Of all the Plaintiffs' motions now pending before this Court, the Motion for Compensatory Educational Services most defies logic. On the one hand, the Plaintiffs challenge on unspecified constitutional grounds HB 117's use of statewide assessment tests to determine the cost of an adequate education while, on the other hand, they rely upon the substandard performance of the students in some of the Plaintiff school districts on these very same tests as the basis for their request for compensatory services. On the one hand, they claim that the State has failed to implement an educational delivery system which contains a means to assess educational performance while, on the other hand, they acknowledge that HB 117 does make use of assessment test data and they argue that this Court should use the same data as a grounds for affording them relief. On the one hand, they take the money which they are receiving this year under HB 117 as an adequate education grant and use it to pay less taxes rather than get more education while, on the other hand, they ask this Court to order the State to pay them more money in order to finance "compensatory'' educational services.

To begin with, the Plaintiffs completely ignore the prospective fiscal effect of HB 117 itself upon the funding of education in New Hampshire, including in their own school districts. What HB 117 does is to guarantee that each school district in the State will have sufficient funds to provide every educable child with an adequate education, either as raised and retained locally through the new statewide property tax or as raised through the property tax and supplemented by a State adequate education grant. This is precisely what this Court ordered be done in Claremont II. The point is that the funding guaranteed by HB 117 gives every school district, on a go-forward basis, the wherewithal to adequately educate its students. Whether or not there are schools in the Plaintiff districts which do not presently produce students who perform up to the State's measure of adequacy is irrelevant. HB 117 itself provides them with funding in the future up to the level which the State has determined is sufficient to provide an adequate education.

In essence, the Plaintiffs seek damages for what they claim is a past wrong. Indeed, the very title of their motion reflects its character: Motion for Compensatory Educational Services. What the Plaintiffs are actually doing is asking this Court to give them funds over and above those to which every other school district is entitled in order to make them whole for allegedly having failed to receive such aid in the past.¹ As the Plaintiffs acknowledge, their goal is "to restore the children who are the victims of the State's failure to provide an adequate education to the position they would have occupied in the absence of the State's failure.'' Memorandum of Law in Support of Petitioners' Motion for Compensatory Educational Services, p. 11.²

Among other things, this would make Claremont II retrospective. Yet it is clear that Claremont II was not intended by this Court to be retrospective. Otherwise, what sense would there have been for the Court to delay its effective date until a year and a quarter later in order to give the Legislature "a reasonable time to effect an orderly transition to a new system''? Claremont School District v. Governor, 142 NH 462, 476 (1997). For this reason alone, the Plaintiffs' motion should be denied.

The Plaintiffs suggest that this Court should create a so-called constitutional tort to enforce Article 83, Part II of the New Hampshire Constitution. This Court, however, has already indicated that it would not do so. Claremont School District v. Governor, 138 NH 183, 192 (1993) ("The right to an adequate education mandated by the Constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State's duty.'') The Plaintiffs also offer no principled basis upon which the Court would be able to justify reversing its decision on this matter. In this regard, except for the right to receive just compensation for a taking of private property (where the Constitution is self-executing), New Hampshire has never created a constitutional tort. Marguay v. Eno, 139 NH 708, 721-722 (1995); Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 NH 593 (1986); Edes v. Boardman , 58 NH 580 (1879). Finally, even if Plaintiffs were to make out a sufficient case for the creation of such a new cause of action, it is at least an open question as to whether sovereign immunity would nevertheless bar the claim against the State itself.

More importantly, the Plaintiffs' claim for relief does not even purport to be based upon a violation of the Constitution. The Plaintiffs claim that HB 117 is unconstitutional. Their claim for compensatory educational services, on the other hand, relies upon HB 117 itself and a request to extend its rationale so as to remedy a wrong which the Plaintiffs claim HB 117 identifies. This is not a constitutional tort and, therefore, any discussion about awarding compensatory educational services in order to enforce the Constitution is quite irrelevant.

For similar reasons, the Plaintiffs' citation of Federal cases which discuss the power of the Judiciary to grant equitable remedies for constitutional violations is also beside the point. The remedial power of a court is not invoked until there has been a finding of a legal wrong and if the legal wrong arises out of a right created by statute, one must look to the statute, not the Constitution , to determine whether or not any private right of action thereunder was contemplated by the legislative body which enacted it. E.g., Stillwater Condominium Association v. Town of Salem , 140 NH 505, 508 (1995); Island Shores Estates Condo. Assoc. v. City of Concord, 136 NH 300 (1992); Fisk v. Homestead Woolen Mills, 134 NH 361, 365-366 (1991); Weldy v. Town of Kingston, 128 NH 325, 331-332 (1986).

