Skiff 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 ...