By KATHARINE WEBSTER, InDepthNH.org
Supporters of a group of school districts led by Contoocook Valley (ConVal) that sued the state over education funding were cautiously optimistic after oral arguments before the state Supreme Court on Tuesday, while the defendants – the state Legislature, governor, Department of Education and Education Commissioner Frank Edelblut – largely remained silent.
“The judges obviously were prepared and they asked a lot of great questions of both sides,” said John Tobin, one of the attorneys who represented Claremont and four other school districts that sued the state more than 30 years ago over the lack of state spending on education. At that time, schools were almost entirely funded by local property taxes, leading to wide disparities in school budgets.
State Supreme Court decisions in 1993 and 1997 in those cases, known as Claremont I and Claremont II, affirmed that the state had a constitutional duty to fund an adequate education for every public school child and pay for it with a fair, statewide tax.
The Connecticut Valley (ConVal) School District sued in 2019 over the base adequacy amount that the Legislature has set in state law – $4,100 per pupil during the last school year – saying it is less than half of what’s actually required to teach all required subjects and meet other state requirements, including having school nurses, school counselors and school principals and paying for school buses, building maintenance, heat, electricity and snow removal. Eighteen other school districts joined the suit.
In November 2023, state Superior Court Judge David Ruoff agreed and ordered the state to pay a minimum of $7,356 per pupil to the districts, while opining that the true cost of an adequate education was probably much higher.
The state appealed, arguing that Ruoff’s decision was unconstitutional because it usurps the authority of the Legislature to decide what must be included in the definition of an adequate education and decide how to pay for it.
On Tuesday, state Solicitor General Anthony Galdieri argued that the state is only obligated to fund teachers for state-required subjects such as science, math, English and social studies as well as instructional materials and assessments. All other costs are the responsibility of local districts, he said.
The Supreme Court put Ruoff’s order on hold last March pending the outcome of the appeal. The court is likely to issue its ruling in the next three to six months.
Michael Tierney, attorney for ConVal and 18 other districts, said after oral arguments on Tuesday that the state had offered no evidence to support its base adequacy amount, while the school districts had proved their case.
“We’re looking forward to the Supreme Court affirming the Superior Court’s decision,” Tierney said.
The state Department of Education reported last year that the actual per-pupil cost of education exceeded $20,000 per pupil.
The state provides “differentials” beyond the base adequacy amount – $2,100 for each child who needs special education services, $800 for every English language learner and $2,300 for each student who qualifies for free or reduced-price meals – as well as extraordinary relief grants to districts with low property values and high numbers of low-income students.
However, the ConVal lawyers argued that all of the differentials put together do not even cover special education costs, and that in some districts, those differentials average out to only a couple of hundred dollars per child.
Zack Sheehan, executive director of the New Hampshire School Funding Fairness Project, said in a statement issued Tuesday that it is absurd for the state to argue that base adequacy aid does not need to reflect the “real world costs” of providing all public school students an adequate education.
“Stop and think about the absurdity of the State of New Hampshire arguing in court on an icy morning that school buildings and heat are not required to provide an adequate education for our children,” Sheehan said.
“Current levels of state education funding fall far short of the actual needs of educating New Hampshire kids, and the difference gets downshifted onto local property taxpayers year after year,” he said. “The state is long overdue to step up and deliver on its constitutional responsibility to fund education, and I expect a positive decision in this case will make that happen.”
The state Attorney General’s Office, state Senate President Sharon Carson, House Speaker Sherm Packard, Gov. Chris Sununu, Edelblut and the Department of Education have not responded to requests for comment.
However, Carson said on WMUR-TV’s “CloseUp” last Sunday that the Senate would be “very cautious” about expanding school voucher spending, a priority in the House, because of the ConVal lawsuit and another lawsuit about the Statewide Education Property Tax that the Supreme Court heard last month.
“We can’t forget that we have the education spending lawsuit looming over us,” Carson, R-Londonderry, told Adam Sexton, political director at the television station.
When Sexton asked whether she thought the courts could “dictate” what the Legislature must spend on education, Carson replied, “No, absolutely not. That’s not their job. That’s our job; that’s the Legislature’s job.”
Republican legislators, who have large majorities in both chambers, have sponsored a slew of bills for the upcoming legislative session that would change the state’s education funding scheme in various ways – including a bill that says the legislative and executive branches do not have to obey court rulings on education funding.
That bill and Carson’s remarks echo a friend of the court brief filed by a group of Republican legislators that included Packard, R-Londonderry. The brief asked the state Supreme Court to overturn the precedents set in the Claremont school funding decisions, arguing the court is not bound by its own previous decisions any more than the U.S. Supreme Court was bound by Roe v. Wade in deciding the Dobbs case in 2022.
Democratic state legislators had a different take.
State Rep. Lucius Parshall, D-Marlborough, who was a music teacher in the ConVal School District for 18 years before retiring four years ago, said it’s a shame that the Legislature is still failing to comply with the Claremont rulings.
“It should never have come to this point,” he said. “We’re still stuck back where we were 30 years ago, and if we don’t fund education adequately, we’re going to pay the price with a society that’s uneducated.”
State Rep. Nick Germana, a professor of history at Keene State University, said that New Hampshire contributes less money to both public K-12 schools and public higher education than any state in the country: about $3,700 in 2022, compared to the national average of $10,237, according to an analysis by the nonpartisan New Hampshire Fiscal Policy Institute.
In addition, Germana said, Education Commissioner Frank Edelblut and the Republican-dominated Legislature are weakening the state’s K-12 education standards so that the state can continue to underfund education, including by raising caps on class sizes and redefining “instructors” to include people who are not trained and licensed teachers.
“For years, (Republicans) have run successfully on keeping your state taxes low,” Germana said. “The result is that local school property taxes keep going up and up and up … and people blame it on their local municipalities.”
Rep. Tim Horrigan, D-Durham, who has been a member of the Judiciary Committee, says Republican legislators are wrongly blaming the courts for their own failure to follow the law.
“The laws we pass don’t meet the (New Hampshire) Constitution,” he said. “And that’s not the judges’ fault; it’s the Legislature’s fault.”
