Supreme Court of New
Hampshire.
CLAREMONT SCHOOL
DISTRICT and another,
v.
GOVERNOR and another.
No. 92-711.
Dec. 30, 1993
"Property poor" school districts and school
children and taxpayers from each of
those districts petitioned for
declaratory judgment, alleging that the system by
which the state financed education
violated the State Constitution. The Merrimack
Superior Court, Manias, J.,
dismissed, and plaintiffs appealed. The Supreme Court,
Brock, C.J., held that encouragement
of literature clause of State Constitution
imposes duty on state to provide
constitutionally adequate education to
every
educable child in public schools in
state and to guarantee adequate funding.
Reversed and remanded.
West Headnotes
[1] Schools k19(1)
345k19(1)
[1] Schools k148(1)
345k148(1)
Encouragement of literature clause
of State Constitution imposes duty on state to
provide constitutionally adequate
education to every educable child in public
schools in state and to guarantee
adequate funding; terms "shall be the duty . . .
to cherish" are not merely
statement of aspiration but, rather, language commands
that state provide education to all
its citizens and that it support all public
schools. Const. Pt. 2, Art.
83.
[2] Schools k159
345k159
Free public education is, at least,
important substantive right, as education has
been compulsory in state since 1647,
and State Constitution expressly recognizes
education as cornerstone of
democratic system. Const. Pt. 2, Art. 83.
[3] Schools k115
345k115
[3] Schools k148(1)
345k148(1)
Right to adequate education mandated
by State Constitution is not based on exclusive
needs of particular individual, but
rather, is right held by public to enforce
state's duty and any citizen has
standing to enforce that right. Const. Pt. 2, Art.
83.
[4] Schools k19(1)
345k19(1)
[4] Schools k148(1)
345k148(1)
State's constitutional duty to
provide constitutionally adequate education and to
guarantee adequate funding extends
beyond mere reading, writing and arithmetic, but
also includes broad educational
opportunities needed in present society to prepare
citizens for their role as
participants and as potential competitors in marketplace
of ideas. Const. Pt. 2, Art.
83.
**1376 *183 Shaheen,
Cappiello, Stein and Gordon, (Andru H. Volinsky and Arpiar G.
Saunders, Jr. on the brief, and Mr.
Saunders *184 orally), Sulloway and Hollis,
( John Burwell Garvey on the brief), and Edward Damon,
Concord, on the brief, for
plaintiffs.
Jeffrey R. Howard, Atty. Gen.
(Leslie J. Ludtke, Sr. Asst. Atty. Gen., on the brief
and orally), for State.
New Hampshire Legal
Assistance, Concord (John E. Tobin, Jr. and Abigail Turner on
the brief, and Mr. Tobin orally),
for Marie Ayer, Charles and Jeanne Watson, and
John Bowler, as amici curiae.
McLane, Graf, Raulerson &
Middleton P.A., Manchester (Jack B. Middleton and Wilbur
A. Glahn, III on the brief), for
Ralph Degnan Hough, President of the New Hampshire
Senate.
James F. Allmendinger,
Concord, Staff Atty., NEA-New Hampshire, by brief
for
NEA-New Hampshire, as amicus curiae.
Theodore E. Comstock, Concord,
General Counsel, New Hampshire School Boards Ass'n,
by brief for New Hampshire School
Boards Ass'n, as amicus curiae.
Douglas & Douglas, Concord
(Robert J. Rabuck on the brief), for Granite
State
Taxpayers' Ass'n and Granite State
Legal Foundation, as amici curiae.
John S. Lawton, by brief, pro
se, as amicus curiae.
BROCK, Chief Justice.
[1] The Superior Court
(Manias, J.) dismissed the plaintiffs' petition
for
injunctive relief and declaratory
judgment for failure to state a claim upon which
relief could be granted.
The plaintiffs appeal the court's conclusion that the New
Hampshire Constitution imposes no
duty on the State to support the public schools.
We hold that part II, article 83
imposes a duty on the State to provide
a
constitutionally adequate education
to every educable child in the public schools in
New Hampshire and to guarantee
adequate funding. Accordingly, we reverse
and
remand for further proceedings
consistent with this opinion.
**1377 The plaintiffs are five
"property poor" school districts and five school
children and five taxpayers, one
from each of the school districts. They filed a
petition for declaratory judgment
alleging, in six counts, that the system by which
the State finances education
violates the New Hampshire Constitution: in counts (1)
and (2) that the State fails to
spread educational opportunities equitably among its
students and adequately fund
education, both in violation of part II, article 83;
(3) that the foundation aid
statutes, RSA 198:27 through *185 33
(1989),
unconstitutionally restrain State
aid to public education by capping
State
assistance at eight percent;
(4) and (5) that both the State school finance system
and the foundation aid statutes deny
plaintiffs equal protection; and (6) that the
heavy reliance on property taxes to
finance New Hampshire public schools results in
an unreasonable,
disproportionate,and burdensome tax in violation of part
II,
article 5 of the State Constitution.
