Cook On Concord: Lynch’s amendment proposal stirs plenty of discussion

It is tough being in the middle in politics sometimes. As it is said, if you stand in the middle of the street, trucks going in both directions could hit you.

Gov. John Lynch proposed a constitutional amendment in late March to address education funding. Immediately, it was the subject of discussion, consideration and, predictably, opposition from the ends of the spectrum. Whether it succeeds or fails, however, will be due to how those in the middle perceive it.

Immediately, Lynch went on the offensive, appearing on television, talking to legislators, opinion leaders and various businesspeople — sometimes in groups, sometimes one-on-one.

The amendment is not similar to constitutional amendments that have been proposed in the past to address the “Claremont” Supreme Court decisions. Most were of the “let’s hit the judges over the head with a baseball bat and punish them” variety. Lynch’s amendment is somewhat complex and reads 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.”

A lot of things are in this amendment. It continues the “duty to cherish public schools,” which was the basis for the decision. It provides that the General Court – the Legislature — shall define an adequate education and lets it determine the statewide costs. It also requires the Legislature fund 50 percent or more of the cost of that adequate education, as determined by it each year.

The amendment lets the Legislature assure the maintenance of accountability, gives it the flexibility to distribute the money among the various school districts in the state (sometimes known as “targeted aid”), but requires that each school district get at least some of the money.

If passed, the amendment would resolve the persistent issue that has been an albatross around the necks of New Hampshire governors and legislators (and, especially, judges) for over a decade. It does not take judges out of the education-funding process, since they would continue to have review authority if the action of the Legislature were asserted to be in violation of the new constitutional requirement. However, it would reverse the present finding that is assumed to require 100 percent state funding of an adequate education’s cost. It would thus get the judges out of the box that they have been in, regardless of how anyone views the merits of their decision in the Claremont line of cases.

The Claremont plaintiff towns’ attorneys immediately criticized the proposed amendment as providing too little aid, some saying that it would result only in a small increase over present aid on a per-pupil basis. Conservatives said that it would cost too much and keep the state in the process to too great a degree and found all sorts of other reasons to oppose the amendment.

What was interesting, however, was the reaction from some of the attorneys and politicians who had studied the problem closest. What moderates, and even those who have taken somewhat strong positions on both sides, seem to recognize is that what the governor has proposed leaves the Legislature with a good deal of flexibility and leaves it to the political process to decide on whether more than 50 percent of the cost of an adequate education will be paid by the state and how the distribution among school districts will go.

What they also recognize is this type of amendment may be the only chance to get a constitutional amendment, if that is what they want. And if there is no amendment, most politicians fear the ultimate imposition of a solution by the court, which has made it clear that it does not want to impose one but does not believe it has a choice if the legislature does not act appropriately, on the other.

The question facing both houses of the legislature now is whether Governor Lynch has come up with a proposal that they can support. The Senate, with 24 members, is fairly easy to count, and the amendment is being brought forth there first.

In the House, whether new Democrats will follow the governor of their party or will ask for more ideological purity is hard to predict. Undoubtedly, there will be some of each persuasion.

As for Republicans, although long advocates of a constitutional amendment, whether they will like this one, and whether they will allow a Democratic governor to take the credit for proposing it, are the questions of the day in Concord.

What is clear, however, is that moderate John Lynch has come up with a moderate amendment that is worthy of consideration as a way out of a very tough political/judicial standoff, and that the worst fears of critics undoubtedly will not be the results of this amendment.

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.