The New Hampshire legislature’s attempt to limit the ability of the state courts to enforce constitutional strictures failed earlier this month to obtain the necessary three-fifths majority in the House in order to appear on the November ballot. The amendment would have given the legislature “full power and authority” to determine education standards and funding. The bill had been approved by the Senate and had been endorsed by the Governor.

In a series of cases in the late 1990s (Claremont I, II, and III), the New Hampshire Supreme Court had held that New Hampshire’s education finance system was unconstitutional, had  recognized adequate education as a fundamental right, and had ordered the state to define the standards for an adequate education, and then provide funding to ensure its delivery. In response to the Londonderry v. State decision (2007), the New Hampshire legislature finally established content standards that were acceptable to the court.

Prompted by the Claremont decisions, lawmakers have voted on over eighty proposed constitutional amendments over the past fourteen years that address the sources of responsibility for and control of the education system in the state. In recent debates, Republican lawmakers have attempted to prevent judicial intervention by voting to grant the legislature full discretion in shaping education policy, while Democratic Governor John Lynch has repeatedly pushed for an amendment that would ensure that the state targets aid to the neediest school districts. Democrats and Republicans have both found fault with the school funding formula passed by the legislature in 2008 in response to the court orders, which requires the state to send a base amount of $3,450 for students in every district. Because of the statewide property tax, the existing system has drawn criticism from some for forcing districts whose property taxes are above the amount required for an adequate education to fund school systems in other towns across the state. Others, however, lament the fact that the current system sends the same amount of aid to struggling districts as it does to ones that could easily pay for education through local taxes.

In March, the Republican-controlled Senate and House of Representatives each passed a constitutional amendment, but while both versions gave the legislature the power to form education policy, the senate’s stipulated that the legislature had the obligation to do so. On May 31, leaders in the house reached a compromise with senators and the governor over the language of the amendment, and agreed to the following:

“In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have the responsibility to maintain a system of public elementary and secondary education and to mitigate local disparities in educational opportunity and fiscal capacity. In furtherance thereof, the Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability and to determine the amount of, and the methods of raising and distributing, state funding for public education.”

Some opponents of the proposed amendment object to placing education funding solely in the hands of lawmakers, and fear that this will lead to a diminution of local control, and ultimately to a state income tax. Given the state’s reluctance to meet the standards of Claremont, others argued that the change would lead to reductions in education aid, and that it would shift more of the burden of education funding to local property taxes. The extent to which the courts might still have some authority to review legislative actions is somewhat ambiguous, but, at the least, the amendment would have made it exceedingly difficult to challenge the legislature’s actions because it would have changed the standard of court review from a “strict scrutiny” standard, which places a heavy burden on the state to prove that its policies provide adequate educational opportunities, to a rational basis test under which most governmental actions tend to obtain judicial approval.

Despite the governor’s backing, the amendment failed to gain bi-partisan support, winning only one democratic vote in the senate and zero in the house. House Speaker Bill O’Brian blamed the its failure on Governor Lynch, who, according to house democrats, never spoke to his party’s leaders about the measure.

In recent years, legislative attempts to limit judicial jurisdiction over school funding matters have also failed in Kansas and New Jersey. A constitutional amendment intended to overrule a state court decision declaring that school funding matters were not justiciable and that sought to articulate judicially manageable standards and facilitate judicial review was approved by Florida voters in 1998.