Londonderry School District SAU 12 v. State

907 A.2d 988, 154 N.H. 153, 2006 N.H. LEXIS 131

• Court: Supreme Court of New Hampshire
• Decided: September 8, 2006
• Docket: No. 2006-258
• Status: Published

Opinions

HICKS, J.

Once again, we are called upon to address the basic educational needs of the children of New Hampshire and the State’s obligation to ensure and to fund each educable child’s opportunity to obtain a constitutionally adequate education as required by Part II, Article 83 of the New Hampshire Constitution.

The State appeals a decision of the Superior Court (Groff, J.) finding that the State has failed to fulfill its duty to define a constitutionally adequate education, failed to determine the cost of an adequate education, and failed to satisfy the requirement of accountability, and that House Bill 616 (the current education funding law) creates a non-uniform tax rate in violation of Part II, Article 5 of the New Hampshire Constitution. We affirm the trial court’s finding that the State has failed to define a constitutionally adequate education and stay consideration of its remaining findings.

I

The plaintiffs, Londonderry School District School Administrative Unit (SAU) #12, Merrimack School District SAU #26 and New Hampshire Communities for Adequate Funding of Education, a non-profit organization consisting of nineteen school administrative units and towns, filed a petition for declaratory relief in this court in 2005 seeking a determination that House Bill 616 is unconstitutional. After considering the parties’ briefs regarding whether we should exercise our original jurisdiction, we concluded that “while substantial questions of constitutional law are presented by this case, we believe further factual development is necessary in the superior court before those questions are decided.” Accordingly, the plaintiffs’ action was dismissed without prejudice.

The plaintiffs then filed a petition for declaratory relief and a motion for summary judgment in the superior court challenging the constitutionality of House Bill 616 on grounds that the statute: (1) fails to define, determine the cost of, and ensure delivery of a constitutionally adequate education; (2) requires a number of municipalities to fund a constitutionally adequate education through local taxes; (3) all but eliminates so-called “donor communities” and imposes an unreasonable and disproportionate tax burden on property-poor municipalities with respect to the funding of education; and (4) creates a class of former donor communities that retain all the revenue they raise through the statewide enhanced education tax, resulting in a violation of equal protection. The trial court found House Bill 616 unconstitutional on its face and granted the motion for summary judgment.

II

In Claremont School District v. Governor (Accountability), 147 N.H. 499, 505 (2002), we acknowledged the State’s assertion that Claremont School District v. Governor, 142 N.H. 462 (1997) (Claremont II) issued “four mandates: define an adequate education, determine the cost, fund it with constitutional taxes, and ensure its delivery through accountability,” and that these four mandates comprise the State’s duty to provide an adequate education. We focus here upon the first mandate: defining a constitutionally adequate education.

Since the inception of the education cases in 1993, we have consistently deferred to the legislature’s prerogative to define a constitutionally adequate education. In Claremont School District v. Governor, 138 N.H. 183 (1993) (Claremont I), we stated that “[w]e do not define the parameters of the education mandated by the constitution as that task is, in the first instance, for the legislature and the Governor.” Id. at 192. We expressed our confidence that the legislature and the Governor would “fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government.” Id. at 193.

In Claremont II, we looked to “the seven criteria articulated by the Supreme Court of Kentucky as establishing general, aspirational guidelines for defining educational adequacy.” Claremont II, 142 N.H. at 474 (emphasis added). We expressly viewed these guidelines as “benchmarks of a constitutionally adequate public education” and “anticipate^] that [the other branches of government would] promptly develop and adopt specific criteria implementing these guidelines.” Id. at 475. As we explained, “[w]hile the judiciary has the duty to construe and interpret the word ‘education’ by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program it deems necessary to provide that ‘education’ within the broad guidelines,” id. (quotation omitted; emphasis added), all consistent with the duties imposed by Part II, Article 83.

In Claremont School District v. Governor (Motion for Extension of Deadlines), 143 N.H. 154 (1998), the State acknowledged that the legislature had yet to achieve “a system to ensure delivery of a constitutionally adequate education.” Id. at 160 (quotation omitted). We, therefore, “declined the ... invitation to determine whether the definition adopted is facially unconstitutional.” Id. In Claremont School District v. Governor (Statewide Property Tax Phase-In), 144 N.H. 210 (1999), we denied as premature the plaintiffs’ request to assign a master for purposes of fact-finding to determine the definition of a constitutionally adequate education. Id. at 212; cf. Pauley v. Bailey, 324 S.E.2d 128 (W- Va. 1984) (on remand, trial court appointed special master to oversee development of master plan for constitutional' adequacy). In Opinion of the Justices (Reformed Public School Financing System), 145 N.H. 474 (2000), we noted that constitutional adequacy had yet to be defined and that “[t]he content of a constitutionally adequate education must be defined, in the first instance, by the legislature.” Id. at 478.

