30 years after Claremont, NH Constitution’s education clause is still being litigated
Reflections on the anniversary of the landmark school-funding suit
At this writing, Contoocook Valley School District and Winchester School District v. State of New Hampshire, the latest challenge to education funding under the New Hampshire Constitution, is under advisement in Rockingham County Superior Court. The plaintiff school districts essentially argue that the state must fund dimensions of the school experience apart from classroom learning, while the state maintains that the Legislature enjoys the discretion to define both educational adequacy and the funding necessary to achieve it.
Regardless of the outcome, an appeal to the NH Supreme Court is inevitable. Of course, it will not be the first time the high court has considered the meaning of the state constitutional commitment to public education. Indeed, this year marks the 30th anniversary of Claremont v. State, the decision in which the court first addressed the state’s obligation to provide an adequate education. The anniversary presents an occasion to revisit Claremont, and to note the different path taken by the Massachusetts high court in respect to the same constitutional obligation.
Under Part II, Article 83, of the New Hampshire Constitution, “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 …” Claremont interpreted this provision as a command to the state to “provide an education to all its citizens” and to “support all public schools.”
Assigning the responsibility to define a constitutionally adequate education to the Legislature and the governor, the court observed that, “[g]iven the complexities of our society today, the State’s constitutional duty extends beyond mere reading, writing and arithmetic” to include “broad educational opportunities needed in today’s society to prepare citizens for their role as participants and as potential competitors in today’s marketplace of ideas.”
Though the Claremont court expressed confidence that the political departments would fulfill their constitutional responsibility, litigation continued. Indeed, within a decade the court had rendered eight opinions directly related to Claremont – and allowed the parties to continue to litigate various claims related to the constitutional adequacy of the education the state provided, as well as how that education was funded. The ConVal case is just the most recent chapter in a decades-long dispute over the state’s efforts to satisfy Part II, Article 83.
The Massachusetts case
Educational adequacy litigation followed a different trajectory in Massachusetts.
Prior to Claremont, the Massachusetts Supreme Judicial Court decided a case called McDuffy v. Secretary of the Executive Office of Education, which addressed the identical education clause of the Massachusetts Constitution. The Claremont court gave weight to McDuffy’s conclusion that the duty to “cherish” public schools should be understood as an obligation to ensure that such schools “achieve their object and educate the people.”
Unlike in New Hampshire, the Supreme Judicial Court has over time-distanced the commonwealth’s courts from review of educational adequacy claims. As then-Chief Justice Margaret Marshall explained for a plurality of the court in Hancock v. Commissioner of Education a dozen years after McDuffy and Claremont, the state constitution is not violated when political departments have done their job to establish the resources to support public education “in a way that minimizes rather than accentuates differences between communities based on property valuations, constitutionally impermissible classifications, and other criteria extrinsic to the educational mission.”
Hancock has subsequently been understood to require that the state act reasonably: A viable education clause claim can be maintained only if plaintiffs can show both that they were deprived of an adequate education and that the Commonwealth’s plans and policies did not provide a reasonable assurance of an opportunity for an adequate education over a reasonable period of time. Applying this standard in a 2018 case, for example, the court rejected the argument that a cap on charter schools had caused the plaintiffs to attend constitutionally deficient non-charter schools. Not only was there no constitutional entitlement to attend charter schools, but the commonwealth did not rely upon charter schools as the exclusive means of ensuring the provision of an adequate public education.
The upshot is that, since Hancock, battles over the details of educational adequacy and funding in Massachusetts do not always end up being fought in court – there is, compared to New Hampshire, a more limited role for judges in Massachusetts, where enforcement of the education clause is concerned. This approach leaves to the people’s elected representatives in the commonwealth greater discretion to make determinations about public education and how to pay for it, so long as those determinations fall within the realm of reason.
Had the NH Supreme Court followed suit, ConVal might have been dismissed at the pleading stage if the plaintiffs were unable to show how the state has failed reasonably to ensure adequate educational opportunities over a reasonable time. But the New Hampshire high court has blazed its own path.
Such is the nature of separate sovereigns with separate, though related, constitutions: The courts of each state have the authority to decide for themselves the extent to which the judiciary will be involved in the enforcement of a state constitutional command.
As a result, in New Hampshire clashes over educational adequacy and funding continue to sound not just in legislative halls but courtrooms as well.
This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.