committee

reports); see also 16 V.S.A. § 706b(b) (requiring committee proposing union to “prepare a report

in the form of an agreement between member districts”). In allowing the Board to issue default

articles of agreement until amended articles are approved, the Legislature permissibly delegated

authority necessary to implement its goal of moving toward sustainable governance structures.

Act 49 allowed the Board to issue default articles of agreement because involuntarily created

districts would not have proposed articles but would need them to operate. The Act gave “districts

subject to merger” ninety days to form a committee to draft proposed amended articles. 2017, No.

49, § 8 (adding § 10(d)(1) to Act 46). We see no unlawful delegation in this process.

¶ 51. Plaintiffs also argue that the Board’s implementation of Act 46 violates the

Vermont Constitution’s Education and Common Benefits clauses. Neither argument withstands

27
scrutiny. In relevant part, the Education Clause provides that “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 contend that this provision

prevents the Legislature from mandating the closure of town schools, which, according to

plaintiffs, will be the inevitable result of Act 46. Not only does this argument discount the

qualifying clause in § 68, but it ignores the “long and settled” principle in Vermont that education

is “a fundamental obligation of state government.” Brigham, 166 Vt. at 264, 692 A.2d at 395

(rejecting contention “that the primary constitutional responsibility for education rests with the

towns of Vermont”). In any event, Act 46 explicitly states the Legislature’s intent to consolidate

school districts, not close schools—and, in fact, it did not close any schools. Plaintiffs’ concern

over potential future school closings is purely speculative and cannot at this juncture be a basis for

challenging Act 46 or the Board’s implementation of the Act. See Stowe Citizens for Responsible

Gov’t v. State, 169 Vt. 559, 561, 730 A.2d 573, 576 (1999) (mem.) (declining “to consider

invalidating [the Equal Educational Opportunity Act of 1997] based on predictions that future

events will demonstrate the statute’s failure to fulfill the State’s constitutional obligations”).

¶ 52. Finally, plaintiffs argue that the Board’s final order contravenes Brigham’s

mandate, pursuant to the Common Benefits Clause, that all students “be afforded a substantially

equal opportunity to have access to similar educational revenues.” 166 Vt. at 268, 692 A.2d at

397; see Vt. Const. ch. I, art. 7. According to plaintiffs, the Board’s unequal distribution of merger

incentives and small-school-support grants violates Brigham’s central holding that the distribution

of educational resources cannot rest upon “the mere fortuity of a child’s residence.” Id. at 265,

692 A.2d at 396. In plaintiffs’ view, Act 46, as implemented by the Board, creates two categories

of school districts—those that obtain financial benefits by voluntarily merging and those that will

not receive those financial benefits because either their merger proposals were rejected or they

refused to voluntarily merge. Plaintiffs assert that distinguishing districts on this basis has no

28
necessary purpose, or even rational basis. Defendants respond that this constitutional claim is not

ripe and, in any case, fails because the incentives and grants are rationally related to merging

schools into preferred or alternative governance structures that support the Legislature’s goal of

giving small schools expanded educational opportunities generally only available to larger schools

through economies of scale. See Baker v. State, 170 Vt. 194, 203, 206, 744 A.2d 864, 871, 873

(1999) (describing this Court’s approach under Common Benefits Clause “as broadly deferential

to the legislative prerogative to define and advance governmental ends, while vigorously ensuring

that the means chosen bear a just and reasonable relation to the governmental objective” when

considered “in light of contemporary conditions”).

