Sent: Tuesday, June 05, 2012 5:05 PM
Subject: The ‘CONFERENCE’ THAT WASN’T: A FULL ANALYSIS OF WHY CACR 12 IS BAD FOR NEW HAMPSHIRE
Andrew J. Manuse, boardmember, Natural Rights Council, 603-703-8857, email@example.com
Seth Cohn, boardmember, Natural Rights Council, 603-783-5693, Seth.Cohn@leg.state.nh.us
The ‘CONFERENCE’ THAT WASN’T:
A FULL ANALYSIS OF WHY CACR 12 IS BAD FOR NEW HAMPSHIRE
Natural Rights Council Presents Full Analysis Against Passing Educational Funding Amendment
CONCORD, N.H.―When looking at CACR 12, there are a few nicknames we could use for it. We could call it the “Robin Hood Amendment,” we could call it “the Moderate Amendment,” we could call it “the Lawyer’s Amendment,” but really the true nickname of CACR 12 should be “the Giving into Claremont Amendment.”
If you’re willing to accept that Claremont was correct and that the people have a fundamental right to a state-run and state-funded public education, nothing we say is going to convince you otherwise. But if, like us, you think Claremont was wrong, and you are not willing to give up the fight for educational freedom and the natural right of parents to educate their own children, then read on because we are going to convince you why CACR 12 is not the right amendment for New Hampshire.
For reference, we begin our discussion with a response to the House’s FAQs document and then lead into a detailed analysis that explains why CACR 12 is wrong for New Hampshire.
FREQUENTLY ASKED QUESTIONS
Question #1: How does the new CACR12 overturn the Claremont decisions?
Answer: It doesn’t. It sets the stage for the next one to happen. By making the Legislature “responsible to maintain” a system of public education, we give the court everything they ever wanted. The lower court in the original Claremont decision specifically mentioned that our Constitution lacked the word “maintain.” Why are we giving it to them?
Question #2: Does the new CACR12 enshrine the Claremont decisions into the NH Constitution?
Answer: Yes. We will now have the “responsibility to maintain a system” for public education and to mitigate local disparities in funding, the two very things that Claremont was about. This has always been about the money. Follow the money. Who benefits from giving in now? Taxpayers are not going to see lower taxes, the courts get what they always wanted and even the proponents of CACR 12 admit that the Legislature gets nothing new. They say that all of our objections to the amendment are already accepted law anyway. However, those laws can be changed, while a constitutional amendment that enshrines these erroneous principles in the Constitution cannot easily be changed. Why are we giving up the war and raising the white flag of defeat?
Question #3: Does the new CACR12 affirm state control over local curricula?
Answer: Without a doubt. What is now largely a responsibility of parents and local communities will be fully assumed by the Legislature. Central control is not the New Hampshire way. It’s true, we’re not a home rule state, but we have a culture in New Hampshire of granting home rule in as many areas as possible. For education, the Constitution’s only mention of eduction in Part 1 gives authority to local communities to hire and form contracts with teachers. Arguably, during the time of the Constitution, teachers were equivalent to schools. Therefore, the Bill of Rights in New Hampshire gives an exception to education as a sole area of local control guaranteed by the Constitution.
Question #4: What effect does the new CACR12 have on homeschooling and charter schools?
Answer: We have representatives telling us that homeschooling is not public education and then we see these same people pass legislation claiming that it is and that the state has a responsibility to regulate it. Which is it? When the courts decide that homeschooling is public education, parents will be up in arms and wonder why yet again the Legislature sold them down the river.
Additionally, the cost to homeschooling parents and parents with children in private schools in increased taxes will likely make it unaffordable for them to keep their children out of public schools. And yet, depending on who is in the Legislature, we’ve seen homeschooling regulation that assumes that any standards set for public schools must be met by homeschoolers anyway, often with a higher degree of regulation and outright fear that parents aren’t meeting those standards, and that has always resulted in even MORE regulation to oversee them. These problems will increase with CACR 12 in place.
Question #5: Doesn’t having the word “Responsibility” in the amendment enshrine Claremont?
Answer: Absolutely. Our Constitution does not give the Legislature “responsibility” over public education at this time. CACR 12 adds that “responsibility.” We can argue how involved the Legislature should be―and we should have that argument―and we will find some middle ground that will vary and change over time. So why should we raise the white flag of defeat now and ensure that we will always have to maintain and fund our current, failed system at a minimum?
