By ANDRU VOLINSKY

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:  https://substack.com/@andruvolinsky?utm_source=profile-page

I spent a lot of time last week learning about Maine’s school funding system in preparation for a talk at the Common Ground Fair. This post will be brief but it’s in response to the Free-Staters/Republicans (and maybe some newer justices and a governor or two) who cannot see that the drafters of our state constitution intended to recognize a right to a state-funded public education.

Compare the relevant language of the NH Constitution, that creates a right to a state-funded public education, with the language of the Maine Constitution that does not create a right to a state-funded public education. Both states were part of the Massachusetts Bay Colonies and broke away from Massachusetts to form independent states. NH’s constitution was adopted in 1784. Maine’s constitution was adopted in 1820.

Part 2, Article 83 of the NH Constitution provides:

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, manufactures, 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: **Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination…. (Emphasis in bold supplied by me as well as two asterisks.)

Article VIII, Part First of the Maine Constitution provides:

Section 1. Legislature shall require towns to support public schools; duty of Legislature. A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools; and it shall further be their duty to encourage and suitably endow, from time to time, as the circumstances of the people may authorize, all academies, colleges and seminaries of learning within the State; provided, that no donation, grant or endowment shall at any time be made by the Legislature to any literary institution now established, or which may hereafter be established, unless, at the time of making such endowment, the Legislature of the State shall have the right to grant any further powers to alter, limit or restrain any of the powers vested in any such literary institution, as shall be judged necessary to promote the best interests thereof. (Emphasis in bold supplied by me.)

Both constitutions recognize the importance of “a general diffusion of education” or a “general diffusion of knowledge and learning.” Both clauses are found in the part of the state constitutions that deal with the respective state’s form of government and not in the bill of rights section. This underscores how each state’s founders believed education was fundamental to the success of their democracy.

The Maine case of School District No. 1 v. Education Commissioner 1995) made clear that the language I bolded above was important to the justice’s determination that education funding is a responsibility of local communities. However, the justices allowed that a community’s failure to fund may create a responsibility for the state. Here, the justices wrote: “Plaintiffs presented no evidence at trial that any disparities in funding resulted in their students receiving an inadequate education. Rather, plaintiffs challenged under equal protection law the method by which funding reductions were implemented.”

The justices in the Claremont case (1997) were equally clear that education is a fundamental state responsibility when they wrote: “As we held in Claremont I, ‘part II, article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding.’… Providing an adequate education is thus a duty of State government expressly created by the State’s highest governing document, the State Constitution.”

The difference between the NH and the Maine education clauses, adopted thirty-six years apart couldn’t be more clear. Maine put the onus for funding on the locals and NH kept the responsibility at the state level. It’s also important to understand that NH’s education clause is copied from the Massachusetts education clause and the highest court in Massachusetts considered the clause to create a fundamental right to a state-funded education in the McDuffy v. Sec’y of Education (1993). There, the justices wrote: “an educated people is viewed as essential to the preservation of the entire constitutional plan: a free, sovereign, constitutional democratic State.”

Two other points are worth noting. Maine has a constitutional clause that provides for people’s referenda. Part IV, Section 17. NH’s constitution doesn’t have a counterpart and the justices in one of the Claremont cases ruled that NH is not a referendum state. The ruling came as state leaders, including Governor Shaheen, tried to dodge the responsibility to craft a constitutional funding scheme.

Second, I noted with two asterisks the provision of NH’s constitution that prohibits state funding for religious schools. Unfortunately, this provision was trumped by the Roberts’ courts interpretation of the First Amendment to the US Constitution and, where there is a conflict, the US Constitution is supreme. The Roberts’ court ruling, however, doesn’t overcome the fact that NH’s position is well-stated and clear and those who advocate for religious school vouchers violate the intent of NH’s people, even if the effort has been deemed legal by a constitutionally-and-ethically-challenged US Supreme Court.