¶ 53. As with their previous constitutional argument, plaintiffs’ hypothetical argument—

that students in unspecified school districts at some point in the future might not obtain equal

educational opportunities due to unequal levels of funding that could result from not obtaining tax

incentives or qualifying for small-school grants—is purely speculative and cannot be the basis for

this Court to declare Act 46 unconstitutional under the Common Benefits Clause.7 No plaintiff

has demonstrated that they did not receive a grant previously available to them because of Act 46,

let alone that the lack of a grant or other financial incentive resulted in unequal educational

opportunities for any particular school or district. Any claim that the Board’s multi-factor test for

obtaining grants might be applied adversely to an unknown school district for unknown reasons

based on data that does not yet exist is not ripe for adjudication. Similarly, any potential tax effects

on property owners is speculative and subject to adjustments under other applicable tax laws. And

finally, it is not at all clear that the remedy for any common-benefits (or proportional-contribution)

7
In reality, this may actually be a proportional-contribution-clause claim, insofar as it
turns on claimed disparate tax burdens, rather than a common-benefits-clause claim. Given our
analysis above, we need not resolve this question.
29
violation arising from the differential incentives would be to unwind the Board’s final order

pursuant to § 10, rather than to require redress for the unequal incentives.

¶ 54. As for the dissent’s homage to local control, the dissent itself acknowledges that

the state is and always has been responsible for determining that level of control and that it is

within the province of the Legislature, not this Court, to make policy determinations in that regard.

See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (stating that courts “are

vested with the authority to interpret the law” but “possess neither the expertise nor the prerogative

to make policy judgments” entrusted to members of legislative branch, “who can be thrown out of

office if the people disagree with them”).

Affirmed.

FOR THE COURT:

Chief Justice

¶ 55. EATON, J., dissenting. At its heart, this is a case of statutory interpretation. Did

the Legislature give the Board of Education the authority to direct school districts to involuntarily

change their structures and, if so, under what conditions? The Board and the majority interpret the

authorizing legislation to allow forced mergers when possible or practicable. To reach this

interpretation the majority ignores critical language in the statute that authorizes involuntary

changes to district structure only “where necessary” to achieve the goals of the statute. Because

the language of Act 46 is plain in requiring the Board to find that merger of particular school

districts is necessary, not just possible and practicable, I would remand to the Board to reconsider

the Secretary’s proposal in light of that standard. To allow involuntary mergers to proceed for

towns where it is not necessary violates the intent of the statute and puts at risk the voices of small

towns in the future education of their children.

30
 ¶ 56. I agree with the majority that the Legislature has the authority under the Vermont

Constitution to delegate to the Agency and the Board the power to create, merge, or dissolve school

districts as long as that delegation is accompanied by “reasonable standards to govern the

achievement of [the] purpose and the execution of the power which it confers.” In re B & M

Realty, LLC, 2016 VT 114, ¶ 28, 203 Vt. 438, 158 A.3d 754 (quotation omitted); see Stowe

Citizens for Responsible Gov’t v. State, 169 Vt. 559, 561, 730 A.2d 573, 575 (1999) (mem.)

(explaining that Legislature can delegate decisionmaking to municipality, but delegation is

unconstitutional if it “is so vague and uncertain that, in exercising its discretion, the municipality

must, in effect, make the law”). Therefore, the scope of the authority that the Legislature gave to

the Board is important to answering the constitutional delegation question.8 Here, the plain

language of Act 46 requires that the Secretary and the Board recommend and adopt changes in

school governance structures only where “necessary” to promote the goals of the statute. Any

doubt about the Legislature’s intent is resolved by considering the overall structure and purpose of

the statute, which does not mandate merger in all instances, and Vermont’s history of giving local

voters control over district structure and schools.

¶ 57. As detailed by the majority, the Legislature enacted Act 469 to address a statewide

decline in student enrollment and parallel increase in education costs. 2015, No. 46, § 1. The

Legislature found that the existing variety of governance structures of school districts resulted in

school districts that were not achieving economies of scale and lacked flexibility. Id. § 1(e). The

law therefore sought to “move the State toward sustainable models of education governance” that

provided equity in the quality and variety of education, led to good educational outcomes,

8
I do not reach the question of whether the statute as interpreted by the majority amounts
to an overly vague and therefore unconstitutional delegation.
9
I refer throughout this dissent to Act 46, recognizing that Act 49 altered some of its
provisions.
31
maximized efficiencies, promoted transparency, and delivered education at a good cost value. Id.

