Thursday July 12, 2018
No, it’s not over yet.
Was the South Burlington School Board constitutionally required to have placed a question concerning the school district sports teams’ mascot name before the voters last year? That legal issue was argued before the Vermont Supreme Court on June 27.
Although a new mascot name, the “Wolves,” has been in use at South Burlington High School for almost a year, a judicial challenge to the school board’s refusal to place the name change issue before the voters is still pending. On December 12 of last year, Superior Judge Robert Mello denied the district’s motion to dismiss that challenge. The district had argued that, for nearly 50 years, the Vermont Supreme Court has consistently held that municipalities had to present an article to voters only when the purpose stated in the petition set forth a clear right within the province of the town meeting to grant or refuse through its vote.
Judge Mello rejected that argument, holding instead that the board was constitutionally required to place the sports teams’ name issue before the voters.
What was the basis of Judge Mello’s decision? Chapter I, Article 20 of the Vermont Constitution states that “the people have a right to assemble together to consult for their common good—to instruct their Representatives—and to apply to the Legislature for redress of grievances, by address, petition or remonstrance.” Judge Mello concluded that the people’s right to “instruct their Representatives” required presentation of the mascot name issue to the voters.
In response to Judge Mello’s decision, the district sought permission to take an interlocutory appeal to the Vermont Supreme Court. Such an appeal asks an appellate court to review a specific aspect of a case before the trial has been concluded. On January 30, Judge Mello granted permission to take an interlocutory appeal on the question of whether the district violated the Vermont Constitution by denying the electorate an opportunity to weigh in on the mascot name issue.
The June 27 Supreme Court oral argument focused mainly on the meaning and reach of the term “instruct.”
Representing the school district, attorney Pietro Lynn argued that the “right to instruct” is “contemplated in the open meeting laws.” According to Lynn, “People have an opportunity to come to meetings... They have a chance on any item that is subject to vote to articulate their decisions, and, if a hundred people show up and want to speak on the issue, they may speak on the issue and instruct the board as to the outcome.” Lynn emphasized that there has been a communication revolution, “We have e-mails and text messages and an ability to attend meetings regularly. [That is] the modern incarnation of this concept ‘to instruct’. We have a much greater ability today by virtue of modern technology to engage in instruction in ways that are not identical to those years and years ago, but likely more effective and more frequent.”
Contrary to that argument, plaintiffs’ attorney Paul Gillies told the Court justices that they were “looking at a blank slate.” Gillies asserted that “this is the first time that this Court can seriously confront an under-appreciated and under-addressed article of our Bill of Rights.” He added that he thought it was “a historic moment, and it could be something which could correct some of the misunderstandings that have come up over the years between the necessary tensions that have arisen between legislative bodies, school boards and select boards, and the voters.”
After a lively exchange with the attorneys, the Supreme Court took the matter under advisement. You can listen to the entire oral argument at the Supreme Court’s website; the case is entitled Robert A. Skiff, Jr. et al v South Burlington School District.
Whether the “Rebels” name should be retained has long been argued in South Burlington.
On February 1 of last year, after nearly a year and a half of debate in the community and schools, the South Burlington School Board voted unanimously to stop using the name “Rebels” as the school’s moniker effective September 2017, at the start of the new school year. The board’s action was taken following Superintendent of Schools David Young’s recommendation to discontinue the name. Young’s statement to the board at that time emphasized that it had become “crystal clear” to him that the Rebel identifier was “interfering with all students’ ability to feel safe and included” in South Burlington’s schools.
In response to the board’s action, a group of citizens presented the board with a petition to place the following article on the city’s ballot: “Should the name of all South Burlington School District sports teams be the ‘South Burlington Rebels’ and should the South Burlington City Council and South Burlington School Board be required to make official, retain, and maintain the name for all South Burlington School District sports teams?”
The petition further provided this consequential, contract-like mandate: “A YES vote on this measure means: The name of all South Burlington School District sports teams will be ‘South Burlington Rebels,” and “A NO vote on this means: The South Burlington School Board is free to choose any name it wishes for all South Burlington School District sports teams.”
The school board refused to present the measure to South Burlington voters.
Contending that the board was legally required to place the measure before the voters, four plaintiffs sued the school district: Robert A. Skiff, Jr., Benjamin E. Nye, Stacey E. Savage, and Marcy E. Brigham. They describe their lawsuit as a “mandamus action” in which they seek to compel the school board to call a vote on the petition.
Two participants in the possibly historic case, Paul Gillies, the plaintiffs’ attorney, and Judge Mello, have published books about Vermont legal history. In 2013, Gillies published a book of his essays entitled “Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal History.” Judge Mello published his own book about Vermont’s judicial history in 2015, “Moses Robinson and the Founding of Vermont,” a biography of Vermont’s first chief justice.
It is not known when the Vermont Supreme Court will issue a decision on the interlocutory appeal.
SOURCE: William Wargo, Contributor