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Mergers and Impositions: A Critical Look at Vermont’s Act 46

Amanda E. Quinlan

In Vermont, enrollment in public schools is declining.[1] At the same time, the state is plagued with academic inequity—a trend that violates the state’s constitutional obligation to provide all Vermont students with equal educational opportunities.[2] A major driver behind this academic inequity is wealth: schools with concentrations of disadvantaged students tend to be in locations where students are from low-income families.[3] Further, as the Vermont legislature has acknowledged, “Vermont lacks cohesive governance and delivery systems” in its schools.[4] Unlike in other states, most Vermont school districts consist of a single school in one town, rather than multiple schools in one or more towns.[5] As a result, many schools “are not well-suited to achieve economies of scale” and “lack the flexibility to manage, share, and transfer resources, including personnel, with other school districts and to provide students with a variety of high-quality educational opportunities.”[6] Without this flexibility, Vermont has been forced into a model with the highest student-to-teacher ratio in the country—10.55 students for every teacher—and employs one adult for every four children in the state’s public school system.[7] Hoping to mitigate this socioeconomic disparity and the lack of cohesion in school governance, as well as cut down the administration costs of so many schools, the Vermont legislature passed Act 46, which lawmakers claim is designed to “provide substantial equity in the quality and variety of educational opportunities statewide” and overhaul how education is governed, directed, and organized.[8] The hope is not only to improve academic achievement, but also to see students—who might not otherwise be able to take advanced placement courses or other electives like foreign languages—have more opportunities under Vermont’s new plan to merge and consolidate school districts.[9]

While attempting to address these motivating concerns through Act 46, the Vermont legislature identified the size of Vermont schools as a potential issue.[10] Although “[n]ational literature suggests that the optimal size for student learning is in elementary schools of 300 to 500 students and in high schools of 600 to 900 students,” 205 out of the 300 public schools in Vermont “have 300 or fewer enrolled students[,] and 64 have 100 or fewer enrolled students. Of those 64 schools, 16 have 50 or fewer enrolled students.”[11] And—according to the Vermont legislature—school size does not just matter in terms of academic achievement, but in terms of financial efficiency: whereas “[n]ational literature suggests that the optimal size for a school district in terms of financial efficiencies is between 2,000 and 4,000 students,” Vermont’s smallest school district “has an average daily membership (ADM) of six students, with 79 districts having an ADM of 100 or fewer students. Four Vermont school districts have an ADM that exceeds 2,000 students.”[12] Within these small schools, staff members are forced to “fulfill an array of human services functions” due to, among other things, the state’s opiate epidemic, which is partly responsible for the increase in students with severe emotional needs.[13] Vermont taxpayers are also shouldering the financial burden of keeping these schools open: the legislature annually appropriates millions of dollars in small-school grants to maintain these schools.[14]

Although paved with good intentions, local communities in Vermont are justifiably critical of Act 46 and the local ramifications it portends.[15] Act 46 has deeply divided many communities, who grapple with what the Act means and how they can implement it.[16] In addition to its complex structure, the Act fails to recognize or reward alternative approaches to school governance that lawmakers did not include in the four corners of the bill, and ignores the geographic and financial reality of many Vermont areas that struggle to comply with the new law.[17] Further, and more tangible, some towns claim that the law sets unrealistic deadlines for the revamping of school systems that have educated generations of Vermonters.[18] The expense of implementing this legislation is also problematic, and comes at a time when Vermont Governor Phil Scott is seeking to cut education spending and lower property tax rates.[19] Towns that previously received small-school grants may no longer receive this aid. Additionally, those towns may miss out on grants or the tax incentives offered by the legislation because they do not meet the state’s “preferred structure” criteria, or because their plan to merge was rejected by other towns.[20]

This Comment will examine these criticisms of Act 46. Section I of this Comment will first give a basic overview of the legislation—including its subsequent amendments—by summarizing its provisions on school-district consolidation. Section II of this Comment will then provide a critique of Act 46, focusing primarily on the top-down approach that defies some of Vermont’s basic realities, its unrealistic deadlines, and the ability of one town—because of its voting power—to sink the plans of other small towns seeking to comply with the law.

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[1] Vermont’s student population in grades K–12 declined from 103,000 in 1997 to 78,300 in 2015. 2015 Vt. Acts & Resolves 475, § 1.