Ill

Today, the State argues that it has defined a constitutionally adequate education in RSA 193-E:2 (Supp. 2005). That statute, titled “Criteria for an Equitable Education,” provides:

An equitable education shall provide all students with the opportunity to acquire:

I. Skill in reading, writing, and speaking English to enable them to communicate effectively and think creatively and critically.

II. Skill in mathematics and familiarity with methods of science to enable them to analyze information, solve problems, and make rational decisions.

III. Knowledge of the biological, physical, and earth sciences to enable them to understand and appreciate the world around them.

IV. Knowledge of civics and government, economics, geography, and history to enable them to participate in the democratic process and to make informed choices as responsible citizens.

V. Grounding in the arts, languages, and literature to enable them to appreciate our cultural heritage and develop lifelong interest and involvement in these areas.

VI. Sound wellness and environmental practices to enable them to enhance their own well-being, as well as that of others.

VII. Skills for lifelong learning, including interpersonal and technological skills, to enable them to learn, work, and participate effectively in a changing society.

RSA 193-E:2.

The State argues that this definition of adequacy “accords with the definitions upheld by the judiciaries of other states around the nation,” citing West Virginia, Kentucky, Montana and Washington. An examination of the cases and statutes in those states, however, reveals otherwise. In West Virginia, for example, an action was brought by parents of school children contending that the system for financing public schools violated that state’s constitutional guarantee of a “thorough and efficient” education. Pauley v. Kelly, 255 S.E.2d 859, 861 (W. Va. 1979) (quotation omitted). Although the state supreme court of appeals remanded the case “for further evidentiary development,” because the case involved “significant and far-reaching public issues,” id. at 863, the court proposed certain guidelines to the trial court, including identifying the parameters of a “[tjhorough and [ejfficient” educational system, ultimately holding that the legislature has the constitutional duty “to develop a high quality Statewide education system.” Id. at 861. On remand the trial court found that the State had failed “to perform its constitutional and statutory duties with respect to formulating high quality standards for education” because the standards promulgated by the board of education were “far too general and minimal to define the elements of a thorough and efficient system of education.” Pauley v. Bailey, 324 S.E.2d at 132 (quotation omitted). The trial court appointed a special master to oversee the development of an educational master plan that contained “an extensive compilation of detailed concepts and standards that defines the educational role of the various state and local agencies, sets forth specific elements of educational programs, enunciates consideration for educational facilities and proposes changes in the educational financing system.” Id.

Similarly, in Kentucky, a group of school districts and public school students brought an action challenging whether the Kentucky General Assembly had complied with its constitutional mandate to “provide an efficient system of common schools throughout the state.” Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 189-90 (Ky. 1989) (quotation omitted). The state supreme court declared the system of common schools to be constitutionally deficient and directed the legislature to “re-create ... and re-establish a system of common schools within this state which will be in compliance with the Constitution.” Id. at 214. In doing so, the court set out standards for a new system, including identifying seven “capacities” with which each and every child was to be provided through an efficient system of education. Id. at 212. The court indicated that the seven characteristics “should be considered as minimum goals in providing an adequate education.” Id. at 214 n.22. The Kentucky legislature subsequently enacted the Kentucky Education Reform Act of 1990, “which radically changed the system of public education” in that state. Chapman v. Gorman, 839 S.W.2d 232, 234 (Ky. 1992).

In Montana and Washington, although the applicable statutes contain general definitions of an adequate education, in each state the legislation defines the substantive content of the educational program implementing the general definitions. In Montana, the legislature established five “goals” for public elementary and secondary schools. Mont. Code. Ann. § 20-1-102 (2005). The statutory scheme also identifies “the minimum standards upon which a basic system of free quality public elementary and secondary schools is built,” and the “educationally relevant” factors the legislature must consider. Mont. Code Ann. §§ 20-9-309(2)(a), (3); see Mont. Code Ann. § 20-9-309(4)(b)(i) (2005).

