The Superior Court (Manias, J.) dismissed the plaintiffs' petition for injunctive relief and declaratory judgment for failure to state a claim upon which relief could be granted. The plaintiffs appeal the court's conclusion that the New Hampshire Constitution imposes no duty on the State to support the public schools. We hold that part II, article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
The plaintiffs are five "property poor" school districts and five school children and five taxpayers, one from each of the school districts. They filed a petition for declaratory judgment alleging, in six counts, that the system by which the State finances education violates the New Hampshire Constitution: in counts (1) and (2) that the State fails to spread educational opportunities equitably among its students and adequately fund education, both in violation of part II, article 83; (3) that the foundation aid statutes, RSA 198:27 through
Part II, article 83, adopted in 1784 as part of this State's Constitution, originally stated:
The provision was amended in 1877 to prohibit money raised by taxation from being used by religious schools and again in 1903 to add language concerning control of corporations and monopolies.
The trial court granted the defendants' motion to dismiss each of the six counts. Its order states in part:
Because we conclude that the trial court's determination that the State had no constitutional duty to support public education so permeated its decision to dismiss counts one through five, we will, at this time, address only the question of whether part II, article 83 imposes such a duty. With respect to count six, because petitioners have not had an opportunity to develop a record in support of their claim, we remand that count to the trial court for its further consideration. Our narrow task, therefore, is to determine whether the trial court committed legal error when it concluded that no duty exists.
"In interpreting an article in our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast." Grinnell v. State, 121 N.H. 823, 826, 435 A.2d 523, 525 (1981) (quotation omitted). In doing so, we must "place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances." Warburton v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992) (quotation omitted).
Numerous state courts have in recent years decided cases challenging, on constitutional grounds, systems of financing public education. Most of those cases are of limited value to this court because the constitutional provisions at issue contain language dissimilar to ours and were adopted under circumstances different from those existing in New Hampshire in the 1780s. Massachusetts, however, presents an exception. Given that New Hampshire shares its early history with Massachusetts, that we modeled much of our constitution on one adopted by Massachusetts four years earlier, and that the Massachusetts Constitution contains a nearly identical provision regarding education, we give weight to the interpretation given that provision by the Supreme Judicial Court in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993). See Warburton v. Thomas, 136 N.H. at 391, 616 A.2d at 500.
The Encouragement of Literature clause, incorporating the sense of these definitions, thus declares that knowledge and learning spread through a community are "essential to the preservation of a free government," and that "spreading the opportunities and advantages of education" is a means to the end of preserving a free, democratic State. The duty of ensuring that the people are educated is placed upon "the legislators and magistrates, in all future periods of this government," and that duty encompasses supporting all public schools:
McDuffy, 415 Mass. at 564, 615 N.E.2d at 526.
We do not construe the terms "shall be the duty ... to cherish" in our constitution as merely a statement of aspiration. The language commands, in no uncertain terms, that the State provide an education to all its citizens and that it support all public schools. Decisions of this court are consistent with this conclusion. See In re Davis, 114 N.H. 242, 243, 318 A.2d 151, 152 (1974) (State Constitution "imposes upon government the duty of providing for the education of its citizens"); State v. Jackson, 71 N.H. 552, 553, 53 A. 1021, 1022 (1902) ("the injunction `to cherish the interest of literature'" intended as "more than a mere sentimental interest"); Farnum's Petition,
An examination of the "surrounding circumstances" at the time the constitution was adopted also supports our conclusion that the framers and the general populace understood the language contained in part II, article 83 to impose a duty on the State to educate its citizens and support the public schools. See Attorney-General v. Morin, 93 N.H. 40, 43, 35 A.2d 513, 514 (1943). The Puritans who settled here were deeply committed to education. They emigrated "chiefly to enjoy and propagate their religion; but next to this ... to educate their children." N. Bouton, The History of Education in New Hampshire: A Discourse Delivered Before the New Hampshire Historical Society 3 (1833) (transcript available at the New Hampshire State Library). The New England Puritans are credited with "contribut[ing] most that was valuable for our future educational development, and establish[ing] in practice principles which have finally been generally adopted by our different States." E. CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES 15 (1919).