Part II, article 83, adopted
in 1784 as part of this State's
Constitution,
originally stated:
"[Art.] 93.
[Encouragement of Literature ...] Knowledge and learning,
generally
diffused through a community,
being essential to the preservation of a
free
government; and
spreading the opportunities and advantages of education through
the various parts of the
country, being highly conducive to promote this end; it
shall be the duty of the
legislators and magistrates, in all future periods of this
government, to cherish the interest
of literature and the sciences, and
all
seminaries and public schools,
to encourage private and public
institutions,
rewards, and immunities for
the promotion of agriculture, arts, sciences, commerce,
trades, manufacturers, and
natural history of the country; to countenance
and
inculcate the principles of
humanity and general benevolence, public and private
charity, industry and economy,
honesty and punctuality, sincerity, sobriety, and
all social affections, and
generous sentiments, among the people."
The provision was amended in
1877 to prohibit money raised by taxation from being
used by religious schools and again
in 1903 to add language concerning control of
corporations and monopolies.
The trial court granted the
defendants' motion to dismiss each of the six counts.
Its order states in part:
"New Hampshire's
Encouragement of Literature Clause contains no language regarding
equity, uniformity, or even
adequacy of education. Thus, the New
Hampshire
Constitution imposes no
qualitative standard of education which must be
met.
Likewise, the New Hampshire Constitution
imposes no quantifiable financial duty
regarding education;
there is no mention of funding or even of 'providing'
or
'maintaining'
education. The only 'duty' set forth is the amorphous duty
'to
cherish ... public schools'
and 'to encourage private and public institutions.'
*186N.H. Const., pt. 2,
art. 83. The language of pt. 2, art. 83 is hortatory,
not mandatory.
In view of the foregoing, the
Court finds that the N.H. Const., pt. 2, art. 83
imposes no duty as set forth
in count one to equitably spread
educational
opportunities and advantages
or as set forth in count two to equitably
and
adequately fund
education. Absent such a duty, counts one and two of
the
plaintiffs' petition fail to
state a claim upon which relief can be granted, and
therefore, both counts must be
dismissed."
Because we conclude that the
trial court's determination that the State had no
constitutional duty to support
public education so permeated its decision to dismiss
counts one through five, we will, at
this time, address only the question of whether
part II, article 83 imposes such a
duty. With respect to count six,
because
petitioners have not had an
opportunity to develop a record in support of their
claim, we remand that count to the
trial court for its further consideration. Our
narrow task, therefore, is to
determine whether the trial court committed legal
error when it concluded that no duty
exists.
"In interpreting an
article in our constitution, we will give the words the same
meaning that they must have had to
the electorate on the date the vote was cast."
Grinnell v. State, 121 N.H. 823,
826, 435 A.2d 523, 525 (1981) (quotation omitted).
In doing so, we must
"place [ourselves] as nearly as possible **1378 in
the
situation of theparties at the time
the instrument was made, that [we] may gather
their intention from the language
used, viewed in the light of the surrounding
circumstances." Warburton
v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992)
(quotation omitted).
Numerous state courts have in
recent years decided cases challenging,
on
constitutional grounds, systems of
financing public education. Most of those cases
are of limited value to this court
because the constitutional provisions at issue
contain language dissimilar to ours
and were adopted under circumstances different
from those existing in New Hampshire
in the 1780s. Massachusetts, however, presents
an exception. Given that
New Hampshire shares its early history
with
Massachusetts, that we modeled much
of our constitution on one adopted
by
Massachusetts four years earlier,
and that the Massachusetts Constitution contains a
nearly identical provision regarding
education, we give weight to the interpretation
given that provision by the Supreme
Judicial Court in McDuffy v. Secretary of the
Executive Office of Education, 415
Mass. 545, 615 N.E.2d 516 (1993). See Warburton
v. Thomas, 136 N.H. at 391, 616 A.2d
at 500.
