Thank you, Madam Speaker. Well, fellow Members, here we are again.…
Rep. David Hess (R - Merr 24)Thank you, Madam Speaker. Well, fellow Members, here we are again. The last bill of the last session day going down towards an artificially established trip wire that, according to the five wizards across the river on the hill, will occur in less than 80 hours if we don't do something. I say here we are again because, for those of you who were here in 1999, you know exactly what we are facing. In 1999, the same group of wizards told us we had to come up with an education funding plan by March 31st or be in violation. Well, guess what? We missed that deadline in 1999 and we didn't adopt an education funding program until April 30th after the coach had turned to a pumpkin. There is no reason to believe that the....and the court, by the way, did nothing because of that 30 day hiatus. There is no reason to believe circumstances have changed on that issue at the present time. This bill, Madam Speaker, may be the most important bill we take up today. Not because it carries, I hope not, a price tag of $5 billion a year like our budget, but because it may be the cornerstone for educational policy in this state for many, many years, not just the next biennium. So the last, in this sense, shall be first. What exactly are we being asked to adopt in this Committee of Conference Report? To my friends on my left, I suggest that if you voted against HB 927 in March, you have four very significant additional reasons to vote against it today. To my friends on my right, I suggest that if you voted for it in April, you have four very significant reasons to reconsider your vote, reevaluate it and change it. What are those factors? Well, first of all, as you will recall, in April we adopted a definition of adequacy that for the first time in 8 years included a reference to kindergarten, but at least we specified that it was to be a half-day of kindergarten. The Committee of Conference has voted to remove the words "half-day" so now we are incorporating kindergarten into the definition of adequacy. When this Member suggested to the head of the Senate delegation that this was merely a subterfuge to in effect enact full-day kindergarten, I was told that was not in fact the case at all and that the Senate did not intend to change the intent of the House version. No one on the Committee of Conference disagreed with that representation so I am going to assume that that reflects the intent of the Committee of Conference and therefore the intent of the legislation that is before us. Again, let me ask you, what exactly are we doing with kindergarten? Let me read to you what the minimum standards say about kindergarten. "Every district shall strive to offer at least a half-day kindergarten program." There is no mandate in the minimum standards for any kindergarten program. So what are we doing? In the bill before you it sets forth nine subject matter areas that are part of the definition of adequacy and then simply states and I quote, "The standards shall cover kindergarten through twelfth grade." So what are we doing? We are adopting, if we enact this bill, a kindergarten program. A kindergarten program of unknown impact because kindergarten is not a required grade in our statutes or in our rules. The four legally trained people who participated in the Committee of Conference discussions all agreed that deleting the word "half-day" from kindergarten creates an inherent ambiguity. Guess what, my friends? Ambiguity leads to law suits. Law suits lead to uncertain, undefined, unanticipated, unpredictable consequences. If those wizards should decide that we did indeed enact a full-day kindergarten and we are obligated to pay for it, under their past decisions, we could be facing a price tag far in excess of $20 million and perhaps as much as $100 million or more. I say that based, in part, upon an article that appeared in the March 31st issue of the Manchester Union Leader in which the superintendents of schools in Salem and Derry, two towns that do not have any kindergarten right now, projected the cost to start up of at least $15 million. This is start up only for their programs alone. If kindergarten is a part of adequacy, my friends, the state, under the Supreme Court decisions, has to pay all of
it. Number two. In the legislation that the House passed, the nature and effect of adopting
what we were doing was stated very unclearly, and I read, "The General Court establishes within the school approval standards the essential opportunities for educational programs in the following areas." What does that mean? Well, there is disagreement within the
Committee of Conference as to the interpretation of that phrase and I know there is disagreement on the House floor and among Members of the House about the interpretation of that phrase. What did we do? What did the Committee of Conference do? The Committee
of Conference amended that language and inserted this language in two other places to state, and I quote, "The specific criteria and substantive educational program that delivers the opportunity for an adequate education shall be defined and identified as the school approval
standards in the following areas." That, my friends, is crystal clear. What is it clear about? It is about this book. This book is a set of 65 pages of administrative rules that were adopted
by unelected, unaccountable bureaucrats within the Department of Education. The provision
in this bill that incorporates some of these rules adopts 30 of those 65 pages. Ladies and gentlemen, 45 percent of these rules are going to be written into statute with a wave of the hand. In total, word for word, without any changes whatsoever from what the bureaucrats
have written into the rules. Do you want to adopt legislation in that fashion? Incorporation by reference, without a change in comma, without any significant discussion about what
these different rules mean and how much they are going to cost? I would hope that you
wouldn't. I certainly won't. So here we have an adoption of 60 pages of administrative rules, word for word, without discussing the substantive content of those rules. The third reason why this Committee of Conference report significantly expands over what was passed by this
House is the inclusion of a reference to a new category of education entity, "Schools with enhanced needs." Where did the phrase come from? The idea came from the Senate version.
