CACR 12 A Constitutional Amendment on Education Funding

Docket

The CACR 12 Debate

June 6, 2012 Update: CACR 12 failed to get the required vote in the House

June 2, 2012 Update:  Here is the final language agreed upon by the CACR 12 Committee of Conference and the Governor and announced on Thursday, May 31:

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.

Here are the key issues we see with the amendment:

New Hampshire children would no longer have a fundamental right to an adequate education.
The New Hampshire Constitution declares that our children have a fundamental right to an adequate education, comparable to the right to vote. Legislative actions are held to a "strict scrutiny" standard by the New Hampshire courts.  That means that, if challenged, the onus is on the State to show that its actions meet the intention of the Constitution to provide an adequate education. If CACR 12 passed, education would no longer be a fundamental right in New Hampshire.  Legislative actions would need only meet a "rational basis" test.  The legislature would have "full power and authority" to exercise its responsibility to maintain a public education system.  The courts would be bound to presume that reasonable effort is constitutional and only overturn a law on inescapable grounds. If a law is rationally related to a legitimate legislative purpose, the courts would be bound to consider it constitutional. Under this standard, a New Hampshire community would virtually never prevail in a challenge to education policy or funding.  (Here is Andy Volinsky on the issue)

It would shift the even more of burden of education funding to the local property tax.
CACR 12 removes any floor under the state contribution to public education.  In 2012, $578 million, 20%, of the $2.9 billion annual budget for New Hampshire public education came from state aid.  This funding is targeted to the communities most in need.  But the Legislature cut that by another $140 million for future bienniums and without the constitutional protections, future legislatures are likely to cut more.  All of that would have to be replaced with increased local property taxes or reduced instructional program.

CACR 12 does not promote more effective targeting of aid to communities in need than we can do now.
The obstacles to targeting are political, not constitutional.  The State can effectively allocate state adequacy aid to communities most in need now.  Current formulas give 32 towns no state aid and another 108 towns get less than $3,000 per student.  The 24 towns most in need get over $6,000 per student.  This is already a very finely graded targeting system.

CACR 12 would allow the Legislature to allocate any desired level of funding on a strictly political basis with no regard to need, balance or fairness.  If targeting were actually the concern, the Legislature could propose an amendment that would establish those requirements.   Here is Rep. Gary Richardson, who favors a targeting amendment but says this one does not measure up.

The amendment ensures a never-ending political debate over education funding and introduces unpredictability into local property tax rates.
With no constitutional guarantees or established formulas in place, the decision on how much to fund education and how to allocate it across the state would be made anew each biennium.  Communities that rely on the aid would need to mount a lobby effort each budget session to protect or expand their allocations and would need to remain vigilant at all times for rule changes that might put them at a disadvantage. 

There is no protection against "donor towns"
The amendment contains no prohibition against donor towns.  For instance, a Legislature desiring to lower business taxes could raise all state wide education funding from the State Wide Education Property Tax and redistribute it state wide according to a politically determined assessment of need.  The reason there are no donor towns now is the political power of the Coalition Communities.  The same would be the case after CACR 12.  Political power will continue to be the only protection New Hampshire's wealthier communities would have against contributing to the education of children in poorer communities - through the property tax, gas tax or any other mechanism.

The amendment allocates "full power and authority" to the Legislature at the expense of both local control and judicial branch checks and balances
CACR 12 is one of several amendments seeking to eviscerate the role of the Judiciary in the conduct of the State's business.  The Courts are our only means of redress citizens and communities have.  In addition, local school districts have far greater control over their schools than in most any other state.  This amendment would eliminate that local control.  


Most of the debate outlined below does not depend on precise details of the language and is still relevant.  Note that we present the pro-amendment arguments in grey and our anti-amendment arguments in bold blue.


Top Line

For the Amendment - the Court has required an irrational and expensive funding formula

In the Claremont series of decisions, the Supreme Court sentenced the State of New Hampshire to an impractical and counter-productive education funding structure.  We can't afford it so it will lead to an income tax.  Under the proposed constitutional amendment, the State, released from court oversight, would be relieved of that funding pressure and have the freedom to target funds to communities in need.

And  we may never get as good a chance again, with a Senate majority and a popular governor agreeing on language, so we should let the voters decide.


Against - Education funding works now

In response to the Claremont decisions, the Legislature has created a constitutionally legitimate system of education funding.  The only obstacle to targeting aid to the children most in need is political.  That is not addressed by a constitutional amendment.  

The obstacle to adequate education funding is the Legislature not the Constitution.  The current Legislature has already set in motion its plan to reduce education funding.  The Constitution is the only protection our children have from buffeting by our ever-changing political winds.  Freed of constitutional constraint, the Legislature would retreat to the bad old days of patchy and inadequate support of public education in New Hampshire.

The Constitution merely requires that the State fund an adequate education for each child.  The only reason to change that would be if we did not want to provide each child an adequate education.
 
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The Next Level of Detail

Proponents of an education funding amendment say:
  • The "first dollar" requirement means that the State must send money to communities that do not need it and cannot get enough aid to those communities in need.
  • We are forced into contorted, irrational and ever-changing funding formulas that allow us insufficient flexibility to target.
  • We need to get rid of the hated State Wide Education Property Tax
  • Our current level of adequacy funding is too low.  It's only a matter of time before it is challenged in court and when that happens, we will be required to adopt a broad based tax
  • The proposed amendment does not "take the Court out of it," but does reduce the Court's leverage over the Legislative education funding decisions.
  •  The amendment puts the issue behind us.

