With amendments, 'devil is in the details'

Something new, and very important, happened recently. A bipartisan constitutional amendment designed to fix the education funding mess was introduced in the Senate.

The proposal, sponsored jointly by Joe Foster, the Senate majority leader and a Democrat, and Ted Gatsas, the Senate minority leader and a Republican, reads as follows: "In fulfillment of the state's duties set forth in the preceding article, the general court shall have the authority and responsibility to reasonably define the content of an adequate public education and to distribute state funds for public education in the manner that it reasonably determines to alleviate local disparities."

In order to gain the supermajority votes in the Legislature and among the voters that are necessary to pass any constitutional amendment, bipartisan support is critical. And so is support by the governor. Gov. Lynch has made it crystal clear he wants an amendment, and we can assume that he will eventually jump on the Foster/Gatsas bandwagon.

But it is still too early to break out the champagne. Not all constitutional amendments are created equal and the devil truly is in the details. The question is whether the new proposal does everything that needs to be done.

We need to understand that any constitutional amendment must be evaluated against the backdrop of the Claremont and Londonderry cases. This means that whatever the amendment does not change remains in place.

So here is what the Claremont/Londonderry cases have stuck us with: (1) the state (acting through the Legislature, not local school districts) must (a) define an adequate education, (b) determine its cost, (c) pay 100 percent of that cost, and (d) establish standards of accountability; (2) whatever the Legislature comes up with may be challenged in court and (incredibly) will be presumed to be unconstitutional; and (3) if the Legislature chooses to fund what it says (or, more accurately, what the court says) is the cost of an adequate education with a tax, that tax may be a state tax and, thus, must be levied at a uniform rate in every town and city.

As I read it, the Foster/Gatsas amendment gives us only half-a-loaf. By saying that the Legislature may "reasonably" define an adequate education, it grants that legislative act the traditional presumption of constitutionality. However, it does nothing to reverse the Claremont/Londonderry presumption of unconstitutionality with respect to legislative judgments of cost. That means, for example, that the recent report of the legislative costing commission setting the cost at about $900 million won't be worth the paper on which it is written.

Secondly, the Foster/Gatsas amendment does not, at least not expressly, address the Claremont/Londonderry requirement that the state pay 100 percent of the cost of an adequate education. So long as that requirement persists, New Hampshire will have to have an income tax, a general tax or the statewide property tax. This is not a matter of constitutional imperative. It is just the result of real-world economics: the state simply cannot raise $900 million, or anything close to it, without a broad-based tax. (And, by the way, if that broad-based tax is the statewide property tax, there will be donor towns.)

Finally, the Foster/Gatsas amendment fails to do effectively what it minimally is intended to do — which is to permit the targeting of state funds.

The amendment says the Legislature may distribute state money "in the manner that it reasonably determines to alleviate local disparities." That begs the obvious question: what disparities? If this refers to disparities in educational need (as in the case of non-English speaking students), that kind of targeting is probably already permissible under the Claremont/Londonderry regime because such differences can be taken into account in determining the cost of an adequate education.

As Gov. Lynch has made clear, disparities in financial need are just as important as disparities in educational need. He wants to get rid of the accounting fiction that we call the statewide property tax, which necessarily means that local school districts will — as they always have — be required to shoulder a portion of the educational funding burden. On the other hand, he wants to send a disproportionate share of the genuine state funds to the property-poor districts which really need it. In other words, he quite rightly believes that we should be sending state money to Claremont, Allenstown and Franklin, not Amherst, Hollis and Moultonborough. Although the Foster/Gatsas amendment may be intended to authorize this type of targeting, such is not obvious from its words.

Although brevity and simplicity are much to be desired in constitutional language, complex problems sometimes require more detail. Fortunately, Sens. Foster and Gatsas have provided a good platform upon which to stand.

All we need to do is tweak their proposal in a few ways. If their amendment were altered as follows, all three of the problems identified above would be solved: "In fulfillment of the state's duties set forth in the preceding article, the general court shall have the authority and responsibility to reasonably define the content of an adequate public education, its cost and the state's share thereof and to distribute state funds for public education in a manner that it reasonably determines to alleviate local disparities in educational opportunity and fiscal capacity."

It is time to bring some sanity to the debate over education funding. Sens. Foster and Gatsas have made a good start.

By Eugene M. Van Loan III who is vice chairman of The Josiah Bartlett Center for Public Policy in Concord and is an attorney at Wadleigh, Starr and Peters in Manchester. He writes frequently on constitutional issues.