By GARRY RAYNO, InDepthNH.org
CONCORD —- In a 3-2 decision, the state Supreme Court has again found the state has failed to meet its constitutional obligation to provide its students with an adequate education and to pay for it as it did in the Claremont ruling.
While the court ruled with the lower court in determining the costs of providing an adequate education, it said the judge erred in ordering the state to pay about $538 million more because it violated the state constitution’s separation of powers act.
“We urge the legislative and executive branches to act expeditiously to ensure that all the children in public schools in New Hampshire receive a state funded constitutionally adequate education,” wrote Supreme Court Justice James Bassett, who will retire from the court next month.
ConVal School District filed suit in 2019 arguing the state had failed to live up to its obligation to pay for an adequate education for public school students. The case was joined by other school districts including Manchester, Nashua and Concord.
Superior Court Judge David Ruoff ruled in ConVal’s favor, and the state appealed it to the Supreme Court which said the court first needed to use “law and facts” to determine the components of an adequate education and what it cost.
A three-month trial was held and Ruoff released his decision in late 2023 and ordered the state to begin providing at least the minimum level of $7,356 per pupil, up from $4,100 per pupil at the time.
Tuesday’s 48-page decision included two parts that were both decided by 3-2 decisions.
The first upheld Ruoff’s decision that the state’s education funding system is facially unconstitutional, his determination of a conservative minimum threshold for base adequacy aid, and the awarding of reasonable attorney’s fees to the plaintiffs.
However, the court reversed Ruoff’s injunction requiring the state to immediately fund the system at the base adequacy level saying it did not give enough deference to the legislature’s constitutional responsibility to set educational policy and its funding.
“Although we have rejected the proposition that the separation of powers doctrine categorically prohibits the judiciary from awarding injunctive relief like the immediate payment directive should the circumstances and the equities dictate,” Bassett wrote, “we conclude that, under the unique facts of this case, the trial court did not accord sufficient weight to separation of powers considerations in crafting the specific injunctive relief that it ordered.”
He also said the court did not agree with the state’s contention that both the funding question and education policy are the purview of the legislature and executive branches of government, noting it is up to the courts to interpret the constitution.
Two Supreme Court justices, Patrick Donovan and Melissa Countway, agreed with the reversal of the injunction, but dissented with the majority opinion that the state did not meet its constitutional obligation to provide and fund an adequate education.
Instead, they agreed with the attorney general’s argument that Ruoff’s ruling violated the separation of powers clause in the state constitution.
“The trial court, however, went too far,” Countway wrote. “It is not the judiciary’s role to second guess such policy choices.”
They argued the lower court focused on base adequacy and did not include differential aid in the discussion although Bassett and two other justices agreed with lower court’s decision to focus on base adequacy not the additional money the state pays for students on free and reduced lunch, English as a second language learners or those who receive special education services .
“In the absence of findings and rulings about the amount of differentiated aid provided and the cost of delivering differentiated services, we cannot conclude that once differentiated aid funding and costs are properly considered, there is a clear and substantial conflict between RSA 198:40-a and Part II, Article 83 of the State Constitution,” Countway wrote.
Two justices filling in for Chief Justice Gordon MacDonald, who recused himself from the decision because he was Attorney General when the case was initially heard, and Justice Barbara Hantz Marconi, who is on administrative leave, former Superior Court Chief Justice Tina Nadeau and retired Superior Court Judge Gillian Abramson agreed with the lead opinion written by Justice James Bassett, but also believed Ruoff’s injunction should also stand.
“We believe that the proper remedy cannot be to allow the legislature to continue to idle,” Nadeau wrote. “We fear that the longer the judiciary waits to carry out its constitutional duty to provide a meaningful remedy in school funding cases, the more likely it is that the legislature will continue to ignore its obligation to fund the constitutional right to an adequate education.”
Nadeau also noted the court’s failure to intervene in the face of continued constitutional violations makes it a complicit actor in the deprivation of those rights.
“We decline to endorse a course of action that exposes the court to that vulnerability, that ‘perpetuate[s] the egregious underfunding of public education’ in this state for the foreseeable future, and that will result in further irreparable harm to the school-aged children of this state,” Nadeau wrote.
She said given the legislative history and the continual failure to fund an adequate education the trial court made the correct decision to impose the injunction.
“We conclude that the trial court’s remedy — a directive requiring the state to spend the bare minimum on education — was not only proper but necessary in light of the overwhelming evidence establishing that the current amount of base adequacy aid is ‘woefully inadequate’ coupled with the legislature’s long-standing failure to meet its duty to fully fund a constitutionally adequate public education.”
The supreme court also found the lower court correctly determined the components of an adequate education and their costs, and upheld expert testimony presented by the plaintiffs setting a reasonable cost for an adequate education, while determining the State had failed to meet its burden of proof in the case.
Bassett called the lower court’s establishment of a base minimum “eminently reasonable.”
“We hold that the evidence demonstrates a significant shortfall in the State’s funding of base adequacy aid, creating a clear and substantial conflict between RSA 198:40-a, II(a) and Part II, Article 83 of the State Constitution as to all, or virtually all, of New Hampshire’s school districts,” Bassett wrote. “Accordingly, the trial court properly concluded that the plaintiffs defeated the presumption that the current level of base adequacy aid is constitutionally sufficient.”
That places the burden of proof on the state to prove state funding is adequate, but the supreme court found the state did not offer any evidence justifying the adequacy of current funding levels.
Last month, the Supreme Court ruled in favor of the state by allowing property-wealthy communities to retain the excess money they collect under the Statewide Education Property Tax to cover the cost of adequacy for their students was constitutional.
The ruling written by MacDonald said the fact that the tax rate was assessed equally met the constitution’s proportional and reasonable clause for taxation.
The plaintiffs in the Rand case argued by retaining the excess SWEPT revenue, the property wealthy communities had a lower effective tax rate than the other communities in the state.
A second section of the Rand suit claims the state inadequately funds its obligation to provide and pay for an adequate education, which requires cities and towns to make up the difference with local education property taxes, which would mean they are state taxes and need to be assessed at the same rate.
Nadeau’s dissent touches on the issue.
“Because the State is failing to meet the constitutional requirement to fully fund education, however, the difference between the total per pupil cost and the amount of state aid generally must be paid for by the school districts themselves. This, in turn, requires local taxpayers to foot the bill for the difference,” she writes. “Thus, although local taxpayers may be providing funds that functionally carry out some or all of the State’s duty, it does not change the fact that the requirement of a state funded education has not been met.”
Ruoff has yet to issue his opinion on that area of the suit.
Garry Rayno may be reached at garry.rayno@yshoo.com.