2007 Summer, Pg. 6. Claremont, Londonderry, and Beyond: The Problematic Definition of Adequate Education in New Hampshire.

AuthorBy Charlotte Ancel

New Hampshire Bar Journal


2007 Summer, Pg. 6.

Claremont, Londonderry, and Beyond: The Problematic Definition of Adequate Education in New Hampshire

New Hampshire Bar JournalSummer 2007, Volume 48, No. 2Annual Survey of New Hampshire LawClaremont, Londonderry, and Beyond: The Problematic Definition of Adequate Education in New HampshireBy Charlotte AncelI. Introduction

This article catalogs another chapter in New Hampshire's Dickensian saga of struggle over education finance reform. In Londonderry School District SAU # 12 v. State(fn1) ("Londonderry"), the Supreme Court signaled that the story may be far from over. Depending on where your loyalties lie, you may view the Londonderry Court as poised to bring about the best of times or the worst of times in New Hampshire Supreme Court jurisprudence. Or, as you read on, you may conclude that it is a little of both.

The story began in 1992, in Claremont, when a group of school districts, students, and taxpayers brought a declaratory judgment action, alleging that New Hampshire's system of education finance violated the state Constitution.(fn2) The New Hampshire Supreme Court ultimately agreed, interpreting the New Hampshire Constitution to "impose[] a duty on the State to provide a constitutionally adequate education . . . and to guarantee adequate funding."(fn3) Careful to tread lightly, the Court left the legislature with the task of defining "adequate education."(fn4) Thirteen years and several legislative attempts later, in Londonderry, the Court held that the legislature still has not gotten it right.

This article examines the problematic definition of a constitutionally adequate education.(fn5) Part II provides an abbreviated backstory of education finance litigation in New Hampshire. Part III provides close reads of the Londonderry majority and concurring/dissenting opinions. Part IV argues that the Londonderry majority added more confusion and complexity to the Court's existing matrix of education finance law, and has charted a course that may end with a violation of the separation of powers. Part V briefly surveys the legislative and executive responses to Londonderry. Finally, as future remedies, Part VI urges the Court to uphold the legislature's new definition of adequate education and to adopt the approach of facial invalidation for further education law infirmities, as recommended by Justice Galway's dissent.

  1. The Claremont Backstory

    Education funding litigation in New Hampshire was born from finger painting and leaky roofs. By the late eighties, the Claremont School District faced a serious funding crisis.(fn6) Accordingly, it cut athletic and kindergarten programs.(fn7) Still underfunded, the district's failure to make necessary structural repairs resulted in the revocation of its high school's accreditation.(fn8) In response, poor school districts, taxpayers, and students challenged the constitutionality of the school funding system.(fn9) Specifically, the plaintiffs urged the trial court to strike down the state's education funding system under Part II, Article 83 of the New Hampshire Constitution.(fn10)

    Finding that Article 83 only set forth an "amorphous duty to `cherish . . . public schools' and `to encourage private and public institutions,'" the superior court interpreted Article 83 as merely "hortatory"(fn11) and thus granted the state's motion to dismiss.(fn12)

    On appeal, however, the New Hampshire Supreme Court reversed. Using the framers' intent as its polestar, Claremont I concluded that Article 83 "imposed a duty on the State to provide universal education and to support the schools."(fn13) The Court also held that every citizen holds a corresponding substantive right to an adequate education.(fn14) Limiting the scope of its holding, the Claremont I majority left the precise definition of an adequate education to the legislature(fn15) and remanded the case to the trial court for a hearing on the merits.(fn16)

    On remand - in a ruling that would give rise to the Claremont II decision - the trial court held that the education provided in the plaintiff school districts was constitutionally adequate.(fn17) In 1997, the New Hampshire Supreme Court again reversed, holding that the "property tax levied to fund education" constituted a "state" tax (as opposed to a local tax) and thus ran afoul of Part II, Article 5(fn18) of the New Hampshire Constitution.(fn19) The Court also characterized the right to adequate education as "fundamental."(fn20)

    Finally, the Claremont II Court struck down the state's proffered definition of "adequate education."(fn21) The state had relied on a terse definition provided by the State Board of Education. Finding that the definition did "not sufficiently reflect the letter or the spirit of the New Hampshire Constitution's mandate," the Court cited the seven criteria articulated by the Supreme Court of Kentucky as "benchmarks of a constitutionally adequate public education."(fn22)

    Thus, the Claremont II Court held that "[a] constitutionally adequate public education" should incorporate:

    (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.(fn23)

    The Claremont II Court acknowledged the potential for a breach of the separation of powers and stated its expectation that the legislature would "develop and adopt specific criteria implementing these guidelines."(fn24) The Court commented that it was not "appointed to establish educational policy" and, accordingly, left the task of defining the specific substantive content of an adequate education "to the two co-equal branches of government."(fn25)

    Subsequent developments have added further complexity to the Claremont matrix. In Claremont IX,(fn26) the Court responded to the New Hampshire Senate's request for an advisory opinion on the constitutionality of proposed education finance legislation.(fn27) Finding that the bill's funding mechanism impermissibly relied on local property taxes, the Court commented that the bill's failure to identify and define the elements of an adequate education precluded any further consideration of its constitutionality.(fn28) Then, in Claremont XI,(fn29) the Court held that the state's duty to provide a constitutionally adequate education required it to create standards of accountability.(fn30) Accordingly, it instructed the legislature "to fulfill its duty to provide a constitutionally adequate education and incorporate meaningful accountability in the education system."(fn31) Justices Nadeau and Dalianis dissented, raising separation of powers concerns and commenting that "[t]he time ha[d] come for the supreme court to conclude its jurisdiction over [the Claremont] appeal."(fn32)

  2. The Londonderry Decision

    1. Facts and Procedural Posture

      Londonderry began with the filing of a petition for declaratory judgment by the Londonderry School District School Administrative Unit #12, the Merrimack School District School Administrative Unit # 26, and the New Hampshire Communities for Adequate Funding of Education (collectively, the "plaintiffs").(fn33) Seeking adjudication directly from the New Hampshire Supreme Court, the plaintiffs alleged that House Bill 616 - a proposed education funding law - violated the state Constitution.(fn34) The Supreme Court declined to exercise its original jurisdiction, instructing the superior court to perform further fact-finding.(fn35) Consequently, the plaintiffs filed a declaratory judgment action and a motion for summary judgment, contending that House Bill 616: (1) failed to "define, determine the cost of, and ensure delivery of a constitutionally adequate education"; (2) required the districts to fund constitutionally adequate education via local taxes; (3) vitiated donor communities and imposed a disproportionate tax burden on property-poor districts; and (4) violated the Equal Protection Clause of the New Hampshire Constitution.(fn36)

      The superior court granted the plaintiffs' motion for summary judgment, finding House Bill 616 unconstitutional on its...

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