Question #6: Doesn’t “maintaining a system of public elementary and secondary education” enshrine Claremont?
Answer: Yes. See question five above.
Question #7: Why not pursue an absolute purist amendment?
Answer: This is a red herring. We’ve heard people proclaim: “We don’t have the votes to reverse Claremont.” “We’ve been fighting so long and this is our only chance.” It’s too late.” “This is the best we can do.” “We’ve already lost.” “The public will never support us.” “You haven’t been around as long as we have.” And many of these statements come from the representatives who wrote extensive arguments against Claremont years and years ago. They are weary of this battle. They are ready to raise the white flag of defeat. They are willing and ready to accede to most of Claremont’s results in the name of perhaps and maybe preventing a phantom broad-based tax, which is always threatened to be on the horizon, and a court made up of judges that even in Londonderry III did not all agree that it should be getting involved.
We tell you this: Putting CACR 12 into the Constitution ENSURES the very thing proponents of CACR 12 are worried about. The next court battle will not result in the court saying they can’t tell the Legislature what to do, it will result in the court telling the Legislature it has all the power to do everything because of CACR 12, and now it must do everything, because it is the Legislature’s constitutional responsibility to do so. And, because we will not be able to downshift any of the cost of maintaining that system, this, my friends, will guarantee a broad-based tax because a local property tax, as the court already said, is not a fair and equal system of taxation. So the Legislature post CACR 12 will become a Robin Hood State to mitigate disparity, robbing from the rich, to educate the poor. Future legislators may enact an income tax, a sales tax or a new business tax or some other method to take from those who have to give to those who don’t, and we will have forever lost the New Hampshire Advantage.
The State of New Hampshire will be better off if this Legislature does nothing, rather then give in to the Claremont judges. The Constitution doesn’t have any mention of anything but “cherish” right now, and look where that got us. Adding the language of CACR12 will not lead the way out of the mess, but it will lead us deeper and permanently into a bigger mess.
Question #8: What happens if the new CACR12 fails?
Answer: Nothing! A court decision that has yet to be written and threats that have yet to be made by an overreaching court will be dealt with by a future Legislature. We hope that Legislature is controlled by fiscal conservatives, but even if it’s not, any changes they make are reversible. Whether its in a year or five years, when the fiscal conservatives come back into power, as we know they will, they can reverse the damage. They will not be able to reverse a constitutional amendment. Don’t waive the white flag of surrender, for that future Legislature is depending on us to be the fiscal conservatives of today.
There are defensive lawsuits that no one has yet pursued, asking questions like “What about the rest of Art 83? Do we have to fund that as well, since we have to cherish it?” The public has been fooled by “it’s for the children” arguments. Showing the public that the logic of Claremont makes no sense when applied to the rest of Art. 83 might help to educate people on the issue far better than sending them a flawed constitutional amendment that the lawyers insist nobody but them can truly understand.
As a point of comparison, here are the three versions of CACR 12. The third “conference” version is what we’re left to vote on. Please keep this page as a reference for the rest of the analysis, because we will be referring to it often.
[Art.] 5-c [Public Education.] In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the general court shall have the authority and full discretion to define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability therefor, and to mitigate local disparities in educational opportunity and fiscal capacity. Further, in the exercise thereof, the general court shall have full discretion to determine the amount of, and methods of raising and distributing, State funding for education.
[Art.] 5-c [Public Education.] In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have full power and authority and the responsibility to define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability, and to mitigate local disparities in educational opportunity and fiscal capacity. Further, the legislature shall have full power and authority to determine the amount of, and the method of raising and distributing, state funding for public education.
“Committee of Conference” Language:
[Art.] 5-c [Public Education.] In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have the responsibility to maintain a system of public elementary and secondary education and to mitigate local disparities in educational opportunity and fiscal capacity. In furtherance thereof, the Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability and to determine the amount of, and the methods of raising and distributing, state funding for public education.
For this discussion, we will be mainly referencing the “Committee of Conference” Language, which the House and Senate must now give an up or down vote. In the House, 237 members voting in favor will pass this amendment. In the Senate, 15 Senators voting in favor will pass this. The governor does not have a vote.
