The University of New Hampshire Law Review


[Excerpt] “Long before the framers of New Hampshire’s first constitution admonished legislatures and magistrates to cherish education, the provincial government had already established requirements for providing public education; these requirements were related to the size of a settlement.

By 1708, the provincial government in New Hampshire had established the first public school. Not surprisingly, the school was in Portsmouth, which was, at the time, the seat of the provincial government. On May 2, 1719, the province passed an act that required communities of fifty families to employ a school teacher. Under the same act, a community that had one hundred families was required to maintain a school. Thus, the province established the duty to provide access to public education in New Hampshire and mandated that the settlements implement it. Where a child lived was the causal connection in the expansion of public education.

The purpose of this work is to ascertain whether, as a matter of public policy, the location in which a student lives should continue to determine which public school that student shall attend. The article will first look at the development in, and some of the early exceptions to, the residency requirement and how they have affected education policy. Next, it will discuss the role that state and federal statutes, court decisions, school funding litigation, technology, and current national projects have in modifying a strict reliance on residency as the primary factor that decides where students have access to public education. Finally, it will analyze whether the reliance on a residency-based public education system continues to be justifiable.

While the focus of this article is on public education in New Hampshire, the article also considers statutes and court decisions from Florida and Colorado, as well as some federal statutes and court decisions, in order to illustrate the general application of this analysis to public education nationwide and to demonstrate that the New Hampshire experience is not necessarily unique. There was no particular rationale for the choice of states other than to offer a limited, but geographically diverse, view as evidence of the parallel between the state experience in New Hampshire and that in other states, and of the experience at the national level.”

Repository Citation

Sarah L. Browning, Will Residency Be Relevant to Public Education in the Twenty-First Century?, 8 Pierce L. Rev. 297 (2010), available at http://scholars.unh.edu/unh_lr/vol8/iss3/4