HCR 3 - AS INTRODUCED
2021 SESSION
21-0691
06/04
HOUSE CONCURRENT RESOLUTION 3
A RESOLUTION declaring that the Claremont case's mandates that the legislative and
executive branches define an adequate education, determine its cost, fund its
entire cost with state taxes, and ensure its delivery through accountability,
are not binding on the legislative and executive branches.
SPONSORS: Rep. Lewicke, Hills. 26
COMMITTEE: Judiciary
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ANALYSIS
This concurrent resolution declares that the Claremont case’s mandates that the legislative and
executive branches define an adequate education, determine its cost, fund its entire cost with state
taxes, and ensure its delivery through accountability, are not binding on the legislative and
executive branches.
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 HCR 3 - AS INTRODUCED
21-0691
06/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
A RESOLUTION declaring that the Claremont case's mandates that the legislative and
executive branches define an adequate education, determine its cost, fund its
entire cost with state taxes, and ensure its delivery through accountability,
are not binding on the legislative and executive branches.
1 Whereas, the members of the executive and legislative branches of the state of New Hampshire,
2 having made and subscribed an oath to God and to the state and its constitution, or alternatively, by
3 affirming under the pains and penalties of perjury, their allegiance to the state of New Hampshire
4 and its constitution pursuant to Part 2, Article 84 of said constitution, hereby find that the New
5 Hampshire supreme court decisions in the Claremont cases were wrong and that the supreme court
6 does not have the constitutional power to tell the legislature whether and how to set educational
7 policy, whether and how much to spend on education, whether and how to fund its cost, and whether
8 and how to provide accountability, and that, accordingly, these aspects of the Claremont decisions
9 and any and all consequences that flow therefrom do not have the force and effect of the law; and
10 Whereas, in furtherance of this position, the legislature finds that under Part 1, Article 29 of the
11 New Hampshire constitution, the legislature possesses the sole authority to create laws, and that
12 under Part 1, Article 29 of said constitution, the legislature possesses the sole authority to suspend
13 laws. Moreover, the legislature finds additional constitutional support for its position as follows:
14 (a) Part 1, Article 1, relative to the origin and object of government.
15 (b) Part 1, Article 2, relative to individual property rights.
16 (c) Part 1, Article 6, relative to local control of education, both religious and secular.
17 (d) Part 1, Article 12, relative to the consent of the governed on both taxation and laws.
18 (e) Part 1, Article 28, relative to the consent of the people, or their representatives in the
19 legislature, prior to the establishment or imposition of a tax.
20 (f) Part 1, Article 28-a, relative to the prohibition on unfunded mandates.
21 (g) Part 1, Article 31 and Part 2, Article 2, relative to the authority of the legislature to
22 make laws.
23 (h) Part 2, Article 83, relative to the New Hampshire supreme court’s inconsistent and
24 unsupported interpretation of “cherish” to mean “to require payment for” within the context of this
25 Article; and
26 Whereas, under Part 1, Article 37, the people of New Hampshire have a right to a government
27 based upon the separation of powers. The legislature finds that it would be a violation of this right
28 for the legislature to delegate to the judiciary or to allow the judiciary to assert, directly or indirectly,
29 any of the legislative powers vested exclusively in the general court by Part 2, Article 2; and
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1 Whereas, the legislative power vested exclusively in the general court by Part 2, Article 2
2 includes the power and discretion to determine whether and how to set educational policy, whether
3 and how much to spend on education, whether and how to fund its cost, and whether and how to
4 provide accountability. Therefore, the legislature finds that it is wrongful for the judiciary, either
5 directly or indirectly, to define educational adequacy, to determine the cost of educational adequacy,
6 to specify how to fund educational adequacy, or to provide accountability. (See, e.g., Coleman v.
