LETTERS TO THE EDUCATORS, NO. 10

Is There An Adequate Definition of An Adequate Education?

One of the most bizarre features of the Claremont episode has been the Supreme Court's direction to the Legislature and the Governor to come up with a definition of an "adequate" education and the responses of those two branches to the Court's directive. To begin with, the entire exercise is a sham. In Claremont II, the Court provided its own definition of an adequate education, as follows:
(i) Sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue lifework intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.
Despite the fact that the Court labels its definition as merely a "guideline" of as only a "benchmark", it is obvious that the legislative and executive branches may not adopt something which conflicts with the Court's definitions. What, then, is left for the Legislature and the Governor to do?

As we have observed before, the power of judicial review is the power to declare something unconstitutional. Traditionally, that means that the Court simply informs the legislative branch or the executive branch that it cannot do something that it is doing. It is not generally acceptable for the Court to go farther and tell the other branch what its alternatives are or which alternative ought to be selected. At first blush, the Court's opinion in Claremont II appears to favor neither of these two extremes. On the one hand, it attempts to honor tradition by claiming to "leave educational policy to the two co-equal branches of government" but on the other hand, it offers some input into those policies through the announcement of its own "aspirational guidelines".

The Court's fence-straddling, however, is more apparent than real. First, as the Court's decision in Claremont I demonstrates, it has no genuine appreciation for aspirational guidelines. In that case, the Court took the aspirational language of Article 83 Part II, of the Constitution and concocted a judicially-enforceable right to an adequate education. There is no reason to suppose that the Court will do otherwise with respect to its own formulation. Secondly one can presume that the Court did not go out of its way to announce its own preference for a definition of an adequate education merely because it like the sound of its own voice. If Claremont II were no more than gratuitous pedantry, the Court would not have made such a point of telling the Governor and the Legislature that, "we anticipate that they will promptly develop and adopt specific criteria implementing these guidelines." In some fashion, therefore, the Court's "guidelines" do indeed establish educational policy for the State.

That the Court's "guidelines" have real teeth is best illustrated by the fact that the Court in Claremont II specifically rejects a definition of educational adequacy which had been fashioned by the State Board of Education in response to the Court's directive in Claremont I that just such a definition be created. The Court, stated that the Board of Education's definition was insufficient because, "it is the legislature's obligation, not that of individual members of the board of education, to establish educational standards that comply with constitutional requirements." This statement is complete nonsense. Even assuming that the Legislature has a constitutional duty to establish standards, why is the Legislature not able to delegate that function to the Board of Education?

In a long line of cases, the Court has consistently held that, "the legislature may delegate to administrative agencies the power to promulgate rules necessary for the proper execution of the laws." Although these cases condition the Legislature's authority to delegate its rule-making power upon the requirement that it must "declare a general policy and prescribe standards for administrative action", the Legislature had long ago satisfied this requirement in the field of education through its comprehensive statutory scheme establishing our system of public schools. Among other things, this included implementation of a statewide quality assessment program geared to "what New Hampshire students should know and be able to do" (RSA Chapter 193-C), adoption of the federal requirement that each disabled child receive a "free and appropriate public education" (RSA Chapter 186-C) and a statement of policy that "the more needy school districts... be assisted in providing an adequate education program" (RSA 198:27). Under the established precedents of the Court, these and many other statutory directives were clearly sufficient to authorize the Board of Education to do what numerous other executive agencies in this State do, including the development of statements of public policy.

The other reason that the Court gives for rejecting the Board of Education's definition is that it "does not sufficiently reflect the letter or spirit of the State Constitution's mandate". The definition which the Court rejected is as follows:
An adequate public elementary and secondary education in New Hampshire is one which provides each educable child with an opportunity to acquire the knowledge and learning necessary to participate intelligently in the American political, economic, and social systems of a free government.
Besides materially misrepresenting the Board of Education's definition by quoting only it's preamble, the Court also fails to identify exactly what is deficient about it. Similarly, the Court gives no reason for rejecting the trial court's findings, which had specifically approved the Board's definition. The normal rule in New Hampshire is that findings if fact by a trial court are accepted by an appellate court unless they are unsupported by the evidence or otherwise contrary to law. Consequently, although we are never informed in what manner the Board's definition of educational adequacy conflicts with the Court's guidelines, it is clear that the guidelines are much more than merely "aspirational".