Responses from amendment opponents:
  • The "first dollar" requirement is functionally addressed by the Statewide Education Property Tax which works fine, now that the donor town issue is remedied.  That's a state tax and pays the first dollar.  The State has some latitude in setting this tax rate.  Towns could just reduce local property tax in proportion.
  • We can target as much as we want right now.
  • The State Wide Education Property tax is harmless now that donor towns are gone.
  • The current adequacy level is too low and we should raise it.
  • But the income tax is a scare tactic.  A legal challenge to the current adequacy would be unlikely to succeed.
  • Of course the amendment takes the Court out of it for all practical purposes.  That's the only purpose and that is all it accomplishes.  It does not assure targeting or any level at all of State support for education.
  • The amendment would eliminate the State's responsibility to fund an adequate education for New Hampshire children. 
  • The amendment does not put the issue behind us.  It ensures that the issue would be with us forever.  There would be no criterion for how funds are distributed, so it would be a never-settled political issue yielding unreliable and unfair funding.
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The Debate in Detail
  • Again....their positions are in grey 
    • and our answers are in bold blue
  • The "first dollar" requirement means that the state 
    • [must] give every school district the same base subsidy, instead allowing the state to target aid to where it is most needed. (Union Leader 3/7/12)
      • We would say that while that is technically correct, the SWEPT is an elegant solution, re-characterizing local property tax as state tax.
    • "Such a system is not rational by any metric … nevertheless court decisions require this formula....Many towns with high income levels, a substantial tax base, and few at risk students have received huge state grants because of the court rulings that call for equalized grants regardless of need....At the same time other communities that everyone would agree need assistance due to larger numbers of at-risk students, lower property values and income levels have lost funding." (Senator Bradley 3/2/12)
      • Not true.  They get to keep their own SWEPT but do not get actual subsidies from the state.
      • Under current formulas, some "middle" towns get small amount of probably unneeded state funds, but this is not necessary.
    • "Many towns with high income levels, a substantial tax base, and few at-risk students have received huge state grants because of the court rulings that call for equalized grants regardless of need." (Senator Bradley, 3/4/12)
      • Nope
    • "But New Hampshire also does something that state Sen. Jeb Bradley diplomatically calls "irrational." It sends the same amount of adequacy funding, $3,450 per student, to every community, regardless of whether the community needs the money. This has led to the "irrational" act of giving money to towns that don't need it at the expense of those that do. It has caused the state to levy additional taxes on wealthy "donor towns," including many in the Herald's readership area, then take the money and give it to towns that don't need it." (Portsmouth Herald Editorial, 3/2/12)
      • Not true at all.  This is a natural enough misunderstanding or mis-translation of what Senator Bradley says in an inexact and, in the end, misleading way, above.  
      • This is a dangerous mis-perception which, if it took hold, could sway votes.
  • We'll end up with an income tax
    • "Sooner rather than later, taxpayers will be confronted with an income tax or sales tax, probably both, to pay the court-ordered costs of education." (Senator Bradley, 3/4/12 and 3/2/4)
      • This seems to be a genuine fear on the part of amendment supporters, but it is pure speculation based on the expectation that the Court would find our adequacy levels too low.  However, it is difficult to imagine a Court getting into the details of setting adequacy levels, even under the Constitution as it stands.
      • This needs to be knocked down definitively and with confidence. The real reason amendment supporters fear the Court intervention is that they have been driving down the levels of State aid to levels they know are not justified.
    • The $3,400 adequacy figure could be challenged in court at any point.  A more realistic figure is more like $7,000 per student....
      So I think when you recognize that there are scarce state resources, that we're trying to protect the competitive advantage that New Hampshire has vis-a-vis our no income not sales tax tax mechanism, that if we don't have this ability to target aid, we're just going to change our state in ways that we can't envision -  but it'll start with those tax decisions. (Senator Bradley, 2/17/12 on NHPR)
      • More of the same
    • CACR-12 recognizes there are not unlimited taxpayer resources and puts elected officials, not judges, in charge of allocating those dollars. 
       (Senator Bradley, 3/4/12)
      • He lets the cat out of the bag - we need the  amendment because we don't want to pay what the Constitution would require of us. 
    • "If that amendment does not make it into the constitution, New Hampshire will wind up with a broad-based tax, so great is the financial burden imposed by Claremont." (Union Leader, 3/7/12
      • The expected editorial ratcheting up of what Senator Bradley is saying.
  • The result is the formula is contorted and ever changing
    • the formulas have ping ponged around quite a bit, under Claremont....And businesses are with us because this is an uncertainly and uncertainty is a job killer. (Senator Bradley, 2/17/12)
      • Senator Bradley slips into a tired cliche here at the end, but we're entitled to point out that that the changes in the formulas are driven by the same political winds that would blow after the Constitution no longer protected children.  The big difference would be that there would be no floor under the level of state aid provided.
  • The amendment will put the issue behind us
    • "We urge the House to pass the bill as amended. It would give the state the ability to target aid to needy communities without getting bogged down in a political power struggle between the courts and Legislature."  (Portsmouth Herald Editorial, 3/2/12)
      • What the amendment would really do is free up the Legislature to provide State aid on the basis of the current balance of political power - or not at all.  There is no need for political struggle between the Court and the Legislature.  There would be no legal struggle either if the Legislature just settled down with the intention of obeying the Constitution. 
  • Therefore, provide the Legislature with the flexibility to target as needed, without a formula.
    • "CACR 12 would allow the Legislature to target state funding and make those difficult decisions based on need - not formulas."   (Senator Bradley, 3/4/12)
      • A fair formula that does not change is what would put the issue to bed.  Instead, the Legislature has been trying to walk as close as possible to the cliff, hoping not to slip into a Court challenge.
    • "CACR 12 would put state and local elected leaders in charge of education funding decisions as well as providing the criteria for a quality education so necessary for students in an increasingly competitive world."   (Senator Bradley, 3/4/12)
      • We'd prefer that Constitution be in charge and put a floor under the damage our elected leaders can do to our children.
  • The Legislature will NOT walk away from education funding!
    • "Could the Legislature walk away from education funding? No! CACR 12 allows targeted education aid but requires the Legislature to mitigate fiscal disparities among communities and educational opportunity among students. Is this a state takeover of education funding should the voters approve CACR 12? Absolutely not! Before the Supreme Court's Claremont decision, the Legislature had the authority to target aid and did."    (Senator Bradley, 3/4/12)
      • CACR 12 requires nothing of our Legislature, definitely not mitigation of disparities.  The current Constitution does that.  "Before Claremont" is definitely not a model of what we would want, as the Concord Monitor points out.
  • CACR 12 reduces the Court's un-warranted authority over education funding but doesn't take the court out of it.
    • The word "responsibility" is important. The amendment doesn't eliminate the courts. "It does somewhat curtail the role of the courts. It drops the standard under which the courts can determine if the Legislature is fulfilling its obligations. Right now, it's what's called a "strict scrutiny" standard, which means there's a presumption that everything we're doing is unconstitutional if it goes to court. If you use the word "reasonable," which we do in this amendment, that switches the burden of proof onto a plaintiff to prove the Legislature's unreasonable.  So it doesn't eliminate the court. You can still go to court and challenge what's happening, but it...makes sure that elected officials do what they're supposed to do...and the court does what it's supposed to do, which is opine on the constitutionality of those decisions. It doesn't give too much power to either branch of government. (Senator Bradley on NHPR's The Exchange, 11/3/12)

      • Senator Bradley explains it pretty well here.  What he's really saying is that the amendment virtually takes the Court out of it, which he thinks is justified because the Legislature would fund education anyway  We disagree.
       
    • "Will disgruntled New Hampshire residents still be able to petition the Supreme Court if there is dissatisfaction with the decisions of the Legislature regarding education under CACR-12?

      "Yes, the court will still be involved — but there will no longer be a presumption that every act of the Legislature is unreasonable as has been the case since Claremont. This raises an extraordinarily high legal hurdle for the state to prove its actions are reasonable. This provision of CACR-12 returns the Court to its traditional role of opining on the constitutionality of laws, rather than the Supreme Court becoming a super unelected Legislature."   (Senator Bradley 3/2/12)
      • Another version.

    • In our view, an amendment that removes the courts entirely from the equation might pass the House and Senate but will never get the two-thirds electoral majority needed to pass in the general public. Voters understand the need for checks and balances between the three branches of government.    (Portsmouth Herald Editorial, 3/2/12)
      • Yes, that's why this amendment is sold as not taking the Courts out but attorneys familiar with the issue will say with no ambiguity that the amendment leaves no remaining leverage for a community seeing redress, with the result that education funding in the State would be thoroughly politicized.
  • "Let the Voters be Heard!"
    • Translation: "Let the money be heard." Speaker O'Brien has brags to his caucus and to advocates who question the wisdom of the amendment that big money is waiting in the wings to get behind the amendment once it is passed.
    • Supporters want to put this complex issue on the ballot where their allies can spend a lot of money to convince the voters that, released of any constitutional obligation, the Legislature will do what it has never done before and supporters say the State cannot afford to do: fund an adequate education for our children regardless of where they live.
    • It's the Legislature's responsibility.
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The Amendment

Docket (2/15/12: Passed the Senate, as amended, 17-7)

Constitutional Amendment. Title: relating to public education. Providing that the general court shall have the authority to define standards for public education, establish standards of accountability, mitigate local disparities in educational opportunity and fiscal capacity, and have full discretion to determine the amount of state funding for education.

SPONSORS: Rep. Hess, Merr 9; Rep. Graham, Hills 18; Rep. Packard, Rock 3; Rep. Jasper, Hills 27; Rep. Kurk, Hills 7; Rep. Bettencourt, Rock 4

Official Analysis: This constitutional amendment concurrent resolution provides that the general court have the authority to define standards for public education, establish standards of accountability, mitigate local disparities in educational opportunity and fiscal capacity, and have full discretion to determine the amount of state funding for education.

Here is and adequacy funding status report provided a year ago to the Association for Education Finance and Policy by Mark Joyce of the New Hampshire Association of School Administrators.

Here is the roll call vote on CACR 34 in 2008

Here is the first part Part II, Article 83 of the NH Constitution, the part that pertains to education: 

"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; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people: Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination."

The amendment would read:

"In fulfillment of the provisions with respect to education set forth in Part II, Article 83,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."

Here are the Claremont decisions.

Landrigan: Legislature’s power figures took it on the chin with education funding vote, 6/10/12

posted Jun 10, 2012, 4:54 PM by Bill Duncan

Link

Sunday, June 10, 2012


Kevin Landrigan

Don’t let anyone kid you.

All those in power in Concord lost something when the education funding amendment went down to crushing defeat on Wednesday.

To be sure, the defeat was the most acute and potentially damaging to William O’Brien, R-Mont Vernon, who staked much of the success of his first term as speaker on getting an amendment to the voters.

When the House of Representatives passed an amendment for the first time ever in March 2011, it was looking like the dam was finally broken that with this awesome 3-1 majority rule, the Republican-led Legislature was going to get it done.

Sixteen months ago, only 20 Republicans defied O’Brien’s wishes and opposed the amendment.

Last week, the dissident number more than doubled.

But this was also a top priority for Senate President Peter Bragdon, R-Milford, and one Gov. John Lynch highlighted in each of his last two state-of-the-state speeches.

They can all “celebrate’’ having gone further than any other campaign since the landmark Supreme Court ruling 15 years ago.

That’s cold comfort.

With only 10 percent of Democrats in the House backing this amendment, it could have passed.

But given Lynch’s status as a lame-duck governor and long-standing opposition in the Democratic base to any such proposal, that wasn’t going to happen, even if the governor had done real work to try to change it.

And there’s little concrete evidence Lynch did.

So what was the profile of those House Republicans who voted no when it really counted?

A few were in O’Brien’s extended leadership team: Rep. Paul Mirski, of Enfield, who chairs the House Legislative Administration and Redistricting committees; Rep. Paul Ingbretson, of Haverhill, who chairs the new Committee on Redress of Grievances; and Rep. Dan Itse, who chairs the House Committee on Constitutional and Statutory Revision.

Given a mulligan – a second vote on the same amendment – Mirski and Ingbretson were among several who voted the “right’’ way and backed the amendment that time.

