Recent editorials and letters to the editors in various newspapers opposing the proposed constitutional amendment to restore to the Legislature its traditional power to determine education policy and funding (CACR2) all sound a common theme – those who suggest that the Judiciary should be excluded from the process are really only out to shrink the state’s share of the education budget. This is not a fair criticism.

There are many reasons to consider amending the Constitution to change the result of the Claremont case. To begin with, in the long run, Claremont will not be good for education. When courts make constitutional pronouncements, it is as if they were creating a mold. Henceforth, if something doesn’t fit in that mold, it must be discarded. Accordingly, whenever the Supreme Court opines as to the content of an adequate education, it is as if those particular concepts had been encased in constitutional cement. To use an extreme example, just imagine what would happen to our education system if the Court were to decide that phonics or new math were (or were not) essential elements of an adequate education. These are policy questions for which there are no clearly right or clearly wrong answers and it is simply foolish to put them in the hands of those whose job it is to come up with only one answer.

A second reason that it is so important to get the Court out of the business of setting education policy and funding levels is because the Court’s involvement in the process is not good for taxpayers. When the Court said in Claremont that it was exclusively the state’s responsibility to fund an adequate education, New Hampshire found itself in the peculiar situation of having taxpayers in poor communities financing the educational systems of taxpayers in wealthy communities. It makes no sense at all that the Amhersts and Bedfords of the world should receive state education funding and yet the Claremonts and the Allenstowns are still struggling to make do. However, because courts only know how to make rules where one-size-fits-all, that is the system we now have.

We should target state education aid so that it gets to where it is needed the most. In order to do that, there must be some flexibility in the system. But once some particular quantum of education is labeled a “right”, every citizen is entitled to an equal share of the pie and notions of targeting go out the window. The net result is that we have reversed the story of Robin Hood; instead of stealing from the rich to help the poor, Claremont compels us to create a spending policy which steals from the poor to help the rich.

The final reason for amending the Constitution to reverse the Claremont case is because setting education policy and determining the appropriate level of education funding are simply not proper functions for a court. Courts decide issues of law. The very notion of the rule of law implies the existence of fixed standards against which a court can measure whether a particular act is lawful or unlawful.

The writers who are so enamored with the Claremont decision claim that the Court needs the court to sit in judgment of whether the Legislature is providing New Hampshire’s school children with an “adequate” education. Nowhere, however, do these scribes tell us what an adequate education is – or even how the five Justices of the Supreme Court could figure out what it is. That is because there is no commonly accepted standard of an adequate education. If one were to pose the question “what is an adequate education?” to a room packed with 100 people, one would get 100 different answers. The point is that an “adequate” education and an “adequate” level of funding are matters of opinion; they are not points of law. And it is for this reason that they should be decided by those whose opinions we have a right to expect conform to our own – our elected representatives in the Legislature.

Nevertheless, those who oppose a constitutional amendment claim that all this talk about separation of powers and the proper role of the Judiciary is just a smokescreen – that what we really want is to take the shackles off the Legislature so that it can go back to the “bad old days” ante Claremont. This is pure bunk. Being against Claremont does not mean that one is against education. It may well be that some advocates of a constitutional amendment would prefer not to spend as much on education as these editors do. But that does not make them anti-education. Perhaps they are just pro-health care or pro-the environment. One can cherish education and yet still value things other than education.

The problem with “rights” is that they act as trump cards; no matter how needy a competing interest may be, it must give way to a right. We are told, however, that the New Hampshire Constitution makes education a right, just like the right to free speech or the right to peacefully assemble, both of which do indeed trump an act of the Legislature. But that is simply not true. The Constitution does not say that education is a right; only the Supreme Court says that. And the reason that the Constitution does not describe education as a right is because there is a fundamental distinction between our genuine rights, which Government may not take from us, and social goods like education, which we desire Government to provide to us.

The point is that our Constitution is not a menu of entitlements. As important as education is – and that does mean an excellent, well-financed education – it is only one of many things that deserve Government’s attention. The very provision in the Constitution which admonishes us to “cherish” education also encourages us to favor “agriculture, arts, sciences, commerce, trades, manufactures, and natural history”. None of these things are described as rights and there is absolutely no evidence that the Framers contemplated that citizens could go to court to obtain them.

Education policy should be determined through legislation, not litigation. Let us learn from the experience of other states who have been subjected to lawsuit after lawsuit after lawsuit.

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