Turning over a New LEAF 
By John McClaughry

Taxpayer discontent with the rising burden of property taxes for education constantly prods lawmakers to find some less expensive way to skin the education financing cat. Last week three House Republicans unveiled yet another attempt to slay the residential property tax monster. It's called LEAF, for Local Education Affordability Formula. Its principal attraction is the repeal of the current state education residential property tax imposed in 1997 by Act 60.

Under LEAF, the state would also reduce local costs by taking over responsibility for special education. Then the Education Fund would grant to every school district 85% of the statewide average amount per pupil spent in the previous year, times the number of pupils.

If a district spent less per pupil than the state block grant amount it would get a credit from the state for 20% of the savings. The state would continue to tax commercial and industrial property, second homes, and non-homestead land. Since the state would no longer be taxing residential property, the Common Level of Appraisal (CLA) for those
properties would no longer be needed.

What if a district, relieved of special education expenses, still cannot get by with the state per pupil grant? The LEAF plan says that money for any additional spending would have to be raised by local taxpayers from their local residential grand list. Aye, there's the rub.

The Supreme Court's Brigham decision of 1997, which grafted Justice Dooley's political preferences into our 1777 constitution, dictated that every pupil has a right to substantially equal opportunity to have access to similar educational revenues." That means, unequivocally, that local districts cannot raise and use their own tax dollars to supplement whatever they receive from the state revenue base.

The Foundation Plan, struck down by the Brigham Court, contained the same "additional spending" feature as the LEAF plan. Under it, the state established a foundation property tax rate to raise what the state thought was necessary to meet the state's public school approval standards.

If that foundation tax rate applied to a district's tax base failed to produce this "foundation cost", the state paid the difference in state aid. School districts whose voters wished to support their schools by levying an education property tax above the foundation rate were free to do so.

That produced the rich town-poor town disparity in education spending that the Supreme Court found not only unacceptable but also, amazingly, unconstitutional.

The legislature promptly passed Act 60 to implement this newly discovered constitutional principle. No longer could property rich towns tax their own tax base for their own educational purposes. Act 60 forced them into the infamous "sharing pool".

The legislators who proposed the LEAF plan deserve credit for trying. They have heard the anguish cries of property taxpayers who are facing steady increases in their tax bills, in some cases being taxed off the land their families have owned for decades or even generations.

The LEAF proposal to shift the special education responsibility to the state, and thus make the states' lawyers defend Individual Education Plans for special ed students against complaints of inadequacy, is a particularly worthy proposal.

But the LEAF proposal to let local districts augment the state-provided block grants clearly flies in the face of the Brigham principle.

 So what to do? Ignoring the Court's ruling and more amply funding the Foundation Plan would have made some sense in 1997, but in fact the Democratic-controlled legislature elected in 1996 was hard at work on what became Act 60 long before the Court obliged it with a constitutional mandate.

Today the legislature - if it cared to - could still pass a bill like the LEAF proposal that abrogates the Brigham principle. The ACLU could go back to court to overturn the new law. Unlike in the Brigham case, this time there would be a trial instead of Brigham's judicial rush to judgment. There would then be an appeal before a Supreme Court, three of whose five justices had no part in Brigham. The constitutional mandate, fabricated by the political Brigham court out of thin air, could be overruled.

But this legislature won't do that, because it is controlled by liberals who rejoiced at Brigham and imposed Act 60 ten years ago.

The legislature could propose a constitutional amendment to repudiate the Brigham principle. But no legislator has even introduced a proposal to do that since Brigham was handed down a decade ago.

Thus Vermont will have to live with the Brigham principle indefinitely, until taxpayers elect a legislative majority really willing to "turn over a new leaf" by challenging Brigham's politically inspired mandate.

John McClaughry is President of the Ethan Allen Institute