*187 An obvious starting point
in interpreting part II, article 83 is to determine
what the particular words used meant
in 1784: "Encouragement: Incitement to any
action or practice, incentive;
favour, countenance, support," T. Sheridan,
A
General Dictionary of the English
Language 1780 (Scolbar Press 1967); "Literature:
Learning; skill in
letters," id.; "Diffused: Spread abroad, widespread;
dispersed
over a large area; covering a
wide range of subjects," Oxford English Dictionary
(2d ed. 1989);
"Generally: so as to include every particular, or every
individual,"
id.; "Duty: That to which
a man is by any natural or legal obligation
bound,"
Sheridan supra;
"Cherish: To support, to shelter, to nurse up," Sheridan
supra.
See also McDuffy, 415 Mass. at 562
n. 17, 615 N.E.2d at 525 n. 17.
The Encouragement of
Literature clause, incorporating the sense of
these
definitions, thus declares that
knowledge and learning spread through a community
are "essential to the preservation
of a free government," and that "spreading the
opportunities and advantages of
education" is a means to the end of preserving a
free, democratic state.
The duty of ensuring that the people are educated
is
placed upon "the legislators
and magistrates, in all future periods of
this
government," and that duty
encompasses supporting all public schools:
"The breadth of the
meaning of these terms ('duty ... to cherish'), together with
the articulated ends for which
this duty to cherish is established,
strongly
support ... that the 'duty ...
to cherish ... the public schools' encompasses the
duty to provide an education
to the people of the [state].... [I]t is reasonable
therefore to understand the
duty to 'cherish' public schools as a duty to ensure
that the public schools
achieve their object and educate the people."
McDuffy, 415 Mass. at 564, 615
N.E.2d at 526.
We do not construe the terms
"shall be the duty ... to cherish" in our constitution
as merely a statement of
aspiration. The language commands, in no uncertain terms,
that the State provide an education
to all its citizens and that it support all
public schools.
Decisions of this court are consistent with this conclusion. See
In re Davis, 114 N.H. 242, 243, 318
A.2d 151, 152 (1974) (State
Constitution
"imposes upon government the duty
of providing for the education of its citizens");
State v. Jackson, 71 N.H. 552, 553,
53 A. 1021, 1022 (1902) ("the injunction 'to
cherish the interest of literature'
" intended as "more than a mere sentimental
interest"); *188Farnum's
Petition, 51 N.H. 376, 378-79 (1871)
(constitution
"enjoins the duty" to
educate in "comprehensive terms ... as one of paramount public
importance"); cf. Fogg v.
Board of Education, 76 N.H. 296, 299, 82 A. 173, 175
(1912) (where student claimed right
to state-provided transportation, court noted
that providing for education of
children, through support and maintenance of public
schools, has always been
governmental duty resting on the State). To suggest that
the language is not mandatory
because other states' constitutions, many drafted over
100 years after ours, contain more
concrete, **1379 tangible standards of quality of
education and quantity of support is
an analysis we cannot endorse.
An examination of the
"surrounding circumstances" at the time the constitution was
adopted also supports our conclusion
that the framers and the general populace
understood the language contained in
part II, article 83 to impose a duty on the
State to educate its citizens and
support the public schools. See Attorney-General
v. Morin, 93 N.H. 40, 43, 35 A.2d
513, 514 (1943). The Puritans who settled here
were deeply committed to education.
They emigrated "chiefly to enjoy and propagate
their religion; but next to
this ... to educate their children." N. Bouton, The
History of Education in New
Hampshire: A Discourse Delivered Before the
New
Hampshire Historical Society 3
(1833) (transcript available at the New Hampshire
State Library). The New England
Puritans are credited with "contribut[ing] most that
was valuable for our future
educational development, and establish[ing] in practice
principles which have finally been
generally adopted by our different States." E.
Cubberley, Public Education in the
United States 15 (1919).
Between 1641 and 1679, New
Hampshire and Massachusetts were united as a single
province. See Manual for
the General Court 117 (1891). The first New England law
on education was enacted in 1642,
which ordered that all children should be taught
to read. See McDuffy,
415 Mass. at 570 n. 27, 615 N.E.2d at 529 n. 27. In 1647,
an act was passed by which public
schools were established in New
Hampshire.
McDuffy, 415 Mass. at 571 n. 28, 615
N.E.2d at 529-30 n. 28. The 1647 law expressed
the principles that private property
was subject to public taxation for support of
public schools, that schooling was
to be provided for all children, and that the
State would control education.
"It can safely be asserted that these
two
Massachusetts laws of 1642 and 1647
represent not only new educational ideas in the
English-speaking world, but that
they also represent the very foundation stones upon
which our American public school systems
have been constructed." Cubberley, supra
at 18. In *189 1669, the
towns of Portsmouth, Dover, and Exeter each contributed
money to "aid in erecting a new
edifice for Harvard College." Bouton, supra at 10.