Then there was Manchester, where a majority of GOP members from the city supported the amendment, but seven went against it.

Only two Manchester Republicans had opposed O’Brien’s amendment in May 2011: Reps. Steve Vaillancourt and Irene Messier.

In the Gate City, newly named House Majority
Leader Peter Silva, R-Nashua, and city delegation Chairman Carl Seidel, R-Nashua, kept the gang together.

Not a single Nashua Republican opposed the amendment in the House, although three were absent Wednesday: James Summers, Timothy Hogan and Kevin Brown. Keep in mind that for O’Brien and Co., absent was as bad as a no vote, as he needed 237 warm bodies in the seats.

As in the past, Derry proved to be a killing field for this compromise: Only two House Republicans from Derry voted yes.

Curiously, O’Brien was able to win a few over for this amendment versus his own. Reps. Richard Drisko and Carolyn Gargasz, both R-Hollis, voted yes last week after opposing the speaker’s amendment.

This was the death of one or two cuts here or there spread across the state – 16 no votes from Hillsborough County, 18 from Rockingham County.

Clearly, the Republican Liberty Caucus of New Hampshire had more influence this time than it did when O’Brien handily won Round 1.

Why? The wording, of course, and it isn’t like O’Brien was caught by surprise.

More than a month ago, former Gov. John H. Sununu, gubernatorial candidate Ovide Lamontagne, and constitutional lawyers Eugene Van Loan and Chuck Douglas met privately with a key group of the libertarian “constitutionalists,” for lack of a better way to describe them.

The pitch was: Could they support an amendment that had the state assuming the “responsibility’’ for maintaining a public education system?

The answer was nearly unanimous, according to sources who were there.

No way.

A dish best served cold

If you have followed any of this never-ending saga, you gotta know it isn’t over.

There may not be a better chance than this one to pass an amendment through the Legislature – 3-1 super-majorities in the House and Senate.

Frankly, the governor’s support for something this time and in the past has been overstated.

Every chief executive since Claremont I has proposed or endorsed an education funding amendment. That’s five governors – three Republicans and two Democrats – and several governors who served before them have gotten onboard.

To any chief executive, this has always been about the balance of power.

Making aid to public education a fundamental right with a per-pupil grant requirement has been an anathema to them.

Politically, Lynch lost on the amendment, but he surely exacted some revenge for the defeats he had suffered at the hand of O’Brien the last two years.

Time and again, O’Brien got bills through the Legislature that Lynch either didn’t like or didn’t want, most prominently with a state budget in 2011 that Lynch refused to sign.

The nice guy Lynch would never say so publicly.

But Lynch had to know that if O’Brien tacked in the governor’s direction to get an amendment compromise, O’Brien would be unable to get that product through the House.

At week’s end, some constitutional amendment supporters maintained that the solution might still lie at the ballot box this November.

Every 10 years, whether the Legislature sends the question to them or not, New Hampshire voters have to decide if they wish to convene a constitutional convention.

This is the year.

In 2002, 63 percent of voters approved of a convention, not quite enough to convene one.

If a convention is held, delegates can bring to the full body any amendments to the Constitution.

You get the idea.

Surely, there will be GOP legislators that offer their own amendments in the 2013 session.

At week’s end, there were also rumors spread among O’Brien’s political enemies that O’Brien hadn’t given up this year and another amendment plan could be in the offing.

That isn’t at all likely.

Bringing up any proposal at this stage of the session would take a two-thirds vote in both the House and the Senate.

If you can’t get 60 percent to do something, 67 percent is really out of reach.

From rival to supporter

Lamontagne got a former primary opponent to climb aboard his large bandwagon.

Jim Bender, of Hollis, ran in the 2010 primary for the U.S. Senate that Kelly Ayotte won narrowly over Lamontagne.

The two developed a kinship during and after that campaign.

“I know Ovide to be a principled conservative and a man of integrity whom I trust to do a great job as the governor of our state,’’ Bender said in a statement obtained by The Sunday Telegraph.

“I am happy to be one of the leaders of ‘Job Creators for Ovide,’ and I look forward to working with him to strengthen our local economy and to continually make New Hampshire an even better place to live and to raise a family.”

All for one

The House Democratic caucus stuck together throughout the final week.

Even the constitutional amendment to ban an income tax attracted support from only two House Democrats: Peter Ramsey and John Gimas, of Manchester.

There were 18 House Republicans who opposed putting the income tax question on the ballot.

Democrats smell blood in the water at the state party level, and at this juncture, all those in the minority should stick together because they all could benefit from it at the polls.

......

Kevin Landrigan can reached at 321-7040 or klandrigan@nashuatelegraph.com. Also, follow Landrigan on Twitter (@KLandrigan).
© 2012, Telegraph Publishing Company, Nashua, New Hampshire

RLCNH EVISCERATED OVER CACR12 YET AGAIN, Ed Mosca, House Legal Council, 6/5/12

posted Jun 6, 2012, 3:40 AM by Bill Duncan

DNHPE Comment: This is much too long for most normal humans to read but I have highlighted the key sections where says that CACR 12 essentially replaced Article 83 of the New Hampshire Constitution.  This is not something most 


Ed Mosca
RLC ―When looking at CACR 12, there are a few nicknames we could use
for it. We could call it the “Robin Hood Amendment,” we could call it
“the Moderate Amendment,” we could call it “the Lawyer’s Amendment,”
but really the true nickname of CACR 12 should be “the Giving into
Claremont Amendment.”

MOSCA – that is a very strange nickname for an amendment that
eliminates the four Claremont duties!

RLC -- If you’re willing to accept that Claremont was correct and that
the people have a fundamental right to a state-run and state-funded
public education, nothing we say is going to convince you otherwise.
But if, like us, you think Claremont was wrong, and you are not
willing to give up the fight for educational freedom and the natural
right of parents to educate their own children, then read on because
we are going to convince you why CACR 12 is not the right amendment
for New Hampshire.

MOSCA – one does not have to believe that Claremont was correct to
believe that we need CACR12. Under the RLC’s logic we should never
have passed the 13th Amendment in response to Dred Scott.

RLC -- For reference, we begin our discussion with a response to the
House’s FAQs document and then lead into a detailed analysis that
explains why CACR 12 is wrong for New Hampshire.

FREQUENTLY ASKED QUESTIONS

Question #1: How does the new CACR12 overturn the Claremont decisions?

Answer: It doesn’t. It sets the stage for the next one to happen. By
making the Legislature “responsible to maintain” a system of public
education, we give the court everything they ever wanted. The lower
court in the original Claremont decision specifically mentioned that
our Constitution lacked the word “maintain.” Why are we giving it to
them?

MOSCA – it is, at best, factually inaccurate to assert that an
amendment that eliminates the four Claremont duties “give[s] the court
everything they [sic] ever wanted.”

Question #2: Does the new CACR12 enshrine the Claremont decisions into
the NH Constitution?

Answer: Yes. We will now have the “responsibility to maintain a
system” for public education and to mitigate local disparities in
funding, the two very things that Claremont was about. This has always
been about the money. Follow the money. Who benefits from giving in
now? Taxpayers are not going to see lower taxes, the courts get what
they always wanted and even the proponents of CACR 12 admit that the
Legislature gets nothing new. They say that all of our objections to
the amendment are already accepted law anyway. However, those laws can
be changed, while a constitutional amendment that enshrines these
erroneous principles in the Constitution cannot easily be changed. Why
are we giving up the war and raising the white flag of defeat?

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates tha
t.
Since 1789 New Hampshire has by state law
maintained a system of public education, so CACR12 is completely
consistent with tradition.

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

Answer: Without a doubt. What is now largely a responsibility of
parents and local communities will be fully assumed by the
Legislature. Central control is not the New Hampshire way. It’s true,
we’re not a home rule state, but we have a culture in New Hampshire of
granting home rule in as many areas as possible. For education, the
Constitution’s only mention of eduction in Part 1 gives authority to
local communities to hire and form contracts with teachers. Arguably,
during the time of the Constitution, teachers were equivalent to
schools. Therefore, the Bill of Rights in New Hampshire gives an
exception to education as a sole area of local control guaranteed by
the Constitution.

MOSCA – there is no and never has been any “Bill of Rights exception”
for public education. Since 1789 there have been state laws regarding
curriculum and funding.

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

Answer: We have representatives telling us that homeschooling is not
public education and then we see these same people pass legislation
claiming that it is and that the state has a responsibility to
regulate it. Which is it? When the courts decide that homeschooling is
public education, parents will be up in arms and wonder why yet again
the Legislature sold them down the river.

Additionally, the cost to homeschooling parents and parents with
children in private schools in increased taxes will likely make it
unaffordable for them to keep their children out of public schools.
And yet, depending on who is in the Legislature, we’ve seen
homeschooling regulation that assumes that any standards set for
public schools must be met by homeschoolers anyway, often with a
higher degree of regulation and outright fear that parents aren’t
meeting those standards, and that has always resulted in even MORE
regulation to oversee them. These problems will increase with CACR 12
in place.