The first part of the first sentence is crucially important, because it links all of the language of the new Article 5-c [Public Education] to Part 2, Article 83. The relevant half of Part 2, Article 83 is as follows:
For emphasis, please pay attention to one important detail in the above language: “...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...” For those of you not seeing the point yet, please review the definition of magistrate: “in modern usage the term usually refers to a judge.”
Thus, the Supreme Court does and always will have an interest to “cherish ... public schools,” regardless of any language we propose. Now, we all know what the Supreme Court thinks the word “cherish” means; namely, “to fund an adequate education.” That is particularly relevant because of the first part of proposed amendment, which says:
We know “liberals/progressives” well enough to know that they can and will stretch words so far to mean the exact opposite of what they really mean. The Claremont decisions and the judges’ reliance on the word “cherish” should make that abundantly clear. We are giving the “liberal/progressives” and the court, no matter who is on it, fuel with this language; we are not pouring water on the situation, but gasoline. If we have the “responsibility to maintain a system,” then the system we have the responsibility to maintain will be the current one, as far as any court is concerned, let alone a “liberal/progressive” court. They will have a field day with this language; it will be a green light for the court to force all manner of new court-driven requirements on the Legislature, because our constitution will still give “magistrates” the power to “cherish ... public schools,” which, again, we will now have “a responsibility to maintain,” and the definition of maintain will certainly include “fund.” Ending or even reducing existing programs will be seen as “failure to maintain,” so you can and should expect more lawsuits any time that any program is underfunded. And of course, all programs are underfunded, according to those who want those programs funded as fully as possible, and programs do not just include core education like reading, writing and arithmetic, but arts, music, sports and every other program that someone considers “vital” to a child’s “right” to be “properly educated.”
To those who say that mitigation could be minimal, the first lawsuit that decides the “responsibility” to “mitigate” means far more than “minimal” will forever establish a requirement for the Legislature to fully fund every program that they create via the “reasonable standards” that the Legislature has the “full power and authority” and “responsibility to maintain.”
Some have pointed out that the language of CACR 12 says “a system,” meaning we won’t have to support the current system. This is where the reference to Part 2, Article 83 is important. Since the Supreme Court also has a duty to cherish education, it will play a role in defining what “a system” means, and by way of precedent and other legal maneuvers, the court will conflate “a system” to mean “the current system.” Because of “liberals/progressives” history of distorting words, “a system” = “the system.” We will in fact be stuck funding education of the current system at the current levels, and the court may even decide that we must also account for inflation and cost of living adjustments setting a new bottom-line number that is far higher than what we pay now. In other words, because of this language, the court will be far more involved with the business of telling us how to fund education.
Who will lose control of education? Your local towns and school districts might be told their new default levels of funding must be at a minimum that they shall not drop below. And those towns that find they can no longer afford this increased cost will turn to the Legislature with their hands outreached, asking for us to “mitigate their fiscal capacity.” Hello donor towns, or worse, a broad-based tax.
The first sentence of CACR 12 is bad language that would degrade the situation for parents and local communities on a permanent basis, and it would set up a situation where the Legislature would be compelled to “maintain” (keep) at least level funding for public schools forever. Once the teachers’ unions recognize the true interpretation of CACR 12, they will be out in force supporting this language if they know what’s good for them. They won’t ever have another budget battle to worry about, and all of their energy can be devoted to increasing the level of funding that must be “maintained.” There’s no wiggle room in the clear English language in this amendment.
CACR 12 makes the Legislature “responsible” for funding education, which it has never been in the history of the state. We may have helped fund education, but we have never been responsible for doing so. If you believe as we believe, that the courts are wrong in their core opinion, and we have no obligation to do what the courts say, this gives up that battleground FOREVER. Like we say so many times, it raises the white flag of defeat.
