Once again we are faced with a constitutional amendment that would limit the State's obligation to provide an adequate education to our children.

View the text of Gov. Lynch's proposed amendment

View the text of Rep. Smith's proposed amendment

View an opinion piece by Scott F. Johnson about why the amendment is a monumental mistake.

View an opinion piece by Scott F. Johnson about the misinformation used to support the amendment and targeted aid

View an opinion piece by Scott F. Johnson about why the Legislature should vote against the amendment proposed by Rep. Smith

In the past, constitutional amendments have failed to get through the legislature. Below is some information about prior failed efforts to amend the constitution.

History of the Constitutional Amendment

Talk of a constitutional amendment began after the New Hampshire Supreme Court’s first Claremont decision (Claremont I) in 1993. In that decision, the court ruled that the state had an obligation to provide students with an adequate education. The Union Leader ran an editorial advocating for an amendment to overturn the court’s decision and Governor Steve Merrill and Attorney General Jeff Howard began working behind the scenes to develop such an amendment. They ultimately decided not to go forward with the amendment because they thought they would win in Claremont II and did not want the public to think the state had a weak case.

The state lost again in Claremont II.  The court ruled that the then-current method of funding education was unconstitutional and that the state had not lived up to its obligation to define an adequate education. Discussions about an amendment began again immediately after the decision in December 1997.  A number of politicians who did not like the decision began promoting a constitutional amendment to overturn the court’s decision and return New Hampshire to the “good old days” that allowed the Legislature to decide how much state aid to provide for education without having to worry about the constitutional rights of children and taxpayers. 

Under the prior system, the legislature was free to underfund educational services and did so on a regular basis, refusing even to fully fund the formulas it passed into law to pay for education. The result was that local school districts were left to pay for ninety percent (90%) of educational expenses with local property taxes. Because of varying property values from community to community, local tax rates to pay for education differed dramatically with some communities having tax rates that were 400 times the rates of others. The New Hampshire Supreme Court simply said this was not fair and that the state is responsible for paying for an adequate education in a fair and constitutional way. 

The primary advocates for a constitutional amendment were Jim Rubens, Jay Lucas and Ovide Lamontagne all of whom were considering running for Governor in the 1998 election. A representative from Manchester, David Boutin, was one of the first to introduce an amendment in that legislative session. The goal of the amendment was to undo and “supercede” the court’s decision.  More reasoned heads prevailed and the amendment failed to garner sufficient support to pass the house. A number of key politicians were against the amendment. Then Senate President Joseph Delahaunty said that an amendment was akin to a sore loser in a game who then sought to change the rules of the game so they could win the next time around.

Subsequent amendments have been introduced in each subsequent legislative session all with the goal of overturning the Claremont decisions so that the legislature could escape its constitutional obligations. Each year these amendments have all failed to garner enough votes to pass the house or senate.

The current constitutional amendments supported by Governor Benson are just as invidious as their predecessors. The language is fancier but the goal is the same: overturn the Claremont decisions so that the Legislature and Governor can have free reign over education funding and services and take away the public’s right to challenge any decisions they make.

Why a Constitutional Amendment is a Bad Idea

The Claremont decisions establish that an adequate education is a fundamental right in New Hampshire meaning that it is one of the most important rights we have. Other fundamental rights include free speech, freedom of religion and the right to vote. Laws that affect fundamental rights receive the highest level of judicial scrutiny (called “strict scrutiny”) in order to protect individuals from governmental efforts to infringe on these rights. A constitutional amendment would take away or reduce the judicial scrutiny which would give the Legislature and Governor more room to infringe on our children’s right to an adequate education and our right to fair taxation. Doing this would treat the fundamental right to an adequate education differently than all other fundamental rights. Would you agree to give the state more discretion to infringe on your right to free speech? Then why give the state more discretion to infringe on the fundamental right to an adequate education which is just as important as our right to speech.

Providing the Legislature and Governor with more discretion would allow them to underfund education even more than they already do and avoid their obligations to ensure students receive adequate educational services. Just imagine what would have happened to state aid for education this legislative session during the budget crunch. The Legislature and Governor could have resolved all their budget problems by simply deciding to provide $100 million or $200 or $300 million less in state aid for education this budget cycle. Because of the Claremont decisions and the citizens’ right to enforce the rights established in these decisions in court if needed, the Legislature and Governor would not make such a move, but take those protections away and you can bet it will happen during the next budge cycle in 2005.