MOSCA – legislative authority over home schooling is based on Part II,
Article 5. Defeating CACR12 does nothing to change that in any manner
whatsoever.

Question #5: Doesn’t having the word “Responsibility” in the amendment
enshrine Claremont?

Answer: Absolutely. Our Constitution does not give the Legislature
“responsibility” over public education at this time. CACR 12 adds that
“responsibility.” We can argue how involved the Legislature should
be―and we should have that argument―and we will find some middle
ground that will vary and change over time. So why should we raise the
white flag of defeat now and ensure that we will always have to
maintain and fund our current, failed system at a minimum?

MOSCA – it is, at best, factually inaccurate to assert that CACR12
requires the system currently in place to stay in place. Pursuant to
Part II, Article 5, the Legislature has exercised responsibility over
public education since 1789.

Question #6: Doesn’t “maintaining a system of public elementary and
secondary education” enshrine Claremont?

Answer: Yes. See question five above.

MOSCA – No. See question five above.

Question #7: Why not pursue an absolute purist amendment?

Answer: This is a red herring. We’ve heard people proclaim: “We don’t
have the votes to reverse Claremont.” “We’ve been fighting so long and
this is our only chance.” It’s too late.” “This is the best we can
do.” “We’ve already lost.” “The public will never support us.” “You
haven’t been around as long as we have.” And many of these statements
come from the representatives who wrote extensive arguments against
Claremont years and years ago. They are weary of this battle. They are
ready to raise the white flag of defeat. They are willing and ready to
accede to most of Claremont’s results in the name of perhaps and maybe
preventing a phantom broad-based tax, which is always threatened to be
on the horizon, and a court made up of judges that even in Londonderry
III did not all agree that it should be getting involved.

We tell you this: Putting CACR 12 into the Constitution ENSURES the
very thing proponents of CACR 12 are worried about. The next court
battle will not result in the court saying they can’t tell the
Legislature what to do, it will result in the court telling the
Legislature it has all the power to do everything because of CACR 12,
and now it must do everything, because it is the Legislature’s
constitutional responsibility to do so. And, because we will not be
able to downshift any of the cost of maintaining that system, this, my
friends, will guarantee a broad-based tax because a local property
tax, as the court already said, is not a fair and equal system of
taxation. So the Legislature post CACR 12 will become a Robin Hood
State to mitigate disparity, robbing from the rich, to educate the
poor. Future legislators may enact an income tax, a sales tax or a new
business tax or some other method to take from those who have to give
to those who don’t, and we will have forever lost the New Hampshire
Advantage.

The State of New Hampshire will be better off if this Legislature does
nothing, rather then give in to the Claremont judges. The Constitution
doesn’t have any mention of anything but “cherish” right now, and look
where that got us. Adding the language of CACR12 will not lead the way
out of the mess, but it will lead us deeper and permanently into a
bigger mess.

MOSCA – the same constitution the RLC claims to know better than all
these alleged quisling graybeards who, establishes a bicameral
legislature. So, the answer is pretty simple, because this is the best
compromise that could be forged with the Senate. Moreover, it is a
damn good compromise for true conservatives, because it overturns
Claremont.

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

Answer: Nothing! A court decision that has yet to be written and
threats that have yet to be made by an overreaching court will be
dealt with by a future Legislature. We hope that Legislature is
controlled by fiscal conservatives, but even if it’s not, any changes
they make are reversible. Whether its in a year or five years, when
the fiscal conservatives come back into power, as we know they will,
they can reverse the damage. They will not be able to reverse a
constitutional amendment. Don’t waive the white flag of surrender, for
that future Legislature is depending on us to be the fiscal
conservatives of today.

There are defensive lawsuits that no one has yet pursued, asking
questions like “What about the rest of Art 83? Do we have to fund that
as well, since we have to cherish it?” The public has been fooled by
“it’s for the children” arguments. Showing the public that the logic
of Claremont makes no sense when applied to the rest of Art. 83 might
help to educate people on the issue far better than sending them a
flawed constitutional amendment that the lawyers insist nobody but
them can truly understand.

MOSCA – this is extremely wishful thinking. What happens next is that
somebody brings the “Londonderry III” lawsuit where the court decides
the question that Londonderry II left it poised to decide – is the
State spending as much on public education as the Court thinks should
be spent. A decision that per pupil spending should be, for example,
$10,000.00 would require a massive increase in the rate of the
statewide property tax and, probably, other state taxes. For those,
like the RLC, that claim it cannot happen, I say those who forget the
lessons of the past are doomed to make the same mistakes over and over
again. All one need do is look at what happened in response to
Claremont II – the statewide property tax – to know the RLC is
demonstrating extreme naivetee.

DETAILED ANALYSIS

As a point of comparison, here are the three versions of CACR 12. The
third “conference” version is what we’re left to vote on. Please keep
this page as a reference for the rest of the analysis, because we will
be referring to it often.

House Language:[Art.] 5-c [Public Education.] In fulfillment of the
provisions with respect to education set forth in Part II, Article 83,
the general court shall have the authority and full discretion to
define reasonable standards for elementary and secondary public
education, to establish reasonable standards of accountability
therefor, and to mitigate local disparities in educational opportunity
and fiscal capacity. Further, in the exercise thereof, the general
court shall have full discretion to determine the amount of, and
methods of raising and distributing, State funding for education.

Senate 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 full power and authority and the
responsibility to define reasonable standards for elementary and
secondary public education, to establish reasonable standards of
accountability, and to mitigate local disparities in educational
opportunity and fiscal capacity. Further, the legislature shall have
full power and authority to determine the amount of, and the method of
raising and distributing, state funding for public education.

“Committee of Conference” 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.

For this discussion, we will be mainly referencing the “Committee of
Conference” Language, which the House and Senate must now give an up
or down vote. In the House, 237 members voting in favor will pass this
amendment. In the Senate, 15 Senators voting in favor will pass this.
The governor does not have a vote.

The first part of the first sentence is crucially important, because
it links all of the language of the new Article 5-c [Public Education]
to Part 2, Article 83. The relevant half of Part 2, Article 83 is as
follows:

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, 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; to countenance and inculcate the
principles of humanity and general benevolence, public and private
charity, industry and economy, honesty and punctuality, sincerity,
sobriety, and all social affections, and generous sentiments, among
the people: Provided, nevertheless, that no money raised by taxation
shall ever be granted or applied for the use of the schools of
institutions of any religious sect or denomination.

For emphasis, please pay attention to one important detail in the
above language: “...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...” For those of you not seeing the point yet, please review
the definition of magistrate: “in modern usage the term usually refers
to a judge.”

Thus, the Supreme Court does and always will have an interest to
“cherish ... public schools,” regardless of any language we propose.
Now, we all know what the Supreme Court thinks the word “cherish”
means; namely, “to fund an adequate education.” That is particularly
relevant because of the first part of proposed amendment, which says:

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.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83.


We know “liberals/progressives” well enough to know that they can and
will stretch words so far to mean the exact opposite of what they
really mean. The Claremont decisions and the judges’ reliance on the
word “cherish” should make that abundantly clear. We are giving the
“liberal/progressives” and the court, no matter who is on it, fuel
with this language; we are not pouring water on the situation, but
gasoline. If we have the “responsibility to maintain a system,” then
the system we have the responsibility to maintain will be the current
one, as far as any court is concerned, let alone a
“liberal/progressive” court. They will have a field day with this
language; it will be a green light for the court to force all manner
of new court-driven requirements on the Legislature, because our
constitution will still give “magistrates” the power to “cherish ...
public schools,” which, again, we will now have “a responsibility to
maintain,” and the definition of maintain will certainly include
“fund.” Ending or even reducing existing programs will be seen as
“failure to maintain,” so you can and should expect more lawsuits any
time that any program is underfunded. And of course, all programs are
underfunded, according to those who want those programs funded as
fully as possible, and programs do not just include core education
like reading, writing and arithmetic, but arts, music, sports and
every other program that someone considers “vital” to a child’s
“right” to be “properly educated.”

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83.


To those who say that mitigation could be minimal, the first lawsuit
that decides the “responsibility” to “mitigate” means far more than
“minimal” will forever establish a requirement for the Legislature to
fully fund every program that they create via the “reasonable
standards” that the Legislature has the “full power and authority” and
“responsibility to maintain.”

MOSCA – Wrong! The second sentence of CACR12 sets forth the
legislative discretion to carry out the responsibility to mitigate.
Its not decided in the courtroom any more.


