It has come down to this: Those who back the Whalley amendment are “statesmen,” while those who don’t are “screamers” and “criers.” I’m quoting from a recent op-ed by one of the self-proclaimed statesmen supporting the Whalley amendment.
According to this statesman, the Whalley amendment will lower the level of judicial review of education legislation from strict scrutiny to rational basis review. The difference is essentially this: under strict scrutiny, the Supreme Court gets to substitute its education policy views for those of the Legislature and Governor; under rational basis review it does not.
The Whalley amendment will accomplish this, according to the statesman, through its strategic use of the term “reasonable,” which the statesman tells us “is a term of art in constitutional jurisprudence. When applied to judicial review, it means that the Court must uphold the constitutionality of a legislative act if it is ‘not arbitrary’ or has a ‘rational basis’.” The statesman also tells us that there are “innumerable Supreme Court decisions” that use the terms reasonable and rational basis as synonyms.
The concern that I have is that, while these decisions may be familiar to the statesman, they certainly are not familiar to the voters who will pass judgment on the Whalley amendment. And even the statesman would have to concede that it is the meaning the term reasonable has to these voters, not to the statesman, that will determine how the Supreme Court interprets the Whalley amendment, if it passes.
Another concern I have is that about one year ago the Supreme Court issued a decision holding that “that the rational basis test under the State Constitution requires that legislation be only rationally related to a legitimate governmental interest.” The context was that the Court was clarifying rational basis review because “[a]llowing the continued and duplicative use of the terms ‘reasonable,’ ‘arbitrary,’ and ‘unduly restrictive’ in each of our levels of constitutional review, as well as the use of a least-restrictive-means inquiry in our rational basis review, would perpetuate and foster the kind of confusion demonstrated in the case before us.” In other words, the Court chose to articulate the rational basis test by eschewing the use of the term reasonable.
If the point, then, is to replace strict scrutiny review with rational basis review, why use the very language the Supreme Court has discarded? Why not use the same language as used by the Court? Or why not just say rational basis review?
But even with these changes I still wouldn’t support the Whalley amendment. That is because this amendment will harm public education by requiring New Hampshire to follow an antiquated and discredited model of public education.
As Paul Mirski has noted, New Hampshire’s supposedly inadequate public schools scored third in the National Chambers of Commerce Education Study of the 50 states released last year. Kentucky, whose Supreme Court wrote the decision that was the inspiration for the Claremont decisions, was 38th. California and Hawaii, states that exemplify the top-down education approach mandated by the Claremont decisions and which the Whalley amendment (like the Lynch amendment) would write into the Constitution, scored 43rd and 46th.
The statesmanlike solution, if it is a solution at all, comes with quite a cost, then: the trashing of public education. It is understandable that most legislators have grown tired of butting heads with, where public education is concerned, an imperialistic and out-of-control Supreme Court. It is sad that to avoid continued conflict they apparently are willing to sacrifice the futures of our youth by writing the Court’s obsolescent and wrongheaded views on education policy into the Constitution. Even sadder still that some are calling this statesmanship.