Historic debate on funding state education in N.H., Portsmouth Herald, 2/15/12

posted Feb 26, 2012, 4:33 PM by Bill Duncan   [ updated Feb 26, 2012, 4:42 PM ]

DNHPE Comment: Notice the quotes by former chief justice of the New Hampshire Supreme Court, John Broderick (highlighted).  This is a very strong statement from someone who has held back in commenting on the Claremont case in the past.

Voters may have say on fight that dates to 1783
By Michael McCord
February 26, 2012 2:00 AM

If New Hampshire voters have the opportunity to vote in November on the latest educational funding constitutional amendment proposal, they will be able to weigh in directly for the first time on the educational funding question stretching back to the 1990s.

Earlier this month, the Senate passed its version of the amendment, which calls for the Legislature to set the standards for a "reasonable" public education and to decide the amount and direction of public education financing.

Supporters of the measure say it's necessary to reassert legislative and local control from the Supreme Court over public education while opponents claim the proposal allows the Legislature to assume all the authority for public education but no responsibility to do anything.

There have been more than 50 attempts to put an education funding amendment on the ballot since the Supreme Court ruled in the 1997 Claremont II decision that the state had the constitutional responsibility to set standards for and finance an "adequate" public education. The constitutional roots of this 21st century debate stretch all the way back to 1783, when the writers of the New Hampshire Constitution inserted Article 83:

"Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country...;"

As the case with any constitutional conflict, how lawyers, judges, lawmakers, governors, politicians, public school officials and taxpayers view and interpret Article 83 has framed the fierce political and legal debate over who has the ultimate responsibility for education funding — the state or local taxpayers. Since the Supreme Court declared in 1993 with the first of its Claremont case decisions that the state has the overall responsibility for public education, the debate has escalated.

Opponents of the Claremont decisions want the Legislature to be the sole decider of the state's responsibility (who and how much to fund) and want the courts out of the equation altogether. Supporters of the Claremont decisions believe the Legislature has failed in the past to live up to its constitutional responsibility on public education and can't be trusted in the future.

Manchester lawyer Eugene Van Loan III has been a strong constitutional critic of the Claremont decisions and believes the subjective questions surrounding education funding should be decided in the political realm by lawmakers and not the courts. He believes CACR 12 will simply restore the correct balance between the courts and the Legislature.

"This notion they came up with that the framers (in 1783) intended for the state to be responsible for and to define and fund 100 percent of some kind of education level can't be found in the Constitution or any historical document," said Van Loan, who filed amicus, or friend-of-the-court, briefs to the Supreme Court during the various Claremont lawsuit deliberations. "It was wrong and it has created bad public policy."

Andru Volinsky, the lead lawyer for the five property-poor Claremont Coalition communities that first mounted a constitutional challenge in the early 1990s, said the latest constitutional amendment was another attempt by the state to dodge its role in public education. He said without a consistent statewide approach, the public school system could fall prey, as it has in the past, to political expediency and lack of fiscal assistance to property-poor towns.

"I think it is unfortunate that the Legislature continues to avoid its constitutional responsibility," Volinsky said. "They want a constitutional amendment that removes judicial oversight. You can't build a public education system from K-12 with these wild ideological swings in the Legislature every couple of years."

John Broderick, former chief justice of the state Supreme Court and dean of the University of New Hampshire Law School, knows the education funding debate quite well. As an associate justice on the Supreme Court, Broderick was part of the majority decision in the landmark 1997 Claremont II ruling that declared the state's system of relying on local property taxes for education funding was unconstitutional. Looking back, Broderick has no doubts about the constitutional correctness of Claremont II and other decisions from court oversight that followed.

Broderick said the guiding constitutional principle was based on Article 83. "The court declared that a student's right to a constitutionally adequate education paid for by the state was fundamental and followed the student," said Broderick, who served on the court from 1995 to 2010. "The Constitution is colorblind on the state's obligation so it is constitutionally irrelevant where the student lives or how wealthy the city or town might be where the student resides."

While the court ordered the state to define and cost an "adequate education" and to create an equitable funding mechanism, Broderick said the court left those questions up to the legislative and executive branches.

"The Supreme Court offered no view as to the cost of a constitutionally adequate public education and left that calculation, at least in the first instance (Claremont II), to the state Legislature," Broderick said. "The Supreme Court never told the state how to raise the money and never suggested or required any tax whatsoever."

Broderick said the state's role "to provide every child attending public school with a constitutionally adequate education" did not preclude local school districts from their roles or needs. "This would amount to only a portion of the total cost of a public education," he said. "Thereafter, individual towns can decide how much beyond a constitutionally adequate education they want and can afford to pay for through local property taxes."

Van Loan said beyond the lack of constitutional basis for the Claremont decisions, he believes the Supreme Court overreached on public policy questions by stepping into the political realm when it applied a "strict scrutiny" standard of oversight on public education. In other words, he insists, Claremont-ordered reforms were considered inadequate until proven otherwise.

"There is no objective way to measure or cost an adequate education," Van Loan said. "As with any appropriation, how much is enough? It has always been and should be the case, these are subjective and quintessentially policy questions that require legislative decisions."

He said the consequence of the Claremont decisions has been to have the courts decide public policy questions and political debates rather than have voters decide these issues at the ballot box. Van Loan said the recourse for the property-poor towns in need of more educational funding has always been there. "They can use free speech to make their needs known and elect legislators who will advocate for them," he said.

"I think we have progressed," Volinsky said of the impact of the Claremont decisions. "The money has improved and we talk about statewide standards. The state is now responsible for communities that fall behind because they don't have the property wealth."

But Volinsky believes a consequence of CACR 12 will be a return to old legislative habits of neglect and a two-tier educational system fight between property-poor and property-rich towns. The result, Volinsky said, will be a market that turns school aid decisions and public school students into political bargaining chips.

If CACR 12 does go before voters in November, Van Loan said it will provide a rare instance of voter referendum on a court decision.

"Voters will have a chance to say 'do we like what they (Supreme Court) did or not,'" he said.