A Constitutional typo, a lost journal, and hundreds of tax appeals: Inside a new conservative effort to abolish education taxes

One night last week, Terese Bastarache — the conservative activist who led the successful campaign last year

to reduce Merrimack Valley’s school budget — went live with a new plan.

About 20 people watched on Zoom as Bastarache held a white tax abatement form up to her camera. Though the form is designed to facilitate property assessment disputes, some conservatives across the state have become convinced in recent months that it can serve as the foundation of a novel legal strategy. Their goal: to abolish state and local education taxation altogether.

Bastarache, a Loudon resident, has described the effort as her “freedom fight.”

“This is just step one of several steps for you fighting for your constitutional rights,” she told the attendees as she walked them through the mechanics of filling out the three-page form, a necessary precursor to a lawsuit that the organizers plan to file.

Spearheaded by a conservative group called the Government Integrity Project, the effort relies on a long-shot legal challenge based on a series of constitutional moments spanning two centuries. To make its legal case, the group plans to rely on a recently-discovered clerical error in some versions of the state constitution; a failed constitutional convention vote in 1850; the lost constitutional convention journal from that year; and the passage of amendments to two articles of the constitution in 1877 and 1968.

Tom Murray, the co-founder of the project and the legal mastermind behind the effort, estimates that between 500 and 1,000 people across the state have filed the tax abatement forms with their towns in recent weeks. The forms maintain residents’ legal standing to receive tax reimbursements if they prevail in court.

John Tobin, a leading school funding lawyer who reviewed the legal argument, has called it a “far-fetched challenge” designed to “defund our schools.”

“For a long time, we’ve had a consensus in this country that public schools are vital to democracy and a functioning economy, and — just like roads — we all chip in to pay for them,” Tobin said.

Whatever its likelihood of success, the campaign has galvanized some conservatives in New Hampshire, who increasingly rail against what they see as wasteful spending by public schools without meaningful academic results. Amid a Republican-led push to reverse Supreme Court precedent on school funding jurisprudence and to change the definition of an adequate education, the grassroots effort is the most audacious attempt to upend funding for public education.

When pressed, the proponents of the effort contended they were not trying to shut down public schools entirely, but they do support expanded educational privatization.

Bastarache said that if education taxation were deemed unconstitutional, she would support a model of “crowdfunding” educational opportunities, in which individuals pay what they choose.

“I would hope that the community would be in a financial place that it could really support some fantastic opportunities for the children,” she said. “I mean: where there’s a need, there typically tends to be someone that will meet that need.”

‘Completely, drastically different’

Murray co-founded the Government Integrity Project in 2020 to bring attention to what he described as one of the “largest numerical discrepancies in New Hampshire voting history.” A recount had revealed that the four Republican representatives in his hometown of Windham had actually received about 300 more votes each than the initial results indicated, though they had already surpassed all the Democrats with their lower vote totals.

The project pushed for a forensic audit, which ultimately found the error was caused by the location of a folded crease on absentee ballots. The auditors uncovered no evidence of fraud.

Since then, the project has “dabbled in small, minor local things.” Murray, the owner of a general contracting company, served on the Windham School Board from 2015 to 2018 and co-founded the Windham Academy Public Charter School. He describes himself as “very pro-education” and “very pro-school,” but he said he believes the public education system is fundamentally broken.

“We can continue to go down the road we’re going down right now with the same expectations and the same results, or we can fundamentally do something completely, drastically different,” he said. “And I’m submitting to you: that’s what I’d like to do.”

A history buff, he began looking nine months ago at the constitutional documents that underpin the state’s education taxes.

New Hampshire has two forms of education property taxes. The bulk of funding for public education is raised through the local portion of the tax. Since 1999, residents have also paid a separate, but much smaller tax called the Statewide Education Property Tax, or SWEPT.

Murray argues that both are unconstitutional.

Legal arguments

The argument surrounding the local tax is simpler. Murray believes school districts derived their authority to tax their residents from Part I, Article 6 of the state Constitution. Until about 50 years ago, the article used Old English to state, in part, that the people “fully impower the legislature to authorize from time to time the several towns … to make adequate provision at their own expence” for public teachers.

In 1968, however, the state amended the text of the article to remove religious references. When that happened, voters also removed language that Murray believes is necessary to levy local education taxes.

“This is the catastrophic amendment that kills education,” he said.

