by Ed Naile

Now that the New Hampshire State Supreme Court has delivered a reasonable, lawful, constitutionally sound opinion regarding the decades-old practice of letting non-residents vote here, we should take a hard look at another decision dropped on taxpayers by a previous activist court. That would be the Claremont education funding decisions.

Just as the 1972 Newburger v. Peterson case about student voters never said a word about letting an out-of-state student vote here while keeping an out-of-state driver’s license, similarly, the New Hampshire Constitution has no requirement that the State fund public education. That education clause nugget was dug out of our Constitution from a simple mention of education and the arts. The NH Constitution advises legislators and judges to “cherish” education and the arts in all seminaries and public schools. In 1993 our activist court, following the lead of other states deemed a mention of education was, in fact, a duty of state government. It is not. The State Constitution also says citizens can elect their teachers.

Our activist judges didn’t invent the education funding lawsuit scam. That was a serious effort that began in the 1960’s. The shining example of a handbook for such a scheme can be found in A Judicial Analysis During the Third Wave in School Finance by William Thro.

You can see how well our former activist courts have folded their personal political desires into their interpretation of the plain language of our State Constitution.

See for yourself:

Here are a few paragraphs from the “Third Wave” that will give you a taste of how litigation through state supreme courts was intended to strip control of public education funding from voters and give it to activist courts. The attempts at mandating more education spending through Federal Courts in the sixties failed similarly to what would happen with out-of-state voters here in NH if that scam wound up there.

This part of the Third Wave is a worthwhile read:

“Second, rather than relying on the state equal protection clause, which had been the focus of the school finance provisions prior to 1989, the new wave decisions have been based exclusively on the education clauses of individual states’ constitutions. This represents a profound shift in litigation strategy.

Because the interpretation of the education clauses has fewer implications for other areas of the law, this shift appears to make plaintiffs’ victories more likely. Consequently, if the plaintiffs can prove that some schools are below the constitutional standard and that this deficiency is caused by a lack of resources, it becomes, theoretically, much easier for them to prevail.

Third, the courts have been more sweeping in their pronouncements and their willingness to take control of the financing of education. In the 1989 decision of Rose v. Council for Better Education, Inc., Kentucky’s highest court invalidated not only the finance system but every statute relating to the public schools, and then ordered the legislature to design a new system.” When the Texas Legislature attempted to correct its educational finance system, the Texas Supreme Court, in the 1991 decision of Edgewood Independent School District v. Kirby, held that the remedy was inadequate and ordered the legislators to try again.” Previously, the courts had readily accepted the legislative correction.

This emphasis on quality of education rather than on equality of funding, based on the narrow education clauses rather than the broad equal protection provisions, and requesting sweeping reform accompanied by continued court supervision, represents the future of school finance reform litigation.”

There you have it.

“Sweeping reform accompanied by court supervision…” which means no voter participation in one of the most serious decisions a municipality makes.

Sounds like the watering down of New Hampshire citizen’s votes with out-of-state voters, doesn’t it?
For the complete text of the “Third Wave” – Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model