The Republican Liberty Caucus of New Hampshire has come out against CACR 12, the education funding constitutional amendment that overturns the Claremont rulings. The RLCNH assessment of the amendment and its effects is as wrong as it can be. It completely misunderstands the amendment, what it would do, and current and past education policy in New Hampshire.

Pasted below is the RLCNH press release opposing the amendment. Below that is a response written by House Legal Counsel Ed Mosca, which demolishes the RLCNH release point by point.


RLCNH release:

The Republican Liberty Caucus of New Hampshire is urging Republican lawmakers to honor their commitment to local control of education and parental rights by defeating CACR 12, a misconceived educational funding reform amendment that will create an unprecedented constitutional right to a government-run education controlled by a centralized bureaucracy and will all but guarantee a new broad-based tax.

“Unfortunately, the current compromise language for CACR 12 would permanently enshrine the Claremont decisions in the Constitution, giving the Legislature ‘the responsibility to maintain a system of public elementary and secondary education’,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “If the Supreme Court can bend the meaning of the word ‘cherish’ to mean ‘pay for,’ what will it do with the phrase ‘responsibility to maintain’? This language will certainly lead to higher taxation to make sure none of the state’s public schools ever fall below their current level of funding.

“But that’s not the worst of it,” McKinney added. “The compromise language also gives the Legislature ‘full power and authority to make reasonable standards for elementary and secondary public education.’ This change to the Constitution could remove parents and local communities from the educational decision-making process, and the state Legislature could take total control over what children are taught at school. To anyone who cherishes the traditional role of parents to raise and educate their own children, sometimes in partnership with local communities, this would be a troublesome development.”

Proponents of the amendment have been using a high-pressured-sales approach on representatives and senators, telling them that now is the time for an educational funding amendment—and if not now, never. They’ve used scare tactics, saying that the Supreme Court is just waiting for this Legislature not to act, and then they will force the Legislature to enact an income tax. They’ve contrived amendment language they say will end the court’s strict scrutiny, which is based in the court’s finding that Part 2, Article 83 includes a fundamental right to a public education. Lawmakers should walk away from this high-pressured sale because the supportive arguments have no substance.

All of these claims can be refuted with one simple truth, McKinney said. The court overreached when it declared that the New Hampshire Constitution guarantees public education as a fundamental right, and the Legislature has no obligation to cater to the whims of a court decision that went too far. Not only will the proposed language to CACR 12 not end the court’s strict scrutiny posture, it will give the court everything it ever asked for; namely, a Constitution that says public education is a guaranteed right that the Legislature must ‘maintain’,” she said.

“It matters not if the amendment gives the Legislature ‘the full power and authority’ to determine the amount of and methods for raising tax money to pay for education,” McKinney said. “What will matter is that the Legislature will never fund education adequately enough to cover the costs of ever-growing educational mandates and the whims of unelected bureaucrats who control the broken government-run education system that is failing our children. The courts will always perpetuate the myth that money is the solution and will therefore always argue that the Legislature is not doing enough.

“The solution is not to centralize control of educational standards and funding decisions with a misguided constitutional amendment,” McKinney added. “The solution is for a strong Legislature with courageous leaders to stand up to the courts. We need a Legislature that will exert its existing constitutional authority, delegating control over education to parents and local communities and allowing parents to use their education tax dollars at the school of their choice. Competition will always drive down the cost and improve the quality of any product or service in a free market, and education is not the exception to this rule.”

Ed Mosca's response. Mosca begins by quoting the RLCNH press release, then responding, and he continues the pattern throughout. I've taken the liberty of clarifying this by adding "-- RLC" below the graphs that quote the RLCNH press release:

“Unfortunately, the current compromise language for CACR 12 would permanently enshrine the Claremont decisions in the Constitution, giving the Legislature ‘the responsibility to maintain a system of public elementary and secondary education’,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire.
-- RLC

The first sentence of CACR12 cannot be read in isolation from the second sentence, as the RLCNH has done. The first sentence defines the responsibility. The second sentence defines the Legislature's discretion in carrying out the responsibility.


