By Ed Mosca

Last year, Gov. John Lynch proposed a constitutional amendment that wrote most of the mandates of the Claremont/Londonderry cases into the State Constitution. It read as follows:

“In fulfillment of the duty to cherish public schools set forth in the preceding article, the general court shall define an adequate education, regularly determine the total statewide cost thereof, fund, with state monies, not less than fifty percent of the total statewide cost of an adequate education each year and maintain standards of accountability. The general court shall have the authority to distribute the funds in the manner that it determines to best promote an equal opportunity for an adequate education for every child in the public schools, provided that the general court shall distribute some state aid to every school district.”

This year, Lynch is supporting an amendment, CACR 34, which undoes most of Claremont/Londonderry. It reads as follows:

“In fulfillment of the state's duties set forth in the preceding article, the General Court shall have the authority and responsibility to reasonably define the content of an adequate public education and to distribute state funds for public education in the manner that it reasonably determines to alleviate local disparities.”

Gone are the mandates that the Legislature has to determine the cost of an adequate education, pay for it with state taxes and maintain “standards of accountability,” all subject to the strictest standard of judicial review. Instead, the Legislature only has to define an adequate education and provide state funding in a manner to alleviate local disparities. Moreover, the drafters apparently intend these legislative determinations to be subject to the minimum standard of judicial review.

Some have suggested that CACR 34 implicitly leaves in place the mandates that the Legislature, subject to strict scrutiny judicial review, must determine the cost of an adequate education and pay for it with state taxes because it does not expressly address these matters. However, the words, “[i]n fulfillment of the state’s duties” at the beginning of the amendment make it clear that the Legislature only has to do what follows.

“Tweaking” the amendment by adding requirements that the Legislature determine the cost of the adequate education it defines and that commits the Legislature to paying for a specific share of those costs albeit subject only to the minimum level of judicial review, as has been suggested, is not just unnecessary; it is a step in the wrong direction. The Legislature should have the flexibility to set education funding based on the reality that the education budget is just part of a larger budget and that the taxpayers are not bottomless pits of money.

During the 2006 campaign, Lynch argued that an amendment like CACR 34 would “abandon our responsibility to our kids” and result in “a race to the bottom.” What explains Lynch’s about face? The most likely explanation is that he and his advisers have concluded that CACR 34 is their last, best chance to avoid getting trapped between the proverbial rock and a hard place.

The $3,460.00 per pupil cost of an adequate education that a legislative committee recently came up with in response to the Supreme Court’s most recent education funding decision doesn’t pass the straight-face test. It is little more than one-third of average per pupil spending in 2005-2006. If the Court were to rule that the cost is two-thirds of the average, which is entirely possible, then the State’s obligation under Claremont/Londonderry would be around $1.3 billion. At three-fourths, which also is entirely possible, the number is about $1.5 billion.

So unless an amendment passes, the alternatives may well come down to either an income tax or stand up to the Court. Both are fraught with risks for Lynch. If he goes with the former, he will have to convince the anti-income tax voters, which presumably still constitute a majority of the electorate, to blame the Court not him. Not an easy sell. If the latter, he will lose his base.

Lynch’s biggest challenge will be to convince his own Party to support CACR 34, which puts him in sort of the same position John Kerry was in explaining his position on funding the Iraq war: I was actually against CACR 34 before I was for it.