The Hippo


Jun 4, 2020








Learning responsibility
Education funding debate turns on a word


It’s all about the word “responsibility.” 
The word is important in the debate surrounding state education funding. House Majority Leader D.J. Bettencourt, R-Salem, recently floated language that could be the compromise the House and Senate are looking for, and the word “responsibility” is key. 
For 14 years, New Hampshire has had trouble addressing education funding. There have been 80 unsuccessful legislative attempts to deal with it. The dilemma is that the state Supreme Court’s 1997 ruling requires the state to fund an adequate education for every student in the state, regardless of how much each community spends, itself, on education. Many officials would prefer to allow the state to target aid to needy communities, those with low property tax bases on which to draw. 
During the last year or so, the House, the Senate and Gov. John Lynch have squabbled over language for a constitutional amendment that would allow the state to target aid. “Squabble” might be a harsh assessment, because it appears all three entities are committed to getting something passed. Following the 2010 election, education funding was one of the few areas in which pundits figured Lynch and Republican leadership in the Legislature had common ground. 
Last year, the Senate and the House passed their own versions of education funding legislation, and Lynch released language that would be suitable to him for an amendment. The Senate and the House don’t need Lynch’s support to get an amendment through the legislature, but they might need it if they ultimately want an amendment passed at the ballot box. Last fall, House Speaker William O’Brien, R-Mont Vernon, attached Lynch’s language to a House bill and asked lawmakers to kill it, which they promptly did. The House also killed the Senate version of the bill. O’Brien’s strategy was to narrow the playing field to one bill: his bill. House lawmakers signed off on O’Brien’s bill with a supermajority of House members. 
Fast forward to this year, when the Senate made substantive changes to the House bill’s language, and so the two bodies must iron out their differences before the measure can go to a statewide ballot. That’s no small task, as the particular word choice is vitally important. 
O’Brien’s version calls for the Legislature to have essentially all the control over education funding. It would give lawmakers control to set the funding amount and determine how to raise the money ? some say it gives them the authority to opt out of funding state education. Opponents say it removes the court system from the process. O’Brien has countered that appointed judges shouldn’t be determining education funding amounts. He has said education should be treated like all other state agencies, in which the Legislature has control over funding. 
The Senate version gives the Legislature authority over education funding and includes the word “responsibility,” which suggests lawmakers can’t decide against funding education. The word “responsibility” signals court oversight to many, which can be good or bad news, depending on the perspective.
A compromise?

That’s not even the long way around to the fact that House leadership, or at least Bettencourt, has floated new language for a constitutional amendment that might get the job done. 
“Specifically, we had to be sure the inclusion of the term ‘responsibility’ in the amendment, which is seemingly a ‘deal-breaker’ for the Governor and Senate, does not result in a continuation of the type of judicial review we have seen under the Claremont decisions, in which the New Hampshire Supreme Court inserts itself into policy determinations that should be made by the branches of government accountable to voters, rather than performing traditional judicial review,” Bettencourt wrote in an e-mail to the Republican caucus in the House. 
Bettencourt has embraced his role as driving the compromise train in the House. He even voted for Lynch’s amendment last fall. Here’s the compromise language Bettencourt distributed in the e-mail: 
“...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 the furtherance thereof, the Legislature shall have the full power and authority to make wholesome and reasonable standards for elementary and secondary public education and standards of accountability as it may judge for the benefit and welfare of this state; and the full power and authority to make determinations as to the amount of, and the methods of raising and distributing, state funding for public education as it may judge for the benefit and welfare of this state.”
“We are confident that this language avoids pitfalls while protecting local control of education, allowing the legislature to target aid, and bringing stability to our schools districts,” Bettencourt wrote. Bettencourt wrote that lawmakers also needed to make sure the amendment doesn’t impact the ability to develop charter schools, and that it protects homeschooling and promotes school choice. 
The inclusion of the word ‘responsibility’ suggests the House is caving, at least to a certain extent. Here is the original House version: “The general court shall have the authority and full discretion to define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability therefor, and to mitigate local disparities in educational opportunity and fiscal capacity. Further, in the exercise thereof, the general court shall have full discretion to determine the amount of, and methods of raising and distributing, State funding for education.” 
If both houses of the Legislature sign off on the compromise amendment, or another version, it would be monumental. It would take a three-fifths vote by both bodies for it to appear on a ballot this fall. If it does so — in a presidential election, with an open gubernatorial race and two intriguing congressional match-ups — it would take a two-thirds majority to enact the amendment. 


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