When these two sentences are read together, it is clear that the claim that "CACR 12 would permanently enshrine the Claremont decisions" is a bunch of bunk. Under Claremont anyone can go to court and claim that the State has not met one or more of its court-defined duties to (1) define an adequate education, (2) determine its cost, (3) pay the entire cost with state taxes and (4) have meaningful standards of accountability. The standard of review to be applied to such a challenge, essentially, is whether the legislature made the same policy judgment the court would make.


CACR12 obviously requires some state standards. It is impossible to "maintain a system of public elementary and secondary education" without such standards. But the standard of review is no longer whether the legislature made the same policy judgment the court would make. Rather, someone challenging the standards has the burden of showing that the standards are unreasonable, that is, that no reasonable person could say that the standards do not maintain a system of public education.


While some might prefer no judicial review, that is not a practical option. Such an amendment would never pass. The choice is between the Claremont/Londonderry regime where the standard of review is whether the legislature made the same policy judgment the court would make, and CACR12, where someone challenging the standards has the burden of showing that no reasonable person could say that the standards maintain a system of public education.


“If the Supreme Court can bend the meaning of the word ‘cherish’ to mean ‘pay for,’ what will it do with the phrase ‘responsibility to maintain’? This language will certainly lead to higher taxation to make sure none of the state’s public schools ever fall below their current level of funding.
-- RLC

This repeats the same interpretive error, ignoring that the second sentence of CACR12 modifies the first sentence. To repeat, the first sentence of CACR12 cannot be read in isolation from the second sentence. The first sentence defines the responsibility. The second sentence defines the Legislature's discretion in carrying out the responsibility.


The legislature's discretion with respect to funding is "full power and authority" "to determine the amount of, and the methods of raising and distributing, state funding for public education." No objective reading of this language supports the assertion that CACR12 requires the "current level of funding." Under CACR12, the legislature has the authority to increase funding, decrease funding or maintain the same level of funding. Which is as it should be.


Under Claremont/Londonderry, in contrast, which is what will remain in place if CACR12 does not pass, anyone can go to court and claim that the State has not met its duty to define an adequate education and determine its cost. The standard of review, as I have pointed out, is whether the Legislature defined an "adequate education" in the manner the court would define it and whether the Legislature determined the cost of such an education to be what the court thinks it costs. The RLCNH would rather have this, than CACR12. Seriously?????


“But that’s not the worst of it,” McKinney added. “The compromise language also gives the Legislature ‘full power and authority to make reasonable standards for elementary and secondary public education.’ This change to the Constitution could remove parents and local communities from the educational decision-making process, and the state Legislature could take total control over what children are taught at school. To anyone who cherishes the traditional role of parents to raise and educate their own children, sometimes in partnership with local communities, this would be a troublesome development.”
-- RLC

If I may cut to the chase, so what? That has been the constitutional law in New Hampshire since 1784. New Hampshire has never been a home-rule state.


The relevant question is whether you want a Legislature accountable to the voters every two years making educational policy, or an unaccountable court. A Legislature that "remove[s] parents and local communities from the educational decision-making process … " can be replaced by the voters. A court that does so, cannot. The RLCNH would really rather have the latter, over the former? Seriously?????


Proponents of the amendment have been using a high-pressured-sales approach on representatives and senators, telling them that now is the time for an educational funding amendment—and if not now, never. They’ve used scare tactics, saying that the Supreme Court is just waiting for this Legislature not to act, and then they will force the Legislature to enact an income tax. They’ve contrived amendment language they say will end the court’s strict scrutiny, which is based in the court’s finding that Part 2, Article 83 includes a fundamental right to a public education. Lawmakers should walk away from this high-pressured sale because the supportive arguments have no substance.
--RLC


As demonstrated above, it is the RLCNH's arguments that lack substance.