In Washington, the state supreme court interpreted the constitutional provision that “[i'jt is the paramount duty of the state to make ample provision for the education of all children residing within its borders,” as creating a judicially enforceable, affirmative duty. Seattle Sch. Dist. No. 1 of King Cty. v. State, 585 P.2d 71, 83, 85 (Wa. 1978) (quotation and emphasis omitted). The court held that pursuant to that duty, the legislature has the responsibility to define and give content to a basic education and a basic program of education. Id. at 95. The “Basic Education Act,” codified in the Washington statutes, requires each school district “to provide opportunities for all students to develop” essential knowledge and skills in four broad categories. Wash. Rev. Code § 28A.150.210 (2004). The state board of education is required to establish a program that includes “the essential academic learning requirements ... and such other subjects and such activities as the school district shall determine to be appropriate for the education of the school district’s children,” Wash. Rev. Code § 28A.150.220(l)(a), (b), and to “adopt rules to implement and ensure compliance with the program requirements,” Wash. Rev. Code § 28A.150.220(4). See also Mass. Gen. Laws Ann. ch. 69, § 1 (West 1996) (intent of statute is to provide “public education system of sufficient quality to extend to all children the opportunity to reach their full potential and to lead lives as participants in the political and social life of the commonwealth and as contributors to its economy”), § IB (duties of the board of education), § ID (statewide educational goals and academic standards), § IE (curriculum frameworks), § II (performance reports, evaluation system and assessments); Hancock v. Commissioner of Educ., 822 N.E.2d 1134, 1137-38 (Mass. 2005) (Massachusetts Education Reform Act of 1993 established uniform, objective performance and accountability measures for every public school student, teacher, administrator, school and district in the state). Therefore, although each state noted above provides, as part of a comprehensive statutory scheme, a general definition of an adequate education, each state also establishes a mechanism through which educational content is identified in fulfillment of constitutional duties.

In the case before us, the State asserts that the system of education in New Hampshire goes well beyond constitutional adequacy. In its brief, the State argues that “statutes and regulations ... implement [the definition of adequacy] with a specificity that far exceeds constitutional requirements”; that by complying with the federal No Child Left Behind Act of 2001 and “establishing a comprehensive system for holding its schools accountable, the State has exceeded the constitutional requirements of accountability”; that “the annual testing and statewide performance targets ... far exceed the constitutional standard of adequacy as defined by the legislature in RSA 193-E:2”; and that the “school approval standards go well beyond the constitutional floor of adequacy” and “far surpass the constitutional minimum of adequacy.” For purposes of this appeal, we will accept these assertions. These assertions themselves, however, expose the core issue before us. If the statutory scheme that is in place provides for more than constitutional adequacy, then the State has yet to isolate what parts of the scheme comprise constitutional adequacy. More specifically, under the statutory scheme there is no way a citizen or a school district in this State can determine the distinct substantive content of a constitutionally adequate education. Consequently, its cost cannot be isolated. Such a system is also impervious to meaningful judicial review.

IV

The task of developing specific criteria of an adequate education is for the legislature. Claremont II, 142 N.H. at 475. By failing to do so, the legislature creates the potential for a situation in which a superior court judge, or a special master appointed by this court, will be required to decide what is to be taught in the public schools in order to provide the opportunity to acquire “[s]kill in reading, writing and speaking English,” “[s]kill in mathematics and familiarity with methods of science,” “[k]nowledge of the biological, physical, and earth sciences,” “[k]nowledge of civics and government, economics, geography, and history,” “[grounding in the arts, languages, and literature,” “[s]ound wellness and environmental practices,” and “[s]kills for lifelong learning.” RSA 193-E.-2. Similarly, to assess whether a constitutionally adequate education is being provided, a trial judge would likely have to determine the levels of “skill,” “knowledge,” “grounding” and “sound wellness” to which an educable child is entitled. Moreover, RSA 193-E:2 mandates that students be provided the “opportunity to acquire” such skills and knowledge. Without more, a trial judge or a special master would have to determine the adequacy of the “opportunity” to be afforded. Determining the substantive educational program that delivers a constitutionally adequate education is a task replete with policy decisions, best suited for the legislative or executive branches, not the judicial branch.

RSA 193-E:2 largely mirrors the seven criteria that we cited with approval in Claremont II, 142 N.H. at 474-75. We characterized those criteria as establishing “general” and “aspirational” guidelines for defining educational adequacy and made clear that the legislature was expected to develop and adopt specific criteria for implementing the guidelines. In the years since RSA 193-E:2 was adopted, this court and the State have acknowledged that constitutional adequacy has yet to be defined. Standing alone, RSA 193-E:2 does not fulfill the State’s duty to define the substantive content of a constitutionally adequate education in such a manner that the citizens of this state can know what the parameters of that educational program are. The right to a constitutionally adequate education is meaningless without standards that are enforceable and reviewable. See Claremont School Dist. v. Governor (Accountability), 147 N.H. at 508 (definition of constitutionally adequate education must have standards subject to meaningful application). Furthermore, without a substantive definition of constitutional adequacy, it will remain impossible for school districts, parents, and courts, not to mention the legislative and executive branches themselves, to know where the State’s obligations to fund the cost of a constitutionally adequate education begin and end.