What then, is so endearing about the Court's definition? Indeed, many people would characterize it as nothing more than modern-day sociological jargon. The only authority which the Court gives for its definition is the fact that it had previously been adopted by the State of Kentucky. In Claremont I , the Court had already decreed - as a matter of constitutional law - that, "Mere competence in the basics - reading, writing, and arithmetic - is sufficient in the waning days of the 20th century to insure that the State's public school students are fully integrated into the world around them." Although the Kentucky definition responds to such a notion, the Court offers absolutely no explanation as to why it is so superior to any other definition of educational adequacy that it warrants being permanently enshrined in New Hampshire's constitutional lexicon.

More specifically, why is Kentucky's definition of educational adequacy any better than that authored by our Board of Education? Although the Court purported to quote the Board's definition in Claremont II, it did so only in part. Here is the whole thing:
An adequate public elementary and secondary education in New Hampshire is one which provides each educable child with an opportunity to acquire the knowledge and learning necessary to participate intelligently in the American political, economic and social systems of a free government. The components of an adequate public elementary and secondary education are as follows:
When the Board of Education's complete definition is available to the reader, it is difficult to figure out how it is materially different from the Kentucky definition. Suffice it to say that all one can glean from the Court's Claremont decisions is the bottom line: the Kentucky definition is acceptable to the Court and the State Board's definition is not.

Even if we accept the Court's assertion that there is a constitutionally material distinction between the Kentucky definition and that of the Board of Education, and even if we assume that the Legislature and the Governor have some genuine room to maneuver in the middle, how is anyone to measure whether they have done the job well or poorly? We have previously discussed how issues of adequacy constitute quintessentially political questions unsuitable for determination by the Judiciary. Nothing illustrates this point better than the futile exercise in which the Legislature and the Governor are now engaged in response to the directives of the Court in the Claremont decisions. Is there some standard of educational adequacy which hangs over us like the proverbial brooding omnipresence to be discovered by some committee or group of experts? Of course there isn't! As the various groups to whom the task has been assigned are learning, educational adequacy is a matter of opinion, not fact. And, as all of these groups are coming to realize, everyone has an opinion on the subject.

For example, if the Board of Education's definition is not adequate, how does one judge the just-released report of the Governor's "blue ribbon" Task Force On Educational Adequacy? The Task Force's definition, which is apparently based upon a North Carolina model, states as follows:
It is the policy of the State of New Hampshire that public K-12 education shall provide all students with the opportunity to acquire the education necessary to prepare them for successful participation in the social, economic, scientific, technological and civic realities of society, now and in the years to come; an education that is consistent with the curriculum and student proficiency standards specified in state school approval rules and New Hampshire curriculum frameworks. An "adequate education" should provide all students with an opportunity to acquire:
Which of these definitions is the best? Is any one of them adequate? Are all of them adequate? What about the fact that the Kentucky definition doesn't even mention science or mathematics? Does it make any difference that the State Board's statement doesn't reference critical thinking skills? What about the Task Force's failure to address resources and facilities?

None of the foregoing definitions, of course, would satisfy the definition preferred by the plaintiffs in the Claremont cases. They took the position in the litigation that "adequacy" of education demands the adoption of an individual education plan for each student tailored to his/her special needs and the dedication of sufficient resources to meet each child's special needs. The plaintiff's definition, which was drafted by Professor Robert Fried of the University of Hartford, is as follows:
Cornerstone One. An "Adequate Education" is one that provides physical, personal, curricular and material resources necessary for children to acquire the skills, knowledge, and values necessary to develop as responsible and productive citizens and to continue formal and informal learning as adults.
Cornerstone Two. An "Adequate Education" recognizes and responds appropriately to conditions that children possess when they enter school that affect their ability to acquire skills, knowledge and values necessary to develop as responsible and productive citizens and continue formal and informal learning as adults.
Cornerstone Three. An "Adequate Education" is managed at the district and building level to provide efficient and effective organization and utilization of resources for the benefit of student educational achievement.
Cornerstone Four. An "Adequate Education" is one that results in a level of student educational achievement that meets the standards necessary for the acquisition of skills, knowledge, and values required for responsible and productive citizens and to continue formal and informal learning as adults.
If all of this doesn't give you a headache, consider these competing concepts, each of which is advocated by somebody in the debate over educational adequacy:
  1. Is educational "adequacy" best measured by inputs or outputs? In other words, do we need to focus upon facilities and resources such as class sizes, teacher qualifications, computer labs, etc. or is it sufficient to let each school district choose it own path so long as its students demonstrate through standardized test that they have learned what we want them to learn?

