Thursday December 21, 2017
Although the new mascot name “Wolves” is now in use at South Burlington High School (SBHS), a challenge to the South Burlington School Board’s refusal to place the name change issue before the voters is still pending in Chittenden Superior Court. On December 12, Superior Judge Robert A. Mello denied the school district’s motion to dismiss that case, and he ordered the parties to submit a proposed scheduling order within 14 days “for expeditiously completing all remaining tasks” in the matter.
In his decision, 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 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,” according to Judge Mello, “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 SBHS “Rebels” name should be retained has long been argued in South Burlington.
On February 1, 2017, 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 district’s mascot beginning at the start of the new school year in September 2017. The board’s action was taken following Superintendent of Schools David Young’s February 2017 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 signed by five percent of the city’s registered voters 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 specified, in mandatory-like language:
“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 school 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 apparently agreed with the district’s contention in his decision 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 at first argued that Vermont statutory law required the board to place their petition before the voters, but they then withdrew that argument; they now ground their argument on part of Chapter I, Article 20 of the Vermont Constitution. That article specifically provides 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.” The plaintiffs maintain that the school board’s refusal violated their “right to instruct” their representatives. “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.’” The plaintiffs argue that the petition for the vote sought to create that forum. Judge Mello agreed with that argument.
In their challenge, the plaintiffs underscore that the school board’s decision to change the name came two days after the deadline for any South Burlington resident to put his or her name on the ballot as a school board candidate and that at no time before February 1 had the board notified the public that it was contemplating taking that action. Based on the plaintiffs’ allegations, Judge Mello bemoaned the board’s possibly evasive actions:
“Had the board notified the public of its intention beforehand, those residents of South Burlington who supported keeping the name could have placed their names on the ballot for the upcoming March school board election, or they could have presented a petition for a public vote on the matter before the February 1 meeting. There is evidence that the board’s failure to inform the public of its intention beforehand was intentional; the superintendent of schools subsequently acknowledged to a South Burlington resident that he and the board had deliberately not publicized the board’s intention to eliminate the name because the action was unpopular and the board wanted to avoid a divisive debate.”
Judge Mello’s decision underscores that the board should not have sought to avoid the debate: “The Vermont Constitution declares public officials to be ‘servants’ of the people; masters cannot be denied their rights at the whim of their servants, nor can servants deny their masters the opportunity to instruct them.”
Two participants in the possibly historic case, Paul S. Gillies, the plaintiffs’ attorney, and Judge Mello have published well-received books about Vermont legal history. In 2013, Gillies published a book of his essays about Vermont legal history entitled “Uncommon Law, Ancient Roads, and Other Ruminations On Vermont Legal History.” Judge Mello published his own book about Vermont’s legal history in 2015: “Moses Robinson and the Founding of Vermont,” a biography of Vermont’s first chief justice.
SOURCE: William Wargo, Contributor