ST. ALBANS — A Superior Court judge has refused to grant the preliminary injunction requested by attorneys representing 33 school districts in one of three pending lawsuits challenging Vermont’s school district consolidation law.

In a ruling issued Monday, Judge Robert Mello concluded the high bar for obtaining injunctive relief had not been cleared and he would not block the transitional process contemplated in Act 46 while hearing three cases challenging school district mergers ordered by the state Board of Education.

“The Plaintiffs have not shown a substantial likelihood that they will prevail on the merits of their claim that the (state) Board’s actions in implementing Acts 46 and 49 are unconstitutional, and their claims of irreparable harm are speculative,” Mello wrote.

“The factors of potential harm to others and public interest appear at best neutral: Even assuming Plaintiffs will suffer some relevant harm in the absence of a preliminary injunction, the current record suggests that the issuance of a preliminary injunction also may adversely affect others who are not party to the suit,” he wrote.

The 25-page decision tackled each one of the varied arguments advanced by the legal team in the joint lawsuit and provides the first hint of what Mello is thinking.

In assessing the likelihood of success on the merits, Mello started with the assertion raised by lawyers representing the schools that the Legislature could not constitutionally delegate the authority to create new school districts by ordering the mergers of existing ones. He indicated that was a mischaracterization of what Act 46 and a subsequent law, Act 49, actually did.

“… Act 46 and 49 do not delegate legislative authority but instead reflect assignment of the implementation of legislatively mandated policies, guided by specific goals and standards,” he wrote, later adding: “… The delegation under Acts 46 and 49 is constitutional, and the legislation, as supplemented by the board’s regulations, supplies sufficient statute-consistent standards to guide its decisions and to permit this court’s review.”

Based on the record before him, Mello indicated he could not conclude that the state board’s order compelling the consolidation of dozens of school districts was “arbitrary and capricious.”

“… Mere disagreement with the agency’s decision is insufficient,” he wrote. “A court should not substitute its judgment for that of the agency’s and should even uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”

Mello indicated the state board simply exercised the discretion it was granted by the Legislature in a process that involved accepting and evaluating evidence according to statutory guidelines.

“… So long as a statute like Act 46 is validly adopted, the Legislature is granted wide latitude in conferring authority regarding the manner and method of execution of the statute,” he wrote. “The Court finds no basis in the current record for concluding the Board’s Final Report constitutes an arbitrary and capricious decision.”

Echoing arguments raised by the assistant attorney general handling the case for the state, Mello noted lawyers for the school districts leaned heavily on portions of passages and in at least one case a single word — “necessary” — to advance their argument that the state board overstepped. He concluded context matters.

“… Contrary to Plaintiff’s assertion, Act 46 does not require the board to find that the mergers to which they are subject are the only or best means of meeting the goals set forth in Acts 46 and 49,” Mello wrote. “Properly understood, one overarching objective of Act 46 is to merge school districts; the Legislature has made the determination that such mergers are necessary to achieve, among its stated goals, economies of scale and quality of education for Vermont’s student population.”

“… Viewed overall, Act 46 and 49 reflect the Legislature’s strong preference that individual school districts be merged, when possible, to create ‘sustainable models of education governance,’” he added.

Mello was similarly dismissive of arguments that default articles of agreement that, barring amendment, would govern forcibly merged districts violated existing state law, or that the forced mergers themselves violated Vermont’s Common Benefits Clause and the Fourteenth Amendment.

“… The Plaintiffs do not have a fundamental right to any particular form of school governance, and it is well within the state’s legislative authority to oversee statewide education administration,” he wrote.

“The State identifies a number of problems it is attempting to address through Acts 46 and 49, including: dwindling student population, uneven access to educational opportunities, administrative redundancies among current school districts, and limited education funding resources,” he wrote. “Consolidation of school districts and their resources provides a rational way to address these issues.”

On the question of irreparable harm, Mello indicated those cited by lawyers for the school districts were largely “speculative” and capable of being redressed or unraveled.

“… Plaintiffs make much of current turmoil regarding the implementation and effects of board merger. However, pressure to comply with legislative mandates does not constitute irreparable harm for purposes of granting injunctive relief,” he wrote.

Mello’s ruling comes on the heels of the Feb. 15 hearing in his St. Albans courtroom and several organizational meetings in merged districts that were since abruptly adjourned in anticipation of his decision. Some of those meetings were adjourned to specific dates. At least two — including one in the five-town, six-school Washington Central Supervisory Union — were adjourned until after Mello ruled and will likely need to be re-warned.

Mello has indicated he plans to issue a final ruling before June 30. The forced mergers being contested are scheduled to go into effect on July 1.

david.delcore

@timesargus.com

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