The State further argues that, aside from the constitutionally sufficient definition of adequacy in RSA 193-E:2,

[t]he Legislature has delegated to the State Board the authority and the duty to prescribe uniform standards for all public schools in New Hampshire. RSA 194:23; RSA 186:8; RSA 21-N:9. The State Board has responded by enacting comprehensive and detailed minimum standards for public school approval. See [N.H. Admin. Rules] Ed 306.01 et seq. Local school boards are required by statute to “comply with the rules and regulations of the state board.” RSA 186:5; RSA 186:8. The school approval standards are very detailed and demanding; they govern nearly every facet of a school’s operation. The standards prescribe how schools must be organized and staffed as well as the particular educational content of each subject taught. See e.g., [N.H. ADMIN. Rules] Ed 306.17 (setting forth maximum class sizes); [N.H. ADMIN. Rules] Ed 306.37 (detailing requirements for English program). These standards are monitored by DOE, which grades individual schools on their compliance with the standards. [N.H. Admin. Rules] Ed 306.40(b)(l)-(4).

(Emphasis added.)

If it is the State’s position that RSA 193-E:2 together with the education rules and regulations, curriculum frameworks and other statutes define a constitutionally adequate education, we defer to the legislature’s judgment. We note, however, that if the current system of delivery in combination with the statutory definition establishes a constitutionally adequate education, there would be no need for any local education taxes as the State would be required to pay for implementing the entire statutory scheme. Indeed, if that is the case, we question whether $837 million, the amount currently allotted for public education under House Bill 616, is facially sufficient to fund the school system as required by that statutory scheme. Alternatively, if, as the State asserts, the education rules and regulations, curriculum frameworks and other statutes provide some level of education beyond that of a constitutionally adequate education, the point of demarcation cannot currently be determined.

Any definition of constitutional adequacy crafted by the political branches must be sufficiently clear to permit common understanding and allow for an objective determination of costs. Whatever the State identifies as comprising constitutional adequacy it must pay for. None of that financial obligation can be shifted to local school districts, regardless of their relative wealth or need.

V

The trial court found House Bill 616 facially unconstitutional in part because it does not contain a definition of constitutional adequacy. House Bill 616 simply modifies the adequacy aid formula. Although the State must define constitutional adequacy in accord with this opinion, House Bill 616 standing alone need not necessarily contain such a definition for the bill itself to pass constitutional muster. Viewed together, however, the current education funding and “definitional” statutory framework falls well short of the constitutional requirements established in this court’s Claremont decisions.

Because the definition of a constitutionally adequate education is essential to all other issues, including the cost of a constitutionally adequate education and the method by which to raise the necessary funds, we stay that portion of the case containing the trial court’s findings that the legislature has failed to determine the cost, failed to satisfy the requirement of accountability and established a non-uniform tax rate. As to the core definitional issues, we will retain jurisdiction with the expectation that the political branches will define with specificity the components of a constitutionally adequate education before the end of fiscal year 2007. Should they fail to do so, we will then be required to take further action to enforce the mandates of Part II, Article 83 of the New Hampshire Constitution. Such appropriate remedies may include: (1) invalidating the funding mechanism established in House Bill 616 as set forth in the concurring opinion of Justice Galway; (2) appointing a special master to aid in the determination of the definition of a constitutionally adequate education, see Below v. Secretary of State, 148 N.H. 1, 2-3 (2002) (“the supreme court has been called upon to establish a new district plan for the New Hampshire Senate ... because the New Hampshire Legislature failed to [do so] following the 2000 census”); or (3) implementing the remedy outlined in the concurring opinion of Justice Duggan and remanding the case to the trial court “for further factual development and a determination of whether the State is providing sufficient funding to pay for a constitutionally adequate education.”

Respectful of the roles of the legislative and executive branches, each time this court has been requested to define the substantive content of a constitutionally adequate public education, we have properly demurred. Deference, however, has its limits. We agree with Justice Galway’s concern that this court or any court not take over the legislature’s role in shaping educational and fiscal policy. For almost thirteen years we have refrained from doing so and continue to refrain today. However, the judiciary has a responsibility to ensure that constitutional rights not be hollowed out and, in the absence of action by other branches, a judicial remedy is not only appropriate but essential. Petition of Below, 151 N.H. 135 (2004).

We urge the legislature to act.

Affirmed in part; and stayed in part.

BRODERICK, C.J., and DALIANIS, J., concurred; Duggan, J., concurred specially in part and dissented in part; Galway, J., concurred specially in part and dissented in part.