The next section of the amendment is problematic, because it strips authority from parents and local communities currently maintained by Part 1, Article 6, despite the 1968 amendment, which gutted it, and in some views because of that 1968 amendment. First, here’s the proposed language in the “conference” version of CACR 12:
For our analysis, it is important to note that from 1784 to 1968, Part 1, Article 6 of the Constitution of New Hampshire read as follows (pay special attention to the text in bold):
In 1968, we amended Part 1, Article 6 to read as follows (the same section in bold):
Importantly, the original language of Part 1, Article 6―“electing their own teachers, and of contracting with them for their support or maintenance, or both”―gave the Legislature the power to delegate to local communities full authority over the governance (compare this to CACR 12: “authority to make reasonable standards for elementary and secondary public education and standards of accountability”) and funding mechanisms (compare to CACR 12: “to mitigate local disparities in educational opportunity and fiscal capacity” and “to determine the amount of, and the methods of raising and distributing, state funding for public education.”) of their schools.
Arguably, the 1968 amendment, by removing mention of the “Legislature” from the amendment, actually made the cities and towns MORE responsible for paying and running their own schools. In fact, we argue, combined with Part 1, Article 28-a, the 1968 amendment ensured a type of home rule for education in New Hampshire. In other words, the Legislature can’t tell local communities what to do unless it pays the price. We call that “local control” of schooling.
While the House version of CACR 12 would have restored the Legislature’s ability to delegate the responsibility to the cities and towns, by saying the Legislature shall have “full discretion to define reasonable standards for elementary and secondary public education,” the “conference” version does not. Again, the “conference” CACR 12 requires that the Legislature “maintain” public schools and grants that the “Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability” Goodbye Local Control. Hello Part 1, Article 28-a court battles.
In effect, the “conference” version of CACR 12 takes parents and local communities completely out of the equation when it comes to defining “standards for elementary and secondary public education” and it gives that authority directly to the Legislature. Conservatives believe parents are in control of their children’s education and delegate some of that authority to their local schools, under the direction of local administrators, but parents still maintain most of that authority as their natural right and can reclaim that authority they have delegated at any time. The original Constitution shared that view of responsibility concerning the education of children and curricula among the people, local communities and the Legislature, and leaves that responsibility with the people and local communities. One could argue that because “Legislators” have a “duty ... to cherish … public education,” they also play a role in this equation. However, by removing the Legislature from Part 1, Article 6, the Legislature should have less authority than local communities.
With the “conference” CACR 12 saying the Legislature has “full power and authority” over curricula, parents and local communities will have no authority over education, except the scraps that central control might leave them. That’s something that conservatives cannot and should not support, and compromising on this principle is unacceptable. We don’t care how tired you are of the fight, this is why we’re fighting. We cannot give in to those who wish the state to have more power over children’s education than their own parents.
Finally, the “conference” version of CACR 12 says this, relative to funding decisions:
The lawyers driving this effort wrongly believe that this language will prohibit the court from making certain judgments, by changing the standard from “strict scrutiny” to “rational basis,” and that this language qualifies the earlier sentence and restricts the courts’ hand. We argue that the qualifying language is irrelevant, and that any court capable of upholding Claremont will agree with us. The basis for “strict scrutiny” is the Claremont decision that established that an adequate education is a fundamental constitutional right. Nothing in CACR12 challenges this, and so nothing can change that strict scrutiny standard. To paraphrase Thoreau: “They hack at the branches, but have not touched the root.” We keep being told that an amendment that challenges Claremont will not pass, but the Legislature keeps refusing to send THAT amendment to the people and striking at the true root of this problem. Here’s the resultant question: So are we, the opposition to CACR 12, failing to give the people a voice, or is it the proponents of CACR 12, who desire to put Claremont into our Constitution, actually denying the people a voice?
Let us be clear: the court has absolutely no authority to require any of the actions of the last 18 years. Please refer to Part I, Article 29 & 31 and Part 2, Article 2 & 5:
[Art.] 31. [Meetings of Legislature, for What Purposes.] The legislature shall assemble for the redress of public grievances and for making such laws as the public good may require.
[Art.] 2. [Legislature, How Constituted.] The supreme legislative power, within this state, shall be vested in the senate and house of representatives, each of which shall have a negative on the other.
[Art.] 5. [Power to Make Laws, Elect Officers, Define Their Powers and Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing Towns to Aid Certain Corporations.] And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution,...
The answer to our current quandary is for the Legislature to exert its true authority to pass all manner of wholesome and reasonable orders, laws, statutes and etc. and ignore the court’s “strict scrutiny,” which has no basis in the N.H. Constitution.
