By Carol Brigham,
Allen Gilbert, and
The irony in the title of James Agee’s classic novel is that the sharecroppers who are the book’s main characters were hardly famous. Robert Gensburg, the quiet Lyndon attorney who died last week, similarly did not seek celebrity or the limelight. Yet he is a famous man who deserves state and national recognition for advancing equality, fairness and a democratic society.
Gensburg is best known for being the lead attorney in the Brigham v. State case, which established the principle of equality of education and financing across Vermont.
On this case alone his fame could be established. Yet his accomplishments are vast and span a half century of tireless legal work.
Nearly 50 years ago, as a young attorney hired by the state as a special prosecutor, Gensburg unraveled the truth behind a crooked drug cop, Paul Lawrence, whose success in charging people with drug crimes was built on obtaining drugs illegally and planting them on his suspects. On the other end of his life, up until February of this year, Gensburg fought the 14-year detention of an alleged terror suspect, Abdul Zahir, at the U.S. Guantanamo Bay prison in Cuba. Gensburg thought U.S. intelligence officials had the wrong guy – a suspicion largely confirmed when Zahir was finally released after Gensburg had made numerous trips to Guantanamo, filed endless arguments, and endured countless hearings.
Between the bookends of the Lawrence and the Zahir cases was the Brigham case. Gensburg led a legal team of five attorneys assembled by the American Civil Liberties Union of Vermont in suing the state over unequal educational opportunities for schoolchildren. Although earlier school finance court cases had been filed around the nation, arguing a case based on equal protection grounds was basically plowing new legal ground. His preparations and presentation were flawless and his illustrations were so clear that in the Brigham decision, handed down in 1997, a unanimous Vermont Supreme Court would state simply that it was “unable to fathom a legitimate governmental purpose to justify the gross inequities in educational opportunities evident from the record.”
But equally important – indeed, perhaps more important – to the Brigham case was establishing that Vermont from its very first years as a state was committed to ensuring that benefits provided by government such as education be distributed to its citizens on an equitable basis. The disparity in the tax or spending numbers laid out in the legal briefs would have counted for nothing had that right to equal treatment – under the “common benefits clause,” Article 7 of Vermont’s Constitution – not been clearly articulated in the lawsuit.
The enormity of what Gensburg and those working with him achieved was overwhelming. The Vermont Supreme Court stated in clear, unmistakable terms that we’re all in this democratic enterprise together, and everyone counts. Taxes and education spending have been issues for the last 200 years, and will likely remain so for the next 200. But the state’s responsibility for equal education financing and equal taxation has been permanently changed.
Could such massive changes have occurred without the work and dedication of individuals such as Bob Gensburg? We think not. In Brigham, Gensburg was the agate point on which change pivoted. He was the clerk, the litigator and the leader. Will there be threats to this vision of equality? Most assuredly. But we have Bob’s legacy to help us protect our advances.
In remarks he prepared – but was unable to deliver – this past February for a 20th anniversary celebration of the Brigham decision, Gensburg wrote: “In my opinion, there is no constitutional principle that is more important than Article 7. It is the foundational requirement for living under the rule of law. There are few instances in which that has been made as clear as in the Brigham decision and in the Baker case that followed it. It is a good rule for government to live by.”
By the laws a society makes and keeps are its people known – and perhaps made famous. All three of us feel we have a lost a dear friend, and Vermont has lost a principled leader. As a state, we were lucky to have Bob Gensburg among us.
Carol Brigham was a Whiting School Board member in 1995, where her seven-year-old daughter, Amanda, attended elementary school. Allen Gilbert was chair of the Worcester School Board in 1995 when it joined Amanda Brigham and 11 other plaintiffs in the Brigham lawsuit; he went on to become executive director of the ACLU of Vermont. William Mathis was superintendent of Rutland Northeast Supervisory Union in Brandon in 1995; he has been an advocate of equal education opportunity for children his entire professional life, serving most recently as managing director of the National Education Policy Center at the University of Colorado Boulder and as a member of the Vermont Board of Education.