Such was deemed by those towns as
"needful for the perpetuating of knowledge both
civil and religious, among us, and
our posterity after us." Bouton, supra at 10
(quotation omitted).
When New Hampshire became a
separate province in 1680, it reenacted the education
laws of Massachusetts then in
existence. In 1693, the New Hampshire Legislature
enacted a law requiring the towns'
selectmen to raise money by "an equal rate and
assessment" on the inhabitants
for the construction and maintenance of the schools
"and allowing a Sallary to a
School Master." G. Bush, History of Education in New
Hampshire 10-11 (1898); see
Laws of New Hampshire, Vol. 1 Province Period 560-61
(1679-1702). A penalty
was provided for failure to comply with the statute. Bush
supra. Similar laws were
enacted in 1714, 1719, and 1721. Bush supra.
The law of 1719 required every
town having fifty householders or more to provide a
schoolmaster to teach children to
read and write, and in every town of
100
householders, a grammar school to be
kept. Laws of New Hampshire, Vol. 2 Province
Period 336-37
(1702-1745). A penalty was to be assessed for failing to comply
with
the law, to be paid "towards
the Support of Such School or Schools within this
Province where there may be most
need." Id. The law of 1721 stated:
"Whereas the selectmen of
Sundry Towns within this Province often Neglect
to
provide Grammar Schools for
their Respective Towns whereby their youths Loose much
of their Time, to the great
Hindrance of their learning, For Remedy whereof Be it
Enacted ... That Not only Each
Town but each parish within this Province Consisting
of one Hundred Families shall
be Constantly Provided with a Grammar School.... And
[if] any such Town or Parish
... is Destitute of a Grammar School for the space of
one month, the Selectmen ...
shall forfeit ... the Sum of Twenty pounds for Every
Such Neglect to be paid out of
their own Estates, & to be **1380 applyed towards
the Defraying the Charges of
the Province[.]"
Id. at 358.
Although these laws required
the towns to fund public education, Governor Wentworth
made clear in an address to the
Council Chamber of the House of Assembly, on April
13, 1771, that the duty to educate
remained with the State: "Religion--Learning,
and Obedience to the Laws, are so
obviously the Duty & Delight of Wise Legislators,
that their mention, justifies my
Reliance on your whole *190 Influence being applied
to inculcate, spread & Support
their Effect, in ev'ry Station of Life." Governor
Wentworth, Executive Papers &
Correspondence (1771). It is also apparent
from
Governor Wentworth's subsequent
message to the General Assembly on December 14,
1771, that the local town officials
had failed to meet their duties under the prior
laws and that corrective action was
necessary by the State itself:
"Among other important
Considerations, The promoting of learning very obviously
calls for Legislative
Care. The Insufficiency of our present Laws for
this
purpose, must be too evident,
seeing nine tenths of your Towns are wholly without
Schools, or have such vagrant
foreign Masters as are much worse than none: Being
for the most part unknown in
their principles & deplorably illiterate."
New Hampshire Provincial
Papers Vol. VII 287 (1764-1776). The General Assembly
replied on December 30, 1771:
"We beg leave to observe
that we think it very a'propos that you have by order of
your message plainly pointed
out the necessary [connection] between good Education
& the prosperous state of
the People--for as they by the constitution have a share
in the Governmt it is
certainly of importance they should be able to sustain the
part they are to bear with
honor to themselves & with prosperity to the State which
without such an Education is
hardly feasably But without detaining your Excellency
with a long detail of
particulars, it is with pleasure we observe the extensive
care your Excellency discovers
for the welfare of the people under your Governmt by
pointing out many different
things as the proper objects of their attention of the
house, all which they will
consider as other necessary affairs will permit and do
what they shall after
deliberate consultation."
Id. at 290-91.
Against this background, the
constitutional convention began its work drafting the
State Constitution in
1781. The contention that, despite the extensive history of
public education in this State, the
framers and general populace did not understand
the language contained in part II,
article 83 to impose a duty on the State to
support the public schools and
ensure an educated citizenry is
unconvincing.
Indeed, in 1795 Governor Gilman
addressed the Senate and House of Representatives,
stating:
"The encouragement of
Literature being considered by the Constitution as one of the
important Duties of
Legislators *191 and Magistrates, and as essential to
the
preservation of a free
Government, will always require the care and attention of
the Legislature."
Governor Gilman, Executive
Papers & Correspondence (1795). To which the House and
Senate replied:
"The encouragement of
Literature is a sacred and incumbent Duty upon
the
Legislature.
