The pitch for CACR 12, as made by House Republican leadership, 5/27/12

posted May 27, 2012, 5:58 AM by Bill Duncan   [ updated May 27, 2012, 6:02 AM ]
Below is the pitch Republican House leadership makes to its caucus on the merits of CACR 12.  Attached at the bottom is a scan of the original document.


House Leadership Proposed Language:

[Art.} 5-c [Public Education.} In fulfillment of the provisions with respect to education set forth in Part 1/, 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 the furtherance thereof, the Legislature shall have the full power and authority to make wholesome and reasonable standards for elementary and secondary public education and standards of accountability as it may judge for the benefit and welfare of this state; and the full power and authority to make determinations as to the amount of, and the methods of raising and distributing, state funding for public education as it may judge for the benefit and welfare of this state.

Frequently Asked Questions:


Question #1: Does the new CACR12 change what the Claremont decisions said the Education Clause of the Constitution means?

Answer: Yes. As we know, the Claremont decisions took primary and secondary education out of local control. The Court said it is exclusively the state's duty to define an "adequate" education and to do so under court supervision exercised through a strict scrutiny analysis. The Court additionally ruled that it is the state's exclusive duty to pay for an adequate primary and secondary education, again under the same degree of court scrutiny.

The new CACR12 affirms the state's responsibility to maintain a system of public education, but it restores to the Legislature the discretion about where shall be the dividing line between state and local education standards. Moreover, it removes the strict scrutiny standard of judicial review over how the state carries out its responsibility in favor of a reasonableness or so-called rational basis standard.

The new CACR 12 also gets rid ofthe Claremont requirement that the state finance education from the top down by paying 100% of the cost of an adequate education. Instead, it allows the state to target educational aid to where it is needed. Thus, the state will no longer have to pay the same amount to each school district for each student.

In effect, CACR12 removes the authority of the Supreme Court to micromanage educational funding and policy decisions. Once that authority is eliminated, the Legislature is empowered, through the normal lawmaking process, to do its job -which is to exercise the collective judgment of its members to pass those laws and make those appropriations which balance the interests of all of New Hampshire's citizens.

Question #2: Does the new CACR12 permanently enshrine in our law any part of what the Claremont decisions require?

Answer: On the contrary; CACR12 enshrines the primacy of the Legislature to set education policy and determine how to fund education, without undue interference by the Judiciary.

On the other hand, CACR 12 does not repeal any legislation that was passed in the wake of the Claremont decisions. For example, the unnecessary and unfair statewide property tax which the Legislature passed (under duress) to fund its new-found obligation to fund 100% of an adequate education doesn't just automatically disappear if CACR 12 is adopted by the voters. Instead, all those Claremont-inspired laws remain on the books unless and until changed by the LegislatureAnd although this amendment restores the Legislature's power to change those lawsit will be up to future legislators whether to do so.

However, if CACR 12 is defeated, that will enshrine the Claremont decisions in our constitution, perhaps forever. This is not only our best chance to prevent this from happening; it is probably our last chance. We must act now.

Question #3: Does the new CACR12 affirm state control over local school curricula?

Answer: No. CACR 12 would bring the state's involvement in education back to where it was prior to the Claremont decisions.

It is important to remember that New Hampshire is not a home rule state, and our constitutional framers did not intend for us to be one. Technically, therefore, it has always been the case that the state could completely take over our public school systemHowever, in practice, our system of education has functioned as a partnership between the state and local authorities, with each sharing responsibility for setting policy and paying for public education.

This amendment does not give the state any more or any less authority than it had prior to Claremont. So, there is no reason to think that the Legislature will all of a sudden begin to exercise its authority in some perverse way. The state did not micromanage local schools for the first 200 years of our existence and, without the compulsion of the Court, it is highly unlikely that the citizens of NH would tolerate a Legislature that would change this partnership of shared values and responsibilities in the future.

Question #4: What effect does the new CACR12 have on homeschooling and charter schools?