There is, of course, absolutely no indication in HB 117 that the Legislature intended to create a private right of action for its violation (even assuming that what the Plaintiffs allege here can be construed to be a violation of the statute as opposed to simply a violation of a theory). Moreover, if the basis of the claim of the Plaintiff school districts is that they are districts which do not provide their students with an adequate education, they do not fall within any "protected class'' under the statute. See, e.g., State v. Brosseau, 124 NH 184, 190 (1983). HB 117 is designed to benefit all school districts, not just those that presently have substandard schools.

In any case, all this discussion of a private right of action under HB 117 is moot because the State is the defendant in this case. For the law is clear that regardless of whether or not the Court may be able to infer the existence of a general private right of action under a statute, the Court may not infer the existence of such a cause of action against the State itself without also finding a legislative waiver of sovereign immunity. Dunaisky v. State, 122 NH 280 (1982).³ Since the revisions to RSA 99-D in 1985, a waiver of the State's sovereign immunity can no longer be implied from the Legislature's silence on the issue; any such waiver must be express. Compare, LaRoche, Admin. v. Doe, 134 NH 562 (1991), with , State v. Brosseau, 124 NH 184, 190 (1983), State Employees ' Assn. of N.H. v. Belknap County, 122 NH 614, 621-622 (1982); and Chasse v. Banas, 119 NH 93, 96 (1979). Suffice it to say, there is no express waiver of sovereign immunity in HB 117.⁴

Even assuming that the Plaintiffs can somehow backtrack on their reliance upon HB 117 as the basis for their claim and create a constitutional claim out of it, the real irony of this motion is its reliance upon the discredited Federal jurisprudence of affirmative action. For one thing, it is becoming increasingly clear that the notion of a judicial remedy which creates inequality in order to "compensate'' one for a right which was meant to prevent inequality stands the Constitution on its head. Yet that is exactly what the Plaintiffs propose in this case. They claim a right of all to an adequate education, yet they request this Court to award them more educational services than other school districts receive in order to make up for alleged past deprivations. Thus, to become equal, one must be treated unequally.

More importantly, even the Supreme Court of the United States has expressed grave reservations about the extent of the remedial powers which the Federal Judiciary has been exercising in the name of affirmative action for the last thirty years since that Court decided the Swann and Milliken cases, from which the Plaintiffs quote so extensively. No better example of the Supreme Court's retrenchment can be found than the infamous Kalima Jenkins cases, arising out of one District Court judge's personal assumption of the reins of administrative and fiscal control over the entire Kansas City school system. Compare, Missouri v. Jenkins, 492 U.S. 274 (1989), with Missouri v. Jenkins, 495 U.S. 33 (1990), with , Missouri v. Jenkins, 515 U.S. 70 (1995). As Justice Clarence Thomas wrote in his concurring opinion in the last Jenkins case - which finally put a stop to the judicial excesses engendered by the Swann and Milliken cases - "When we presume to have the institutional ability to set effective educational, budgetary, or administrative policy, we transform the least dangerous branch into the most dangerous one.'' 515 U.S. at 132.

The final irony is that the Plaintiffs' other source of legal authority for their motion is the body of precedent which has grown up around the IDEA. If one went searching for a litigation horror story, one would have to go no further than the IDEA. Like the RICO and CERCLA statutes, the IDEA is a game with no rules. As a result, the Federal Courts have made up the rules as they have gone along. As one might expect in such a situation, when each new case is decided, a new wave of litigation is provoked, flooding not only the courts, but also each and every local school district in the Nation. Not only has this materially increased the administrative costs of running a school system, but it has also resulted in dramatic increases in special education budgets, even to the extent of often overshadowing a school district's regular budget. ⁵

This is not where the Constitution directs this Court to go. As I argue in my Objection to the Plaintiffs' Motion for Procedural Order, Article 83, Part II does not mandate a State-level command and control delivery system for education. The Plaintiffs' motion, however, assumes the opposite. In fact, it is really just another version of one of the issues which the Plaintiffs want sent to a factfinder. The Plaintiffs request that a factfinder determine whether or not the State's definition of an adequate education must include certain assessment and accountability provisions to assure that local school districts are actually delivering an adequate education to their students. Are not the compensatory education services which the Plaintiffs seek really just one form of an assessment and accountability system? As a minimum, therefore, if the Plaintiffs rely upon the Constitution as the basis for their motion, the motion is premature. And even if the Plaintiffs were correct in arguing that the Constitution requires some type of State-sponsored education delivery system, it is especially presumptuous of them to conclude that the Constitution demands an IDEA-like system.

