The New Hampshire Supreme Court’s latest education funding decision is simply a political manifesto camouflaged as constitutional law.  The Court’s stated reason for striking down the latest funding law was that the other branches had not passed an acceptable definition of an adequate education.  But where in the Constitution does it say that the Legislature and Governor must define an adequate education, let alone a definition acceptable to the Supreme Court?  Certainly not in Part II, Article 83, the supposed source of the duty to define an adequate education.  Article 83 simply says that “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.” 

            The Court has never explained how this language obligates the representative branches to pass legislation defining an adequate education.  Prior supreme courts never interpreted this language to create such a duty.  In fact, the first time the notion of a constitutional right to an adequate education ever appeared in a supreme court decision was in Claremont I in 1993, which was more than 200 years after Part II, Article 83 was enacted.  

            While one would never know it from reading the Claremont decisions, defining an adequate education is one of many legitimate policy approaches to delivering public education.  For example, it certainly is arguable that a better way to deliver public education is to allow school districts or individual schools to develop their own curriculums and policies.  Another arguably superior policy approach is to force public schools to improve by allowing school choice. 

The Constitution leaves it to the Legislature and the Governor to determine which of these and other education policies to use to cherish the public schools.  So for the Court to say that throughout the Claremont litigation it has deferred to the representative branches regarding education policy is pure poppycock.  Whether to enact a statewide definition of an adequate education is every bit as much a policy choice as how to write such a definition.

The Court’s contention in its latest Claremont decision that it has consistently deferred to the representative branches regarding the “substantive content of a constitutionally adequate public education” is also pure poppycock.  The Court has never refrained from weighing in on what the definition of an adequate education should look like.

  Claremont I described the representative branches’ duty simply as defining an adequate education.  In Claremont II, however, the Court struck down a definition developed by the State Board of Education because that definition supposedly did not “sufficiently reflect the letter or spirit of the State Constitution’s mandate” and ruled that the definition of an adequate education must be based on seven criteria taken from a 1989 decision by the Supreme Court of Kentucky.  In its latest Claremont decision, the Court ruled that the definition enacted in response to Claremont II is unacceptable because it does not “allow for an objective determination of costs.”  

The only consistent aspect of the Court’s jurisprudence regarding the definition of an adequate education is that a constitutional definition is a moving target.  In one case all the constitution supposedly requires is that the representative branches define adequacy; in the next case, adequacy must be defined based on Kentucky case law written 200 years after the Constitution; and now the definition must resemble a McDonald’s menu. 

The biggest whopper is the Court’s claim that it can set a deadline for the Legislature and Governor to write an acceptable definition of an adequate education and then write such a definition itself because “in the absence of action by other branches, a judicial remedy is not only appropriate but essential.” The only legal authority the Court cites to support this claim that it can exercise legislative and executive powers is a decision it issued in 2004 regarding redistricting of house and senate districts.  That decision, however, simply assumes what needs to be proven, which is that the Supreme Court can exercise legislative and executive powers to remedy what it perceives to be the violation of constitutional rights.

The Constitution is clear that the Supreme Court cannot exercise legislative and executive powers as it provides in Part I, Article 37 that governmental powers must be separated between the three branches of government. The Court has no constitutional authority to set a deadline for the other branches to define an adequate education or to write, directly or indirectly, its own definition of an adequate education.

The representative branches should use all of the tools at their disposal to resist this judicial imperialism. Unfortunately, they won’t because most of our politicians can be placed into two groups. Those that are not even aware of the constitutional right to a government based on the separation of powers and those that are, but are willing to sacrifice principle to achieve a political result they favor.