[2] The Vermont Constitution’s common-benefit clause requires the state to ensure substantial equality of educational opportunity throughout the state. Brigham v. State, 166 Vt. 246, 256, 268, 692 A.2d 384, 390, 397 (1997) (holding the “substantial funding differences” varying from town to town in Vermont for education—and based off of each town’s property taxes—affect students’ opportunities to learn and violate the common benefits clause of the Vermont Constitution); see also VT. CONST. ch. I, art. 7 (“That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community . . . .”); Nancy Remsen, State Struggles to Offer Big Opportunities at Small Schools, SEVEN DAYS (Apr. 20, 2016), nt?oid=3306290 (“[A]cademic inequities violate [Vermont’s] obligation to provide all students with equal educational opportunities.”).

[3] Tiffany Danitz Pache, Act 46: Poverty Drives Rift Between Upper Valley School Districts, VTDIGGER (July 5, 2016) [hereinafter Pache, Poverty Drives Rift],

[4] 2015 Vt. Acts & Resolves 475, § 1(e).

[5] See Anne Galloway, Historic Changes to Structure of Vermont School System Approved by House Panel, VTDIGGER (Mar. 24, 2014), (quoting State Representative Johanna Donovan, who said “[w]e don’t want to go back to the one-room schoolhouse,” and noting that, as of 2014, “Vermont has the lowest student to school board member ratio in the nation: One school board member for 57 students”).

[6] 2015 Vt. Acts & Resolves 475, § 1(e).

[7] Tiffany Danitz Pache, Holcombe: Districts Must Cut Teaching, Support Staff, VTDIGGER (Oct. 18, 2017),

[8] 2015 Vt. Acts & Resolves 476, § 2(1); MANCHESTER JOURNAL, Act 46: What Is It All About? An Overview (Nov. 16, 2015),,58976.

[9] MANCHESTER JOURNAL, supra note 8. Many small schools have been forced to cut advanced curricular offerings, such as Advanced Placement courses in specialty areas, because they lack the financial resources or a sufficient number of students to justify dedicating the instructional time. See John Tulenko, To Cut Costs and Strengthen Public Schools, Vermont Plans Massive Consolidation, PBS NEWSHOUR (May 31, 2016), (comparing Enosburg High School with the significantly smaller high school in Richford before Act 46 and noting the difference in opportunities available to students). By forcing the combination of small schools into larger districts, Act 46 aims to provide the increased numbers of students to justify advanced curricular offerings, as well as the financial flexibility to dedicate teachers to these classes. MANCHESTER JOURNAL, supra note 8.

[10] 2015 Vt. Acts & Resolves 475, § 1(g).

[11] Id.

[12] Id. § 1(h). “ADM means the number of students who live in a district for whom the district is providing education (by operating a school or paying tuition for the student).” VT. AGENCY OF EDUC., ADM VERSUS ENROLLMENT 1 (2016), ADM is different from enrollment, which is the “headcount of the students enrolled in a school on October 1, regardless of their district of residence.” Id. (emphasis omitted).

[13] 2015 Vt. Acts & Resolves 475, § 1(c). “The proportion of Vermont students with severe emotional needs has increased from 1.5 percent of the population in fiscal year 1997 to 2.3 percent in fiscal year 2015.” Id.

[14] See Anne Galloway, House Votes to Phase out Small Schools Grant, VTDIGGER (Apr. 4, 2014), (noting that the small-school-grant program, as of 2014, cost $7.7 million).

[15] See Tiffany Danitz Pache, School Board Members Slam Vt. Law, VTDIGGER (Apr. 7, 2017) [hereinafter Pache, School Board Members Slam Vt. Law], (depicting community members’ criticism of Vermont’s top-down approach to reforming school governance).

[16] Id.

[17] Id.; see also Howard Weiss-Tisman, As Deadline Looms, Schools Still Struggling With Act 46 Consider “Alternative” Option, VPR NEWS (Apr. 5, 2017) [hereinafter Weiss-Tisman, As Deadline Looms], (showing the districts most challenged by Act 46 are the smallest and most rural areas in Vermont).

[18] See Howard Weiss-Tisman, School Districts Scramble To Meet New Act 46 Deadline, VPR NEWS (Sept. 18, 2017), (noting how, even with an extended deadline after

[19] Anne Galloway, UPDATED: Scott Level Funds State Budget, Education Spending, VTDIGGER (Jan. 24, 2017),

[20] Pache, School Board Members Slam Vt. Law, supra note 15; see also Tiffany Danitz Pache, Fewer Districts Will Be Eligible for Small School Grants, VTDIGGER (Sept. 27, 2017), (“As of July 1, there were approximately 40 districts that had not yet merged and that until now have received small school grants. Only seven of those schools will be considered geographically isolated . . . [and thus eligible for small school grants].”).

