Robert A. Skiff, Jr. et al.
v.
South Burlington School District
On
Appeal from Superior Court, Chittenden Unit, Civil Division
Robert A. Mello, J.
Paul
S. Gillies of Tarrant, Gillies & Richardson, Montpelier,
for Plaintiffs-Appellees.
Pietro
J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman &
Manitsky, P.C., Burlington, for Defendant-Appellant.
Garrett A. Baxter, Montpelier, for Amicus Curiae Vermont
League of Cities and Towns.
Richard T. Cassidy of Rich Cassidy Law, South Burlington, for
Amicus Curiae Vermont School Boards Association.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
CARROLL, J.
¶
1. Following the South Burlington School District's
decision to discontinue the "Rebels" name for the
District's athletic teams, a group of residents in South
Burlington presented a petition for a district-wide vote on
whether to reinstate the name. The District refused to
include the item in a district-wide vote and residents
appealed, alleging that the District violated their rights
under the Vermont Constitution and seeking an order
compelling the District to include the item on the ballot.
The trial court denied the District's motion to dismiss,
concluding that residents presented sufficient facts to
support their request. The District then filed this
interlocutory appeal. We conclude that neither the applicable
statutes nor the Vermont Constitution compels the District to
put the petitions to a district-wide vote. Therefore, we
reverse the court's order and remand for entry of
judgment for the District.
¶
2. The facts, when viewed in the light most favorable to
residents, are as follows.[1] Students in South Burlington attended
Burlington High School until the 1960s when South Burlington
opened its own high school. The new high school adopted the
name "Rebels" for its sports teams after it was
used during a game that South Burlington played against
Burlington, where students formerly attended school. Although
the name did not originate from a connection to the Civil
War, over the years, individual students at times waved the
Confederate flag at high-school football games. The practice
was banned by school officials, but some individuals
continued to use the name "Rebels" to express
racist attitudes and beliefs at the school.
¶
3. In 2015, there was a request that the District cease using
the name "Rebels" because of the associated racist
bigotry and intolerance. The request was included as an
action item on the school-board agenda and the school board
engaged in a discussion regarding the topic. Some board
members expressed their view that the moniker was not meant
to be racist, but to symbolize those who are critical
thinkers and do not necessarily follow the mainstream. After
consideration, the board reached a consensus to keep the
name, but asked the superintendent to suggest ways to rebrand
the name to express a positive connotation and not be
misunderstood as an endorsement of the Confederacy or
slavery. The superintendent presented five recommendations in
a January 2017 memorandum, but the Board took no action at
that time.
¶
4. At the school board's meeting on February 1, 2017, the
superintendent reported that he was recommending that the
"Rebel identifier" be retired. He explained that
the recommendation was based on, among other things, shared
stories from students, staff, and families, and research
about the impact of racial bias on children. He stated that
biases existed in the community and that the
"Rebels" name felt exclusive to members of the
student community. Many residents attended this meeting and
it was live-streamed by the local newspaper. Following the
superintendent's presentation, the board voted to
discontinue using the "Rebels" name.
¶
5. Soon thereafter, a group of District voters signed a
petition requesting a district- wide vote on whether to
retain the "Rebels" name. The ballot question read:
"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 this name for all South Burlington School District
sports teams?" The petition was signed by more than five
percent of the District's voters and presented to the
school board. On May 10, 2017, the school board considered
the petition and declined to include the question on the
ballot for a vote.
¶
6. Residents filed an appeal in the Chittenden Superior Court
Civil Division under Vermont Rule of Civil Procedure 75,
alleging that the refusal violated the right to
"instruct" in Chapter I, Article 20 of the Vermont
Constitution and seeking a declaratory judgment that a vote
on the petition was required. The District moved to dismiss
the action on the ground that the school board had discretion
not to warn the petitions because they did not concern
business delegated to the voters.
¶
7. The court determined that the purpose of Article 20 was to
"assure that the people will have the opportunity to
play a central role in determining what is in their own best
interests, that their elected representatives will know what
their constituents expect of them, and that the Legislature
will be available to redress grievances." The court
recounted historical practices of sending instructions to
representatives, both nationally and in the state. The court
noted that in Vermont at the municipal level voters gathered
on town meeting day to instruct their representatives. The
court interpreted this Court's prior case law on Article
20 as holding that a school board can constitutionally refuse
to warn an advisory article if the article "does not at
all relate to school district business or any matter falling
within school district authority." The court construed
the right to instruct as a collective, rather than
individual, right based on the fact that the right to
instruct was paired with the right to assemble and concluded
that the sole means to effectuate this collective right in a
location without a formal town meeting was through a
district-wide vote. The court did not consider whether
Article 20 is self-executing because it concluded that
several statutes, including 17 V.S.A. § 2642(a)(3)(A),
were enacted to effectuate the constitutional protection.
Because the facts construed in the light most favorable to
residents ...