Vermont legal experts tell lawmakers Brigham requires “substantial equality” of opportunity, but leaves wide legislative discretion

A panel convened by members of the Vermont Legislature told lawmakers Wednesday that the Vermont Supreme Court’s Brigham decision requires the state to provide “substantial equality of educational opportunity” but leaves broad latitude for the Legislature to design how to meet that standard.

Professor Peter R. Teachout, a law professor at Vermont Law School, told the panel, “We hold only that to fulfill its constitutional obligation, the state must ensure substantial equality of educational opportunity throughout Vermont.” That phrase, he said, is the controlling test the court established in Brigham.

The issue matters because the standard affects decisions about the state school funding formula, including whether to rely on a foundation-style approach, how to account for differences in district costs and resources, and how to treat tuitioning and voucher-like programs. Panelists—Teachout and attorneys James Valenay and Joshua Diamond—reviewed Brigham, subsequent litigation including Boyd and Vitale, and practical evidentiary hurdles in court challenges.

Teachout summarized three core points from Brigham: the court rejected an adequacy-only test in favor of equality of opportunity; the required equality is “substantial” rather than absolute; and per-pupil spending is a rough proxy, not the constitutional measure itself. He said the court permits taking district cost differences (size, special-education needs, transportation) into account, and it allows consideration of district resources, including local taxation choices, so long as educational opportunity is not made simply a function of district wealth.

Attorney James Valenay, who litigated Boyd on behalf of Whitingham-area plaintiffs, said the central factual challenge in Boyd was proving causation—that lower funding produced the specific shortfalls in classes, activities and outcomes alleged. “We were able to show that Whitingham’s per-pupil costs were very high and the objective measures were not great, but the connection was something that wasn’t factually proven,” Valenay said, describing why the case did not prevail after summary judgment.

Joshua Diamond, a member of the team that brought the original Brigham litigation, recalled the 1990s context—when locally driven property tax reliance produced wide disparities in per-pupil spending—and said the court’s ruling recognized education as a fundamental right tied to Vermont’s constitutional history. He noted follow-up cases and the more recent Vitale decision clarified some questions: Brigham does not limit rights strictly to funding measures, and the court has continued to emphasize the state’s responsibility for preventing opportunity from depending on district wealth.

Panelists and legislators debated several recurring and unsettled issues: whether vouchers or tuitioning programs that allow families to add private dollars create constitutionally problematic inequality; how to test claims brought by individual students rather than districts; whether a modern foundation formula could be crafted to be Brigham-compliant; and how technological and programmatic changes (for example, expanded remote courses) affect what counts as “opportunity.” On vouchers, panelists generally said the constitutional problem appears to be driven by governmental funding policy rather than private family choices to add resources, though they acknowledged unresolved fact patterns could present new legal questions.

Legislators pressed for concrete limits. Teachout and Diamond pointed to the state’s existing “excess spending” mechanisms—under which districts may tax above statewide averages but face escalating consequences when spending exceeds a set threshold (discussed in the session as roughly a 121 percent marker)—as permissible under Brigham but also as an imperfect policy device to curb inequality.

Several speakers urged that future litigation would likely depend on detailed empirical records showing a class of similarly situated schools or students with consistently worse outcomes traceable to funding differences. Valenay suggested a defensible legal strategy would identify a subset of schools or sizes with similar characteristics and statistically consistent poor outcomes tied to funding disparities.

The panel closed by encouraging legislators to treat Brigham as a legal boundary—defining ends—while recognizing that many choices about means remain legislative decisions. Representative Herb Olsen, who moderated the panel, and Representative Peter Conlon thanked the presenters and said the Legislature will continue educational-finance briefings, including a planned panel on the Carson decision and a public presentation on Feb. 12 at the Kellogg-Hubbard Library.

This session was informational; no votes or formal actions were taken.