An educational funding constitutional amendment not reflecting our values is simply not worth passing. An amendment reflecting our values is what we really should be sending to the people. We should exercise our Constitutional authority as we see fit, regardless of any court opinions that are as flawed and unenforceable as the Claremont decisions. If the Legislature wants to continue to do what the court says, that is its choice, but it is indeed a choice held exclusively by the Legislature. The Legislature should choose to ignore the court’s usurpations and do what the Constitution gives it due authority to do, with or without an amendment. Anything else is a violation of our elected officials’ oaths of office.
If we fail to rise to the occasion to stand up to the court, then it matters not if we pass this language. The court will still claim authority to say that we are not funding an adequate education because we are not “maintain[ing] a system of public elementary and secondary education” and nor are we adequately “mitigate[ing] local disparities in educational opportunity and fiscal capacity.”
Again, it doesn’t matter if the court can’t say how or how much we need to fund education, the court will be able to generally say that the word “maintain” implies that we must fund current levels, plus inflation, plus cost-of-living adjustments, plus whatever else it might come up with, including but not limited to “an adequate education” definition. In summary, the “conference” CACR 12 language doesn’t get the Legislature or the people anywhere at all. It still leaves the court in a position to order the Legislature to fund an adequate education and to say that the Legislature is not doing it right. In fact, in our opinion, it makes it more likely, not less likely, for the court to do this, and on top of that, it removes any remaining authority that our parents and local communities now have.
What’s worse, with Part 1, Article 28-a in place, the court can and will make the Legislature fund all additional “reasonable standards for elementary and secondary public education and standards of accountability.”
Part 1, Article 28-a ensures that any, and we mean any, additional “reasonable standards for elementary and secondary public education and standards of accountability” that the Legislature passes will be challenged by local communities, and every time the court will rule that the standard must be funded by the Legislature. There won’t need to be any funding method or funding amount noted in the court’s decision, the Legislature will just have to fund the new mandate, period. With this new standard in place and a requirement to fund it, the Legislature will indeed have a new baseline to maintain from that point forward. The Legislature won’t be able to go below that level, even if it eliminates the standard later. The court cases will be piling up, and a broad-based tax will be waiting to happen. The courts won’t have to require one, they will just repeat, as they did in Claremont, that the Legislature is not meeting its “duty” to “cherish … public education,” which is now its “responsibility to maintain.” The court will insist that the Legislature use its “full power and authority … to determine the amount of” (no less than the minimum needed to “maintain”, of course), “and the methods of raising and distributing, state funding for public education.”
CACR 12 changes nothing about the current situation, which is what the proponents of the “conference” amendment promise us it’s supposed to do. They promise that these magic words will make the courts stop and leave us alone if only we cry “uncle” and agree the court was right; that we are “responsible” and that the state always was “responsible” to provide this fundamental right to “an adequate education,” which appears nowhere in the actual document.
As you digest all that we have told you about CACR 12 and why it is wrong for New Hampshire, please recall the winter of 1776 when George Washington was faced with the lowest troop morale of his tenure and his military coffers were dry. Soldiers were going home without hope of any success in the war and were resigned to be British subjects with no freedom. Did our finest president to be give up hope at this time and raise the white flag of defeat to the British? Well, we all know the course of history. Washington prayed to Almighty Providence to give him the troops, dollars and morale he needed to secure liberty in this land, and those prayers were answered because of his devotion to principles and his resolve. Are we going to be like our greatest founder, or are we ready to give in to our enemies?
We, the undersigned, urge you to keep up the fight for educational freedom and the natural right of parents to raise and educate their children as they see fit. We urge you to help defeat CACR 12 in any way you can.
Signed, Members of the Natural Rights Council Board:
Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell (Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield), Mark Warden (Goffstown), John Burt (Goffstown) and Kevin Avard (Nashua).
About The Natural Rights Council
The Natural Rights Council, formed in 2010, is a bipartisan, principle-driven coalition within the New Hampshire House committed to supporting legislation that adheres to the state constitution, defends individual rights to life, liberty and property, and ensures equal treatment under the law. The Natural Rights Council is led by Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell (Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield), Mark Warden (Goffstown), John Burt (Goffstown), Kevin Avard (Nashua), and Daniel Tamburello (Londonderry).