By BEVERLY STODDART, InDepthNH.org
Attorney/author Andru Volinsky is a hero to many in the fight to fairly and adequately fund public education in New Hampshire. He has spent more than three decades involved in court battles as well as conversations across the state educating the public about what he calls the unfairness of the state’s school funding system.
Volinsky was on the original legal team arguing what has become known over the years simply as the Claremont case. Now, Volinsky has documented the arguments that have shaped his public life in a new book that will go on sale April 1, “The Last Bake Sale, The Fight for Fair School Funding.” You can purchase the book, which is published by Peter E. Randall Publisher, at your local bookstore or at LastBakeSalebook.com.
Volinsky has served on the Executive Council and he ran unsuccessfully in the Democratic primary for governor while practicing law, but mention education funding in New Hampshire and Andru Volinsky’s name immediately comes to mind. He also writes about school funding with vigor in his free weekly newsletter, “A Book, an Idea and a Goat,”on Substack. Sign up here: https://substack.com/@andruvolinsky?utm_source=profile-page
In my conversation with Andru Volinsky, we discussed the Claremont case, where he and a team of lawyers sued the state of New Hampshire. It’s also a tell-all at times about who helped and harmed education funding over the years, naming a number of familiar political people. You need to read this book to understand the full political background, not just today’s public relations rhetoric of the moment, on what has truly been happening.
It matters today because while his original legal team prevailed, decades later, there are now two other pending lawsuits as the education funding fight continues.
Please note this interview has been edited for length and clarity.
BEVERLY STODDART: How did this start?
ANDRU VOLINSKY: I think the story really starts with Brown v. Board of Ed, which is the 1954 US Supreme Court case that ordered that public schools be desegregated. There was plenty of resistance, but by the late 60s and early 70s, the country was ready to move to the next step of desegregation, which was looking at the practical part of making finances equal or less unfair.
There was litigation before the Supreme Court, and the thought was to make Brown v. Board real; they had to make the finances real. They ran into a roadblock put up by Justice Lewis Powell in the case San Antonio v. Rodriguez. Powell wrote for a heavily divided court, five to four, that education is not a fundamental right protected by the US Constitution. Thurgood Marshall was on the court. He was the lawyer in Brown and wrote a powerful dissent, pointing out that if education is not a fundamental right under the US Constitution, Justice Powell had failed to consider all of the state constitutions and whether education is a fundamental right under state constitutions. Litigation in 45 or more states challenged the fairness of school funding.
One of those cases was the Claremont school funding case, where a team of lawyers that I led, beginning in about 1990, sued the state of New Hampshire over the unfairness of its school funding system. I did that work for 20 years in the Claremont lawsuit. There is current litigation pending in two new cases, on one of which I’m co-counsel, called Rand v. State because the issue is not completely solved, but the problem is a math problem the state continues to ignore. School funding is just a matter of multiplying the value of the property in your town times the tax rate. That’s how much you raise. If you have a town with low property values, even when you impose a very high tax rate, you don’t raise a lot of money.
So, in 1784 our New Hampshire Constitution [was ratified], in 1993 in the Claremont 1 case, for the first time over a 200-year constitutional history, a Supreme Court in New Hampshire recognized education as a fundamental right, and that was as a result of our litigation. The trial led to Claremont II in 1997. That was kind of a big deal. I’m very proud of that.
STODDART: Does the general public know the history of how New Hampshire schools are funded.
VOLINSKY: That’s one of the reasons I wrote the book. Ideally, politicians are leaders, and they recognize the problems through talking with citizens and voters, and they begin to address the problem. But as we all know, in difficult areas of public policy, they don’t do that. Leaders don’t lead. The way to address that is through a three-legged stool approach of public engagement, political action, and litigation. It’s part of a change strategy, but you only do it if the political avenue is foreclosed.
