Misleading argument from school amendment fans, Andru Volinsky, opinion, Concord Monitor, 5/27/12

posted Jun 3, 2012, 1:21 PM by Bill Duncan

Published on Concord Monitor (http://www.concordmonitor.com)

Misleading argument from school amendment fans
By Andru Volinsky / For the Monitor
May 27, 2012

Proponents of a constitutional amendment to overturn the Claremont education funding principles make the argument that virtually all laws are judged with a rational basis test and that it is unusual for courts to apply a strict scrutiny standard to legislative decisions. The amendment is necessary, they contend, to return the state's school funding laws to legislative control.

They also claim that strict scrutiny is a new test used by the courts to determine if legislation violates equal protection analysis. The arguments are wrong and misleading. Strict scrutiny has been in place for almost 75 years. All laws that infringe upon fundamental rights are subject to this high level of judicial scrutiny.

Equal protection analysis based on strict scrutiny was first applied federally by the Supreme Court in 1938, when reviewing New Deal legislation. Its most ignominious application occurred when the Court upheld the internment of Japanese Americans during World War II.

As in other states, the constitutionality of a New Hampshire statute is a question of law and is reviewed and determined by the New Hampshire Supreme Court. Equal protection analysis asks if legislation treats similar people similarly. The Supreme Court presumes that legislation is constitutional and only overturns a law that is found unconstitutional on inescapable grounds. If a law may be construed in a way that supports its constitutionality, courts are bound to adopt this interpretation.

The presumption in favor of constitutionality applies even if a legislature fails to choose the most expedient way of achieving a desired goal. If a law is rationally related to a legitimate legislative purpose, it is presumed by the courts to be constitutional and is generally upheld.

When legislation affects a fundamental right or treats people differently based upon an inherently suspect classification such as race, gender or religion, the presumption is reversed. In these circumstances, courts carefully review all statutes to determine if they are narrowly tailored to promote a compelling state interest, and if a less restrictive alternative would serve the state's purpose, the legislature must use that alternative.

Whether a right is fundamental or not is largely driven by a careful analysis of the language in the constitution at issue. Many conservatives refer to this as determining the "original intent" of the drafters. The U.S. Supreme Court found in the San Antonio Schools case in 1973 that education is not a federally protected fundamental right because it is not mentioned in the federal constitution.

The opposite is true for the state Constitution, where Part 2, Article 83 explicitly places a duty on the Legislature to support education. This is, in part, why our Supreme Court found education to be a fundamental right subject to exacting review and ultimately condemned the dissimilar treatment of students based on economic factors and the accidental geography of their residence. The proposed amendment has a goal of changing the original intent of the state Constitution by removing education from exacting constitutional protections.

Other well-recognized fundamental rights include the First Amendment's protections for free speech, association and the practice of religion. Many aspects of voting are subject to a strict scrutiny analysis. Equal protection analysis was at the heart of the Bush v. Gore decision. Legislation that economically infringes upon individual liberties or parental rights are generally subject to strict scrutiny.

School funding schemes in 45 states have been challenged. Many challenges have been based on claims that the statutes at issue violate the state law equal protection rights of school children. In virtually every state in which this type of challenge has been raised, the determination of whether education is considered a fundamental right is dispositive.

In most instances, a finding against fundamentality means the legislature is given a pass and the school funding scheme at issue remains in place. New Hampshire's courts found to the contrary and struck down the school funding laws because they violate the equal protection rights of the children who attend New Hampshire's schools and the taxpayers who pay for them.

(Andru Volinksy of Concord represented the plaintiffs in the Claremont education cases.)

Source URL: http://www.concordmonitor.com/article/332314/misleading-argument-from-school-amendment-fans