Here We Go Again -- Or Maybe Not

Edward C. Mosca

Move over Claremont and the other so-called property-poor towns that started the still unresolved Claremont education funding lawsuit. A new gang of towns - the self-styled New Hampshire Communities for the Adequate Funding of Education - are about to ride into court. And they're going to bring the lawsuit that cleans up education funding once and for all. Or at least that's what they think.

Well, here's some free advice to the 25 or so towns that already have pledged more than $150,000.00 for this mother-of-all-education-funding lawsuits: you're wasting your money.

This is the plan. The New Hampshire Communities for the Adequate Funding of Education (let's call them the Londonderry Coalition for short, in
honor of the primary instigator-town) runs to the supreme court claiming that the latest education funding plan doesn't meet the State's constitutional duty to define an adequate education and determine its cost. The supreme court then rules that the State has not done its duty. The legislature and governor react the same way they did back in 1997 to Claremont II, by running around like chickens with their heads cut off. Naturally, a blue-ribbon commission is convened to define an adequate education and determine its cost.

The commission, which naturally gets stacked with educrats, holds numerous public hearings. It hires consultants from all over the country. It considers what other states have done. Then it announces -drum-roll here please- that an adequate education costs $10,000.00 per pupil, or some similar pie-in-the-sky number, and increases at the cost of the consumer price index.

Then, if the legislature doesn't provide state funding of $10,000.00 per pupil, it's back to court to argue that the State is not meeting its constitutional duty. The court agrees and rules that the local property tax is unconstitutional to pay for public education until a state tax or taxes is passed to pay for the $10,000.00 per pupil cost of an adequate education. The legislature and governor, faced with an impending school shutdown, pass a broad based tax or taxes. Wallah! Education funding finally is solved.

How do I know that this is what the Londonderry Coalition is planning? Because it is the same game-plan that has been used successfully in other states. For example, the Supreme Court of Kansas recently ordered that state's legislature to increase spending by $285 million, based upon a study the Kansas legislature had commissioned to determine the cost of an adequate education.

How do I know the same thing won't happen here? Because while New Hampshire may no longer be a red state, "broad-based taxes," - our lovely euphemism for income, sales, and statewide property taxes that aren't primarily local property taxes in drag - remain the proverbial third-rail of state politics. And it would take a broad-based tax or taxes to pay for what the Londonderry Coalition thinks an adequate education should cost.

The career politicians that run our citizen legislature are not going to put themselves in the position of having to pass a broad-based tax to
prevent schools from closing. And if they ever did, they would soon be former career politicians. Just ask Democrats who had the misfortune of
running when Arnie Arnesen, Wayne King and Mark Fernald were at the top of their ticket about what voters think of politicians who are associated with broad-based taxes.

Of course, there's always the possibility that the supreme court could either commission its own study to determine the cost of an adequate education or accept a study offered by the Londonderry Coalition. But it is a slim possibility. While there is too much hubris on the supreme court for it to ever admit that Claremont was an ill-conceived and outrageous act of judicial activism and overrule it, there is also too much discretion to extend it to the degree proposed by the Londonderry Coalition.

Ordering the legislature and governor to spend $10,000.00 per pupil, or whatever figure the Coalition came up with, would be tantamount to a
judicial declaration of war not just on the legislature, but on the majority of voters who do not want broad-based taxes. And while these voters may not understand, or even care about, the principle of a government based on a separation of powers, they care quite a bit about taxes. Which means the legislature could fight back, for example by slashing the court's budget or by increasing the size of the supreme court to a number necessary to overrule Claremont, without paying a political price.