  2. Is educational "adequacy" a matter of one size fits all or is it a variable standard which takes into consideration the individual needs of individual students? In other words, is adequacy defined by the mean or are there separate standards for the under-achievers and the over-achievers.

  3. Is educational "adequacy" a minimum level of achievement or is it a standard of excellence? In other words, is it a baseline of competence that all students must meet or is it a target of quality such as the one which philosopher John Dewey once suggested: "what the best and the wisest parent wants for his own child"?

  4. Is an "adequate" education best accomplished in an institutional environment or can it be equally or better achieved in some other setting? In other words, are home schooling, religious schools, charter schools and other non-traditional educational venues acceptable ways to provide an education or is the only way the public school way? As we have discussed, "adequacy" is an abstraction which has no objective meaning. It is like asking, how high is "up"? In other words, before adequacy can be defined, one must first define the objective that one is trying to reach. It is important to note that the Court specifically eschewed the opportunity presented to it by the text of the Constitution to put some parameters around the issue of educational adequacy. In this regard, Article 83, states a goal for education which could have been used by the Court as the constitutional standard by which to measure educational adequacy. This point was made by Justice Horton, the lone dissenter in Claremont II. Here is what the Constitution says:
    Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government and spreading the opportunities and advantages of education through the various parts of the country, being conducive to promote this end; it shall be government, to cherish the interest of literature and the sciences, and all seminaries and public schools,...
    As Justice Horton stated, the "constitutional standard for adequacy would be satisfied if the education provided meets the minimum necessary to assure the preservation of a free government".

    On the other hand, even limiting the notion of educational adequacy to that which is necessary to "preserve a free government" is insufficient to eliminate the subjectivity inherent in the task. For example, although Justice Horton states that such a standard "would certainly contain the elements of reading, writing, and mathematics," he goes on to say that "arguments can be made for other elements". Moreover, even under his own preservation-of-free-government test, it is difficult to see what mathematics has to do with it. In the end, therefore, although Justice Horton attempts to confine the definition of educational adequacy to what he calls the "constitutional nut", it is apparent that this standard is ultimately no more objective than the wide-ranging Kentucky definition adopted by the Court's majority. Educational adequacy is still a matter of public choice, not judicially determinable constitutional law.

    The policy choices enumerated above and a thousand other variations on the theme are the kinds of things which the various Claremont-inspired panels have been wrestling with in their efforts to respond to the Court's requirement that the State come up with a definition of an adequate education. And each of the participants in the process, whether they be legislators, citizens, educators, newspaper editors, or all manner of other "experts", has his or her own opinion on the subject. Depending upon the personal views of the individuals making up each one of these panels, therefore, no one should be surprised if they come up with as many different definitions of an "adequate" education as there are panels.

    The more amazing thing about this entire exercise is that no one has paused long enough to ask why the job needs to be done at all. The Legislature's job is to pass laws and the Governor's job is to execute those laws. Prior to the Claremont decisions, neither of these branches of government had any obligation to state why they were doing whatever they did. There clearly is no general constitutional requirement that they create mission statements, preambles or the like. Although the Legislature often finds it useful to do such things, it certainly is not required to do them.

    Instead of challenging the Court's edict, however, the other two branches of government have fallen all over themselves to be the first on the block to come up with an acceptable definition of a constitutionally adequate education. Like a bunch of Keystone Cops, the Governor and the Legislature have formed committees, convened forums, consulted with experts and generally run around like chickens with their heads cut off attempting to comply with the Supreme Court's directive.

    Nothing in the Constitution requires any branch of government to devise a definition of education, adequate or otherwise. At most, all the Constitution requires is that the Legislature and the Executive "cherish" education. The Court, however, has convinced everyone that the Constitution requires some kind of a legislative essay contest. As a result, we all have been compelled to witness the sorry spectacle of the Legislature and the Governor bowing and scraping to the Court in an effort to write the best essay. This in not only inane, but also demeaning-and the Governor and the Legislature should refuse to participate in it.

    Rasputin





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