By GARRY RAYNO, InDepthNH.org
CONCORD — The state asked the state Supreme Court to overturn its landmark Claremont education decisions declaring the state has an obligation to provide its students with an adequate education and to pay for it.
The decision has been in place for over 30 years, although the legislature has failed to meet its court-stated constitutional obligations in that time.
The request came in the state’s notice of appeal of the most recent Rand vs. the State of New Hampshire decision, that the state has failed to meet its obligation to fund an adequate education and special education costs as well and instead depends on local property taxes with varying rates.
The notice also asks the court to find that how the state funds and determines the cost of an adequate education is a political question and not a judicial determination, which would end the steady stream of education funding lawsuits claiming the state has failed to live up to its constitutional obligations that the state has lost since the original decision 30 years ago.
“For years, some lawmakers and state leaders have said they were not trying to overturn Claremont,” said Zack Sheehan, NH School Funding Fairness Project Executive Director. “In this filing, the state is formally asking the Supreme Court to do exactly that.”
Lawmakers this session seek to change decades of precedent on the issue, in two very similar bills House Bill 1815 and Senate Bill 659 that would rewrite core sections of the school funding and adequacy statutes by making public education a shared responsibility between the state and school districts while removing language guaranteeing students an opportunity for an adequate education.
“If the court were to adopt the state’s position, and these bills were enacted, lawmakers could claim compliance on paper while the underlying disparities remain,” Sheehan said. “Overturning Claremont does not reduce property taxes. It does not increase support for students. It does not address the inequities that school districts across New Hampshire face every day.”
In its appeal, New Hampshire Solicitor General Anthony Galdieri asks the current Supreme Court to overturn the Claremont I decision and restore the original meaning of Part II, Article 83 of the constitution.
And the state wants the court to say that section of the constitution does not mandate “a qualitative standard of education that must be met and does not impose a financial standard or arrangement that must be met.”
In other words, the attorney general’s office is saying the 1995 court’s decision is wrong.
The appeal also asks the court to overrule the Claremont II decision that the current system of paying for education with widely varying property tax rates is unconstitutional because the constitution requires state taxes be proportional and reasonable.
The state asks the court to negate the original ruling and instead adopt Justine Sherman Horton’s dissent in the ruling.
John Tobin, one of the attorneys in the Rand case said they have strong precedent in those court opinions that followed the original opinions.
He also said there are compelling facts in the Rand case about tax rates used for the same purposes that are uneven.
“The state is at this point bound by the Claremont precedent and lost in the trial court,” Tobin said, “we have a 55-page opinion from Ruoff.”
“It’s hard for me to believe the court, no matter how conservative it might be, would abandon taxpayers,” he said. “There is nothing in place to give an accounting for what the state does, except the constitutional provisions.”
Rep. David Luneau, D-Hopkinton, the ranking member on the House Education Committee, said overturning or even asking to overturn Claremont I and Claremont II reverses 30 years of jurisprudence and flies in the face of dozens of justices who have ruled on the education funding cases since the original Claremont decisions.
“Since that time, more than half a million New Hampshire kids have gone through public schools,” he said, “and in the later half of those 30 years have received a high quality education despite the state not coming even close to living up to its obligation.”
Property taxpayers have high expectations for public schools and they have opened their wallet to fund it, he said.
“If the state wants to be honest,” Luneau said, “Ayotte and her administration and the Republican leadership would say they put big companies like Apple, Microsoft and Amazon in front of property taxpayers and the kids’ education.”
In the Rand appeal, the state questions if the plaintiffs should have standing to bring the suit, and whether their state taxation claims are legally viable.
Galdieri also questions if Judge David Ruoff ruling is correct in viewing local property taxes as state taxes when they pay the cost of adequate education, and the judge erred in applying the statutory definition of an adequate education.
The solicitor general also questions his linking the federal disabilities requirements with an adequate education obligation.
And Galdieri also questions if the evidence presented by the plaintiffs’ experts was insufficient to reach the judge’s verdict and whether another judge would come to the same conclusion.
Last year the supreme court upheld Ruoff’s decision in the ConVal suit which claimed the state had failed to pay for an adequate education and instead shifted the costs to local property taxpayers.
The supreme court had a mixed ruling on the first half of the Rand case dealing with the Statewide Education Property Tax, saying setting the rate of the tax for every community in New Hampshire was enough to satisfy the constitution’s proportional and reasonable requirement not the effective tax rates when property wealthy communities retained excess money not needed to cover the adequacy requirements for their students, but did agree with the plaintiffs that having the Department of Revenue Administration set negative tax rates so unincorporated communities did not have to pay the SWEPT was unconstitutional.
The attorney general had raised the issue in the ConVal appeal if the 1990s court had not relied on the wrong section of the law in making its decision, a contention by former Rep. and attorney Gregory Sorg who filed a brief in the case on the behalf of House Speaker Sherm Packard and much of the House Republican leadership at the time.
In those and earlier rulings, the court has held the state has a duty to define an adequate education, determine its costs and to fund it with constitutional taxes.
“The courts have repeatedly affirmed that education is a fundamental right under our constitution,” Sheehan said. “The solution to addressing the lack of school funding from the state and resulting high and unequal property taxes is not to erase the constitutional standard, it is to meet it.”
Garry Rayno may be reached at garry.rayno@yahoo.com.