By GARRY RAYNO, InDepthNH.org

CONCORD — Four members of the last education funding commission that met in 2020 say the ConVal decision is flawed because it disregards “differentiated aid” which aims to help the state’s neediest school districts.

Rockingham County Superior Court Judge David Ruoff’s two education funding decisions — ConVal School District and others, and Rand and others — are before the Supreme Court on appeal.

The judge found the state currently fails to provide enough state aid to fund an adequate education and would need to increase its aid by $500 million a year to meet its constitutional obligations and that the state’s method of administering the Statewide Education Property Tax is unconstitutional as it favors property wealthy communities and those with few or no students to educate.

“In its report, the commission found the top priority should be to increase state budget funds that are directed to less affluent cities and towns to improve student equity and reduce unfair property tax burdens,” said Rep. Dave Luneau, D-Hopkinton, and commission chair. “This Amici brief urges the Supreme Court to clarify that the Legislature has clear constitutional authority to achieve the recommendations approved by the commission.”

The brief was filed by former commission members and Reps. Mary Heath, D-Manchester, Richard Ames, D-Jaffrey, Mel Myler, D-Hopkinton, and the group’s attorney, Bill Ardinger, who also served on the commission.

The commission found students from property poor communities performed below those from property wealthier communities that provided greater monetary resources per-pupil compared to the property poor districts.

Instead of determining the cost of an adequate education by inputs such as the cost of teachers, administrators, courses and facilities, the commission instead determined the money needed for poorer performing districts to increase the performance of all students to the statewide average for such things as graduation rates, average daily attendance and student assessments.

The commission did find that the average student outcomes in New Hampshire and the amount of money spent per pupil were among the highest in the nation. The committee determined enough money is spent on public education Kindergarten to 12th grade, but that the state needs to pay a larger share of the cost which in the most recent data is over $3 billion annually.

In Ardinger’s Amicus brief, the four urge “the court to reaffirm, strengthen and clarify the Legislature’s constitutional duty to enact a comprehensive public school law that provides clear definitional standards for desired educational programs, that establishes a transparent accountability framework by which the State can evaluate whether the educational program is achieving the standards, and that mandates funding through a mandated integration of state and local resources that is rationally structured to guarantee adequate funding, including most importantly to improve student equity and achievement across the State.”

They say only a program that incorporates a needs-based arrangement can satisfy the fundamental state duty under the state constitution.

The push for greater state involvement to improve the outcomes for students stands in contrast to the brief filed last week by House Speaker Sherman Packard and 30 other Republican lawmakers, who argued the Supreme Court made a fundamental error in its Claremont I and II decisions in ruling the state has a responsibility to provide an adequate education and to pay for it.

Instead they argue the obligation lies with cities and towns and the state’s duty is to ensure the local school districts meet those requirements.

The Republican lawmakers asked the Supreme Court to overturn the landmark decisions issued about three decades ago and reaffirmed in several other education funding decisions since the original decisions were made.

The four Democratic lawmakers do take issue with Ruoff’s decision in the ConVal case saying it limited its examination of the constitutionality of the public school funding system to a single component – “base aid,” while Claremont I and the court’s other education funding decisions do not support nor mandate that limitation. 

They claim Ruoff also erred by concluding all other components of the state’s education funding system, including “differential” or “differentiated” aid, are not relevant to the constitutional analysis.

They argue Ruoff’s decision undermines the court’s Claremont I decision which allows for differentiated aid, does not limit the determination of an adequate education to inputs, and does not mandate the state pay the full cost of education.

“This brief criticizes the trial court’s disregard of state ‘differentiated aid’ which disproportionately helped poorer communities,” said Ardinger, a 1978 graduate of Claremont’s Stevens High School. “The Constitution and this Court’s Claremont cases require the Legislature to help poorer communities like Claremont, and not just to distribute state aid on a rigid uniform per pupil basis, regardless of need.” The brief does not contest the trial court’s conclusion that the state’s base adequacy aid of $4,100 per pupil is too low to pay for a constitutionally-adequate education.

And the brief also does not propose any specific relief and is “in support of neither party.” 

Reps. Luneau, Heath, Ames and Myler are co-sponsors of legislation that would implement the Commission’s recommendations in House Bill 1586, which would increase state public education aid through a greater rate of the Statewide Education Property Tax and flow additional aid to school districts with the greatest needs.

“It is vital that the Legislature reform our public school funding system to ensure that all of New Hampshire’s children have an opportunity for a high quality public education and good student outcomes,” said Myler, who is not running for re-election. “I am joining in this brief because the Supreme Court needs to emphasize that only a program focused on improving student outcomes for all our children can satisfy the fundamental duty under our state constitution.”

The five former commission members, say the brief reflects only their perspective and they do not speak for the commission nor its other members.

One commission member, Rep. Rick Ladd, R-Haverhill, was among the 31 Republican members signing on to the brief urging the court to overturn the Claremont decisions.

The Supreme Court does not have to consider the Amicus briefs if it rules their arguments are not relevant to the issues on appeal before the court.

The court is unlikely to hear oral arguments on the two appeals until next year.

The other half of the Rand case, that was put off until the question of the Statewide Education Property Tax’s constitutionality was decided, about adequate education and unconstitutionally shifting state costs to local property taxes will resume next Monday in Rockingham County Superior Court.

Garry Rayno may be reached at garry.rayno@yahoo.com.