Indeed, the IDEA model is simply not the place where this Court should want to go.⁶ Before it knew how it got there, the Court would find itself getting involved in requiring compensatory educational services for individual students. For this is exactly what the Court would be imposing upon the State if it were to get into the business of requiring such services to individual schools or school districts. All one has to do is read the handwriting on the wall right there in the Plaintiffs' recent filings: "The nature and extent of compensatory education services to be provided varies according to the needs of the student and the facts and circumstances of a given case.'' Memorandum of Law in Support of Petitioners' Motion for Compensatory Educational Services, p. 14. (emphasis supplied). But see, id. at p. 12, n. 3.

Moreover, even if some constitutional basis for the Plaintiffs' motion were found to exist and even if this Court were receptive to fashioning some type of equitable relief, the Plaintiffs fail to make a satisfactory factual allegation to support the relief which they seek. If the relief the Plaintiffs seek were truly "compensatory'', shouldn't it go to the students who were supposedly deprived of an adequate education in the past? But, in most cases, that is not what would happen if the schools they identify are given compensatory education services. This is because the students who took the 1997 6th grade test will now be in high school and the students who took the 1997 10th grade test will now be out of school altogether.⁷

The point is that the Plaintiffs' motion really has nothing to do with compensation. Its goal is simply to get more money in the hands of the Plaintiff school districts at the expense of others. Indeed, the entire basis for their claim is simply a manipulation of statistics to justify a seemingly credible assault upon the State Treasury. As may be seen from the attached report from the New Hampshire Center for Public Policy Studies, the use of gross statistics in the manner proffered by the Plaintiffs can be very misleading. Warning: Why Average Isn't Average! Simplistic Statistics Can Be Misleading In Measuring for Accountability In Education (NH Ctr. for Pub. Pol'y. Studies, June, 1998, updated to December, 1998), attached hereto as Exhibit A. Only through the use of properly gathered and analyzed demographic data can one determine whether or not the students in any of the Plaintiff school districts are really under performing. No such data is forthcoming from the Plaintiffs.⁸

The Plaintiffs' motion - at least insofar as it requests immediate relief - is also inconsistent with their claim that HB 117 is unconstitutional. Under normal circumstances, a party is not precluded from pleading inconsistently. However, if a party elects to do so, no temporary relief can be afforded on the basis of one theory which might ultimately be rejected in favor of an alternate theory. For example, if this Court were ultimately to rule in favor of the Plaintiffs' claim in this case that HB 117 is unconstitutional, there will have been no basis for having granted an interim request for compensatory educational services. If that were to happen, do the Plaintiffs promise to pay the money back?

Finally, the Plaintiffs do not come into court on this motion with "clean hands''. It is a maxim of equity that in order for one to obtain justice, one must do justice. As a result of HB 117, each of the Plaintiff school districts is receiving a substantial unbudgeted educational adequacy grant from the State for use in the 1999-2000 school year. However, upon information and belief, the Plaintiff school districts have not dedicated their new monies to the provision of additional educational services. On the contrary, they are using the funds to provide their taxpayers with "compensatory tax relief''.⁹ Yet they had it within their own power to have used those funds to supply the very services which they claim they so direly need. RSA 148:48. Having made their election to prefer tax relief over education, they cannot now appeal to this Court's sense of "equity'' to shift the burden of their election elsewhere.

Respectfully submitted,

Dated: ___________________ By:

Eugene M. Van Loan, III, Esquire,

as Amicus Curiae

Certificate of Service

I, Eugene M. Van Loan, III, Esquire do hereby certify that on this date I forwarded a copy of the aforementioned Memorandum to all the parties on the attached Service List.

Eugene M. Van Loan, III

SERVICE LIST

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