Some have pointed out that the language of CACR 12 says “a system,”
meaning we won’t have to support the current system. This is where the
reference to Part 2, Article 83 is important. Since the Supreme Court
also has a duty to cherish education, it will play a role in defining
what “a system” means, and by way of precedent and other legal
maneuvers, the court will conflate “a system” to mean “the current
system.” Because of “liberals/progressives” history of distorting
words, “a system” = “the system.” We will in fact be stuck funding
education of the current system at the current levels, and the court
may even decide that we must also account for inflation and cost of
living adjustments setting a new bottom-line number that is far higher
than what we pay now. In other words, because of this language, the
court will be far more involved with the business of telling us how to
fund education.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


Who will lose control of education? Your local towns and school
districts might be told their new default levels of funding must be at
a minimum that they shall not drop below. And those towns that find
they can no longer afford this increased cost will turn to the
Legislature with their hands outreached, asking for us to “mitigate
their fiscal capacity.” Hello donor towns, or worse, a broad-based
tax.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


The first sentence of CACR 12 is bad language that would degrade the
situation for parents and local communities on a permanent basis, and
it would set up a situation where the Legislature would be compelled
to “maintain” (keep) at least level funding for public schools
forever. Once the teachers’ unions recognize the true interpretation
of CACR 12, they will be out in force supporting this language if they
know what’s good for them. They won’t ever have another budget battle
to worry about, and all of their energy can be devoted to increasing
the level of funding that must be “maintained.” There’s no wiggle room
in the clear English language in this amendment.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


CACR 12 makes the Legislature “responsible” for funding education,
which it has never been in the history of the state. We may have
helped fund education, but we have never been responsible for doing
so. If you believe as we believe, that the courts are wrong in their
core opinion, and we have no obligation to do what the courts say,
this gives up that battleground FOREVER. Like we say so many times, it
raises the white flag of defeat.

MOSCA – The Legislature has assumed responsibility for funding public
education, under our current constitution, since 1789. CACR12
eliminates the four Claremont duties
, so education funding decisions
get made through the democratic process, not via judicial fiat.

The next section of the amendment is problematic, because it strips
authority from parents and local communities currently maintained by
Part 1, Article 6, despite the 1968 amendment, which gutted it, and in
some views because of that 1968 amendment. First, here’s the proposed
language in the “conference” version of CACR 12:

MOSCA – Wrong! CACR12 has no effect on Part I, Article 6. The RLC
remains free to bring all the lawsuits they wish claiming that New
Hampshire is a home-rule state or whatever euphemism they want to use,
if they don’t want to use home-rule.

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.

For our analysis, it is important to note that from 1784 to 1968, Part
1, Article 6 of the Constitution of New Hampshire read as follows (pay
special attention to the text in bold):

As morality and piety, rightly grounded on evangelical principles,
will give the best and greatest security to government, and lay in the
hearts of men the strongest obligations to due subjection; and as the
knowledge of these, is most likely to be propagated through a society
by the institution of the public worship of the Deity, and of public
instruction in morality and religion; therefore, to promote those
important purposes, the people of this State have a right to empower,
and do hereby fully empower the Legislature to authorize from time to
time, the several towns, parishes, bodies-corporate, or religious
societies within this State, to make adequate provision at their own
expense, for the support and maintenance of public protestant teachers
of piety, religion and morality. Provided notwithstanding, that the
several towns, parishes, bodies corporate, or religious societies,
shall at all times have the exclusive right of electing their own
public teachers, and of contracting with them for their support and
maintenance. And no portion of any one particular religious sect or
denomination, shall ever be compelled to pay towards the support of
the teacher or teachers of another persuasion, sect or denomination.
And every denomination of Christians demeaning themselves quietly, and
as good subjects of the State shall be equally under the protection of
the law: and no subordination of any one sect or denomination to
another, shall ever be established by law. And nothing herein shall be
understood to affect any former contracts made for the support of the
ministry; but all such contracts shall remain and be in the same State
s if this Constitution had not been made.

In 1968, we amended Part 1, Article 6 to read as follows (the same
section in bold):

As morality and piety, rightly grounded on high principles, will give
the best and greatest security to government, and will lay, in the
hearts of men, the strongest obligations to due subjection; and as the
knowledge of these is most likely to be propagated through a society,
therefore, the several parishes, bodies, corporate, or religious
societies shall at all times have the right of electing their own
teachers, and of contracting with them for their support or
maintenance, or both. But no person shall ever be compelled to pay
towards the support of the schools of any sect or denomination. And
every person, denomination or sect shall be equally under the
protection of the law; and no subordination of a ny one sect,
denomination or persuasion to another shall ever be established.

Importantly, the original language of Part 1, Article 6―“electing
their own teachers, and of contracting with them for their support or
maintenance, or both”―gave the Legislature the power to delegate to
local communities full authority over the governance (compare this to
CACR 12: “authority to make reasonable standards for elementary and
secondary public education and standards of accountability”) and
funding mechanisms (compare to CACR 12: “to mitigate local disparities
in educational opportunity and fiscal capacity” and “to determine the
amount of, and the methods of raising and distributing, state funding
for public education.”) of their schools.

Arguably, the 1968 amendment, by removing mention of the “Legislature”
from the amendment, actually made the cities and towns MORE
responsible for paying and running their own schools. In fact, we
argue, combined with Part 1, Article 28-a, the 1968 amendment ensured
a type of home rule for education in New Hampshire. In other words,
the Legislature can’t tell local communities what to do unless it pays
the price. We call that “local control” of schooling.

While the House version of CACR 12 would have restored the
Legislature’s ability to delegate the responsibility to the cities and
towns, by saying the Legislature shall have “full discretion to define
reasonable standards for elementary and secondary public education,”
the “conference” version does not. Again, the “conference” CACR 12
requires that the Legislature “maintain” public schools and grants
that the “Legislature shall have the full power and authority to make
reasonable standards for elementary and secondary public education and
standards of accountability” Goodbye Local Control. Hello Part 1,
Article 28-a court battles.

MOSCA – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

In effect, the “conference” version of CACR 12 takes parents and local
communities completely out of the equation when it comes to defining
“standards for elementary and secondary public education” and it gives
that authority directly to the Legislature. Conservatives believe
parents are in control of their children’s education and delegate some
of that authority to their local schools, under the direction of local
administrators, but parents still maintain most of that authority as
their natural right and can reclaim that authority they have delegated
at any time. The original Constitution shared that view of
responsibility concerning the education of children and curricula
among the people, local communities and the Legislature, and leaves
that responsibility with the people and local communities. One could
argue that because “Legislators” have a “duty ... to cherish … public
education,” they also play a role in this equation. However, by
removing the Legislature from Part 1, Article 6, the Legislature
should have less authority than local communities.

MOSCA – – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

With the “conference” CACR 12 saying the Legislature has “full power
and authority” over curricula, parents and local communities will have
no authority over education, except the scraps that central control
might leave them. That’s something that conservatives cannot and
should not support, and compromising on this principle is
unacceptable. We don’t care how tired you are of the fight, this is
why we’re fighting. We cannot give in to those who wish the state to
have more power over children’s education than their own parents.

MOSCA – – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

Finally, the “conference” version of CACR 12 says this, relative to
funding decisions:

the Legislature shall have the full power and authority … to determine
the amount of, and the methods of raising and distributing, state
funding for public education.

The lawyers driving this effort wrongly believe that this language
will prohibit the court from making certain judgments, by changing the
standard from “strict scrutiny” to “rational basis,” and that this
language qualifies the earlier sentence and restricts the courts’
hand. We argue that the qualifying language is irrelevant, and that
any court capable of upholding Claremont will agree with us. The basis
for “strict scrutiny” is the Claremont decision that established that
an adequate education is a fundamental constitutional right. Nothing
in CACR12 challenges this, and so nothing can change that strict
scrutiny standard. To paraphrase Thoreau: “They hack at the branches,
but have not touched the root.” We keep being told that an amendment
that challenges Claremont will not pass, but the Legislature keeps
refusing to send THAT amendment to the people and striking at the true
root of this problem. Here’s the resultant question: So are we, the
opposition to CACR 12, failing to give the people a voice, or is it
the proponents of CACR 12, who desire to put Claremont into our
Constitution, actually denying the people a voice?

MOSCA – The four Claremont duties are define an adequate education,
determine its cost, pay for the entire cost entirely with state taxes,
and have meaningful standards of accountability, all of which the
court had the final say over. CACR12 completely eliminates these
duties. There is no judicial review over the amount of state funding,
how the funds are raised or how the funds get distributed, judicial
review over standards are based on reasonableness. The standard is
that the challenger must show that no reasonable person could say that
the standards maintain a system of public education. There is no
strict scrutiny review.


Let us be clear: the court has absolutely no authority to require any
of the actions of the last 18 years. Please refer to Part I, Article
29 & 31 and Part 2, Article 2 & 5:

[Art.] 29. [Suspension of Laws by Legislature Only.] The power of
suspending the laws, or the execution of them, ought never to be
exercised but by the legislature, or by authority derived therefrom,
to be exercised in such particular cases only as the legislature shall
expressly provide for.

[Art.] 31. [Meetings of Legislature, for What Purposes.] The
legislature shall assemble for the redress of public grievances and
for making such laws as the public good may require.

