To those of us unschooled in constitutional law, the word "reasonably" - mentioned twice in the latest version of the proposed school funding amendment - likely carries little meaning.

But some lawmakers and attorneys who represented towns in past school funding lawsuits say the term is a legal codeword, a way to diminish the level of court scrutiny over education funding. If passed, they say, the amendment would essentially push the courts out of the school funding debate, giving the Legislature broad authority over how much to spend on education and how to direct that aid.

"The clear intention was to remove the court and the higher standards the court applies," said Richard Hesse, professor emeritus at Franklin Pierce Law Center, who was involved in the Claremont cases on behalf of the plaintiffs. With the amendment in place, lawmakers "would have to do something so outlandish and so unreasonable before there was any basis for judicial intervention."

The matter figured prominently in yesterday's Senate debate on the amendment, with one senator describing the change in court scrutiny as moving "from strict to easy."

"I think that needs to be fully understood, and this is no small matter," said Sen. Harold Janeway, a Webster Democrat who raised concerns about the change in court review, but ultimately supported the amendment. "My thought is given the Legislature's lengthy history of failing to fund over the years, who in the future is going to hold the Legislature to account given this change in the level of scrutiny?" Janeway asked.

State Sen. Joe Foster, one of the amendment's sponsors, argues that despite the change in scrutiny, the amendment wouldn't diminish the state's responsibility to spend money on education. All it would do, he said, is give the Legislature leeway over distributing state aid. "I still think we have to expend the funds, but this allows us flexibility as to how the funds are spent," said Foster, a Nashua Democrat.

"I'm not looking for us to cheapen the cost of adequacy; I'm just looking for us to be able to spend it in places that need it more than others," Foster added.

But amendment opponents say that the proposal's authors are attempting to sidestep the question of how court scrutiny would change. "They're trying to sneak it in," said Scott Johnson, who helped represent the districts that originally sued the state over school funding in 1991.

The disagreement is rooted in the relationship between the courts and the Legislature and the degree of deference each branch must afford the other.

Here's how Andru Volinsky, an attorney for the towns that sued the state over school funding in 1997, sees it: "We fought very hard in the early Claremont rulings to have the court recognize education as what's called a fundamental right. And we won."

The Claremont rulings refer to the 1990s Supreme Court decisions stating that every New Hampshire child is entitled to an adequate, and adequately funded, education, and requiring the state to define and pay for an adequate education.

That designation put education on par with rights such as freedom of speech and freedom of religion. It also meant that the Legislature's education-related decisions were subject to the highest level of court scrutiny, called strict scrutiny, several attorneys said. "When a Legislature takes action with regard to a fundamental right, the action is subject to very careful and exacting scrutiny by the courts," Volinsky said.

That "strict scrutiny" spawned court rulings that require the state to define an adequate education, and then determine the cost and pay for such an education. Amendment supporters say that the court has tied the Legislature's hands, restricting to an unacceptable degree the way lawmakers can direct money. Supporters of the court's decisions, meanwhile, argue that the state has a responsibility to pay for an adequate education for all students. If lawmakers want to send additional money to needy districts on top of that amount, they're free to do so, those supporters say.

But the proposed amendment would shift the dynamic between the Legislature and the court.

If the court currently subjects education-related cases to strict scrutiny, the amendment would diminish judicial review to a level called "rational basis," attorneys who represented towns in school funding lawsuits said. Rational basis is generally reserved for "run-of-the-mill" decisions, such setting the speed limit on Lake Winnipesaukee, Volinsky said.

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