7 School District of Rochester, “The courts may not declare acts of the legislature void on the sole issue
8 whether they are ‘wholesome and reasonable.’ The legislature is to judge whether they are for ‘the
9 benefit and welfare’ of the state.”); and
10 Whereas, Part 2, Article 83 nowhere states what the supreme court claims it states; there is no
11 mention anywhere in said Article that the state has a duty to “fund” education; rather, it says only
12 “cherish,” which does not mean “fund” because when our framers wanted the state to fund something
13 they were very specific using terms such as “pay towards the support of” and “at the expense of the
14 state” and “salaries, ascertained and established by standing laws” (see Part 1, Articles 6, 15, & 35);
15 and
16 Whereas, no state funding was provided for public education for the first 50 years of the state,
17 which conclusively demonstrates that nobody understood the constitution as imposing a duty upon
18 the state to fund public education; and
19 Whereas, every single New Hampshire supreme court, with the exception of the current supreme
20 court, understood that the power to determine whether, how and to what extent to fund public
21 education was exclusively a legislative power. (See, Fogg v. Board of Education, “It is a duty not
22 imposed by constitutional provision, but has always been assumed by the state.”); and
23 Whereas, had the framers intended to make an adequate education a constitutional right, they
24 could have and would have said so in the same way that they enumerated various rights in Part 1 of
25 our constitution, the Bill of Rights, by expressly calling it a right in that portion of our constitution;
26 they would not have hidden a constitutional right to an adequate education in Part 2 of our
27 constitution, the Form of Government, using language so obscure that nobody would discover said
28 “right” for 200 years. (See, Wooster v. Plymouth, “The division of the constitution into 2 Parts was
29 not made without a purpose, and the name of each Part is not without significance.”); and
30 Whereas, the framers of our constitution understood “rights” as freedom from government
31 interference, the right to free speech has never been understood to mean that the government must
32 provide one with a typewriter or fax machine, only that the government cannot prevent one from
33 ventilating his or her viewpoint; in contrast, the “right” to an “adequate education” declared by our
34 supreme court is a claim upon government, which is totally inconsistent with the nature of the types
35 of rights recognized by the framers and, not surprisingly, the nature of the actual rights contained in
36 our constitution; and
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1 Whereas, Part 1, Article 6 specifically stipulates that education is a local right; the right of the
2 local communities to elect and contract with their own teachers must include the right to determine
3 what is taught, the cost of that instruction, and the obligation to fund that cost through locally
4 approved means (including local school taxes); and
5 Whereas, the educational system that the supreme court declared unconstitutional and the
6 provisions of the constitution that the supreme court relied upon to strike it down, peacefully co-
7 existed for more than 200 years; New Hampshire’s locally controlled public schools that were locally
8 funded through local school tax districts were arbitrarily transformed into one large school district,
9 one large tax district for school tax purposes, and one uniform statewide tax rate which created
10 arbitrary donor and receiver towns; therefore the assertion by the New Hampshire supreme court so
11 late in our history that educational policy is a matter not for democratic decision making, but for
12 constitutional law is absurd; and
13 Whereas, the supreme court ignored the actions of the first legislatures under the 1784
14 Constitution, wherein they enacted the School Tax Law of 1789, which, through many re-enactments
15 and amendments – whose constitutionality was never cast into doubt – served until 1919 as the
16 model for public school funding: by taxes locally raised and locally applied; and
17 Whereas, the Claremont decisions are irreconcilable with the structure, text, and history of our
18 constitution; the “right” to an “adequate education” declared in the decisions and the “duty” of the
19 state to fund this right are nothing more than the views of the justices of the supreme court of what
20 constitutes good social policy and, therefore, do not have the force and effect of law; and
21 Whereas, the legislature hereby finds and declares that the amount of state funding for public
22 education required by the constitution has been and remains zero dollars, and that the legislature,
23 not the supreme court, has the exclusive power and discretion to authorize any additional state
24 funding, and that, to the extent not prohibited by Part 1, Article 28-a, the state may continue to
25 delegate some or all of the responsibility for providing public education to the local school districts;
26 now therefore, be it
27 Resolved by the House of Representatives, the Senate concurring:
28 That the legislature hereby finds and declares that the Claremont case’s mandates that the
29 legislative and executive branches define an adequate education, determine its cost, fund its entire
30 cost with state taxes, and ensure its delivery through accountability, are not binding on the
31 legislative and executive branches.