Legislature gets a reprieve on ed funding



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The state Supreme Court’s latest pronouncement on education funding simply kicked the can down the road. Far enough down the road that the new taxes needed to pay for the new spending that the new definition of an adequate education undoubtedly will generate won’t be an issue in the 2008 state elections. And that’s very good news for Governor Lynch and any other Democrat running next year. In September 2006, the Supreme Court gave the Legislature until July 2007 to define an adequate education in a manner “sufficiently clear to permit common understanding and allow for an objective determination of costs,” or else. The or else was that the court would do so itself.  It would be a gross understatement to say that it was unprecedented for the court to impose a deadline for the Legislature to write a law, never mind threaten to write the law itself. The court rationalized this extraordinary pronouncement by claiming that it had “a responsibility to ensure that constitutional rights not be hollowed out,” which gave it the right to exercise the powers of the other branches of government. After the Legislature passed a new definition of adequacy, the court asked for advice on what it should do next. The state’s lawyers said the court should give the Legislature until July 2008 to tackle the next mandate that the court had handed the legislature in its Claremont decisions - determining what the definition costs. The lawyers for the towns that had sued the state argued that the Legislature should have to address the other two mandates by next July as well - determining how to pay for the cost of an adequate education. The court sided with the state, which is a total about-face from its decision last year. Obviously, a big difference between last year and this year is that the Democrats control the Legislature. But that’s not a legitimate basis for the court’s about-face, nor do I believe that it is the reason for the court’s inconsistency. Rather, I believe that the court is backing away from the indefensible position that it can set deadlines for the Legislature and then act in the Legislature’s stead if the deadline is not met. Unfortunately, the cryptic nature of the court’s latest order leaves it wide open to criticism that it is acting politically. Another unanswered question is why the Legislature needs until July 2008 to determine the cost of the new definition if it “allow[s] for an objective determination of costs.” Wouldn’t one month, or one week, or one day be sufficient if there actually were some objective basis to determine the cost of the new definition? The timing has nothing to do with the mechanical exercise of calculating the cost. The “objective determination” of the cost of an adequate education simply involves calculating average spending among schools that meet selected benchmarks. Indeed, the Legislature employed the education consulting firm Augenblick & Meyers to do just that after the Claremont II decision was issued. In other words, it’s not like there is any need to reinvent the wheel. Another point to keep in mind is that calculating the cost is hardly objective. One can increase or reduce the cost by adjusting the benchmarks or by adjusting how one calculates average spending. In fact, in one of the Claremont lawsuits the towns challenged the calculation of average spending. What explains the timing, then, is that the Democrats do not want the 2008 state elections to be about who is going to pay for all the wonderful new education funding they’re going to send our way. They want the elections to be about which party is going to hand out the bigger free lunch. Who pays for the free lunch is a conversation they want to - and thanks to the court’s latest order will be able to - defer until after the election. Ed Mosca is an attorney who lives in Manchester.

 

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