Between 1641 and 1679, New Hampshire and Massachusetts were united as a single province. See MANUAL FOR THE GENERAL COURT 117 (1891). The first New England law on education was enacted in 1642, which ordered that all children should be taught to read. See McDuffy, 415 Mass. at 570 n.27, 615 N.E.2d at 529 n.27. In 1647, an act was passed by which public schools were established in New Hampshire. McDuffy, 415 Mass. at 571 n.28, 615 N.E.2d at 529-30 n.28. The 1647 law expressed the principles that private property was subject to public taxation for support of public schools, that schooling was to be provided for all children, and that the State would control education. "It can safely be asserted that these two Massachusetts laws of 1642 and 1647 represent not only new educational ideas in the English-speaking world, but that they also represent the very foundation stones upon which our American public school systems have been constructed." CUBBERLEY, supra at 18. In
When New Hampshire became a separate province in 1680, it reenacted the education laws of Massachusetts then in existence. In 1693, the New Hampshire Legislature enacted a law requiring the towns' selectmen to raise money by "an equal rate and assessment" on the inhabitants for the construction and maintenance of the schools "and allowing a Sallary to a School Master." G. BUSH, HISTORY OF EDUCATION IN NEW HAMPSHIRE 10-11 (1898); see Laws of New Hampshire, Vol. 1 Province Period 560-61 (1679-1702). A penalty was provided for failure to comply with the statute. BUSH supra. Similar laws were enacted in 1714, 1719, and 1721. BUSH supra.
The law of 1719 required every town having fifty householders or more to provide a schoolmaster to teach children to read and write, and in every town of 100 householders, a grammar school to be kept. Laws of New Hampshire, Vol. 2 Province Period 336-37 (1702-1745). A penalty was to be assessed for failing to comply with the law, to be paid "towards the Support of Such School or Schools within this Province where there may be most need." Id. The law of 1721 stated:
Id. at 358.
Although these laws required the towns to fund public education, Governor Wentworth made clear in an address to the Council Chamber of the House of Assembly, on April 13, 1771, that the duty to educate remained with the State: "Religion — Learning, and Obedience to the Laws, are so obviously the Duty & Delight of Wise Legislators, that their mention, justifies my Reliance on your whole
NEW HAMPSHIRE PROVINCIAL PAPERS VOL. VII 287 (1764-1776). The General Assembly replied on December 30, 1771:
Id. at 290-91.
Against this background, the constitutional convention began its work drafting the State Constitution in 1781. The contention that, despite the extensive history of public education in this State, the framers and general populace did not understand the language contained in part II, article 83 to impose a duty on the State to support the public schools and ensure an educated citizenry is unconvincing. Indeed, in 1795 Governor Gilman addressed the Senate and House of Representatives, stating:
Governor Gilman, Executive Papers & Correspondence (1795). To which the House and Senate replied:
Id. This statement has significant probative value as an indication that the contemporary understanding was that part II, article 83 imposed a duty on the State to provide universal education and to support the schools.
We are unpersuaded by the State's argument that the fact that no State funding was provided at all for education in the first fifty years after ratification of the constitution demonstrates that the framers did not believe part II, article 83 to impose any obligation on the State to provide funding. But see W. GIFFORD, COLEBROOK "A PLACE UP BACK OF NEW HAMPSHIRE" 11 (1993) (resolution of Senate and House approved July 7, 1846, granting 10,000 acres of land to trustees of Colebrook Academy). "That local control and fiscal support has been placed in greater or lesser measure through our history on local governments does not dilute the validity" of the conclusion that the duty to support the public schools lies with the State. McDuffy, 415 Mass. at 606, 615 N.E.2d at 548. "While it is clearly within the power of the [State] to delegate some of the implementation of the duty to local governments, such power does not include a right to abdicate the obligation imposed ... by the Constitution." Id.
Having identified that a duty exists and having suggested the nature of that duty, we emphasize the corresponding right of the
We 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. There is a wealth of historical data upon which the legislature and the Governor may choose to draw in the pursuit of their duty, spanning more than three hundred years from the 1647 statutory mandate that youths be instructed "so far as they may be fitted for the University," to more recently recommended standards and practices such as the State Department of Education's 1958 report on Minimum Standards and Recommended Practices for New Hampshire Secondary Schools. The Encouragement of Literature clause expressly recognizes that a free government is dependent for its survival on citizens who are able to participate intelligently in the political, economic, and social functions of our system. The duty placed on the State encompasses cherishing the public schools. The constitution also provides that the legislature and the Governor have a duty to encourage "the promotion of agriculture, arts, sciences, commerce, trades, [and] manufacturers" and inculcate "the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people." N.H. CONST. pt. II, art. 83. The education necessary to meet the duty to cherish public schools must, of course, "be adapted to the various crises of human affairs." M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis omitted).
Given the complexities of our society today, the State's constitutional duty extends beyond mere reading, writing and arithmetic. It also includes broad educational opportunities needed in today's society to prepare citizens for their role as participants and as potential competitors in today's marketplace of ideas. Cf. Seattle Sch. Dist.
We remand the plaintiffs' petition for further proceedings consistent with this opinion.
Reversed and remanded.
THAYER, J. did not sit; GRIMES, C.J., retired, sat by special assignment under RSA 490:3; all concurred.