That phrase is not in any statute. That phrase is not in any administrative rule promulgated
by the Department of Education. If fact, it exists nowhere in the area of education law or regulations or actions in the State of New Hampshire, yet we are adopting that phrase and then empowering a costing study committee, a legislative costing study committee, to come
up with criteria to implement that phrase. Not now, as we are ready to vote on this, but in 9
months in February of 2008. We know not what it is. We know not how much it costs. We know not what is going to be required. We are being asked to adopt it. Now there is one
saving grace, however, schools with enhanced needs are not part of the definition of adequacy in HB 927. It is outside. It is above and beyond the definition of adequacy, for now. There is nothing that says it can't and won't be incorporated in the future. Fourth, this legislation
creates a legislative study committee to study and report out on the cost of providing an
adequate education by February 1st of 2008. What is interesting about this committee is twofold. Number one, the committee, by being a standing committee, and reporting out requires
the prestige and status having studied something and therefore has the aura of superiority that may be introduced. In that process, it abrogates, to a significant extent, the jurisdiction, the obligations and responsibilities of the two standing Education Committees because the
product of this committee is going to fast forward through this House, I predict, in February. The second thing about this legislative committee is membership and composition. For those of you who have been here for a few years, you will know that the difference between a
legislative committee and a commission is the fact that a legislative committee consist only of legislators; Senators and Representatives and no one else, whereas a commission includes members of the public, etc. This legislative study committee contains a member who is
outside of the Senate and outside of the House. As the Chairman of the Finance Committee has so frequently stated, "Were we to pass an education amendment to the constitution, he or she would only have a vote in the adoption of that amendment." I am referring to the
Governor. This law, this bill specifically states that the Governor or his designee would be an ex-officio member of this committee. I have never in 16 years seen such a designation. Isn't there something in this state called the separation of powers? If there is, should the Governor be sitting on a "legislative committee" establishing reported legislative policy? I
think not. The suggestion was made to me that as an ex-officio member he only gets to
discuss the issue and does not get to participate in the decision. I suggest to you that that is far from settling both in language and in tradition. The word ex-officio, according to Merriam Webster dictionary and also Black's law dictionary simply says "by virtue of one's
position." In other words, the Vice President of the United States, according to Merriam Webster's dictionary, is an ex-officio member of the Senate of the United States because he is Vice President. Guess what? The President of the Senate, the Vice President of the United
States, has a vote in the Senate of the United States limited only by the Senate rules which restrict that vote to ties. Another situation that I am more familiar with here in New Hampshire deals with the Governor sitting as an ex-officio member of the Board of Trustees
of Dartmouth College. I am not sure that anyone since Walter Peterson, Governor Walter Peterson, ever exercised that power and actually went to Hanover and sat in on some Board
Meetings, etc., but if I remember correctly, he, the Governor of the State of New Hampshire,
is not limited or restricted to just sitting there or even debating, but can have and does exercise a full right to vote. Are we giving the Governor a vote, 9% of the power to decide what we are going to consider next year by this legislation without even thinking of it.