The proponents of a constitutional amendment argue that the Legislature should pass the amendment to “let the people decide.” What is it that we are letting the people decide? Whether the people support fair taxation and the right for their children to receive an adequate education? That is what the Claremont decisions stand for, but it is not what the constitutional amendments are about. While politicians may put various “spins” on the meaning of the constitutional amendments, at their core they are about only one thing: giving the Legislature and Governor the authority to do whatever they want in education without being accountable to the children and taxpayers of New Hampshire when they provide less aide and resources to local school districts. If the amendment passes, communities like Concord, Manchester and Nashua and numerous property poor communities throughout New Hampshire can expect to see less State funding in future years.

The people can make decisions and have input into education decisions without a constitutional amendment. The New Hampshire Citizens Voice Project is currently conducting community forums across the state to give people a voice in education matters. If the Legislature and Governor really want to know what they people think about educational matters, they could place a non-binding referendum on the November 2004 ballot with specific questions that the people could answer by voting.

Proponents of the amendments have stated that an amendment is necessary because the New Hampshire Supreme Court has not used strict scrutiny to other legislative acts and that an amendment will simply restore the same level of judicial scrutiny in educational matters that the legislature enjoys in other areas. That statement is not true.  The New Hampshire Supreme Court has applied the strict scrutiny standard to legislative acts to protect fundamental rights in the past. Two examples are free speech and property ownership.

The right to an adequate education is just as important as the right to free speech and the right to protect property. What good is the right to speak if our children do not learn how to express themselves? What meaning does the right to property have if our children do not obtain an education that enables them to compete in society and acquire property in the first place?

Proponents of a constitutional amendment also argue that New Hampshire is unique in applying strict scrutiny protection to educational matters. This statement is also false. Other states have applied strict scrutiny in cases involving educational matters including Kentucky, Wyoming, Wisconsin, and West Virginia. New Hampshire would be unique if it passed a constitutional amendment to overturn a court decision about education. Of the 25 or so states that have had court decisions finding state education systems unconstitutional, none have passed a constitutional amendment to undo the court decision.

Previously Proposed Constitutional Amendment

The current proposals to amend the New Hampshire Constitution recently passed the House education committee and our headed for a vote in the full House in early January 2004 (likely on January 8, 2004). The proposed amendment would put the following question on the ballot in the November 2004 election:

"Are you in favor of amending art. 83 of the second part of the constitution for the purpose of establishing that it is the prerogative of the people, acting through their democratically elected bodies, the legislature and local school authorities, to determine education policy and set education funding levels, by adding the following highlighted
language:...."

The amendment itself would change the education clause of the New Hampshire Constitution to include the following language:

Provided, nevertheless, that the legislature shall have exclusive authority under this article to determine, either directly, or through a delegation of power to local school districts, or both, the content, extent, beneficiaries, and level and source of funding of public education...."

The amendment completely takes away any constitutional right to an adequate education in New Hampshire. Under the amendment, the legislature will have sole discretion to do whatever it wants and there is no recourse for anyone who may be harmed by the legislature's decisions. The legislature could decide to only fund eight percent (8%) of education services (which is what they did before the Claremont decisions) and no one could do anything about it. The legislature could force every community in the state to pay $10,000 per pupil from local property taxes for educational services and no one could do anything about it. The amendment takes away any ability to enforce the right to an adequate education in court and to force the legislature to abide by its constitutional obligations. No other state in the Nation has given its legislature such protection. Given the legislature's history of chronic underfunding of education and shifting educational expenses onto local taxpayers, we cannot trust the legislature and governor with such absolute power.

What you can do to help

1) Contact your legislators (in both the house and senate) and tell them that you do not support a constitutional amendment, that you do not want them to support a constitutional amendment, and that you will not vote for them if they do support an amendment.

2) Contact your legislators again and remind them that you do not support a constitutional amendment, that you do not want them to support a constitutional amendment, and that you will not vote for them if they do support an amendment.

3) Contact Governor Lynch and tell him that you do not support a constitutional amendment and that you do not want him to support an amendment.

4) Write letters to the editor to your local newspaper explaining why a constitutional amendment is a bad idea. Feel free to use any of the information on this website in your letter.

Editorials

Now is not the time to make the state less liable for education funds (Portsmouth Herald)

Irony of the proposed amendment (John E. Tobin, Jr., Scott F. Johnson, Andru H. Volinsky)