[Art.] 2. [Legislature, How Constituted.] The supreme legislative
power, within this state, shall be vested in the senate and house of
representatives, each of which shall have a negative on the other.

[Art.] 5. [Power to Make Laws, Elect Officers, Define Their Powers and
Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing
Towns to Aid Certain Corporations.] And farther, full power and
authority are hereby given and granted to the said general court, from
time to time, to make, ordain, and establish, all manner of wholesome
and reasonable orders, laws, statutes, ordinances, directions, and
instructions, either with penalties, or without, so as the same be not
repugnant or contrary to this constitution,...

The answer to our current quandary is for the Legislature to exert its
true authority to pass all manner of wholesome and reasonable orders,
laws, statutes and etc. and ignore the court’s “strict scrutiny,”
which has no basis in the N.H. Constitution.

MOSCA – Again, those who forget the lessons of the past are doomed to
make the same mistakes. Claremont II – statewide property tax.

An educational funding constitutional amendment not reflecting our
values is simply not worth passing. An amendment reflecting our values
is what we really should be sending to the people. We should exercise
our Constitutional authority as we see fit, regardless of any court
opinions that are as flawed and unenforceable as the Claremont
decisions. If the Legislature wants to continue to do what the court
says, that is its choice, but it is indeed a choice held exclusively
by the Legislature. The Legislature should choose to ignore the
court’s usurpations and do what the Constitution gives it due
authority to do, with or without an amendment. Anything else is a
violation of our elected officials’ oaths of office.

MOSCA – Again, those who forget the lessons of the past are doomed to
make the same mistakes. Claremont II – statewide property tax.

If we fail to rise to the occasion to stand up to the court, then it
matters not if we pass this language. The court will still claim
authority to say that we are not funding an adequate education because
we are not “maintain[ing] a system of public elementary and secondary
education” and nor are we adequately “mitigate[ing] local disparities
in educational opportunity and fiscal capacity.”

MOSCA – Can’t – read the second sentence.

Again, it doesn’t matter if the court can’t say how or how much we
need to fund education, the court will be able to generally say that
the word “maintain” implies that we must fund current levels, plus
inflation, plus cost-of-living adjustments, plus whatever else it
might come up with, including but not limited to “an adequate
education” definition. In summary, the “conference” CACR 12 language
doesn’t get the Legislature or the people anywhere at all. It still
leaves the court in a position to order the Legislature to fund an
adequate education and to say that the Legislature is not doing it
right. In fact, in our opinion, it makes it more likely, not less
likely, for the court to do this, and on top of that, it removes any
remaining authority that our parents and local communities now have.

MOSCA – Can’t make such orders regarding funding – read the second
sentence. CACR12 completely removes the concept of an “adequate
education” so can’t do that either.


What’s worse, with Part 1, Article 28-a in place, the court can and
will make the Legislature fund all additional “reasonable standards
for elementary and secondary public education and standards of
accountability.”

[Art.] 28-a. [Mandated Programs.] The state shall not mandate or
assign any new, expanded or modified programs or responsibilities to
any political subdivision in such a way as to necessitate additional
local expenditures by the political subdivision unless such programs
or responsibilities are fully funded by the state or unless such
programs or responsibilities are approved for funding by a vote of the
local legislative body of the political subdivision.

Part 1, Article 28-a ensures that any, and we mean any, additional
“reasonable standards for elementary and secondary public education
and standards of accountability” that the Legislature passes will be
challenged by local communities, and every time the court will rule
that the standard must be funded by the Legislature. There won’t need
to be any funding method or funding amount noted in the court’s
decision, the Legislature will just have to fund the new mandate,
period. With this new standard in place and a requirement to fund it,
the Legislature will indeed have a new baseline to maintain from that
point forward. The Legislature won’t be able to go below that level,
even if it eliminates the standard later. The court cases will be
piling up, and a broad-based tax will be waiting to happen. The courts
won’t have to require one, they will just repeat, as they did in
Claremont, that the Legislature is not meeting its “duty” to “cherish
… public education,” which is now its “responsibility to maintain.”
The court will insist that the Legislature use its “full power and
authority … to determine the amount of” (no less than the minimum
needed to “maintain”, of course), “and the methods of raising and
distributing, state funding for public education.”

MOSCA – Grasping at straws here. The Court has actually had such a
case, and ruled just the opposite.

CACR 12 changes nothing about the current situation, which is what the
proponents of the “conference” amendment promise us it’s supposed to
do. They promise that these magic words will make the courts stop and
leave us alone if only we cry “uncle” and agree the court was right;
that we are “responsible” and that the state always was “responsible”
to provide this fundamental right to “an adequate education,” which
appears nowhere in the actual document.

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates that.
The RLC is assaulting the proverbial
“straw-man,” not CACR12.

As you digest all that we have told you about CACR 12 and why it is
wrong for New Hampshire, please recall the winter of 1776 when George
Washington was faced with the lowest troop morale of his tenure and
his military coffers were dry. Soldiers were going home without hope
of any success in the war and were resigned to be British subjects
with no freedom. Did our finest president to be give up hope at this
time and raise the white flag of defeat to the British? Well, we all
know the course of history. Washington prayed to Almighty Providence
to give him the troops, dollars and morale he needed to secure liberty
in this land, and those prayers were answered because of his devotion
to principles and his resolve. Are we going to be like our greatest
founder, or are we ready to give in to our enemies?

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates that. If that is “giving in to our enemies,” I
guess that nothing less than lynching the entire judiciary will
satisfy the RLC.


We, the undersigned, urge you to keep up the fight for educational
freedom and the natural right of parents to raise and educate their
children as they see fit. We urge you to help defeat CACR 12 in any
way you can.

Signed, Members of the Natural Rights Council Board:

Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell
(Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield),
Mark Warden (Goffstown), John Burt (Goffstown) and Kevin Avard
(Nashua).

Concord Monitor Editorial: Amendment will just raise property taxes, 6/5/12

posted Jun 5, 2012, 2:53 PM by Bill Duncan

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

Home >
MONITOR EDITORIAL
Amendment will just raise property taxes
By Monitor staff
June 5, 2012


There are some people who believe the New Hampshire Supreme Court was right when it ruled that the state government is obligated to provide all children in the state with an adequate education, regardless of where they live. Count us among them.

There are some who believe the court was wrong - that the Legislature should be able to divvy up school aid according to its wishes, giving more money to some students and less to others, based on financial need or geography or (dare we say it?) politics.

And then there are those who apparently believe the Legislature deserves total discretion over the very amount the state will contribute to local schools. This year, it could be $600 million. Next year? A little more, a little less. After that? Maybe state lawmakers will see no choice but cutting state aid in half. Sorry, school districts - times are tough!

If that sounds far-fetched, just ask officials from the state university system, who saw their financial contribution from Concord cut by 50 percent last spring. Without the Supreme Court looking over their shoulders, politicians at the State House were free to ax university spending dramatically. Not so with public K-12 schools. At least not yet.

And that's where the latest proposed constitutional amendment on school funding comes in. Proponents - including the Republican leaders of the House and Senate as well as Democratic Gov. John Lynch - want voters to pay attention to the notion of "targeting." They say the amendment will allow the state to use its finite resources smartly: giving money to the districts that need it and letting others fend for themselves. But the amendment would also allow legislators to shrink state aid dramatically - perhaps completely. Note the wording: The Legislature "shall have the full power and authority . . . to determine the amount of . . . state funding for public education."

That sure doesn't leave much room for aggrieved parents or students to appeal to the judiciary.

And when state aid shrinks, the regressive local property tax will inevitably rise to make up the difference - as usual, hurting most those who can least afford to pay.

The 2011-12 Legislature provides the perfect cautionary tale for voters who might be inclined to support such a measure. The current Legislature has shown itself to be peculiarly hostile toward public education. Its members would give businesses a tax break if they contributed money to help kids go to private schools. They have proposed measures to let students opt out of any lessons their parents find objectionable. They have participated in a ludicrous demonization of the International Baccalaureate program, now used in the Merrimack Valley School District, among others. And with Speaker Bill O'Brien promising to chop another $400 million from the state budget next year, it's not hard to imagine the public schools will be among his targets. After all, that's where the money is.

The current per-pupil aid formula is already far lower than what it takes to truly provide an "adequate" education. Would you now trust this group to do right by New Hampshire students with virtually no check on its power?

A vote for this constitutional amendment is a vote to increase local property taxes. When it comes before legislators this week, they should vote no. If not, it will be up to voters in November to shoot it down, making clear that they do indeed want lawmakers who embrace the responsibility of providing an education to each and every one of New Hampshire's schoolchildren.


Source URL: http://www.concordmonitor.com/article/333798/amendment-will-just-raise-property-taxes

Gov. Sununu urges Republicans to support CACR 12, Drew Cline blog, 6/5/12

posted Jun 5, 2012, 2:49 PM by Bill Duncan

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Home » Local Voices » Drew Cline
June 05. 2012 2:42PM


Former Gov. John H. Sununu has written a letter to Republican legislators urging them to vote for the constitutional amendment on education funding, CACR 12, up for a vote on Wednesday. The letter is below.

