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A Sensible, Faithful Amendment

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 Charlie Arlinghaus

June 6, 2012

As originally published in the New Hampshire Union Leader

 

The debate over education funding in New Hampshire has always had an element of fear in it ever since the original Claremont rulings. Some fears are well founded, but many are exaggerations not necessarily based in fact or actual history. Fears of the constitutional amendment being considered today are no different. The actual amendment is a tempered response to Claremont that will allow sensible lawmaking and forestall nothing of importance.

While most conservatives support an amendment and have supported one for decades, the current version finds one subset of conservatives still skeptical. This group worries most of all about local control and posits the amendment as a state takeover of education, an elimination of local rights, and suggests instead the Legislature simply ignore the court decision.

The court’s original decision was certainly a contorted definition of the ambiguous phrase “cherish the interests of arts and sciences, and all seminaries and public schools.” Beginning with his “Letters to Educators,” my colleague Eugene Van Loan has continually demonstrated the over-reach of the court interpretation.

Ignoring the decision has been one option available to lawmakers, but not one with any hope of success. Each Legislature has a few dozen politicians willing to tell the court that it wrongly decided Claremont and they choose not to be bound by that decision. In the absence of that possibility, an amendment must be considered.

Critics are in fact correct that the current amendment does limit the Legislature’s options. In fact, the language of the amendment would not allow the Legislature to abandon the funding of education entirely. Today, state aid to education amounts to $1.03 billion over 10 different aid programs. The current amendment would not allow the Legislature to spend zero dollars. Then again, no one seriously proposes that the state do nothing (not that the fear of such an outcome isn’t regularly raised by the left) so that concession forestalls nothing in reality.

Some wrongly worry that the amendment would eliminate local control of education decisions. They worry the amendment will “centralize control” of education decisions, not just funding, and move authority from the towns to the state. In fact, the amendment clarifies that the state may in fact delegate authority it has and has always had down to the towns.

From the beginning, the state has controlled education. For our entire history, the state has mandated curricula and teaching credentials. The very first education laws of the state stipulated the credentials required to be allowed to teach, and they mandated curricula — one curriculum in most towns, a different curriculum in shire towns. In the first few years, curricula were loosened, credentials were tightened.

The misunderstanding stems from language in our constitution, borrowed like most of it from Massachusetts, that gives towns the “right of electing their own teachers.” The basis and understanding of that right is at the center of a group’s opposition to the amendment.

That right never allowed towns to elect absolutely anyone for any reason with any credential. From the beginning, the state specified minimum standards to be eligible to be selected and requirements for what that person could teach. To the modern mind, we might ask what good that right was if the state nonetheless dictated who might be eligible for election.

Remember that under the original constitution that right was for “Protestant Teachers of Morality and Piety.” The phrasing was not simply anti-Catholic bigotry. It reminds us that the line between teacher and minister was not so clear as we see it today. The former colonists did not want ministers or teachers imposed on them by an Anglican Bishop and instead wanted the right to elect a minister they chose — low church, not high church, Congregational not Anglican. They liberalized the laws so the town could choose and the teachers would not necessarily have to possess a credential from a bishop in England.

Regulation of teachers’ credentials was done by the state before, during and after the constitution. Curriculum requirements were established before, during and after the constitution. However, the good Congregationalists across New England made it clear that they wanted the right to pick the specific, qualified individual lest some community with dissenting sympathies have a Church of England teacher forced on them.

We should all work to oppose laws dictating every detail of education in local public schools. But the state has had that power for 230 years, and the fact that this amendment does not radically undo that original understanding of the state’s authority is no reason to avoid doing the sensible thing.

 

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Funding Amendment Won’t Affect Local Autonomy

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 Charlie Arlinghaus

May 9, 2012

As originally publish in the New Hampshire Union Leader

An amendment on education funding in New Hampshire is long overdue and is only common sense. The only thing stopping the legislature from putting one on the ballot are the misconceptions of one group of people and the tax fantasies of another. Both groups should be overlooked and an amendment adopted.

The source of the conflict is a series of state Supreme Court ruling called the Claremont decisions which basically said, in 1999, that the way we had funded education – largely through local property taxes with a small amount of state aid – was unconstitutional.

They interpreted  the phrase “cherish the interest of literature and the sciences, and all seminaries and public schools,” to mean that the state can’t delegate its authority and has to use a state not a local tax to pay for a basic portion of the funding. The inherent ambiguity of the phrase is what led many people to think of the decision as a bit of an overreach.

Some of the more liberal leaning legislators hoped the decision would force an income tax or at least a transfer of education to the state – one big school district of you will. But that was always a fantasy and there has never been much support for a state school district (nor should there be).

Current state education spending is about $2.7 billion or $15,000 per pupil. The state transfers about one billion dollars, a little more than a third of spending. In any system where state aid is a minority of revenue, people in both parties agree those limited dollars ought to be targeted on the basis of need (just as most government programs are). But the court specifically prohibits that.

One course would be for the legislature to dispute the court’s ruling and assert its own interpretation of constitutionality. But in the most libertarian leaning there ever was and probably ever will be, there are precious few votes for such an approach.