§ 2. The Legislature made clear that it did not intend to close schools but to provide expanded

educational opportunities. Id. § 3. The Legislature provided definitions for preferred education

governance structures for educational districts and alternative structures. Id. § 5. The law

encouraged the formation of preferred governance structures through voluntary mergers by

providing financial incentives. Id. §§ 6, 7.

¶ 58. Under the statute, districts that did not enter voluntary mergers and did not have a

preferred structure were required to submit a proposal (either individually or jointly with other

districts), explaining the district’s plan to meet the goals of the statute. Id. § 9. The statute

instructed the Secretary of Education to review the proposals and

develop, publish on the Agency of Education’s website, and present
to the State Board of Education a proposed plan that, to the extent
necessary to promote the purpose stated at the beginning of this
subsection (a), would move districts into the more sustainable,
preferred model of governance set forth in Sec. 5(b) of this act
(Education District).

Id. § 10(a)(2) (emphasis added). The statute indicated that “[i]f it is not possible or practicable to

develop a proposal that realigns some districts, where necessary, into an Education District in a

manner that adheres to the protections of [the rest of the Act], then the proposal may also include

alternative governance structures as necessary.” Id. (emphases added).

¶ 59. The statute then directed the State Board of Education to review the Secretary’s

plan and “approve the proposal either in its original form or in an amended form that adheres to

the provisions of subsection (a) of this section and . . . publish on the Agency’s website its order

merging and realigning districts and supervisory unions where necessary.” Id. § 10(b) (emphasis

added).

¶ 60. It is the import of the word “necessary” in § 10 that is the subject of this dissent.

As is often repeated, this Court’s primary goal in interpreting a statute is “to implement the intent

32
of the Legislature by giving effect to the plain language of the statute.” State v. Reed, 2017 VT

28, ¶ 20, 204 Vt. 399, 169 A.3d 1278. Only when the meaning of a statute is ambiguous does the

Court look elsewhere to determine intent. Id. Here, the language of the statute is unambiguous.

The Secretary is directed to propose a plan that changes governance structures to a preferred

structure “where necessary,” and use an alternative governance structure “as necessary.” 2015,

No. 46, § 10(a)(2). Furthermore, the Board, in reviewing the Secretary’s proposal, is mandated to

approve the proposal “where necessary.” Id. § 10(b). The language is not ambiguous. There is

no alternative meaning of the word “necessary” that creates confusion about its meaning and

necessitates further investigation into the Legislature’s intent. Therefore, I would read the statute

as written to mandate involuntary changes in school district structure only when necessary.

¶ 61. The majority’s interpretation that the Legislature did not create a “necessary”

threshold fails for several reasons. First, to reach this conclusion the majority essentially reads the

word “necessary” out of the statute. In construing language in a statute, “[t]his Court must presume

that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the

language used was intended.” Comm. to Save the Bishop’s House, Inc. v. Med. Ctr. Hosp. of

Vermont, Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (citation omitted). In total, the word

“necessary” appears four times in § 10, and each time in reference to deciding whether to alter the

existing structure of districts and supervisory unions. To reach its result, the majority must

conclude that the Legislature inserted the word necessary in four different locations wholly

unnecessarily and superfluously. I cannot make such a presumption.

¶ 62. Second, the language of the statute, and in particular the purpose statement, does

not support the majority’s conclusion that incorporating a necessary requirement would be at odds

with the Legislature’s overall intent underlying Act 46. The majority deems that the goal of the

Act was to merge school districts, but the language of the statute reveals a much broader and more

nuanced purpose. The Legislature indicated that its goal was to create “sustainable models of

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education governance.” 2015, No. 46, § 2. The Legislature did not, as asserted by the majority,

conclude that “merging districts into sustainable governance structures was necessary to achieve

the goals stated, including economies of scale and greater educational opportunities.” Ante, ¶ 23.

