By GARRY RAYNO, InDepthNH.org

CONCORD — Some believe the state Supreme Court got it right once again on education funding and taxes in its ConVal decision, but others say it fails to give lawmakers and the governor their due for education policy and funding.

The divide over Tuesday’s ruling that the state has underfunded public education and failed to live up to its obligation to provide and pay for an adequate education falls down partisan lines.

The court upheld the Superior Court decision by Judge David Ruoff finding the education funding system unconstitutional, setting a minimum base rate for state support and granting the plaintiffs attorneys fees, while it reversed an injunction requiring the state to immediately begin paying school districts the base minimum.

Gov. Kelly Ayotte said the court was mistaken.

“The Court reached the wrong decision today. The fact is, New Hampshire is top 10 in the country when it comes to funding our children’s education,” Ayotte said. “We are evaluating the ruling to determine the appropriate next steps.”

While the state is in the top 10 for per-pupil spending on public education, $23,579.55 per pupil, it is last in the nation for state aid to education, while about 70 percent of the cost of public education is borne by property taxpayers.

Republicans House Speaker Sherman Packard and Senate President Sharon Carson issued a joint statement saying the ruling was disappointing.

“We are disappointed that the court continues to insert itself into the Legislature’s role in determining state aid to local school districts,” they said. “The court’s rampant judicial overreach is pushing New Hampshire towards a one-size-fits-all state-run school system. New Hampshire voters have always rejected efforts to centralize public education in Concord.

Since the last education case was filed with the courts, the two GOP leaders said the legislature has increased state education aid twice and in the current budget is providing nearly $2.2 billion to local schools.

They accused the court of continuing to second guess legislative decisions to target aid to students and communities who need it most.

“The entire line of Claremont cases has been based on the flawed premise that New Hampshire has a single, statewide school system, rather than a broad mix of educational options including local school districts, public charter schools, non-public schools, and homeschooling, all supported by state aid programs,” they said.

This year the legislature and governor removed a salary cap for qualifying for the state’s voucher program called Education Freedom Accounts, which is expected to increase state funding for the program to about $80 million over the next two years.

Money for the program comes from the Education Trust Fund which also pays for state education adequacy grants, as well as special education services and school building aid and is expected to be in deficit at the end of this fiscal year.

The budget barely approved by the legislature last week, includes a provision in the trailer bill that declares all policy and funding decisions on education are at the sole discretion of the Legislature because of the ConVal ruling.

The section reads “However, in the most recent of these cases, the judicial branch has asserted authority to review and set aside the legislature’s determinations with respect to its four supposed obligations, and to fund education at levels determined by the court through a process which, though adjudicatory in form, is legislative in substance. Accordingly, the legislature now deems it necessary to definitively proclaim that, as the sole branch of government constitutionally competent to establish state policy and to raise and appropriate public funds to carry out such policy, the legislature shall make the final determination of what the state’s educational policies shall be and of the funding needed to carry out such policies.”

Bassett’s opinion appeared to address that contention, noting while the legislature sets policy and funding, the courts have always reviewed statutes and the constitution in the separation of powers provision in the constitution.

Democrats had a different opinion on the ruling.

Ranking Democrat on the House Education Funding Committee, Rep. David Luneau, D-Hopkinton, called the decision a game changer.

“Today’s court decision is a game-changer win for kids and property taxpayers statewide. The court’s decision unanimously affirms what Democrats have been saying for years – that the state inadequately funds public education and places too much burden on property taxpayers,” he said. “When the Legislature returns this fall, we must act immediately to fix our education funding inequities. I already have a bill in committee that raises state adequacy aid to the minimum level identified by the court — there should be no excuses, no delays.”

He noted the court decision came on the same day the new budget took effect siphoning millions out of public-school classrooms to bankroll private-school vouchers for the wealthy. 

“The Republican claim that they’re ‘adequately funding’ public education is just not supported by the facts affirmed today by the court,” Luneau said.

Senate Democrats were also pleased with the ruling.

 “Every child deserves the chance to reach their full potential, and a strong public education is indispensable in this pursuit,” said Senate Minority Leader Rebecca Perkins Kwoka, D-Portsmouth. “The courts, our co-equal branch, have repeatedly called on us to remedy our constitutional failing. Instead, we have seen continued efforts this session to defund our neighborhood schools – now diverting millions of dollars toward non-public schools for the wealthiest families in our state, costing taxpayers twice as much as before. We should instead be focused on fulfilling our constitutional duty of providing an adequate public education system, where over 90 percent of families are choosing to send their children. We cannot put this responsibility off any longer.” 

Sen. Sue Prentiss, D-West Lebanon, had a similar statement.

“Today’s ruling affirms what we in the legislature already know – the state is not adequately funding our neighborhood schools, and it is up to us to change that,” she said. “The state of New Hampshire provides the lowest share of education funding in the country, meaning property taxpayers have to make up the difference. We owe it to our children, and our constituents, to step up and fund our neighborhood schools properly.” 

Attorney Andru Volinsky, who was the lead attorney in the original Claremont suit and is an attorney in the Rand suit now before Rockingham County Superior Court, said Bassett’s ruling makes it clear that Claremont is the law of the land.

“I was a little disappointed he did not support an injunction,” Volinsky said, “but rest of it is spot on.”

He said the question is will the panel of justices who ultimately review the Rand decision respect Justice Bassett’s decision. Will they be willing to follow precedent and follow the rule of law, Volinsky said.

Chief Justice Gordon MacDonald was recused from the ConVal case because he was the Attorney General when the case was filed and his office represented the state in the case.

Volinsky and the other attorneys in the Rand case filed a motion for MacDonald to recuse himself from the Rand case but he ruled he did not have to do that.

MacDonald was the author of the recent Rand opinion overturning Judge Ruoff’s decision that the Statewide Education Property Tax was unconstitutional because the state’s administration of the tax allowed for different tax rates which is in violation of the constitution’s proportional and reasonable clause.

Volinsky said they now await Ruoff’s decision on the remainder of the Rand case, which the plaintiff claims requires local property taxes to pay part of the state’s obligation to provide an adequate education for public school students and therefore needs to have equal rates.

While the case was argued last fall, Ruoff has yet to release an opinion.

NEA-New Hampshire President Megan Tuttle said the ConVal ruling is long overdue and a moral call to action.

“This ruling is a long-overdue validation of what New Hampshire’s educators, parents, and students have known for decades: our public education system has been chronically underfunded, and the legislature has repeatedly failed to uphold its constitutional duty to remedy that,” Tuttle said. “While the court stopped short of ordering immediate funding increases, its unequivocal acknowledgment of legislative inaction marks a significant turning point.”

Tuttle said her organization urges lawmakers to read this ruling not as a mere legal critique, but as a moral call to action. 

“Every child in New Hampshire–regardless of zip code–deserves access to fully funded, high-quality public education. That right is guaranteed by our state constitution and cannot be met through empty promises or incremental reforms,” Tuttle said. “Educators across this state are tired of making do with less–fewer resources, outdated materials, antiquated buildings, and overburdened staff. The court is right: the status quo is unacceptable, and change is long overdue.”

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