AnswerNone. Especially with respect to homeschooling because homeschooling is not "public education", which is all that this amendment deals with. As for charter schools, which are public schools, the Legislature will continue to have the authority to set standards for them, but -just as before Claremont and even now under Claremont -there is nothing mandating that those standards must be the same as those applicable to traditional public schools. In addition, there will always be limits on how far the State could go in the name of establishing educational standards. We will still have constitutional prohibitions upon infringing the speech, freedom of religion and freedom conscience. By the way, there is a New Hampshire Supreme Court case wherein 2 Justices, one of whom was Chuck Douglas, stated in a concurring opinion that there was a constitutional right of parents to homeschool their children.

Question #5: Doesn't having the word "responsibility" in the amendment enshrine Claremont in the Constitution?

Answer: Absolutely not. The word "responsibility" does not exist in a vacuum in this amendment. The amendment says that the Legislature's responsibility is to "maintain a system of public elementary and secondary education" and to "mitigate local disparities in educational opportunity and fiscal capacity". Neither of these comes from Claremont. The first is in place of Claremont's requirement that the Legislature "define" an "adequate education" and the second is in place of Claremont's requirement that the state "provide", i.e. pay for, 100% of an adequate education. Moreover, although the Legislature may not walk away from its responsibility to maintain a public education system and to target state aid to those municipalities which need it, precisely how the Legislature carries out these responsibilities is expressly left to the Legislature's "full power and authority". This, too, definitely does NOT come from Claremont.

Question #6: Doesn't "maintaining" a system ofpublic elementary and secondary education enshrine Claremont in the Constitution?

Answer: No. Some synonyms for Ifmaintain" are Ifuphold': "preserve': "keep': "retain':

"continue". That is what is meant here: simply that there must be a public education system and that the Legislature is responsible to keep one in existenceTo put it another way, it means that the Legislature could not altogether abolish our system of public education.

Note also that the amendment says that the Legislature's responsibility is to maintain "a" system of public education, not necessarily lithe" one which we presently have or, indeed, any particular one. So, for example, such a system can include charter schools, alternative education credits such have been sponsored by Governor Benson and Fred Bramante, GED's, vouchers, etc. And, of course, it can permit the existence of homeschooling, parochial schools and preparatory schools because they are not considered "public" education.

As such, any claim that the amendment will lead to higher taxation to make sure none of the state's public schools ever fall below their current level of funding is reading something into the new first sentence which simply isn't there.

Question #7: Why not pursue an amendment like CACR8 which eliminates virtually all state involvement in public education?

Answer: Ifwe attempt this approach, there will be no amendment. There are not now and there never will be 240 votes in the House for constitutional amendment that says the state has no obligation whatsoever when it comes to education. Changing the nature of the state's obligation to one which under the control of the Legislature will be the best we can achieve. But we will not even achieve that if local control purists defeat CACR 12 in a futile quest for what they view as perfection.

Question #8: What happens if the new CACR12 fails?

Answer: Because the Supreme Court's rulings are the law of the land unless and until they are overturned by the people adopting a constitutional amendment, wistful musings about how the Supreme Court should have ruled and absolutist arguments that the rulings are so wrong that what is really needed is a definitive resolution criticizing the Court will not change what is now constitutional law.

Moreover, a failure to adopt CACR12 will not only cast the Claremont rulings in cement; it will inevitably also lead to Son-of-Claremont. This will be much worse than the Claremont decisions we are living with today because it is predicted that the Court will rule that the cost of an adequate education is much higher than where the Legislature has set it, which will, in turn, require us to implement a broadbased income or sales tax to pay for it.

On one side of the present caucus debate are those who say that nothing is satisfactory until the courts have been totally removed from any oversight of laws which deal with education. On another side are those who say the Supreme Court was so wrong in its Claremont decisions that we would ourselves pervert the Constitution by reversing their error. In yet another corner are those who say anything that does not completely exclude the state from involvement in education policy and funding is a violation of the party platform commitment to local control. And, finally, there are those who think that passing any amendment is an exercise in futility because they assume that the Supreme Court will go out of its way to misinterpret what the amendment says and somehow figure out a way to perpetuate its Claremont rulings, no matter what.

In the broad, inclusive middle is the Republican Party promise to the voters last fall to fix educational fundingWe cannot let this promise go unfulfilled by allowing it to drown in a House Republican caucus that cannot bring its factions together. It is time for all of us to unite in support of what is indeed a very good amendment and not let our own particular definition of the perfect be the enemy of the good.