By GARRY RAYNO, InDepthNH.org

CONCORD — The Speaker of the House and 30 other Republican lawmakers argue the state Supreme Court should overturn the landmark Claremont education decisions as the justices erred in determining the state had an obligation to provide every child with an adequate education and to pay for it

The amicus brief was filed by the Republican lawmakers in the appeal of the ConVal School District education funding lawsuit which determined the state was underfunding its obligation to pay for an adequate education for its students.

The brief written by Franconia attorney and former Representative Gregory Sorg, claims the Supreme Court failed to consider how two constitutional articles determine who is responsible for providing education to the state’s children and the oversight of the system.

Using the Robb v. Jackson decision of the US Supreme Court written by Justice Samuel Alito that determined the original Roe v. Wade decision was in error, and instead returning decisions on abortion to the states, the brief argues the original Claremont decision was in error and the obligation to provide an education and to pay for it should be returned to local school districts as Article 6 “protected the pre-existing right of localities to control education against a State takeover by ensuring the right of the people to keep both the choice and payment of teachers in their hands at the local level, while empowering the Legislature to authorize provision locally ‘for the support and maintenance of public Protestant teachers of piety, religion and morality.’”

Sorg argues Article 83 merely “authorized the Legislature to compel every locality to provide it, at their expense.”
“This did not mean that the Legislature couldn’t contribute to the funding public schools under any circumstances, but merely that any proposed state funding would constitute an offer – and with it, inevitably, state control – that localities were not obliged to accept,” Sorg says in the brief.

The Attorney General raised the issue of the Supreme Court reviewing its earlier decision in its appeal of the ConVal and Rand decisions by Superior Court Judge David Ruoff that determined the state’s method of collecting the Statewide Education Property Tax was unconstitutional and the state was “woefully underfunding” its obligation to provide an adequate education to its children and setting a per-pupil adequacy rate at $7,356, which would increase state spending on an adequate education by more than $500 million annually. Both decisions were stayed by the Supreme Court until it rules on the appeals.

The Attorney General also argued setting the per-pupil rate was an egregious violation of the separation-of-powers doctrine.
But school funding reform advocates say following both the Republican lawmakers and the Attorney General’s suggestions would destroy the ability for school districts, students, and parents to hold elected state officials accountable for underfunding public schools.

“Instead of owning up to their failure to adequately fund education in compliance with the Claremont rulings, these legislators are instead arguing that Claremont should be thrown out. They are trying to blame the Court for their own failure to comply with the Court’s rulings over the past 30 years. And this begs the question, what do they think the State’s role in funding education should be?” said NH School Funding Fairness Project Executive Director Zack Sheehan.  “The State failed to present a positive defense for the current $4,100 base adequacy amount during the ConVal trial, and now legislative leaders are arguing for the Court to repeal the Claremont decisions that required the legislature to create adequacy aid in the first place. The logical extension of this brief is that the State will stop paying adequacy aid altogether if Claremont is overturned, and that would have drastically negative consequences on students and taxpayers in every community in the state.”

The organization notes the Department of Education estimates state adequate education aid will be $817.84 million this year, and according to the department’s latest report for the 2022-2023 school year, total spending on public education was $3.4 billion.

In their brief, the Republican lawmakers cite an amicus brief filed by Senate President Jeb Bradley, R-Wolfeboro, that claims the original Claremont decision “was incorrectly decided; that all subsequent decisions emanating from it, beginning with Claremont School District v. Governor, have lacked constitutional legitimacy; and that the only proper way to resolve the present litigation and to obviate future such litigation is for the Court to follow the example of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization, . . . to resolve a similar separation of powers impasse, by overruling Claremont I and Claremont II, thereby returning education policy and funding matters exclusively to the elected branches of the government for disposition though the political process, just as intended by the authors of the Constitution.”
The Republican lawmakers through Sorg argue that adhering to the original Claremont I decision “ impedes the stable and orderly adjudication of future cases.”

Sorg argues Roe and Claremont I parallel each other as they both were decided on misrepresentations of the historical roots of “the supposed constitutional rights,” and both led to unresolved questions concerning the separation of powers between the legislature and judicial branches.

And he argues both have led to lengthy and frequent litigation over minute policy matters that did not resolve the underlying issues that caused the lawsuits.

“The State is not calling in this case for overruling Claremont I and Claremont II. It has apparently determined that the interests of the citizens and taxpayers of New Hampshire will best be served if it pursues the more modest objective of merely securing reversal of the trial court’s November 20, 2023 merits order. Its approach is thus to leave for another day the question of whether the Court should reconsider the existence of a constitutional right to an adequate education,” Sorg writes. “If this Court were to reverse the lower court order, it would soon enough be called upon to pass on the constitutionality of another school funding law, and another, and another, until the Court would be forced to confront the decision the amici are urging it to confront now.”

The court should “restore itself to constitutional legitimacy by following the example of the U.S. Supreme Court in parallel circumstances in Dobbs, by overruling Claremont I and Claremont II,” Sorg writes.

Similar arguments about the court’s decision and its authority to make it were raised after the first two Claremont decisions were issued by lawmakers who believe they have sole authority over determining education policy and funding, without oversight by the judicial branch, which is charged with protecting constitutional and legal rights of citizens.

Ruoff in his ruling noted the separation of powers issues raised by the Attorney General in the current cases before the court.

“The court carefully considered the relevant separation of powers concerns when issuing the Base Adequacy Aid Order,” Ruoff writes.  “Ultimately, the Court concluded that those concerns must be balanced against the reality that the right to ‘a constitutionally adequate public education is a fundamental right.’”

The Republican lawmakers filing the brief along with House Speaker Sherman Packard, R-Londonderry, are: Sen. Timothy Lang, Sanbornton;  Sen. Howard Pearl, Loudon; Rep. Keith Ammon, New Boston: Rep. Harry H. Bean, Gilford; Rep. José E. Cambrils, Loudon; Rep. Glenn Cordelli, Moultonborough; Rep. Jess Edwards, Auburn; Rep. Keith Erf, Weare; Rep. Juliet Harvey-Bolia, Tilton; Rep. Gregory Hill, Northfield; Rep. William Infantine, Manchester; Rep. Jim Kofalt, Wilton; Rep. Roderick M. (Rick) Ladd, Jr., Haverhill; Rep. Wayne MacDonald, Londonderry; Rep. Carol McGuire, Epsom; Rep. Dan McGuire, Epsom; Rep. Jason Osborne, Auburn; Rep. Kristine Perez, Londonderry; Rep. Katy Peternel, Wolfeboro; Rep Andrew Renzullo, Hudson; Rep. Alvin See, Loudon; Rep. John Sellers, Bristol; Rep. Vanessa Sheehan, Milford; Rep. Joe Sweeney, Salem; Rep. Chris True, Sandown; Rep. Len Turcotte, Barrington; Rep. Michael Vose, Epping; Rep. Scott Wallace, Danville; Rep. Thomas C. Walsh, Jr., Hooksett; and  Rep. Kenneth L. Weyler, Kingston.

Garry Rayno may be reached at garry.rayno@yahoo.com.