Possessing a Constitution of Government which is founded upon the
broad basis of the natural
rights of mankind, we feel on our part, the strongest
obligation to revere, to
cherish, and to support it. Without a competent share of
information diffused generally
through the community, the natural as well as the
acquired rights, and the
duties to which the social compact necessarily subjects
us, must be imperfectly
understood, and consequently will be liable to be perverted
and neglected. We
shall therefore most cordially embrace all proper measures to
diffuse Knowledge and Information,
to promote Literature and to cherish seminaries
of Learning as the most direct
and certain means to perpetuate to posterity that
Constitution, which forms our
Glory, our Safety, and our Happiness."
Id. This statement has
significant probative value as an indication that
the
contemporary understanding was that
part II, article 83 **1381 imposed a duty on the
State to provide universal education
and to support the schools.
We are unpersuaded by the
State's argument that the fact that no State funding was
provided at all for education in the
first fifty years after ratification of the
constitution demonstrates that the
framers did not believe part II, article 83 to
impose any obligation on the State
to provide funding. But see W.
Gifford,
Colebrook "A Place Up Back of
New Hampshire" 11 (1993) (resolution of Senate and
House approved July 7, 1846,
granting 10,000 acres of land to trustees of Colebrook
Academy). "That local
control and fiscal support has been placed in greater
or
lesser measure through our history
on local governments does not dilute
the
validity" of the conclusion
that the duty to support the public schools lies with
the State. McDuffy, 415 Mass.
at 606, 615 N.E.2d at 548. "While it is
clearly
within the power of the [State] to
delegate some of theimplementation of the duty to
local governments, such power does
not include a right to abdicate the obligation
imposed ... by the
Constitution." Id.
[2][3] Having identified that
a duty exists and having suggested the nature of that
duty, we emphasize the corresponding
right of the *192 citizens to its enforcement.
For over two hundred years New
Hampshire has recognized its duty to provide for the
proper education of the children in
this State. Since 1647, education has been
compulsory in New Hampshire, and our
constitution expressly recognizes education as
a cornerstone of our democratic
system. We must conclude, therefore, that in New
Hampshire a free public education is
at the very least an important, substantive
right. See Carson v.
Maurer, 120 N.H. 925, 931-32, 424 A.2d 825, 830-31 (1980);
cf. Horton v. Meskill, 195 Conn. 24,
486 A.2d 1099 (1985). The right to
an
adequate education mandated by the
constitution is not based on the exclusive needs
of a particular individual, but
rather is a right held by the public to enforce the
State's duty. Any
citizen has standing to enforce this right. See Fogg v. Board of
Education, 76 N.H. 296, 82 A. 173.
We do not define the
parameters of the education mandated by the constitution as
that task is, in the first instance,
for the legislature and the Governor. There is
a wealth of historical data upon which
the legislature and the Governor may choose
to draw in the pursuit of their
duty, spanning more than three hundred years from
the 1647 statutory mandate that
youths be instructed "so far as they may be fitted
for the University," to more
recently recommended standards and practices such as
the State Department of Education's
1958 report on Minimum Standards and Recommended
Practices for New Hampshire
Secondary Schools. The Encouragement of Literature
clause expressly recognizes that a
free government is dependent for its survival on
citizens who are able to participate
intelligently in the political, economic, and
social functions of our
system. The duty placed on the State
encompasses
cherishing the public
schools. The constitution also provides that the legislature
and the Governor have a duty to
encourage "the promotion of agriculture,
arts,
sciences, commerce, trades, [and] manufacturers"
and inculcate "the principles of
humanity and general benevolence,
public and private charity, industry and economy,
honesty and punctuality, sincerity,
sobriety, and all social affections,
and
generous sentiments, among the
people." N.H. CONST. pt. II, art. 83.
The
education necessary to meet the duty
to cherish public schools must, of course, "be
adapted to the various crises of
human affairs." M'Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 415, 4 L.Ed. 579 (1819)
(emphasis omitted).
[4] Given the complexities of
our society today, the State's constitutional duty
extends beyond mere reading, writing
and arithmetic. It also includes broad
educational opportunities needed in
today's society to prepare citizens for their
role as participants and as
potential competitors in today's marketplace of ideas.
Cf. *193Seattle Sch. Dist. No.
1 of King Cty. v. State, 90 Wash.2d 476, 585 P.2d 71
(1978). We are confident
that the legislature and the Governor will fulfill their
responsibility with respect to
defining the specifics of, and the appropriate means
to provide through public education,
the knowledge and learning essential to the
preservation of a free government.
**1382 We remand the
plaintiffs' petition for further proceedings consistent with
this opinion.
Reversed and remanded.
THAYER, J. did not sit;
GRIMES, C.J., retired, sat by special assignment under RSA
490:3; all concurred.