New Hampshire Views: Is it time for Claremont III?
As the Dover School Board considers the possibility of suing the state for inadequately funding education, we would hope attorney Andru Volinsky is impressing upon board members the uphill climb which lies ahead.
On Monday, board members went into executive session to discuss strategy with Volinsky should legislative efforts fail to garner the money Dover believes it is due. It was Volinsky who served as lead counsel for the historic court case, Claremont School District v. Governor of New Hampshire.
In short, the state Supreme Court ruled in 1993 the New Hampshire Constitution – as the result of the word “cherish” – required the state to fund first to last dollar of an adequate public education.
Then in 2006 under what is known as Claremont II, filed by Londonderry, the court issued four mandates as a result of the state’s refusal or inability to comply with its earlier ruling: Define an adequate education, determine the cost, fund it with constitutional taxes (what became the statewide property tax) and ensure its delivery through accountability (i.e. setting minimal educational standards).
In the wake of the 2006 decision, attorney Ed Mosca, who has closely followed the case, wrote: After holding “the current education funding and ‘definitional’ statutory framework falls well short of the constitutional requirements established in this court’s Claremont decisions,” the court went on to set a deadline for the representative branches to “define with specificity the components of a constitutionally adequate education,” and threatened that “(s)should they fail to do so, we will then be required to take further action to enforce the mandates of Part II, Article 83.”
What Dover faces should it seek to write the next chapter in this saga is the argument New Hampshire has done what the court ordered. It has defined, determined, funded, ensured delivery of the funds and set standards.
The state will further argue whether Dover is getting what is deserves is a matter of opinion, not judicial review.
Mind you, we think the state’s case is malarkey, although the court might be fooled into believing the state has dotted its i’s and crossed its t’s. That is if you buy into the false notion the state’s base funding amount is “adequate” at $3,450 per student when the statewide average K-12 per pupil cost was $13,159.15 in 2012.
Dover should also be concerned because the court has changed much since 1993 and even 2006.
When the 1993 Claremont ruling came down, David Brock was chief justice. There has been some sense over the years among court watchers that Brock was a bit of an activist, something we don’t see on today’s high court.
As for the court’s involvement in 2006 under Chief Justice John Broderick, it can be argued his court acted appropriately by taking the next logical step – putting teeth in the 1993 ruling – and in doing so went as far as one co-equal branch of government can go in forcing another (the Legislature) to behave.
One aspect, however, which might heighten the court’s willingness to revisit Claremont is how widely it can be argued the Legislature has abused the court mandate.
If most of the nearly 30 school districts shortchanged along with Dover are willing to pony up the money for a fight, we could summon a degree of optimism.
Before that happens, we hope the Legislature owns up to its responsibility and distributes state money in a fair fashion.