By GARRY RAYNO, InDepthNH.org
CONCORD — The state says the ConVal education funding decision violates the constitution’s separation of powers provision and does not encompass the breadth of the state’s support for public education.
The Attorney General’s Office filed its brief Tuesday evening with the state Supreme Court mapping its reasons for appealing the Rockingham County Superior Court judge’s ruling that the state failed to meet its constitutional obligation to provide and pay for an adequate education for its children because it underfunds the true cost and shifts its financial responsibilities to local taxpayers.
The state argues the decision increasing the base cost of an adequate education from $4,100 per student to $7,356 was fundamentally flawed as it used costs for areas outside what lawmakers have established as components of an adequate education and relied on testimony of experts who should have been prevented from testifying due to a lack of expertise.
In mounting its defense the state did not defend the $4,100 per pupil figure, nor offer an alternative method beyond what the plaintiffs’ experts presented to determine what the true figure might be.
In Superior Court Judge David Ruoff’s ruling, he wrote he believed the state offered “no evidence to justify the current base adequacy amount.”
“Once again, this filing makes clear that the state lacks any affirmative defense for its unconstitutionally low base adequacy number,” said Zack Sheehan, NH School Funding Fairness Project Executive Director. “This brief offers no argument for keeping $4,100 on the merits of that amount, and instead tries to justify it by using the narrowest possible definition of adequacy that does not take into account the realities of actually running a school and educating students.”
The Attorney General’s Office argues only the legislature may determine what constitutes an adequate education and appropriate the money to pay for it, while Superior Court Judge David Ruoff’s ruling usurps that authority in setting the rate at $7,356 which would increase state spending on an adequate education by more than $500 million annually.
“This result constitutes an egregious violation of the separation-of-powers doctrine,” writes Solicitor General Anthony Galdieri. “If upheld by this Court, this ruling would constitute an unprecedented transfer of power from the Legislature to the Judiciary by allowing a single trial judge to effectively define an adequate education and through an injunction appropriate and spend more than half-a-billion dollars in state taxpayer funds without any approval or oversight.”
Instead the state argues the statutes are clear that an adequate education includes English language arts and reading, mathematics, science, social studies, arts, world languages, health and physical education, engineering and technologies, personal finance literacy and computer science.
And they argue it does not include other student services such as nurses, librarians, and transportation costs.
But the school districts argued in superior court that a public school could not provide an adequate education without transportation to bring the students to school, school nurses, guidance counselors, capital and operating costs, and building maintenance, many required by other state statutes.
Ruoff sided with the plaintiffs on many of their assertions and said the state has delayed complying with the Supreme Court’s original Claremont decisions and implied the issue is one of political will.
The state also claims other state aid such as extraordinary needs grants, special education and building aid should be included when talking about the state’s financial responsibilities.
“The trial court suggested that even if it considered the additional amounts provided to school districts, … these amounts would not meaningfully affect its analysis,” Galdieri writes. “This conclusion is unsound, lacks sufficient evidence, is dictum, and should carry no weight.”
Sheehan notes even if all types of adequacy aid such as differentiated aid, extraordinary needs, and hold harmless provisions are included based on the 2023-2024 school year, the average figure would be $6,768 per pupil, well below the actual average cost to educate a New Hampshire student, which exceeds $20,000 a year.
“Throughout this case, the state has never mounted any real defense of why its base adequacy number is right, only that every other number is wrong, and every methodology used to reach those numbers is wrong,” Sheehan said. “Those arguments will continue to fail, but the state continues to use taxpayer money to present them in court and in its filings.”
The NH School Funding Fairness Project filed a Right-to-Know request with the NH Attorney General’s Office and information provided by that office indicated between the filing of the case in 2019 and Dec.1, 2023, the state spent $1.08 million on out-of-state attorneys to help with the case.
The plaintiffs have until October 7 to file their response. The state will then have 20 days to file a brief in reply ahead of oral arguments later this fall.
“The Superior Court stepped in and set a bare minimum base adequacy amount to protect the right of New Hampshire students to a state-funded, adequate education from a legislature that has failed for 30 years to appropriately address the State’s school funding shortcomings,” Sheehan said. “The base amount outlined in the Superior Court’s rulings will not solve the issue, but it is a step in the right direction. The State has failed every single time school funding questions have made their way to the New Hampshire Supreme Court, and I don’t expect that to change with this case.”
The Attorney General’s Office asked Ruoff to stay his decision requiring the state to begin paying the $7,536 figure immediately, but the state Supreme Court did stay implementing the judge’s ruling until it rules on the case.
The Supreme Court has also accepted an appeal of Ruoff’s Rand ruling which declared the state’s administration of the Statewide Education Property Tax unconstitutional and likewise stayed that ruling until the appeal is decided.
The Attorney General’s Office filed its initial brief in that case last week.
Garry Rayno may be reached at garry.rayno@yahoo.com.
