NO CHOICE: Children who attend elementary schools in Berkshire, Bakersfield and Montgomery will not be able to choose their high school if the towns merge with Enosberg and Richford, according to Tuesday’s ruling from the Vermont Board of Education.

The Vermont Board of Education ruled Tuesday that school choice districts that merge with non-choice districts under the new statewide consolidation law can no longer offer school choice to students.

In response to an inquiry from superintendents, the board determined that new unified districts created under Act 46 must offer either operational public schools or school choice — but not both.

“After a lot of legal advice and discussion, we came to the determination that, under Act 46, in combination with existing law Section 822 of Title 16, a new district either has to operate a school or tuition its students,” Stephan Morse, chair of the Board of Education, told Vermont Watchdog.

The ruling came after leaders of Franklin Northeast Supervisory Union in Franklin County weighed an option to merge the union’s five towns while preserving school choice.

Of the five towns in FNESU, Bakersfield, Berkshire and Montgomery offer school choice for grades 9-12. Enosburg and Richford, which operate public schools for PreK-12 students, do not offer school choice.

Under Act 46 passed this year, small districts across Vermont must combine to form larger districts of 900 or more students. The requirement affects all but about a dozen of Vermont’s 277 school districts.

To incentivize action by July 1, 2017, the law offers a 30-cent tax break on property taxes over five years. Districts in the same supervisory union that merge by July 1, 2016, get a 10-cent reduction in their town’s property tax rate in the first year. The tax incentive shrinks by two cents each year in subsequent years.

“The options are either to tuition students or have all the students go to the operating school,” Morse said. “Now, it could be broken down, in that you could have the same system for, say, PreK-6 and another system for 7-12. But it needs to apply to all the students in the newly formed district at those different levels.”

The decision could rock nearly 100 Vermont towns that have school choice. Jay Nichols, FNESU’s superintendent, requested the ruling because three towns within the union have school choice at the high school level.

“What we had hoped to do was use a provision in the law to allow our current supervisory union to become a unified district, and open up high school choice in and out of the district to all kids in the district, Nichols said. “The state board’s ruling Tuesday said you cannot do that. You either must operate a school that all kids in the district must go to, or you must not operate a school, and tuition all kids out.”

Nichols said the decision is especially unwelcome news for families in Bakersfield and Montgomery, as many kids in those towns use choice to attend out-of-union schools including North Country High School, Lamoille High School, Bellows Free Academy and even private schools in Canada.

“Although I disagree with the decision, I respect where they’re coming from,” Nichols said.

A quick merger for FNESU is far from certain. If a single town votes against consolidation, the merger fails, and no town gets the full five-year property tax incentive. However, towns that wish to merge can try again next year, but with a lesser tax break.

The board’s decision could end Vermont’s town tuitioning model — a model that has existed for more than 145 years. Since 1869, Vermonters in rural areas have exercised the freedom to send children the school of their choice, whether an independent school, a nearby public school or even a school in another state.

Under the town tuitioning program, Vermont families receive a tuition voucher averaging $14,500 per student. Between 4 and 5 percent of Vermont students participate in the program.

Despite the gloomy outlook, there may be a silver lining for school choice towns, according to Rob Roper, president of the Ethan Allen Institute.

Since towns are free to merge with any other town under Act 46 — even ones outside their supervisory union — choice towns have the option to merge with other choice towns. Such mergers might even qualify for a break on property taxes.

“The way the education monopoly is pushing this is, that in order to get this 10-cent reduction incentive on your property taxes, you have to give up school choice. But the reality is these towns, according to Act 46, could expand school choice into the other towns and still be in compliance with Act 46 and get the benefit,” Roper said.

For choice towns in the Franklin Northeast Supervisory Union, that might mean Bakersfield, Berkshire and Montgomery would forego merging with Enosburg and Richford and instead form a new unified district with Sheldon, Fairfield, Georgia and Fletcher — nearby choice towns outside the union. Such mergers, if carried out across the state, would produce large school-choice districts compliant with Act 46.

While Roper said his group is seeking legal counsel for that option, new choice super-districts could face headwinds from the state’s education establishment.

“The education monopoly, the state school board and the superintendents, is dead set against expansion of school choice. They are trying to play up that this is not an option,” Roper said.

“(But) that’s what we would encourage people to do. If you’re going to merge with a town that has school choice, merge, and as part of the vote, vote to have expanded school choice in your district.”

Contact Bruce Parker at bparker@watchdog.org