The statute does not mandate that merger is the sole means to resolve the existing challenges in

education and funding. Instead, the Legislature recognized that the best outcome for a district,

even one not currently in a preferred governance structure, might not require a change in its

governance structure. The Legislature adopted a nuanced approach to mandatory changes in

structure, including merging or realignment. The Legislature indicated that the statute was

“designed to encourage and support local decisions and actions” that would lead to equity and

quality education, among other things. 2015, No. 46, § 2. The Legislature recognized that merging

districts might achieve its goals, but that merger was not the only mechanism to achieve the

outcomes it sought. The majority’s assertion that Act 46 presumed that merger was necessary in

every instance is also at odds with the overall structure of the statute, which allows districts to

make proposals for alternative structures. If merger were always necessary, there would be no

reason for school districts to prepare a proposal in support of an alternative structure.

¶ 63. The statute strikes a balance between encouraging changes where it would help

attain the goals of the statute, and allowing alternative approaches where changes in structure

would not help achieve educational and efficiency goals. This balance is reflected in the statute’s

purpose statement and the statute’s individualized approach. This Court’s role is not to conduct

its own balancing of the policy interests underlying the law but to give effect to the decision made

by the Legislature. Doyle v. City of Burlington Police Dep’t, 2019 VT 66, ¶ 12, __ Vt. __, 219

A.3d 326 (“Our role is to interpret the law to give effect to the Legislature’s intent, not to impose

our policy preferences on the public.” (quotation omitted)). To adopt a one-size-fits-all approach

would contradict the language and tenor of the statute.

34
 ¶ 64. Moreover, giving full effect to the word “necessary” in the statute is also consistent

with the history in this state of local control over school governance. Certainly, as this Court has

held, the obligation for providing public education belongs to the state. Brigham v. State, 166 Vt.

246, 259, 692 A.2d 384, 392 (1997) (per curiam). The state is ultimately responsible for education

but can delegate to local towns and cities “the authority to finance and administer the schools

within their borders.” Id. at 264, 692 A.2d at 395. The Legislature has recognized through other

statutes the importance of local control and decisionmaking over a district’s governance structure.

For example, in Act 46, before resorting to involuntary mergers, the statute first encourages

voluntary ones and these all involve a town-wide vote. 2015, No. 46, §§ 6, 7. Other statutes

allowing the establishment of a new school district require a vote of the affected districts. See,

e.g., 16 V.S.A. § 706d. Given that formation of a new district usually follows from a town-wide

decision, it makes sense that the Legislature would deviate from this practice only when necessary.

¶ 65. This Court must enforce statutes as the Legislature has written them, not as it would

have been more expedient or straightforward in hindsight to have written them. Given the

Legislature’s clear directive that involuntary changes to school district structure should be made

only “where necessary,” I would reverse the Board’s decision and remand for findings of necessity.

To condone mergers and redistricting without such a finding violates the plain meaning of the

statute and diminishes the voices of small towns in how their districts will be run in the future

without any finding that such a result is necessary. The Board reasoned that mergers should go

forward when possible and practical without examining whether those districts were already

meeting the goals of the statute and therefore merger was unnecessary.

¶ 66. Our Constitution provides that “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. For over 240 years control over how to run districts

has been in the hands of local school districts and the schools have been a source of pride and a

35
focal point of our towns. When small districts are involuntarily merged, their votes are diluted,

and they lose control over education in their towns. This is contrary to our history and to the

express provisions of Act 46, which require a necessity finding. Many things are possible and

practicable. That does not make them necessary as intended by the Legislature. At the very least,

the communities who are the subject of forced mergers have the right to know why the Board felt

those mergers were necessary.

¶ 67. I realize the need for efficiencies of scale underlying Act 46, but the Legislature did

not seek efficiency at any cost. The Legislature recognized that it was best to only merge districts

when necessary to achieve educational and efficiency goals. Without this condition, discarding

local control and forcing merger upon school districts and communities that don’t want it and that

have not been found to need it is a wholesale change which may or may not accomplish its purpose,

but surely represents the irrevocable end of many local school districts and their local schools. I

am reminded of the words of Joni Mitchell:

Don’t it always seem to go
That you don’t know what you’ve got
‘Til it’s gone

Joni Mitchell, Big Yellow Taxi

¶ 68. For the foregoing reasons, I dissent.

¶ 69. I am authorized to state that Justice Cohen joins in this dissent.

Associate Justice

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