Depending on where you live, either twice a year or four times a year, you pay your property taxes. That’s a good reminder that you ought to know where your money goes and where it doesn’t go and whether you’re contributing to a fair system that gives children and taxpayers across the state a fair break or not. Around the Claremont litigation in the mid to late 90s, there was a good distribution of knowledge about how school funding worked. It waned over time. Beginning in about 2017 or 2018, there began to be an effort to educate the public, bring the newcomers up to date. John Tobin, Doug Hall, and I did 70 forums around the state. We called them Ed Funding 101. Everywhere we went, we were generally invited by school boards, but some city councils and some nonprofits brought us in, and we’d talk for 45 minutes or an hour about how school funding worked, and then we’d take an hour, hour and a half of questions. That led to the legislature forming the School Funding Commission in 2020 because there was so much interest. And now, with the litigation I’m part of, Rand v. State of New Hampshire. The other litigation, which is called ConVal, doesn’t try to connect what’s happening in the litigation to public engagement. The lawyers do their thing, and everyone else is quiet. I think that’s a big mistake, an oversight. I think today, knowledge is better distributed than it was five or 10 years ago, but there are a lot of places where people still don’t understand it.
STODDART: The book’s subtitle is The Fight for Fair School Funding, which begs the question of why there is a fight. Why doesn’t the legislature see that children are in need and schools are failing?
VOLINSKY: I don’t think schools are failing. Schools may not be up to the task assigned to them, but that doesn’t mean schools are failing. For example, if I asked you to go to the grocery store and buy a carton of eggs for me, and I gave you $3 to do that, you will not succeed. That doesn’t mean you’re a failure and the store has failed. It means there aren’t enough resources to meet the task. In New Hampshire, there are some places where there is a huge abundance of resources. There are other places where teachers, school boards, and townspeople are being asked to look for the $3 carton of eggs and it doesn’t exist. I follow the test scores, state assessments, and the National NAEP test scores, and we have very mixed results. I think you need to ask what are we asking the schools to accomplish and what are we giving them to work with. The research is clear that children who live in poverty, children whose parents don’t have significant educational attainment, children who are not from the dominant suburban race and class have more challenges. More challenges often require more resources, and we starve those communities. Those are the communities with the highest tax rates that produce the lowest revenues, and I think that’s where our focus needs to be.
STODDART: Part One of the book is “Why a National Movement Became Necessary.” How can you have that the way politics stand now?
VOLINSKY: The national precedents by the Supreme Court forced the movement out of the federal courts. There are some tiny aspects that still can be litigated in federal court, but by and large, it’s a state court issue. And because of that, state-based organizations have sprung up across the country. We had the Claremont Lawsuit Coalition, as that lawsuit was active. There’s now the Fair Funding Project of New Hampshire; there’s Reaching Higher. There are groups like Kent Street that organize around this issue. Texas has a group called Every Texan. New Jersey has the Education Law Center. Those groups exist within their states. Since ’92 or ’93, I’ve been going to national seminars sponsored by the Education Law Center, and depending on which year, their focus is on one suit or another. I’ll meet with 50 or 100 colleagues who litigate these cases and talk about what we’re seeing, who the opposing experts are, what the defenses are. I write about it in The Last Bake Sale. At one point, I felt a little sorry for former Attorney General Phil McLaughlin because he was trying to figure out how to do school funding litigation by himself. I was connected to a national network, and my colleague John Tobin was the Executive Director of Legal Assistance. Legal Assistance has a long history of not litigating education issues, but litigating poverty issues and so a lot of the techniques, the approaches we adopted, came from discussions in those two areas.
At one point, Phil was doing so poorly that my former partner, Bob Stein, started inviting Phil and me to breakfast at his house. And Phil would tell me we’re thinking about doing this strategy in the litigation. If we did that, how would you react? And I tell him his client, then-Gov. Jeanne Shaheen, would never agree to a resolution. But Phil and I were able to dialog in a way that prevented him and his office, the Attorney General’s Office, from making some huge mistakes. I think that was in everyone’s interest.
STODDART: You mentioned Jeanne Shaheen, who recently announced she won’t run again as a US Senator. Has she been a friend of New Hampshire education?
VOLINSKY: She has not. After she finished her governorship, she ran and lost to one of the Sununu sons, and then the next time, she won her US Senate seat. Jeanne Shaheen was a state senator when we started the Claremont litigation. She was elected governor around the same time we did the trial in the spring of 1996.
