By Ed Mosca
Lenin is credited with coining the term “useful idiots,” which he supposedly used to refer to supporters of the Soviet Union living in Western democracies. They were idiots because they unwittingly were supporting a cause that would destroy the freedoms and prosperity they enjoyed under democratic governments. When it comes to education funding, the term fits those candidates running for State office who want to define an adequate education “so the Supreme Court doesn’t do it for us.”
Obviously, their line of thinking is predicated on the notion that, if only the Legislature and Governor “finally” were to define an adequate education, the Court would then defer to this definition and the corresponding determination of the cost. A brief history lesson is in order because, as the saying goes, those who forget the past are doomed to repeat it.
The Court first asserted that the representative branches needed to define an adequate education in Claremont I, which was issued in 1993. It provided no guidelines for doing so, telling the representative branches that they were free to choose from a “wealth of historical data … spanning more than three hundred years.”
Despite over 200 years of history and precedent to the contrary, the representative branches took at face value this absolutely incredible proposition that the words a “duty to cherish public schools” were really code for a “duty to define an adequate education,” and through the State Board of Education defined an adequate education. And how did the Court respond? Only four years later, in Claremont II, it ruled the State Board’s definition was unconstitutional, claiming that it did not “sufficiently reflect the letter or spirit of the State Constitution’s mandate.”
What’s more, no longer were the representative branches free to define an adequate education based on a “wealth of historical data.” Now the constitution required the definition to be based upon seven “aspirational guidelines” articulated in a 1986 decision by the Supreme Court of Kentucky.
Rather than asking the obvious question what the aspirations of Kentuckian judges could possibly have to do with the New Hampshire constitution, the Legislature and Governor virtually bent over backwards to comply with Claremont II. Committees were formed, forums were convened and experts were consulted. Ultimately, a study prepared by Augenblick & Myers was used to set the cost of an adequate education.
And then what happened? The Claremont plaintiffs immediately returned to court, claiming that the Legislature had not correctly calculated the cost of an adequate education. Among other things, they claimed that the formula didn’t use the proper assessment tests to gauge student performance and didn’t contain enough money for transportation and capital costs.
While the Supreme Court declined to adjudicate these claims, it did not do so out of any deference to the representative branches. Rather, it wanted the plaintiffs to bring these claims in the trial court first for the development of a factual record.
If history is any guide then, defining an adequate education in a manner that “allows for an objective determination of costs,” which is the Court’s latest rendering of what the “duty to cherish public schools” supposedly requires, will lead to more litigation and more judicial micromanaging of education policy. As soon as the ink is dry on the next definition, you can be sure that those who don’t like the result will call upon the Court to answer such age-old jurisprudential questions as what is the true cost of the three years of high school English the definition requires, whether three years allows an adequate read of Shakespeare and, most importantly, whether Macbeth can be adequately taught by teachers whose salaries are not commensurate with those in Massachusetts.
And if history is any guide, you can be sure that the Court will be more than happy to answer such questions.There is a bigger issue, however, than whether defining an adequate education will appease the Court. It is what type of government we will live under. Those now advocating that the Legislature and Governor define an adequate education should consider the views expressed by Abraham Lincoln in his first inaugural address: “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”