UL editorial: school funding

[KBCraig]

The author is right, if he's correct in his assesment of the Supreme Court's desire: that the legislature carry out its assigned duty, and declare what constitutes an "adequate educate" in NH.

That said, I believe all public school educations are inadequate. And now it's time to go to bed, so I can get up and provide my daughter with an "adequate" education.

Kevin


http://www.unionleader.com/article.aspx?headline=Eugene+Van+Loan+III%3a+Will+there+ever+be+an+end+to+the+Claremont+game%3f&articleId=09e9bea8-95bc-43a9-b281-c310735eb92a

Eugene Van Loan III: Will there ever be an end to the Claremont game?

By EUGENE VAN LOAN III
Another View
3 hours, 12 minutes ago

FOR MORE THAN a decade, New Hampshire's judges and its legislators have been engaged in a merry-go-round which I call the Claremont game. Like the child's game of Simon says, the leader (the Supreme Court) issues an ever-accelerating array of instructions and the followers (legislators) are rewarded according to how well they can follow the leader's instructions.

The goal, of course, is for the Legislature to define and fund a so-called constitutionally adequate education. The Claremont game, however, is complicated by the fact that the judges are reluctant to make their instructions to the Legislature crystal clear because they are (rightly) afraid of being accused of legislating from the bench. As the Supreme Court said in Claremont II, "We are not appointed to establish educational policy, nor to determine the proper way to finance its implementation. That is why we leave such matters, consistent with the Constitution, to the two co-equal branches of government." So, instead of issuing directives, the court establishes "benchmarks" and "guidelines."

However, at some point, the Claremont game must come to an end; the court cannot duck the question of what constitutes an adequate education forever. As the above quotation from Claremont II states, whatever the Legislature fashions must be "consistent with the Constitution." This, of course, is code for "consistent with the Constitution — as we see it." Accordingly, the court will someday be faced with not only telling the Legislature that it must jump, but also telling it how high it must jump.

The day of reckoning has already arrived in some of the other states whose supreme courts have been playing their own version of the Claremont game. For example, in 2005, the Supreme Court of Kansas held that the Kansas Legislature had failed to sufficiently fund its educational system and actually ordered the Kansas Legislature to add another $143 million to its funding plan. Similarly, earlier this year, the New York Court of Appeals did much the same thing.

We in New Hampshire have not yet reached this stage; we are still playing the Claremont game. Just a few weeks ago, the New Hampshire Supreme Court heard oral argument in the case of Londonderry School District v. State of New Hampshire. This is the most recent education funding lawsuit spawned by the Claremont decisions. As usual, some group of school districts is requesting the court to declare the current funding scheme unconstitutional and to send the matter back to the Legislature for yet another go at it.

The court may well accept the plaintiff's invitation. However, if it does, it will only be delaying the inevitable. While this you must try harder but we won't tell you when enough is enough gambit may work for awhile, the court will eventually have to confront the implications of Claremont. And, when that day comes and the court finally has to tell the Legislature exactly how high it must jump, the court will have to live with the consequences of its actions. For, unlike the legislatures of Kansas and New York , I believe that the Legislature of the "Live free or die" state will (properly) "just say no."

On the other hand, the recent proceedings in the Londonderry case indicate that there may be a way out of this maze. And the hint that a path may exist came from a most unlikely source — Chief Justice John Broderick. Time and time again, the chief justice told the lawyers who were arguing the case that all the court expected the Legislature to do was to flesh out the details of what it, the Legislature, chose to define as a constitutionally adequate education and that the court would not second-guess the result. As the chief justice put it, "I certainly don't know what an adequate education is. This is a matter for the people's elected representatives, not the judiciary, to decide."

If the chief justice really meant what he said, there may be light at the end of the tunnel. If the court is prepared to hold that the education clause of the constitution does not prescribe some judicially ascertainable standard of an adequate education and that all the constitution requires is that the Legislature come up with its own standard, the Claremont game may be over. For if the legislators can be assured that the decision as to what constitutes a constitutionally adequate education is truly their decision, we will have restored some sanity to the debate over education policy. Most importantly, the debate over education policy will be again conducted where it should be conducted — the legislative forum, not the judicial forum.

[dirk]

"If the court is prepared to hold that the education clause of the constitution..."

What "education clause?"

If you search the NH Constitution for the word "education" or any of its' derivatives, you will find that it occurs three times. Twice under a section entitled "Use of Lottery Revenues Restricted to Educational Purposes" (Art. 6-b). I believe this is because, like many states, it is unlawful for revenues to be earmarked for specific purposes unless hard written into the states' constitution. Usually, revenues are directed to a general fund for spending (I think). The third time the word "education" is mentioned is under a section entitled "Encouragement of Literature, Trades, etc. (Art. 83). This is where the court, in my opinion, became judicial activists. They interpreted the phrase 'to cherish the interest' which occurs in this section to confer a right. I have never heard of the word cherish defined to grant a right of any kind, adequate or not. I think they got it completely wrong but they're wearing the robes and everyone in NH is fallin' all over themselves to figure it out instead of questioning the original decisions validity. I've said it before, "there ain't no right to no education for no one, adequate or not."  But my pocket is still picked none the less.