Turner, Thornburgh, and an Inmate’s Right to Read: The Chelsea Manning Case and Possible Solutions to BOP and USDB Regulation Language

Al M. Dean

The United States Army Military District of Washington convicted Chelsea Manning of contravening provisions of the federal Espionage Act[1] in 2010 after Manning released classified military and diplomatic documents to WikiLeaks.[2] While some commentators describe “the largest dump of classified information in American history” as dangerous and severely treasonous,[3] others applaud Manning’s support of government transparency, prison reform, and transgender equality.[4] Incarcerated in a maximum-security prison, Manning faced solitary confinement for keeping prohibited publications in her cell without filing a book request.[5] Despite being commuted by President Obama in January 2017,[6] the case represents a recent concern lodged at both the United States Disciplinary Barracks (USDB) rules and the Bureau of Prisons (BOP) regulations. The concern is the ambiguity of how prison administrators may accept or deny book requests on a case-by-case basis.

Of particular interest is 28 C.F.R. § 540.71, which governs how BOP wardens review individual book requests.[7] The provision gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system.[8] Some correctional facilities keep relaxed systems that only meet the minimum requirements of § 540.71, while others refuse “to allow any books whose content includes anything legal, medical or contains violence.”[9] Affording prison officials the freedom to decide which materials to ban from federal inmates creates inconsistencies in the interpretation of § 540.71 throughout the federal prison system. This has a significant effect on the level of First Amendment protection afforded from institution to institution, and hampers judicial guidance to administrators.

The Supreme Court keeps a doctrine of deference toward incoming publications as a First Amendment issue.[10] Holdings maintain that prison administrators are in the best position to assess the reasonability of correspondence and book requests.[11] Approvals of these requests are largely left to the discretion of the warden, allowing individual prisons to craft their own policies within the confines of BOP and USDB regulations.[12] Institutional rules are flexible depending on individual prisoner, sentence, or behavior. The current standard from Turner v. Safely and Thornburgh v. Abbott requires regulations that bar the receipt of written materials to be reasonably related to legitimate security interests.[13] The current BOP framework allows wardens to deny a request if it is “determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.”[14] While the USDB—where Manning was incarcerated—is a military prison in Fort Leavenworth, Kansas, outside the strict purview of the BOP, the USDB contains essentially the same language as part of the Military Correctional Complex Regulations.[15] This gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system.

This Note sheds light on the constitutional and enforcement implications of current BOP regulations on book requests for federal inmates, and it proposes an alternative to these regulations based on a federally recognized banned publication list. It will examine the existing precedent surrounding the deference given to prison officials (the “hands-off” approach), and the historical trend toward this doctrine.[16] Part I outlines the regulatory and case law histories alongside the treatment of book request rules over the past several decades. It will detail the constitutional tests used in First Amendment challenges. Part II will state the primary issues, including the lack of guidance given to wardens and the public, the arbitrary categorization of publications, and the unequal application between inmates of the same status. Part III proposes new wording to the BOP rules and the creation of a national banned book registry for federal correctional facilities. A detailed list can provide guidance, thereby evenly establishing the evidentiary burden on federal prison officials throughout the U.S. Part IV will demonstrate the public policy benefits of these changes to inmates, wardens, the public at large, and the interests of fairness and justice.

A guided, analytical approach to prison publication requests would eliminate the pressure placed on wardens and inmates to know what constitutes objectionable material. Education and open access to information in the prison system can encourage self-improvement and reduce recidivism. Lower courts will be equipped with the sense of direction necessary to rule on delicate constitutional questions. By creating a level playing field between prison policies, sentences for the same crime are served equally regardless of facility.

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[1] Espionage Act of June 15, 1917, Pub. L. No. 24, ch. 30, 40 Stat. 217 (1917) (codified at 18 U.S.C. §§ 792–99 (2012)) (“An Act To punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.”).

