"Oops!" 
– Governor Rick Perry (R-TX) after a ‘brain freeze’ in a recent debate.

Governor Perry’s famous "Oops" moment came at an unfortunate time. But it could happen to any of us, especially those of us over 70 years of age. Last week, while discussing the Claremont decisions, I experienced an embarrassing "Oops."

In that column I discussed the Claremont decisions that took control of education funding. My purpose was to give the background for the House to propose a resolution to change the constitution, CACR 12, to move the policy decisions regarding that funding back to the legislature from the courts.

Unfortunately, I had forgotten that CACR 12 has been stalled in the Senate. The Senate has re-referred the resolution to committee which has the potential of delaying passage for another year.

But the Senate has its own proposed constitutional amendment on the same subject, CACR 14. That resolution is currently on the table in the House. House leadership is now planning to take CACR 14 off the table in order to amend it with the salient features of the stalled CACR 12. If that can pass the NH House, the bill must then go to a committee of conference to resolve the stalemate. That must be completed before the end of June. Therefore, from this point on, I will be discussing CACR 14 instead of CACR 12. 

In last week’s column, we looked at the salient clause of Part II, Article 83 of this state’s constitution, on which the NH Supreme Court based its Claremont decisions. That clause says, (Legislators shall) "cherish the interest of literature and the sciences, and all seminaries and public schools". We questioned how the court could derive from this clause a "duty" for the state to usurp the local education prerogatives in order to fund education at the state level and why no one else had previously noticed that obligation. It did not exist.

At the Constitutional Convention of 1850, a measure was passed to change Article 83 to order the legislature to provide for the state establishment and maintenance of free common schools at the public expense. The voters saw no need cede education control to the state by changing the constitution and the amendment failed passage at the next regular election. The point is that in 1850, nobody thought the constitution required state involvement.

Closer to our time, there was an effort at the 1974 Constitutional Convention to change Article 83 to provide the maintenance and support of a complete system of public elementary and secondary schools. They also wanted to add a new Article 83-A to say that all legislation relating to education would have to be funded by the state. Both of the proposals failed to pass the convention. The point again is that nobody in 1974 was of the opinion that the current constitution mandated a state involvement in education or that the state should fund it.

Education funding is a legislative policy decision not a legal decision. Next week we will explore the CACR 14 amendment.