Court, Schools Have Education Funding Wrong, State Tells NH Supreme Court

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New Hampshire Supreme Court in Concord.


CONCORD — The state argued that four school districts failed to prove the state underfunds its constitutional obligation to provide an adequate education in a Superior Court decision, in oral arguments before the state Supreme Court Thursday.

And the state claimed the four school districts who sued the state – ConVal, Winchester, Mascenic and Monadnock — confuse actual cost with the cost of adequacy.

The districts argued the court should tell the legislature to comply with its Claremont education decisions issued 25 years ago requiring the state to provide students with an adequate education and to pay for it.

State Solicitor General Daniel Will said the local districts first have to prove they have been deprived of their constitutional rights and that would need a significant proceeding to determine, not the non-legal evidence the Superior Court used in making its decision.

But attorney Michael Tierney said the state never asked for discovery in its filings and the district’s four superintendents provided evidence the state adequacy grant of $3,700 per student was insufficient to provide their students a state-defined adequate education.

At issue is Cheshire County Superior Court Judge David Ruoff’s 2019 ruling that the state is underfunding what it is obliged to pay for an adequate education. The expansive decision said the current system results in unconstitutional inequities in student opportunities and in tax rates among communities.

Ruoff ruled the state has unconstitutionally failed to pay education costs including transportation, facilities and instruction at proper teacher-student ratios.

And the court said the state requires towns to subsidize its responsibility to pay for an adequate education, a figure which was set artificially low by the legislature and is irrational.

Using local property taxes to pay for the state’s share of education results in widely varying property tax rates that are unconstitutional, failing the proportional and reasonable provision, the plaintiff claims.

“Labels aside, we are simply unable to fathom a legitimate governmental purpose to justify the gross inequities in educational opportunities evident from the record,” Ruoff wrote.

“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.”

Both sides appealed the decision. The four districts appealed because the judge did not award them financial relief and instead said it was the legislature’s responsibility to rectify the violation.

But Will told the justices Thursday the court made some serious errors, noting the Supreme Court has said repeatedly that to seek redress for violating a constitutional right, you first have to prove it was violated.

The school districts can’t simply say they can’t provide an adequate education on what the state provides, they have to prove it, Will told the court.

The legislature and State Board of Education have defined what constitutes an adequate education that does not constitute all educational costs, he said.

A district’s “actual costs are not equitable to adequate costs. Adequate costs are a subset of actual costs,” Will said. “They have the cart before the horse.”

But Justice James Bassett asked is it unconstitutional when the difference between the state’s grant and the actual costs reaches a certain point.

And Will said if the state set an irrational figure at something like $5 then the court could step in.

Bassett asked if the plaintiffs did not establish a record that adequacy costs were more than $3,600 per student.

Will said the question was not part of the proceedings and should not be before the state Supreme Court. The Superior Court relied on actual costs in various categories of educational enterprise, he said, the cost of an adequate education.

But Tierney said the four districts asked the Superior Court to set the adequacy amount for the state’s obligation at $9,929 per student based on rectifying the five errors the legislature made in setting the figure at $3,700.

He said the court has already ruled in Claremont that it is the state’s exclusive obligation to fund an adequate education and not to shift it to communities.

Tierney said there is a judicial responsibility to see its rulings enforced, noting the state is not claiming the amount of funding is constitutionally adequate.

“School districts cannot provide a constitutionally adequate education with the funding provided by the state,” he said.

But Bassett noted Will said that is irrelevant.

Tierney said Will made a procedural argument that there was not sufficient evidence for the trial court to decide, but he said the plaintiff provided evidence of a violation in a different way.

Justice Anna Barbara Hantz Marconi asked Tierney if his clients focused on whether the definition of an adequate education had not been met.

Tierney said they did using the state’s methodology.

Winchester is a small district and could not meet the definition without spending more than $15,000 which is why it tuitions high school students to Keene, he said.
The justices and Tierney then sparred over how adequacy is defined, what constitutes an adequate education determined by the legislature and what essential education costs are not included.

Justice Patrick Donovan noted if the adequacy amount were raised to $10,000 per student there would still be varying local property tax rates, but Tierney said that would change the underlying property tax rates for communities.

“The Superior Court erred in saying it did not have the authority to issue specific relief,” Tierney said. “It does have the authority and should have exercised that authority.”

Donovan said to determine what is an adequate amount would require a background procedure as Will said.

Tierney said the state filed for an expedited proceeding saying a trial is not necessary which would have provided that information.

Marconi said it is difficult for the legislature to keep up with the changes in education, but Tierney disagreed.

“For the last 25 years the legislature has chronically underfunded (education) and said they would fix it next year, and next year and next year,” he said. “In this particular case there is a specific remedy to fix their unconstitutional actions.”

Whether the legislature has adequately addressed the court’s education funding rulings has been debated for years before the courts and the legislature.

The legislature has also made numerous attempts to remove the court’s jurisdiction over the issue through constitutional amendments, but all have failed to receive the needed approval to be placed on general election ballots.

The court is expected to take at least several months before issuing a ruling on the case.

Garry Rayno may be reached at

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