A reasonable amendment that would allow targeting aid and change little else would restore the ability of the legislature to make its own decisions instead of wondering first what the court will allow.

The latest version, a recently tweaked draft being considered by a committee of conference, is supported by the leading scholarly critic of Claremont jurisprudence Gene Van Loan and former justice Chuck Douglas. Needless to say, it isn’t wishy washy.

Nonetheless, there is a group that opposes it as some sort of assault on local control and claims that New Hampshire is some sort of home rule state. They are wrong on most counts.

New Hampshire does not now nor has it ever had complete local control. Skeptics point to a provision in the constitution granting towns the right of electing their own teacher. While towns have that right, from the beginning the state regulated them and what they taught.

The first law under the new republic specified the credentials required of a teacher, the subjects that must be taught, and the different subjects that must be taught in a shire town. The curriculum rules were altered again in 1807. Then in 1808, additional curriculum requirements were placed on towns and the  regulations on teachers were again changed with more state minimums placed upon them before they were allowed to be hired by the town.

In the first forty years of the republic, laws were changed seven times creating more regulations regarding curriculum, required local regulatory officials, required taxes, and minimum state standards for teachers.

In fact, when the first direct state aid program was passed in 1828 (it was about 10% of total revenue), it was used a carrot to better enforce compliance with state regulation and the state superintendent of public instruction.

Don’t get me wrong, we should fight against local interference in curriculum decisions. I don’t think the state should insist of teaching this or not teaching that even if I happen to agree. Parents locally should decisions about textbooks, subjects and curriculum. But the structure of New Hampshire’s government has always permitted interference and the language of the current amendment will affect that reality not one jot or tittle.

It remains upon us and will remain upon us to limit over regulation by both conservatives and liberals to preserve local decision making.

The proposed amendment is both sensible and reasonable. Legislators should offer it to the people for their consideration this fall.

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Best Chance Ever for Education Aid Amendment

By Eugene van Loan and Martin Gross

The New Hampshire Senate recently passed and sent to the House of Representatives yet another proposed constitutional amendment designed to specify our state Legislature’s authority and responsibility regarding state aid to local education, including the ability to use “targeted” aid as the basic form of education funding.

So, is this just deja vu all over again?

No, this time things are different. The Senate-passed proposal, known as CACR 12, is truly a bipartisan, multi-branch product.

Despite years of pronouncements by politicians of all stripes about how much a constitutional amendment is needed to restore stability and common sense to education funding, the various participants in the debate have never been able to agree on specifics.

CACR 12, however, not only received overwhelming Republican support in the Senate, but it was also supported by Democratic Sen. Lou D’Allesandro, of Manchester, and has since been endorsed by Democratic Gov. John Lynch.

Further, within days of the Senate action, a number of business and community groups publicly signed on in support. Included within this group were the Business and Industry Association, New Hampshire Auto Dealers Association, the Greater Nashua Chamber of Commerce and representatives of the so-called Coalition Communities.

Even so, some say CACR 12 still faces an uncertain future in the House. This is because a three-fifths vote is required to pass any legislative proposal for a constitutional amendment and, thus, any combination of “no” votes – despite being based upon objections that could not be more different from each other – would thwart the proposed amendment from receiving the necessary supermajority vote.

We two join today to urge our fellow citizens who serve in the House not to let this happen. One of us is a Democrat, and one of us is a Republican. Both of us have dedicated much of our time and energies over the years to public service of one type or another.

Both of us are lawyers who supposedly know a thing or two about constitutional law. And both of us ardently support the notion that quality education is critical to our state’s economic success and the vitality of its civic institutions.

We join in common cause because we believe CACR 12 is just plain good public policy. We do not base our support for this proposal upon what “the framers intended” or whether the Supreme Court got it right or wrong in the Claremont cases. We just know that where we are is not where we ought to be.

Each of us would perhaps emphasize different features of CACR 12. On the one hand, Mr. Gross would emphasize its elimination of the court-dictated requirement that the state provide the same amount of aid to all school districts in the form of “adequacy payments” and, thus, he would focus upon its substitution of legislative authority and responsibility to target state aid to communities that truly need it.

He would point out that, especially in these days of scarce public resources, there is no real justification for force-feeding funds to communities that can support a high level of educational effort with their own local resources.

Mr. Van Loan, on the other hand, would emphasize that CACR 12, while not eliminating the courts from the equation, restores the responsibility for making educational policy to the democratically elected branches of government.

He would point out that, also especially in these days of scarce public resources to which Mr. Gross refers, determining how much to spend on various public policy objectives – including but not limited to education – should be the business of the Legislature, not the courts.

But these are only differences in emphasis, not points of disagreement. On the contrary, we agree on the general need for a constitutional amendment and on the language for such an amendment that is contained in CACR 12.

Accordingly, we urge members of the House not to let your own points of emphasis determine whether you will support this particular constitutional amendment. Much has been said recently about the perfect being the enemy of the good, and it certainly applies here.

Just remember: If there is no amendment at all, none of us gets the perfect; what we get is what we have right now, and that is no good at all.

Eugene Van Loan is a frequent author of articles on constitutional law and past chairman of the Josiah Bartlett Center for Public Policy. Martin Gross is a longtime Democratic activist and former mayor of Concord.

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