Thursday February 15, 2018
Should the South Burlington School Board have placed a certain question concerning the school district sports teams’ mascot name before the voters last year?
That legal issue is now before the Vermont Supreme Court.
Although a new mascot name, the “Wolves,” is now in use at South Burlington High School (SBHS), a judicial challenge to the school board’s refusal to place the name change issue before the voters is still pending. On December 12, Superior Judge Robert A. Mello denied the South Burlington School District’s motion to dismiss that challenge.
In response to Judge Mello’s denial, the school district sought permission to take an interlocutory appeal to the Vermont Supreme Court. On January 30, Judge Mello granted the district’s request. He found that his order denying the district’s motion to dismiss involved a “controlling question of law” on which there exists a “substantial ground for difference of opinion,” and that “an immediate appeal may materially advance the termination of the litigation.”
The plaintiffs opposed the district’s motion for permission to appeal on the ground that it was “premature.” They argued that it would be more expeditious to resolve the matter via motions for summary judgment or, if necessary, by trial.
In granting an interlocutory appeal, Judge Mello emphasized that the plaintiffs and the district agree “that Plaintiffs were among the five percent of South Burlington voters who signed and submitted the petition at issue,” that “Plaintiffs submitted the petition to the South Burlington School Board to be warned as an article to be voted on by the electorate,” and that the school board did not warn the article. He also added that “there is no dispute between the parties as to the substance of the petition that the Plaintiffs submitted to the School District.”
In his earlier decision denying the district’s motion to dismiss, Judge Mello emphasized that the Vermont Supreme Court has never construed the meaning or scope of the “right to instruct” provision, that section of Chapter I, Article 20 of the Vermont Constitution on which plaintiffs now rely. He also stressed that, for purposes of a motion to dismiss, a court must accept plaintiffs’ allegations as true and must also assume that the defendant’s contravening assertions are false. This is especially true, he noted, “when the asserted theory of liability is novel or extreme,” as in the case before him.
If the facts relied upon by the plaintiffs turn out to be true, Judge Mello concluded in his December 12 decision, the plaintiffs would be entitled to an order compelling the school district to put plaintiffs’ ballot question to a vote by the electorate. But, because “instructions from the voters are not judicially enforceable,” elected officials can refuse to follow them. “The only issue here,” Judge Mello emphasized, “is whether the School District violated the Constitution by denying the electorate an opportunity to weigh in on the issue. After the electorate has had its say, if the school board still believes that the name should not be reinstated, nothing in any decision from this court will require otherwise.”
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 in 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 clause:
“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.
The district moved to dismiss the case, arguing that only the school board is granted the power to make decisions concerning day-to-day operations, such as determining the sports teams’ name. Judge Mello agreed with that particular contention in his decision denying the motion to dismiss when he said, “the question sought to be voted on (whether South Burlington should keep or retire the ‘Rebel’ name for its school sports teams) clearly is related to the business of the school district and clearly is within the district’s authority.”
The plaintiffs maintain that the school board’s refusal violated their “right to instruct” their representatives under the Vermont Constitution. “Without a traditional town meeting,” the plaintiffs assert, “the people of South Burlington have no forum to exercise their constitutionally-protected right ‘to assemble together to consult for their common good--to instruct their Representatives.’” According to the Plaintiffs, the petition for the vote sought to create that forum. Judge Mello agreed with that specific argument in his December 12 order denying the district’s dismissal request.
With preparation and exchange of appellate briefs, a decision by the Vermont Supreme Court will probably not be issued for a few months.
SOURCE: William Wargo, Contributor