Lastly, I want to mention one final thing. In the bill that we passed in the House, the law became effective upon passage. That too has been changed in this legislation. Yes, the
language "This bill shall become effective upon passage" still exists in the line at the end of
the bill, but when it discusses the specific parts of adequate education which are the 30 pages in this bill, it says that will occur beginning in the school year 2008-2009 and a provision in the costing committee specifies that one of their assigned tasks is to figure out how to
transition towns which have no kindergarten so that they will be up to speed over a transition period. Now, my friends, early in this game we had a phase in legislation to phase
in certain tax provisions and guess what the wizards said? You can phase in desegregation,
1954, but you can't phase in adequate education. So how are we going to survive a transition that is expressly stated in the bill? I would suggest with very great difficulty despite the fact that we obviously recognize in the bill that this is a major step. Much more major than the
step that we took when the House passed the bill. So let me conclude by saying, if you didn't
like HB 927 the way we passed it in April, you are not going to like this bill one bit. If you were on the edge about HB 927 as the House passed it in April, but at the last minute said,
"Let's pass it on to the Senate, see what develops and comes back," I don't think you're going to like this bill anymore either. I would ask you to look at the faults of the bill, exercise your conscience and press the red button. Thank you.
Speaker: Will the member yield to a question?
Rep. David Hess (R - Merr 24)Yes Speaker: The member yields, Rep. Itse, you may inquire.
Rep. Daniel Itse (R - Rock 10)Thank you, Madam Speaker. Thank you, Representative for taking my question. I was taking the time to peruse my constitution and it provides two instances in which the
Governor can intervene in the actions of the House. One is to veto a bill and the other is to
prorogue or adjourn the Legislature. Would you agree that allowing the Governor to sit on a legislative committee is an improper commingling of powers and therefore unconstitutional?
Rep. David Hess (R - Merr 24)As I said before, Honorable Member, I think it flouts the concept embodied in
our constitution in numerous provisions for the separation of powers and is indeed contrary to it.
Speaker: The question before the House is on the adoption of the Committee of Conference
Report on HB 927. A roll call has been requested and this is the last speaker of the last Committee of Conference Report for the day. I would ask Members to start to take their seats. The Chair recognizes the Member from Durham, Representative Rous.
Rep. Emma Rous (D - Straf 7)So, last but not least, the vote that we have all been waiting for. Ever since the
court decision, the Londonderry court decision of September, we have known that we have been working toward this July 1st deadline. Guess what? July 1st is Sunday and we, I would say to you, ladies and gentlemen, are ready for that deadline. I believe that the bill before
you is not only as good as the one we supported overwhelmingly when it left the House, but
better. This bill affirms the legislature's commitment to define the opportunity for a constitutionally adequate public education for every child in New Hampshire. Building on the aspirational definition in RSA 193 E:2. A definition worked on by previous legislatures
and with input from the public, educators and government officials, this definition responds to the Londonderry decisions demand for specificity, comprehensibility, cost ability and accountability. The definition is very close to the definition that left the House with a wide
margin of support but with some additions and subtractions. It maintains that focus. Speaker: Will the member please suspend? I know that I asked Members to quietly take their seats. I would ask you to do that quietly. The Member has a right to be heard.
Rep. Emma Rous (D - Straf 7)Thank you, Madam Speaker and thank you for your attention. The definition maintains the focus on instruction and the standards related to nine areas of instruction as
offering the opportunity for a constitutionally adequate education. It acknowledges the need
for a range of services, educational supports and instruction resources, but removes mention of specific resources. It refers to kindergarten without mentioning "half-day" leaving open the opportunity for full-day kindergarten and I will say some more about kindergarten in a
moment. It strengthens the legislature's oversight, which was a prime concern of the minorities the first time we debated this bill, by requiring review of the standards at least
every ten years and written notice if standards affecting the definition change in the
meantime. It creates a costing committee with members of the House and Senate Education and Finance committees charged to study and recommend a costing model and formula. It calls for a transition plan for districts currently without kindergarten. It extends the House
language acknowledging that schools with greater challenges require different resources.