Dear Members of the Republican Caucus,

I am very sorry that I cannot join you in person at your caucus on Wednesday, but I have a travel commitment that I could not change.

The Constitutional Amendment which you are about to consider under CACR 12 is, in my opinion, one of the two most important issues you will have to address in this legislative term. When I agreed to serve as the state chairman in 2009, I was motivated by two key issues extremely critical to the future of the State of New Hampshire. The first was the dire straits of the budget. You have done a wonderful job in cutting spending and saving the economic viability of the state. The second was grave concern over the impact that the Claremont Court decision has had on the character of our New Hampshire.

........go to the Link

A New Direction, opinion, Rep. Randy Foose, Intertown Record, 6/5/12

posted Jun 5, 2012, 4:29 AM by Bill Duncan   [ updated Jun 5, 2012, 4:32 AM ]


Eight years ago a new Representative and a new Governor arrived in Concord to begin their service to the State.  Both had run campaigns that emphasized a strong commitment to “solving” the school funding dilemma.  It took two years to get organized. This year, as they complete four terms, the State can look back on six years of school funding “stability” during which school districts were able to predict with some certainty the amount of financial support that would be forthcoming in each of the six years of the last three biennia.

On Wednesday, the House will vote on a proposal to present language for an amendment to the State constitution that would dramatically change the legal structure under which educational funding would be calculated by future legislatures.  After participating at every step of the way as a loyal supporter of the Governor’s leadership on this issue, I will vote against his recommendation in the last scheduled session of the year.

In the vote, I will be joined by an overwhelming majority of Democrats who are concerned that the proposed language would open the door for future legislatures to dramatically cut funding for public education, just as the current legislature has done for higher education, health and human services, and other essential state government programs.  I will also be joined by members of the far right who are concerned that the proposed amendment would transfer significant power to the State at the expense of local districts.  As I write this column, the House vote is too close to call.

What is not too close to call is the ultimate outcome if the language were to be placed on the ballot in November.  With strong opposition from the authors of the Claremont law suit, the School Boards Association, the School Administrators Association, the teachers both in and out of the union; it is improbable that the vote would generate the necessary 2/3rds necessary to become law.  But what would happen if the measure were on the ballot is that voters would be subjected to the expenditure of hundreds of thousands of advertising and lobbying efforts both for and against the initiative.

As an elected official, I have a responsibility to try to support programs and policies that will benefit my district.  Given what I have observed first hand in this term, I cannot support the loosening of the control on public school funding that was imposed by the Supreme Court.  As much as I have tried to get comfortable with a “trust us, we (the legislature) know what’s best” approach, I cannot participate in a process that would place at risk the already modest level of State support for our schools.

Further, I have grave concerns that towns such as New London, which have benefitted from “donor town” status which allowed communities to retain excess state tax collections while reducing local tax rates would see that status disappear as the Legislature hunted for scarce resources. 

Over the past two years much has been written about down-shifting.  In the budget developed by the current legislature great care was taken to make sure that, generally, the down-shifting happened to specific individuals or organizations, rather than entire communities.  College students now pay the highest public college tuition in the country and receive the lowest level of financial aid.  Hospitals now must absorb the cost of the care they provide for patients who can’t pay or don’t have insurance.  And, it took a mild winter to generate funds to address many local road repair projects and avoid down-shifting to municipalities.

A failure to continue to protect the current level of education funding would have a different effect.  Coming on top of the current efforts to moderate increases in local school taxes, an erosion in state funding would force local tax payers to shoulder the burden and we would see directly the down-shifting that is a concern to all of us.

While our Governor has decided that his commitment ends with getting a school funding amendment on the ballot as he leaves office, I must respectfully conclude that the wrong amendment has potential to undo the improvements that he has already helped achieve.  If there is to be one, a new direction for improving our support of school funding should be debated and defined in the upcoming campaign.

Key vote on education funding this week, DiStaso, Union Leader 6/2/12

posted Jun 3, 2012, 1:45 PM by Bill Duncan

Link
June 02. 2012 8:21PM

By JOHN DiSTASO
Senior Political Reporter
Linked articles:
Mayors' views on school funding as distant as their cities
The final text of CACR 12, this year's education-funding amendment

CONCORD — From Pittsburg to Salem, every New Hampshire resident who has a child in public schools or pays property taxes has a stake in Wednesday's House and Senate votes on a proposed constitutional amendment that would largely overturn the landmark 1997 Claremont II court decision on school funding.

The plan leaders of the House and Senate and Gov. John Lynch want Granite Staters to approve on Nov. 6 says the Legislature, has “full power and authority” for the way state funding of education is raised and distributed.

Essentially, if passed, the amendment would allow future lawmakers to target aid to the neediest communities, presumably at the expense of the richest communities.

But some fear that without the Supreme Court to keep a check on lawmakers, such an amendment would allow them to drastically cut education aid to all cities and towns, effectively sending the state back to the pre-Claremont lawsuit days when property taxes footed more than 90 percent of the bill for education and communities with lower property values had to set their tax rates higher than “property-rich” ones to raise enough money to provide their children with basic educational opportunities.

Three-fifths majorities of the 395-member House (there are five vacancies) and 24-member Senate are needed on Wednesday to send the question to the voters. The governor's signature is not needed, but given Lynch's popularity and political influence, his support is viewed as critical to getting the necessary votes in the Legislature and support among the voters.

If those 60 percent super-majorities are achieved on Wednesday — and it is not a sure thing, especially in the House — approval by two-thirds of the voters will be needed on Nov. 6 to add the language to the constitution.

If the amendment does become part of the state constitution, the next Legislature presumably will change the current funding formula for state aid, but it's anyone's guess at this stage what the new formula will look like and what communities can expect in future funding.

Currently, communities receive from the state a base grant of $3,450 per pupil. In an attempt by the state to help poorer cities and towns, additional funds are granted based on the number of students each community has on the federal free- and reduced-lunch program, the number of special-education students, the number of those learning English as a second language and the number of third-grade students who have not tested proficiently in reading.

Proponents of a constitutional amendment have long pointed out that the court's requirement in the Claremont decision that all students, regardless of their communities' property wealth, receive a base amount of funding from the state for an “adequate” level of education constantly increases the amount of money required from the state. And that, they say, constantly increases pressure for larger or more state funding sources, such as a broad-based tax.

“Regardless of how much money you spend, it's a finite pool, and if you have to distribute it on a per pupil basis, the money you're sending to Bedford that it doesn't need is money that you can't use in Berlin,” said Charlie Arlingaus, president of the Josiah Bartlett Center, a conservative public-policy group. “If you want to help people in Berlin more, you also have to send money to people who don't need it.”

State Senate Majority Leader Jeb Bradley, R-Wolfeboro, predicted lawmakers will pass the proposal to the voters on Wednesday. He said taxpayers should rest assured that future Legislatures will not leave cities and towns footing an inordinate amount of the bill for education if the amendment passes.

As evidence that lawmakers are committed to education, Bradley noted that they solved an $800 million shortfall last year without cutting basic aid to elementary and secondary education.

“You have to judge people by their record, and that's our record in the most extraordinarily difficult times imaginable,” he said.

But Bradley said many communities “don't have the same need as a Berlin or a Manchester or a Strafford or a Claremont or a Farmington. Most people, when they take a step back from thinking about what the funding spreadsheet means to them, will see that we have to target aid to the neediest school districts in a way that's rational and fair.”

Bradley said it's “way to early to tell” what a new distribution formula will mean for the richer communities, “but this allows flexibility to target aid to the neediest communities, and I think a future Legislature needs that flexibility.

“But I absolutely don't believe we're going to be short-changing students in this state,” Bradley said. “This doesn't allow the state to walk away from its responsibility.”

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

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

Link

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

MY TURN
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

Portsmouth Herald Editorial: Ed funding amendment deserves support, 6/3/12

posted Jun 3, 2012, 9:15 AM by Bill Duncan

Link

EDITORIAL

June 03, 2012 2:00 AM

The New Hampshire House speaker, Senate president, governor and our own local state Sen. Nancy Stiles all deserve praise for crafting a reasonable amendment to the state's constitution regarding education funding.

With so many factions warring over this issue, simply agreeing to language to bring to the full House and Senate was no easy feat. And winning the votes of three-fifths of lawmakers in both Houses won't be easy either.

But that's OK. Changing the state Constitution is not supposed to be easy, and unlike many of the fringe issues that have taken up lawmakers' time this past year, the question of how we fund our public schools is worthy of intense deliberation. If the Legislature can pass an amendment, it will be a major achievement.

With the information available to us at this time, we're inclined to support the amendment because it empowers the state to direct aid to needy communities rather than sending the first and last dollar of adequacy funding to cities and towns whether they need it or not.

