New Hampshire's Education-fundinglitigation:claremont School District v. Governor, 635 A.2d 1375 (n.h. 1993),modified, 703 A.2d 1353 (n.h. 1997)

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 836. New Hampshire's Education-FundingLitigation:Claremont School District v. Governor, 635 A.2d 1375 (N.H. 1993),modified, 703 A.2d 1353 (N.H. 1997)

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Andru H. Volinsky*

New Hampshire's Education-FundingLitigation: Claremont School District v. Governor, 635 A.2d 1375 (N.H. 1993), modified, 703 A.2d 1353 (N.H. 1997)

TABLE OF CONTENTS

I. Introduction ..................................................... 836
II. The New Hampshire Constitution--"Cherish" is the
Word ............................................................ 837
III. Naked at the YMCA .............................................. 838
IV. Lessons Learned from Jesseman v. State ........................ 839
V. Claremont I--The Court Recognizes the Constitutional
Right to a Public Education ...................................... 841
VI. Surviving until Claremont II .................................. 845
VII. Claremont II--The System is Unconstitutional ................. 847
VIII. Efforts to Avoid Remedy ....................................... 851
IX. Conclusion ...................................................... 855

I. INTRODUCTION

Our experience in New Hampshire with the Claremont(fn1) case is representative of the state-constitution-based school-funding litigation that has developed across the nation in response to the United States Supreme Court's decision in San Antonio Independent School District v. Rodriguez.(fn2) In Rodriguez, the Court closed the door to federal litigation when it found that education is not a fundamental right protected by the United States Constitution. However, the Court opened the door to litigation in the state courts by noting that many

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state constitutions specifically mention a right to education and this mention may be considered a basis for fundamentality as a matter of state constitutional law.(fn3)

II.THE NEW HAMPSHIRE CONSTITUTION-- "CHERISH" IS THE WORD

New Hampshire was a part of the Bay Colonies, along with Massachusetts, Rhode Island, and Maine until 1679. The four provinces, and later four states, have a great deal in common. Much of New Hampshire's constitution and early education laws were borrowed from Massachusetts. New Hampshire's Education Clause, adopted in 1784, and copied from the Massachusetts clause written by John Adams, provides:

[Encouragement of Literature . . .] Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; 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, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufacturers, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people.(fn4)

The New Hampshire Education Clause is in the part of the state constitution that describes the form of government and not where individual rights are identified. This placement underscores the purpose of the clause to preserve our participatory form of democracy, as John Adams intended.

Jumping ahead just a bit, specific phrases of the Education Clause were interpreted by the New Hampshire Supreme Court in Claremont School District v. Governor (Claremont I), the first appellate decision in the case.(fn5) The court looked at the definitions of key words in Article 83 as those definitions existed in 1784:

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"ENCOURAGEMENT: Incitement to any action or practice, incentive; favour, countenance, support,"; "LITERATURE: Learning; skill in letters,"; "DIFFUSED: Spread abroad, widespread; dispersed over a large area; covering a wide range of subjects," Oxford English Dictionary (2d ed. 1989); "GENERALLY: so as to include every particular, or every individual," id.; "DUTY: That to which a man is by any natural or legal obligation bound," Sheridan supra; "CHERISH: To support, to shelter, to nurse up."(fn6)

The Claremont I court then concluded:

The Encouragement of Literature clause, incorporating the sense of these definitions, thus declares that knowledge and learning spread through a community are "essential to the preservation of a free government," and that "spreading the opportunities and advantages of education" is a means to the end of preserving a free, democratic state. The duty of ensuring that the people are educated is placed upon "the legislators and magistrates, in all future periods of this government," and that duty encompasses supporting all public schools . . . .(fn7)

The New Hampshire Supreme Court, in Claremont I, rejected the trial court's notion that the grand terms of Article 83 were merely "hortatory" or aspirational.(fn8) In so doing, the court revived our lawsuit and committed itself to a second decision on school funding four years later.(fn9)

III. NAKED AT THE YMCA

Our initial legal team was formed at the YMCA in Concord, New Hampshire in the early 1990s. My memory may be a little off, but I could swear that I was asked to join the Claremont Lawsuit Coalition's legal team while standing buck naked in front of my gym locker

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at the Y. I was recruited by the initial organizer of our team Arpiar Saunders. Arpy asked me to join the legal team because we were friends and he saw the need for a trial lawyer committed to representing the underdog.

Arpy Saunders was a constitutional law professor at the Franklin Pierce School of Law.(fn10) Arpy had been approached to sue the State over school funding by Tom Connair, a lawyer who chaired the Claremont School Board. The Claremont Board had tried in vain to attract lawyers in private practice to the effort and contacted Arpy because of his constitutional law background. Together, we recruited another litigator and Y member John Garvey to round out the team. Garvey lived in Franklin, one of the five poor towns that would become our clients. He was also with a large firm, and we thought he could bring personal as well as firm resources to the team. Thus comprised, we thought we had done a good job of creating a legal team whose members allowed us access to the Pierce law students, the resources of a large firm, and a connection to my firm's long support of civil liberties causes.

The three of us soon learned that the proposed suit was the second effort by a coalition of poor school districts to take on the State over school-funding issues. The first suit, filed ten years before our organizational effort, ended with an informal settlement.(fn11) The State, however, had never kept its part of the settlement bargain.(fn12)

IV. LESSONS LEARNED FROM JESSEMAN V. STATE

Jesseman v. State(fn13) was a funding equity suit filed in the early 1980s in the Merrimack County Superior Court on behalf of a halfdozen poor districts, some students and some taxpayers. The legal team was led by two well-respected and thoughtful lawyers--Jack Middleton and Arthur Nighswander(fn14)--and assisted by Dick Goodman, a former school superintendent and University of New Hampshire professor. Their litigation quickly became bogged down by the State's extensive discovery demands. The trial court eventually certified an undifferentiated, amorphous record to the supreme court,

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where the case was received with a great deal of skepticism.(fn15) Just getting the case to the supreme court for interlocutory review had exhausted the resources of the petitioners' legal team.

As the court considered the merits of the Jesseman case, the legislature considered altering the state school-funding system by adding a component of need-based, targeted aid. John Sununu was governor at the time.(fn16) The legislature and Governor Sununu created a funding plan that targeted eight percent of the cost of education to help the poorest school districts. This would have increased the total state contribution to about twelve percent, an improvement, but still leaving New Hampshire last in the nation in state funding.

Governor Sununu insisted that the authorizing legislation be devoid of any language that committed the State to providing funding that was fair, equitable, or adequate for any particular purpose.(fn17) The legislation was pegged at eight percent and that was that. The funding was also residual in that the legislation was not intended to create an entitlement for the poor schools or the children that attended them.(fn18) The targeted aid program was to receive funding as the funds were available. The petitioners, without resources and uncertain of the court's willingness to take on the issue, accepted these terms and withdrew their suit in settlement of the case.(fn19)

As part of the legislative effort, the State hired Professor John Augenblick to devise a formula to distribute the promised eight percent. The targeted aid funding plan then--and forever after--became known as the "Augenblick formula."(fn20)

Unfortunately, the Augenblick funding topped out at only four percent. While it is doubtful that the full eight percent would have been enough to improve the lot of the state's poor students, four percent was certainly insufficient to allow the poor districts to improve their offerings in any significant way.

By 1989, the Claremont School District had cut its sports programs and kindergarten.(fn21) The district also lost the accreditation for its high

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school because it could not afford repairs to the school's...