House leadership message on CACR12 Agreement, 5/31/12

posted May 31, 2012, 1:00 PM by Bill Duncan   [ updated May 31, 2012, 1:02 PM ]
From: "Silva, Pete" <Pete.Silva@leg.state.nh.us>
To: ~Republican House Members <RepublicanHouseMembers@leg.state.nh.us>
Sent: Thursday, May 31, 2012 3:08 PM
Subject: CACR12 Agreement

Dear House Republicans:

The Committee of Conference on CACR12 has reached an agreement on language for a constitutional amendment to redress the Claremont/Londonderry decisions. Here is that language. 

[Art.] 5-c [Public Education]. In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have the responsibility to maintain a system of public elementary and secondary education and to mitigate local disparities in educational opportunity and fiscal capacity. In furtherance thereof, the Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability and to determine the amount of, and the methods of raising and distributing, state funding for public education.

Substantively, there is no difference from the language we provided to you earlier. The differences are purely stylistic. Certain language from Part II, Article 5, which we had intended would assure our caucus that CACR12 required the appropriate level of judicial review, has been removed because it was determined that the language was problematic for some not familiar with Part II, Article 5.

Let me say a few things about the agreed upon language.

First, it is unambiguous and straightforward. A court should not look any further than the language of this amendment in applying the amendment.

Second, the first sentence sets forth the Legislature’s responsibilities, while the second sentence sets forth the Legislature’s discretion in carrying out those responsibilities. They cannot be read separately. I urge you to be skeptical of any commentary of the amendment that attempts to read the first sentence in isolation from the second sentence.

Third, lets take each of the State’s responsibilities in turn.

One responsibility is to maintain a system of public elementary and secondary education. The State’s discretion with respect to this responsibility is to make reasonable standards for elementary and secondary public education and reasonable standards of accountability. The fact of the matter is that the State has set standards since 1789. The contention that New Hampshire is a “home rule” state when it comes to education is historically inaccurate. Reasonable standards include charter schools, school-choice and home schooling, and allowing local school districts to set standards not inconsistent with the state standards. At a minimum, the Claremont/Londonderry decisions can be read to prohibit charter schools and home schooling, and explicitly state that there must be a statewide curriculum based on a 1989 decision of the Supreme Court of Kentucky.

The other responsibility is to mitigate local disparities in educational opportunity and fiscal capacity. The State’s discretion with respect to this responsibility is that it has the “full power and authority” to determine the amount of, and the methods of raising and distributing, state funding for public education. In other words, education appropriations receive exactly the same standard of judicial review as all other appropriations.

Fourth, the choice before us is not between this amendment and the amendment that you or I or anyone else would have written. We cannot make the perfect the enemy of the good, when the alternative to the perfect amendment is continuing under the Claremont/Londonderry decisions. The choice is not between this amendment and the next Legislature telling the court to “pound sand,” after the inevitable next lawsuit. Whether we like it or not, the Legislature for the past fifteen years has refused to tell the court to “pound sand,” and it is implausible that the next Legislature will do so either. The choice is simply between this amendment and continuing the Claremont/Londonderry decisions.

Finally, I welcome any questions or concerns that you may have.

Sincerely,

Pete Silva
House Majority Leader
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