In our view, the ability to target aid was really the only problem that needed solving.

Some on the left might have wanted to use the school funding issue to introduce a sales or income tax, while some on the right thought an amendment would be a chance to get the courts out of the education issue once and for all. But the legislative leaders and governor resisted those distractions and have put forward a relatively straightforward proposal.

"It's good language, it's clear language and it's understandable language," Sen. Stiles said Thursday. "It puts the responsibility on the state to make sure that there is public education for our children."

For the record, here's the exact wording of the proposed amendment:

"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."

The lawmakers have also read seven key points into the record so future legislatures and courts will know their exact intention. Those points include explicit statements of the state's responsibility to provide public education and an ongoing role for the courts should the state fail to meet that responsibility.

On the taxation side of the question, Portsmouth's Pat Remick, leader of the Coalition Communities who forgets more about this issue in a day than most of us will ever know, called the language "the best we're going to get."

"I think that this provides the best opportunity toward getting to a point where they can get rid of the statewide property tax," she said.

Remick acknowledges the change would not ban donor towns, which saw taxpayers in many Seacoast towns, including Portsmouth, Newington, Rye and New Castle, sending local dollars to the state, which then redistributed them to "receiver towns" which, in some instances, were more than capable of funding an adequate education themselves.

As in most true compromises, all groups have something to cheer and something to complain about with this amendment. We look forward to a vigorous debate of the issue. And remember, if the House and Senate are able to pass this amendment, then two-thirds of voters will need to support it in November, and that is going to be an even tougher battle. The statewide teachers union has already come out against it.

We need an amendment, but not this one, Rep. Gary Richardson, opinion, Concord Monitor, 6/3/12

posted Jun 3, 2012, 9:10 AM by Bill Duncan

Link
STATE HOUSE MEMO

Legislature given far too much power

By Rep. Gary Richardson / For the Monitor
June 3, 2012

I agree with Gov. John Lynch that we need a constitutional amendment to permit targeting of state funds for education. Being a supporter of education and financially realistic, I agree that we have a limited amount of money available and we need to be able to direct more state aid to school districts that have low assessed property valuation. I dare say, a majority of Democrats and Republicans can agree on that principle. Given this shared belief, agreeing on the language for a constitutional amendment to allow targeting should be a relatively simple matter. Unfortunately, the language proposed by Republican leadership in the House and Senate does much more than to allow targeting of aid for education.

The proposed amendment gives the Legislature total discretion over the amount that the state will contribute to local school districts for education. The second sentence of the amendment states that the Legislature "shall have the full power and authority . . . to determine the amount of . . . state funding for public education." A person does not need to be a lawyer or a constitutional expert to understand that this language means the Legislature could significantly reduce state funding for public education. In fact, the language is so broad that the Legislature could decide that the funding of public education is primarily a local responsibility and send almost no money to some communities.

At the same time while insisting on full control over funding, the amendment also gives the legislature "full power and authority to make reasonable standards" and "the responsibility to maintain" a state education system. This puts the state firmly in control of local educational decisions. State control always comes at the expense of local control.

The question of targeting money to poorer school districts has never been the real issue. The problem has been the philosophical struggle over who has the responsibility to pay for education, and who, ultimately, has the authority to determine whether the amount is constitutionally adequate. In the Claremont decisions, the New Hampshire Supreme Court determined that the admonition to the Legislature to "cherish" education contained in Article 83 of the New Hampshire constitution means the state has a duty to pay for an adequate education for every student. Those who disagree with the Claremont decisions argue that the Legislature should have the sole authority to determine the level of state support for education and insist on language in a constitutional amendment that would prevent any other judicial interpretation.

Our system of government depends on checks and balances between the branches of government. The proposed amendment eliminates the only check that we have on legislative mischief by eliminating any meaningful court review. (If the Constitution says that the Legislature has "full power and authority," there isn't much left for a court to review.) The argument that voters can simply elect different representatives at the next election, who will have their own budget to balance, is small comfort.

Unfortunately, the insistence on the part of the proponents of this amendment to alter the role of the courts and give the Legislature "full power and authority" is depriving those of us who support targeting from voting on a constitutional amendment most of us could support. Given the makeup of the Legislature, it is possible that the votes will be there to pass the proposed amendment and send it to the voters in November. However, unless two-thirds of the voters are ready to give the Legislature "full power and authority" and cede local control over education to the Legislature, putting this amendment on the ballot will not allow us to move forward and target aid for education.

(Rep. Gary B. Richardson of Hopkinton is the Democratic floor leader in the New Hampshire House.)

Local superintendents worry about impact of proposed education funding amendment, Nashua Telegraph, 6/2/12

posted Jun 3, 2012, 9:00 AM by Bill Duncan

Link

DNHPE Comment: The notion that state aid to education will go down dramatically if the amendment were to pass is widely accepted, based on historical experience, as the superintendents discuss here.

By ERIN PLACE

Staff Writer

A proposed constitutional amendment giving the Legislature the final say on education funding has some local school officials concerned about it leading to a drop in state support.

“In my view, if this were adopted, over time it would lead to considerably less funding from the state for Nashua, resulting in either reductions in education, higher local property taxes or both at the same time,” Nashua School District Superintendent Mark Conrad said. “I think history really documents that.”

Conrad was referring to the wording of a proposed amendment to the constitution agreed upon by state legislative leaders and Gov. John Lynch on Thursday. The House of Representatives and Senate are scheduled to vote on the measure next week, and both need a 60 percent majority to pass the amendment.

If approved, it would be on the ballot in November.

The amendment would give the Legislature “full power and authority to make reasonable standards for elementary and secondary public education.”

Supporters say the proposed measure would target more aid to less wealthy districts across the state and ensure that New Hampshire would continue its commitment to the public school system.

The changes would include no longer requiring the state to send all education aid out on a per-student basis, promoting alternatives to public schools and putting the burden of proof on whoever sues the state regarding the unconstitutionality of the education aid formula.

Conrad said the Nashua Board of Education hasn’t debated the proposal’s merits or taken a position on it, but he said history shows that when left to its own devices, the Legislature has shown a propensity for reducing education aid to the city when times are tough.

Prior to the 1997 Claremont lawsuit, the Nashua School District received less than $500,000 in adequate education funding, and in some years, it received no funding from the state, Conrad said.

This year, the School District received a little less than $36 million in adequate education funding from the state, he said.

When the state moved away from funding the requirements established by the Claremont decision, Conrad said his district saw grant money dwindle.

In 2005, Nashua received a little more than $26 million from the adequate education grant, he said. By 2007, that funding had dropped to $23.9 million.

Six years ago, the Supreme Court stepped in after the Londonderry School District filed a lawsuit. The court ruled in September 2006 that the state’s funding formula was unconstitutional.

“When they reworked the formula to meet the constitutional requirements, our adequate education grant increased from $23.9 million in 2007 to $31.3 million in 2008,” Conrad said. “I believe that history shows that anytime the state moves away from meeting the constitutional requirement for the cost of adequate education, our funding declines. It happened prior to the initial lawsuit, it happened over time until the 2006 Supreme Court intervention.”

Conrad doesn’t think Nashua should receive significant increases in state funding, but believes that districts need to have stability over time. Otherwise, the funding roller coaster is destructive and wreaks havoc on students and staff members, as positions and programs are added and cut with such drastic changes, he said.

Hudson Superintendent Randy Bell agreed.

“I’m very concerned,” he said. “I frankly believe that the inevitable result of this will be the Legislature will reduce funding to public education whenever there’s a difficult moment. I’m certain that they will target more funds to poorer communities.

“Anybody that doesn’t understand that it will mean less money overall to schools when there’s any fiscal difficulty in the state and having those funds passed on to the property tax hasn’t paid a whole lot of attention to the fiscal history of the state.”

This year, Hudson received a little more than $9 million in funding from the adequate education grant.

As for the amendment’s supporters citing the need to target low-wealth districts for increased funding, Conrad and Bell believe there is no reason why the Legislature can’t do that now. They agreed there is nothing in the law to prevent politicians from doing so after the adequate education requirements are met.

“The argument really becomes do we provide the cost of an adequate education or do we target aid to those communities that we think are most in need?” Conrad said. “Whenever that question has been asked as an option in the past, Nashua always loses funding from the state.”

If the amendment is passed by the Legislature, it would require two-thirds support from voters in November.

“If two-thirds of the people of New Hampshire want it to be that way, that’s what democracy is about,” Bell said.

The state’s largest teachers union has expressed concern about the proposal.

“We do not believe that CACR12 serves the best interests of the children of New Hampshire,,” said Rhonda Wesolowski, NEA-N.H. president. “Schoolchildren lose when politicians play favorites, and that is exactly what this amendment allows.”

Erin Place can be reached at 594-6589 or eplace@nashuatelegraph.com. Also, follow Place on Twitter (@Telegraph_ErinP).

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