[2] Julie Tate, Bradley Manning Sentenced to 35 Years in WikiLeaks Case, Wash. Post (Aug. 21, 2013),

[3] See, e.g., James Kirchick, Bradley Manning Gets Off Easy, N.Y. Daily News (July 30, 2013), (Kirchick compares Manning to NSA whistleblower Edward Snowden, arguing that the conviction sends “a clear message to any soldier or government employee . . . thinking of arrogating to himself the power to determine what information the world has a ‘right to know.’”).

[4] Chase Strangio, Op-Ed: Chelsea Manning’s Plight Highlights Trans Prison Abuses, Advocate (Aug. 24, 2015), Strangio, a Staff Attorney at the American Civil Liberties Union, is Manning’s lawyer and a transgender advocate for prison reform. Denise Hassanzade Ajiri, Attorney Credits Public with Sparing Chelsea Manning Solitary Confinement (+video), Christian Sci. Monitor (Aug. 19, 2015),
2015/0819/Attorney-credits-public-with-sparing-Chelsea-Manning-solitary-confinement-video; Chase Strangio, Am. Civil Liberties Union, (last visited May 3, 2017).

[5] Marina Koren, The Books that Prison Officials Don’t Want Chelsea Manning to Read, The Atlantic (Aug. 19, 2015),

[6] Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. Times (Jan. 17, 2017),

[7] William Mark Roth, Turner v. Safley: The Supreme Court Further Confuses Prisoners’ Constitutional Rights, 22 Loy. L.A. L. Rev. 667, 668–69 (1989) (noting that lower courts have leeway to manipulate the distinction between prisoners and non-prisoners as a First Amendment issue). The highest-ranking administrator of the USDB is not the “Warden,” but the 15th Military Police Brigade Commander (the “Commandant”), who serves under the direction of the Provost Marshal General of the Army Corrections Command in Washington, D.C. Jennifer Walleman, 15th MP Bde. Welcomes New Commander, Fort Leavenworth Lamp (Jul. 31, 2014),
20140731/News/140739878. For the purposes of this Note, the Commandant will be included within the general term “warden” used by the BOP.

[8] Roth, supra note 7, at 670.

[9] Andrew Losowsky, Prison Books Ban: The Censorship Scandal Inside America’s Jails, Huffington Post (Oct. 3, 2011),; see also Tex. Civil Rights Project, Banned Books in the Texas Prison System: How the Texas Department of Criminal Justice Censors Books Sent to Prisoners 52 (2011),
_Report.pdf (explaining that Texas censors books with content relating to prison conditions and noting that there is “no legitimate reason” prisoners should not be able to read books about prison conditions).

[10] Turner v. Safley, 482 U.S. 78, 85 (1987) (Writing for the majority, Justice O’Connor describes prison administration as “a task that has been committed to the responsibility of [the executive and legislative] branches, and separation of powers concerns counsel a policy of judicial restraint.”).

[11] Id. at 89 (arguing that subjecting administrators to strict scrutiny under the First Amendment “would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration”).

[12] Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977) (“The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations . . . .”).

[13] Turner, 482 U.S. at 78; Thornburgh v. Abbott, 490 U.S. 401, 401 (1989).

[14] 28 C.F.R. § 540.71(b) (2016).

[15] Diamond v. Grey, 2012 WL 1415527, at *3 (rejection of inmate mail or publications, “either incoming or outgoing, on the basis of content, is authorized only when it is determined to be detrimental to the safety, security, and good order or discipline of the USDB . . .”) (quoting U.S. Disciplinary Barracks Regulation 28-1(c), previously amended and renamed as Military Correctional Complex Regulation 28-1(c) (2011)).

[16] See infra note 31 (examining the relationship between judicial application of the hands-off doctrine and the number of constitutional challenges brought in federal court).

Casting a Wide Net: The Trans-Pacific Partnership and Marine Fisheries Law in the United States

Erin Hodge

The Trans-Pacific Partnership (TPP) faces heated criticism from both ends of the political spectrum. Campaign rallies feature hundreds of signs saying “Free Trade Costs Too Much,” “Flush the TPP,” and simple slashed circles with “TPP” in the center – but at a glance, it’s unclear who the rally is for.[1] President Obama favored ratification, arguing that to ignore the Pacific markets outside American borders allows China (notably absent from the TPP) to write the rules in the region.[2] In a rare show of bipartisan agreement, Congress repeatedly delayed consideration of the TPP – effectively ensuring ratification would wait until a new president takes the Oval Office.[3] Unfortunately, the controversy surrounding the TPP clouds its potential impact on other aspects of Pacific cooperation.

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