Tobin responded that Murray’s interpretation ignores another part of the Constitution — Part II, Article 5 — which gives the legislature education taxing authority, which it has delegated to school districts through statute. Murray countered that Part II, Article 5 permits municipal and county taxes, but not educational taxes.

The argument regarding the unconstitutionality of a statewide education tax is far more complicated. Like many conservatives, Murray believes that the foundational Claremont school funding cases of the 1990s were wrongly decided. The Supreme Court ruled in those cases that the state has a constitutional duty to provide an adequate education and that the state must establish a funding model to do so. The statewide education property tax was enacted in response to the court’s second ruling.

The basis of the ruling rests on Part II, Article 83 of the constitution, in which the framers wrote that legislators have a duty to “cherish” education. Murray focuses on two attempts to amend the article during the 1800s — the first a failure and the second a success — which he says show that the court misinterpreted the meaning of the word “cherish.”

In 1850, voters rejected a constitutional amendment that would have explicitly enshrined in the state’s Bill of Rights a duty to fund public schools “at the public expense,” according to Murray’s interpretation of the constitutional convention journal. Twenty-seven years later, in 1877, voters approved a constitutional amendment that prohibited spending tax revenue on “the use of the schools or institutions of any religious sect or denomination.”

To many, the phrase appears to prevent spending on religious schools — indeed, that is what the constitution itself indicates, as printed on a state government website —but Murray argues that interpretation ignores the failed vote three decades earlier. Rather, he believes it prevents spending on both schools and religious institutions.

“When you ask the people, ‘Do you want to raise taxes for public education?’ and the people say ‘no’, then ‘no’ means ‘no,’” Murray said. “Then in 1877, just 27 years later, we say we’re going to put a proviso to let people know we meant ‘no.’”

To bolster his argument, Murray notes that some versions of the Constitution had a typographical error until it was discovered in recent months. In those versions, the relevant line was written as “the use of the schools of institutions” instead of “or institutions”.

Secretary of State David Scanlan confirmed in an email that the error was recently uncovered but declined to opine on whether it changed the meaning of the line.

Perhaps more significantly, Murray has emphasized that the justices who decided the 1990 Claremont cases were not privy to the failed amendment effort of 1850. The existence of the journal from that constitutional convention was “unknown to living researchers” at the time, according to former Secretary of State William Gardner. The journal was not published until 2005.

Tobin discounted the significance of the failed 1850 amendment on the justices’ interpretation of the framers’ intended meaning of the word “cherish”. He pointed to the justices’ historical analysis in the Claremont cases, which concluded that the framers intended to place a duty on the state to fund education.

“I stand by that very thorough review of it,” he said.

Earlier this week, the state announced that it plans to directly challenge the court’s Claremont rulings for the first time in its three-decade history. The challenge would come through the state’s appeal of a lower court decision in a school funding case, which concluded that the state remains in violation of the Claremont precedents.

Less funding, better results?

Murray is adamant that stripping public schools of tax dollars will improve educational outcomes, but he is reluctant to lay out a specific proposal to pay for education without taxes.

“It’s up to the people to decide how they want to fund it; not me,” he said. “I’m not a king. I don’t have a magic wand.”

Part of his approach, he said, would be privatization. Like many conservatives, he argues that schools would be better off if they were run like businesses. He points to his tenure on the Windham School Board, during which he said he led a cost-cutting campaign and saw test scores rise, and to the leadership of his charter school, which focuses on student “mastery”.

“If you gave me the option to have my government do something that I can privately do, I would rather privately do it,” Murray said. “Why? Because I’m going to have more control over it. I’m going to make better decisions than my government. … And at the end of the day, it’s going to be far more cost-effective and meaningful.”

The vision Murray and other proponents are contemplating — in which education is increasingly delivered privately — is already one that the Republican-controlled legislature is working toward. The state’s education freedom account program, launched in 2021, will disperse over $50 million this year to be spent on private schools and homeschooling.

Of course, the state also must continue to provide a public education to any student who chooses to attend local schools. Murray said it would be “up to the people” to decide how they would be funded without property taxes.

Tobin has fought to improve New Hampshire’s school funding model for over three decades. He believes the Government Integrity Project fundamentally misunderstands the state Constitution.

“These folks view the Constitution as an extreme libertarian document; it’s not,” he said. “They basically don’t want any government. And that’s not what our Constitution says.”

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