The RLCNH also appears to be unaware of relatively recent history. The Court forced the Legislature to enact a statewide property tax in 1999. If there is a court ruling in 2013 or 2014, which answers the question that thus far the Court has not reached — has the Legislature met its duty to determine the cost of an adequate education and its duty to pay for it in state taxes, and the answer is the number is $7,500.00 per student or $10,000.00 or some other number, then you are essentially right back where you were in 1997, when Claremont II was issued. The Court will decree the local property unconstitutional to the extent it is funding "adequacy" as determined by the cost, but allow it to stay in place for the next six months (or whatever time the court chooses), for the Legislature to replace it. Does anyone really think the 2013-2014 (or a subsequent) Legislature would not pass new state taxes to fund the public schools?


All of these claims can be refuted with one simple truth, McKinney said. The court overreached when it declared that the New Hampshire Constitution guarantees public education as a fundamental right, and the Legislature has no obligation to cater to the whims of a court decision that went too far. Not only will the proposed language to CACR 12 not end the court’s strict scrutiny posture, it will give the court everything it ever asked for; namely, a Constitution that says public education is a guaranteed right that the Legislature must ‘maintain’,” she said.
-- RLC


See above. The RLCNH is living in a fairy-tale world, if it really believes that the next Legislature would allow the public schools to close, rather than increase state taxes in response to Claremont II type decision.


We live in the real world. The relevant question is not whether in theory the legislature has an "obligation to cater to the whims of a court decision … " (which, incidentally, I agree it does not). The relevant question is what a real legislature in the real world would do in response to such a court decision.

“It matters not if the amendment gives the Legislature ‘the full power and authority’ to determine the amount of and methods for raising tax money to pay for education,” McKinney said. “What will matter is that the Legislature will never fund education adequately enough to cover the costs of ever-growing educational mandates and the whims of unelected bureaucrats who control the broken government-run education system that is failing our children. The courts will always perpetuate the myth that money is the solution and will therefore always argue that the Legislature is not doing enough.
-- RLC

This is complete and utter nonsense. Of course, it matters. If CACR 12 does not pass, we continue the regime where anyone can go to court and claim that the State has not met its duty to define an adequate education and determine its cost. The standard of review, as I have pointed out several times now, is whether the Legislature defined an "adequate education" in the manner the court would define it and whether the Legislature determined the cost of such an education to be what the court thinks it costs. CACR12 eliminates such lawsuits; there will not be another Claremont II. This "matters not"? Seriously, seriously?!?!?


“The solution is not to centralize control of educational standards and funding decisions with a misguided constitutional amendment,” McKinney added. “The solution is for a strong Legislature with courageous leaders to stand up to the courts. We need a Legislature that will exert its existing constitutional authority, delegating control over education to parents and local communities and allowing parents to use their education tax dollars at the school of their choice. Competition will always drive down the cost and improve the quality of any product or service in a free market, and education is not the exception to this rule.”
-- RLC


It is not CACR12 that is misguided. It is the RLCNH.


A page of history is worth a volume of theory. The Court forced the Legislature to enact a statewide property tax in 1999. If there is a court ruling in 2013 or 2014, which answers the question that thus far the Court has not reached — has the Legislature met its duty to determine the cost of an adequate education and its duty to pay for it in state taxes, and the answer is the number is $7,500.00 per student or $10,000.00 or some other number, then you are essentially right back where you were in 1997, when Claremont II was issued. The Court will strike decree the local property unconstitutional to the extent it is funding "adequacy" as determined by the cost, but allow it to stay in place for the next six months (or whatever time the court chooses), for the Legislature to replace it with state taxes. Does anyone really think the 2013-2014 (or a subsequent) Legislature would not, do what the 1997-98 legislature did, and pass new state taxes to fund the public schools?