Above, Attorney Michael Tierney prepares his argument for the school districts at the state Supreme Court in Concord. Katharine Webster photo
By KATHARINE WEBSTER, InDepthNH.org
CONCORD – For the second time in less than a month, the state Supreme Court heard arguments Tuesday over whether New Hampshire’s current school funding scheme is constitutional.
Tuesday’s arguments in Contoocook Valley School District et al (ConVal) v. New Hampshire et al focused on whether the state is fulfilling its constitutional duty to pay for an adequate education for every child.
Attorney Michael Tierney argued that the state law setting the state’s base aid at $4,100 per pupil is unconstitutional because it is not enough to provide children with instruction in state-required subjects, having a school principal for every 500 students and a school nurse in each school, also required by state law, and keeping the lights on and heating classrooms.
In November 2023, Superior Court Judge David Ruoff ruled in favor of ConVal and the other school districts, ordering the state to provide districts with a base adequacy amount that is no lower than $7,356 per pupil, and concluding that the true cost was “probably much higher.” The state appealed, and the state Supreme Court put Ruoff’s order on hold in March.
After trial and testimony from experts, Tierney told the justices, Ruoff determined that “the state’s funding of base adequacy is woefully inadequate. It doesn’t even come close” to the actual cost, which is at least $10,000 per child before any “differential aid” for children needing extra help.
Solicitor General Anthony Galdieri argued in defending the state law that Ruoff should have considered not only the base adequacy aid, but the differential aid that is part of the same law – $2,300 for each child needing special education services, $800 for each child learning English and $2,100 for each child from a low-income family – as well as extraordinary relief grants for districts with low property values and a high proportion of low-income students.
He also argued that, in setting a floor for the base adequacy amount, Ruoff had included expenses that are not spelled out in state law, which defines an adequate education as instruction in English, math, science, social studies, art and music, world languages, health and wellness, physical education, engineering and technology, computer science and personal financial literacy.
“The Legislature only has to pay for what is in that definition,” he said.
Senior Associate Justice James Bassett asked Galdieri whether the cost of teacher salaries was explicitly included in that law. Galdieri said it was not, but under further questioning conceded that the cost of teachers in those subjects, as well as instructional materials and assessments, were included because they are necessary to provide the required instruction and hold the state and districts accountable.
However, the law does not require the state to pay for school district superintendents, school principals, transportation (school buses), building maintenance, heat and electricity, some of which Ruoff included in his calculations, Galdieri argued.
“It is not fair game for the (lower) court to say … ‘We’re going to include whatever it takes to operationalize a school.’ That is a problem,” Galdieri said.
He further argued that Ruoff breached the constitutional separation of powers by essentially declaring a particular funding formula as constitutional, instead of leaving the overall school funding scheme up to the Legislature.
That also came under questioning by the justices, who have repeatedly ruled in favor of school districts in nearly a dozen school funding cases brought over the past 30 years – including a 2019 ruling in the same case.
In 2019, Ruoff ruled in favor of the school districts based on adequacy amounts calculated by a legislative commission a decade earlier. When the state appealed, the Supreme Court sent the case back to Ruoff, saying that he should hold a trial to determine the facts, including what is included in the constitutional definition of an adequate education and how much that costs.
On Tuesday, Bassett pointed out that the state, while questioning the credentials of the school districts’ expert witnesses, had failed to present any evidence of its own.
“Wouldn’t it have been helpful to provide that information to the trial court?” he asked.
The justices also questioned Tierney about their expert witnesses, including Kimberly Rizzo-Saunders, superintendent of the ConVal District, and Bruce Baker.
Baker was among the experts hired in 2020 by the Legislative Commission to Study School Funding, and he was chief author of a report that concluded in 2021 that base adequacy aid should be more than double the amount set by law. Because he had reached that conclusion, the school districts called him as an expert in the trial before Ruoff, Tierney said before oral arguments Tuesday.
Ruoff noted in his ruling last year that the state’s own expert had concluded that base adequacy funding was way too low.
Ruoff also noted the state’s concern over the constitutional separation of powers, but said he gave more weight to the reality that “with each passing school year, another class of public school children is permanently deprived of the fundamental right to a constitutionally adequate public education.”
Ruoff concluded that merely striking down the Legislature’s base spending figure was not enough because “the politics of this issue” could prevent the Legislature from fulfilling its constitutional duty to set base adequacy funding higher.
Several groups filed “friend of the court” briefs when the case was on appeal, including the New Hampshire Charitable Foundation, which sided with the school districts, arguing that adequate state funding of education is essential to the state’s future because it leads to an educated citizenry and workforce.
Another brief, filed by a group of Republican state legislators, urged the state Supreme Court to overturn its own, earlier education funding decisions, starting with the Claremont rulings in 1993 and 1997 that found the state has a constitutional duty to provide all students with an adequate public education and use a fair statewide tax to pay for it.
The Republicans cited the U.S. Supreme Court’s 2022 Dobbs decision, which overturned the constitutional right to abortion that the court had established in Roe v. Wade nearly 50 years earlier, in arguing the court should overturn the Claremont decisions.
“This court should … terminate the agonies to which it has condemned lower court judges, and restore itself to constitutional legitimacy by following the example of the U.S. Supreme Court in parallel circumstances in Dobbs, by overruling Claremont I and Claremont II,” the Republicans’ brief argued.
The plaintiffs in another state education funding case that Ruoff decided last year also weighed in, but on behalf of the school districts. The state Supreme Court heard arguments in that case, Rand v. New Hampshire, last month.
The Rand case was brought by property taxpayers in communities with lower property values and higher numbers of school-age children, and it challenged the fairness of the way the state administers the Statewide Education Property Tax, or SWEPT. The Rand plaintiffs also claim that the state is underfunding the cost of an adequate education, forcing communities with lower property values to greatly increase their local property taxes to make up the difference.
In the state’s 2019 appeal of Ruoff’s first ConVal ruling, then-Attorney General Gordon MacDonald represented the state. For that reason, MacDonald, now the chief justice of the state Supreme Court, has disqualified himself from hearing the current appeal.
In addition, Justice Anna Barbara Hantz Marconi is suspended from the court pending criminal charges in a case involving her husband. That means only three of the five justices heard and will rule on the second appeal: Bassett, Justice Patrick Donovan and Justice Melissa Countway.