The bill now charges the costing committee to develop and propose criteria for identifying schools with enhanced needs. In other words, directing or targeting more funds to schools
with greater educational needs and to propose resources to meet those needs. The previous speaker mentioned that the term "enhanced needs" has no definition in statute, but part of the bill and part of the charge to the committee is not just to implement enhanced needs, but
to propose criteria for identifying those schools. The bill sets a deadline of February 1, 2008
for the costing committee's recommendations in time for next year's legislative process. Let me say a few things about the four points mentioned by the Representative from Hooksett.
First of all, in reference to the standards, the only misunderstanding about what the standards refer to was on the part of the Representative from Hooksett. The entire Committee of Conference had common understanding. The House Education Committee, the
subcommittee certainly, working on this bill also had common understanding. The calendar report on HB 927 when it first came forward referred to the specific standards listed under each of the nine subject areas. So there was no misunderstanding. Let me read just a little
bit of the language from the bill as it came forward originally and as it still stands. In the statement of purpose, IV reads, "The General Court identifies the standards in RSA 193 E:2a and the curriculum framework that supports those standards as the specific criteria for an
adequate education." Again, in the definition section of the bill, IV again. "The school approval standards for the areas identified in paragraph I shall constitute the opportunity for the delivery of an adequate education." The standards constitute guidelines for
delivering instruction in each subject area and are not intended as a smorgasbord or a "choose your own" curriculum. Now, to the point about kindergarten. There have been a wide range of claims of what kindergarten might cost. Anywhere, the previous speaker said,
from $20 million to a $100 million or more. A realistic estimate is much lower. As the previous speaker read to you, the standards currently call for districts to quote, "Strive to offer at least a half-day kindergarten program." This definition leaves the door open for full-
day kindergarten, especially in districts with greater educational challenges, but by no means mandates it. As mentioned before, the charge to the costing commission includes developing a transition plan for districts without kindergarten. We currently pay a little more than half of the state aid per pupil, or $1,200 per kindergarten child and for new programs needing building aid the state pays 75%. DOE estimates that Salem, the largest district currently without kindergarten, may need $2 million in building aid. Districts with shrinking enrollments can use existing spaces. If every district with a half-day kindergarten decided all at once to institute a full-day kindergarten, a very unlikely event given how long it's taken to get to half-day, the additional cost to the state for teachers could be around $15 million. Whatever parameters we develop for costing adequacy will also apply to kindergarten. Lastly, most importantly, I would say solid research shows that investing in kindergarten saves money in the long run. For the first time, New Hampshire will offer kindergarten to every child in the state. This is a step we can be proud of. From the beginning of this process I have hoped and believed the legislature would come forward with a definition of educational adequacy that would maintain high standards of excellence for education in New Hampshire. I believe this is that definition and I urge you to support the combined work of the Senate and House. Vote green to concur and move this process forward. Thank you. Speaker: Will the member yield to a question?
Rep. Emma Rous (D - Straf 7)Yes Speaker: The member yields, Representative Peterson you may inquire.
Rep. Andrew Peterson (R - Hills 3)Thank you, Madam Speaker and I thank the Chair of the House Education Committee for taking my question. Just so that I can understand better what the effect of this action today would be if we were to pass this bill and thus define the framework, at least, for an adequate education. Is this somehow more than law? My question is this. We have a deadline which has been established by the court and is rapidly approaching. We are passing this language now as we pass other bills. Would it be possible for us to amend this language or alter it as we get into some of our deliberations next year or is it in someway immutable law, or more than law, or a constitutional prescription which we are passing today? Thank you.
Rep. Emma Rous (D - Straf 7)Thank you for the question. My understanding is that this bill is a bill like any other bill. It is not immutable. I would say if we were somewhere down the road to amend this, to change our definition in such a way that someone saw fit to sue us, say we decided that adequacy ended at 4th grade, then that might be a point where the court might have something to say about our definition. This definition is open to changes as any other bill would be open to change.
Rep. Andrew Peterson (R - Hills 3)Thank you. Thank you, Madam Speaker. On a division vote, 205 having voted in the affirmative and 115 in the negative, the Committee Report was adopted.