By GARRY RAYNO, Distant Dome
CONCORD – Lawmakers were very meticulous when they first attempted to address the first two Claremont education funding decisions. Discussions and negotiations dragged on for months with enough spreadsheets produced to clear cut the White Mountain National Forest.
The work continued into the late spring and early summer of 1999 and one of the five or six reporters who religiously followed the ebb and flows, Ralph Jimenez, who then worked for the Boston Globe, had scheduled a family vacation and had to leave before final decisions were made.
Appearing close to a resolution, Jimenez purchased a bottle of champagne and told the reporters also following the negotiations to pop the cork when they reached a solution to celebrate so he could participate in his own way although he would not be there.
The bottle of champagne still sits on a file cabinet in the Donn Tibbetts Press Room today unopened.
The reason it is unopened — and probably vinegar now — is well articulated in Cheshire County Superior Court Judge David W. Ruoff’s decision in the ConVal and three other school districts’ lawsuit against the state on education funding that was released last week.
The decision says the current education funding system is unconstitutional but is also a well-researched history of the failure of the legislature and executive branch to address the state Supreme Court’s two fundamental Claremont funding decisions.
The two decisions said education is a fundamental right the state must provide, and the funding system of widely varying property taxes to pay for it is unconstitutional.
Those decisions came down a quarter-of-a-century ago, and Ruoff’s decision references their findings and compares them to what the legislature and executive branch have done.
In that light, he says lawmakers and governors have failed to implement the rulings. He puts the price tag to fully implement those rulings at $1.6 billion.
Despite the rhetoric at the time of the decisions that the court usurped legislative prerogative, the court was very clear it was up to the legislature and executive branch to define an adequate education and how to constitutionally pay for it, and according to Ruoff’s decision, they did neither from then until today.
His decision paints a picture of lawmakers more concerned with the cost — or you could say maintaining something that resembles the state’s traditional tax system and its reliance on local property taxes — and not on what constitutes an adequate education and how to pay for it.
But like the supreme court before him, he again says the legislature and executive branch must decide how to respond.
He quotes former Supreme Court Chief Justice John Broderick in his dissent in the Londonderry education suit.
“This court, for the past fifteen years, has repeatedly, respectfully and appropriately deferred to the political branches to resolve the critical issues the numerous school funding decisions have identified. . . . . Deference, however, has its limits. Constitutional rights must be enforced or they cease to be rights,” Broderick wrote.
Lawmakers’ first attempt to come up with a solution was former Gov. Jeanne Shaheen’s ABC plan which the court quickly found unconstitutional as it tried to maintain a property tax system that did not require property wealthy towns to contribute any additional money to education outside their boundaries.
The second attempt went further depending on a statewide education property tax, a utility property tax, Sweepstakes revenue and raises in existing business, tobacco, rooms and meals and real estate transfer taxes, and later tobacco settlement money.
However, it was not long before the donor or property wealthy towns sued the state over sending “their money” to property poor towns, and the formula was changed, and the statewide property tax rate dropped enough to all but eliminate any donor towns.
And ever since, every change the legislature made moved the system away from spreading the financial burden equitably to the old system with property poor communities seeing greater and greater increases in their tax burden, while those fortunate to be on the ocean, or with lakes, second-home resorts, speedways or ski areas, have little difficulty raising the taxes needed to provide their children far greater educational opportunities.
To add insult to injury, several years ago lawmakers approved reducing stabilization grants instituted during the last major rewrite of the education funding system in 2011.
The annual 4 percent reduction intended to end the program in 25 years, sent needy school districts like Berlin, Pittsfield, Claremont, Newport and others into crisis. When the school year ends this spring, Berlin will close its last elementary school and those students will move into the middle school.
Such changes did not go unnoticed by Ruoff.
“Labels aside, we are simply unable to fathom a legitimate governmental purpose to justify the gross inequities in educational opportunities evident from the record. The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence. It requires no particular constitutional expertise to recognize the capriciousness of such a system,” Ruoff writes in his decision.
Under pressure from property poor school districts and a renewed effort by key players in the Claremont suit, the legislature this session decided to restore the lost stabilization grant money, create a commission to determine the actual cost of an adequate education and re-establish disparity aid to help the neediest schools.
The House poured $160 million in new money into the state aid system, mostly from a new capital gains tax, while the Senate plan spends about $70 million less but without the capital gains tax guaranteed to produce a Gov. Chris Sununu veto.
Ruoff was not only critical of lawmakers for not producing a constitutional funding system he also warned against what has become a constant complaint about the Claremont rulings, that it does not honor the state’s long tradition of local control.
Advocates for that position over the years have introduced constitutional amendments to remove court jurisdiction but none have passed the House.
Sununu echoed that argument in his response to the ConVal ruling saying educational decisions belong with local communities and not courts.
Sununu spokesman Ben Vihstadt said in a statement “we continue to believe these critical funding decisions are best left to local elected leaders — who represent the people of New Hampshire — not judges in a court room.”
But the judge said while local control is a revered concept, another issue takes precedent.
“Local control has been revered and protected in much of this State’s school funding jurisprudence, and the Legislature is applauded for recognizing that school districts are uniquely situated such that complete or actual funding could, in theory, wrest them of that control. Nonetheless, it is clear from the Supreme Court’s mandate that the Legislature must fully fund what it defines as an ‘adequate education,’ and it is essential that the Legislature respect local control in its definition of an ‘adequate education’ and not through selective costing of an adequate education,” Ruoff writes. “The principle of local control is not fulfilled when the State’s funding results in local school districts being coerced into using their locally raised funds to fulfill obligations of the State, a scenario that removes the discretion protected by ‘local control.’”
Ruoff declined to determine the cost of an adequate education but notes it is not the $3,600 per student the state currently pays.
He says the Legislature needs to decide. The legislature has the study commission in both the House and Senate versions of the budget and that is a good first step.
But the legislature has little incentive to do much other than restore the stabilization grants and the Senate disparity aid at this time.
The decision will be appealed to the Supreme Court with no justice remaining from the original Claremont ruling.
At this point the appeal is an unknown and why would the legislature spend the enormous time necessary to comply with the original ruling if the current court has other ideas.
Ruoff notes the work to comply with the Claremont decisions, all of which have been in favor of the schools, is difficult.
“As every court decision on the matter has recognized, school funding is no small task, and the burden on the Legislature is great. Yet, as every court decision has similarly recognized, the Legislature is the proper governmental body to complete it,” he writes in his conclusion. “As has been the result in the past, the Court expects the Legislature to respond thoughtfully and enthusiastically to funding public education according to its constitutional obligation.”
Garry Rayno may be reached at firstname.lastname@example.org
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London. InDepthNH.org is New Hampshire’s only nonprofit, online news outlet dedicated to holding government accountable and giving voice to marginalized people, places and ideas.