We thought we had a friend in then-Governor Shaheen, and we thought we had set up matters well so that she could blame the court for forcing her to change the tax structure of New Hampshire in a way that would benefit children and taxpayers and the poorest communities. Instead of doing that, she picked up right where former Attorney General Steve Merrill, her predecessor, had left off. There was no difference in Jeanne Shaheen’s approach to school funding from that used by Republican Steve Merrill. The arguments were the same. The refusal to fix the problem was the same. After the Supreme Court upheld our decision, being in the balcony of the State House, an income tax sponsored by Liz Hager and Cliff Below and some others had passed in the House, had passed a slightly different version in the Senate, and was back in the House to be confirmed. I watched as Jeanne Shaheen and her assistant, Judy Reardon, pulled state Reps off the floor as Donna Sytek stalled the vote and twisted their arms to defeat an income tax that could have solved all of the school funding problems before 2000. So we’d have a quarter of a century of working with fair funding for our schools if it had not been for Governor Shaheen wanting to become Senator Shaheen. I don’t want it to be lost. We won Claremont II in December of ’97. This court gave the state 15 months to fix it, to design a plan, and the state failed to do so and created this morass that we’re dealing with 25 years, 35 years later. To be fair, when we filed suit at the beginning of the ’90s, the state funded 6% or 8% of the cost of education. Now, the state funding is up to 20%. That’s an improvement. The national average is 50%, and we’re nowhere near that.
Pennsylvania just lost a school funding case in 2023, and state funding there was about 36 or 38%. Rather than appeal, the state legislature went on the road, had 10 listening sessions, and developed a remedy that met the needs the court had identified, and the legislature was controlled by Republicans. They did the right thing. Our Republican administration has appealed the ConVal loss that they had and the piece of our case that was decided. They’re now both in the New Hampshire Supreme Court, and Democrats had the opportunity to step up and say, don’t appeal. Let’s deal with this. They were in the minority, and we told them about the Pennsylvania experience, but none of the leaders had the courage to step up and say we should fix this.
STODDART: Part Two of the book is The New Hampshire Experience. Would you explain how privilege protects privilege?
VOLINSKY: If you drive across New Hampshire, it becomes fairly obvious that some communities have a great deal of property value. They tend to be the communities on our small oceanfront, on a lakefront, or where they have a ski hill. They are communities that take advantage of a natural asset, and they often have a lot of second homes, which means the children in those homes don’t have an education cost in that community because they likely go to school in Massachusetts.
If you know Moultonborough on the lake, there are a lot of second homes, a lot of lakefront homes, but it’s a 30-minute drive from Pittsfield, which doesn’t have all of that. Pittsfield’s tax rate is probably five times that of Moultonborough, and they spend less per pupil than Moultonborough does by a lot, and it shows in the school programming—same-size districts, 500 kids each. Moultonborough typically has eight or 10 AP, advanced placement, courses in their high school. Pittsfield is lucky to get one every couple of years. The last I checked, Pittsfield doesn’t have a foreign language teacher. In Moultonborough, you’re exposed to foreign languages in grade school.
STODDART: Is The Pledge against a state income tax the problem with funding our schools?
VOLINSKY: The pledge isn’t the problem. The politicians who take it are the problem. So you have to remember first the pledge came from Mel Thomson and William Loeb in 1973. I can’t think of two people who did more damage to our state than the two of them. Thomson lost to Walter Peterson twice in a governor’s race, and then the third time, Loeb picked up Thomson, and together, they created the “ax the tax” pledge and Bill Loeb created the pledge. Bill Loeb had the only statewide newspaper, the Union Leader. He spent hundreds of front-page editorials and articles blasting Walter Peterson, and the popular governor lost. The message politicians took from that was to take the pledge, and they don’t understand where it came from or what Loeb did to get Thomson elected. And so, if you don’t understand that, it’s easy to promise to take the pledge. I ran for governor. Some of the top Democrats in the state who I am friends with, I won’t tell you who they were, said, take the pledge, and then when you get elected, do whatever you want.
I publicly refused to take the pledge. It was ridiculous to even raise that with me, but because of the pledge, people didn’t know that New Hampshire had, until last year, two income taxes. We don’t call them income taxes, but they were income taxes. The Interest and Dividends Tax, which has just been repealed (as of January 1), was a tax on earnings from interest and stock dividends. It produced about $180 million a year, and the Republicans and former Gov. Chris Sununu repealed it because they were cow-towing to the richest people in the state. But that was an income tax. That created a $180 million hole in the budget that Gov. Kelly Ayotte now has to deal with. The second income tax is the business enterprise tax, which is a tax on wages, but only the wages of people who work for a living. If you’re a regular employee and you get a paycheck every week, your employer pays a tax called the Business Enterprise tax on your wages. That’s an income tax, but only certain people pay it. The business enterprise tax came from another tax lawsuit brought by Cabletron and Craig Benson, settled by Steve Merrill. So Steve Merrill put this tax on wage earners in 1992 or ’93, and it continues to this day. They cut this deal to save the business profits that Cabletron was paying, at the time, the largest employer in New Hampshire, and it was paying a lot, 10%, I think of all the business profit tax in the state. They were tired of it, so they sued the state and said that big companies like them pay business profits tax, but small companies, instead of declaring profits, give the money out as bonuses to the owners. Bill Ardinger, who’s the state’s favorite tax lawyer now, was the state Rep who introduced it in the early ’90s. While Merrill was fighting us tooth and nail and waging vicious litigation against us trying to get fair school funding, he helped out his buddies in the big companies by creating this tax, wherein he would never create an income tax.
STODDART: You posed the question, is education a fundamental right? Is it?
VOLINSKY: I think education is a fundamental right because democracy requires people to be educated to function well. If you want democracy to work, you have to educate the people. The better you educate people as to what education and schooling can accomplish, the more you open their vision to, depending on their personal circumstances, dreams and thoughts, or workplace activities and career opportunities. My dad was a mechanic. If I hadn’t gone to school, I’d likely be working in a factory. I’m the only one of four siblings to go to college, and my lifetime trajectory is very different than my brother and my sisters. Schooling did that. So making people aware of that, I think, makes a big difference, and those of us who understand it have a responsibility to help others understand it, and in part, that’s why I wrote the book.
STODDART: Tell me about the Red Dot Incident:
VOLINSKY: We were told that the judge in our case would visit all of the schools in our five client districts and the five districts we identified as comparison districts because they were similar sized. I visited our schools and found the classrooms were full of materials provided by the teachers. We told the teachers in the schools to be visited to take a red sticker, a little red dot, and put it on everything in their classroom that they owned, rather than provided by the school. When the judge walked into one of our districts, he was met by a sea of red. I think teachers everywhere go above and beyond, but these teachers understood what their children needed and dug into their own pockets, sometimes on the lowest pay scales in the state, they would still buy and bring in their own books and materials. We wanted the judge to understand that was happening and not be confused when he saw a well-resourced classroom about who was providing it.
STODDART: What is the solution since there is no such thing as a last bake sale.
VOLINSKY: It was a metaphor; except we actually held a bake sale to fund the lawsuit in 1994. The Associated Press covered it. Someone on a webinar last week asked if we were optimistic that this would get resolved. And I think the premise is wrong. I think there’s no alternative but to push for a fair resolution. We understand it’s difficult. You’re educating a state. You’re educating a legislature, you know; I’ve briefed most of the governors who’ve been elected on this. I tell them, you can agree with me or not but let me explain how this works. And so I’ve had that sit down with most of the governors who’ve been elected since Jeanne Shaheen. The consequence of failure means we leave behind so many children and taxpayers, particularly given the difficulties in Washington. As a state, we can’t afford to do that. We need the help. We need everybody rowing in the same direction and to be in the same boat.
In some ways, this book has been 30 years in the making. I’m glad that I finally had time to focus on it. It’s in part, recording history, in part it’s sharing information, but it’s mostly part of the mission to fix school funding.
Scheduled Talks about The Last Bake Sale (website: (LastBakeSalebook.com):
April 2, 6:30 p.m. Gibson’s Bookstore, Concord, NH
April 10, 7:00 p.m. Water Street Bookstore, Exeter, NH
April 12, 11 a.m. Balin Bookstore, Nashua, NH
April 26, 11 a.m. Toadstool Bookshop, Peterborough, NH
May 1, 7:30 a.m. Henniker Rotary, Henniker, NH