Soon after a Cheshire County judge struck down the state’s education-funding formula in June, observers predicted it would head to the N.H. Supreme Court.
And as of Friday, both sides in the lawsuit have appealed aspects of the ruling, sending the N.H. Supreme Court its first major school-funding challenge in more than a decade.
“This case is going to bring the court, the Supreme Court, back into the picture,” said John M. Lewis, a retired Superior Court judge and former chairman of the State Board of Education. “And it’s been several years now. It’s a whole new group of people there.”
Only one justice, Gary E. Hicks, sat on the court the last time it invalidated the state’s education-funding framework in 2006.
The ConVal Regional School District filed this latest lawsuit in March, arguing the state government is failing to meet its constitutional duty of funding an “adequate education.” The Winchester, Monadnock and Mascenic school districts later joined ConVal in the suit.
Currently, New Hampshire provides baseline education funding — so-called adequacy aid — of about $3,600 per student. The school districts say the state should provide about three times that.
Average per-student spending across New Hampshire school districts in 2017-18 was between $15,800 and $19,000, depending on which costs were included, according to N.H. Department of Education statistics.
Lawyers for the state have argued that some costs cited in the lawsuit, like transportation, are “ancillary” items it has no obligation to fully fund. They have also said that the Department of Education statistics reflect spending choices made by school districts.
The ConVal lawsuit builds on prior N.H. Supreme Court rulings going back to the landmark Claremont I and II opinions of the 1990s, which established that the state has a duty to fund an “adequate education.”
School funding — tied as it is to property taxes — remains a contentious issue in many local communities. Local education taxes often make up 50 percent or more of a homeowner’s total property-tax bill, and year-to-year swings in school appropriations can provoke sharp words at town meetings. Meanwhile, divergent tax rates fuel bitter apportionment battles in multi-town districts.
In a June 5 order, Judge David W. Ruoff sided with ConVal in holding the state’s current school-funding formula unconstitutional. But he rejected the districts’ request to set state education aid at a new, higher level of about $10,000 per student, writing that policymaking specifics are best left to legislators and administrative agencies.
The two appeals raise a combined 23 questions, many highly technical, for the justices to ponder.
Among other things, the state is asking the Supreme Court to reverse Ruoff’s ruling that RSA 198:40-a, II(a) — the state law that sets the baseline amount of education funding — is unconstitutional.
The school districts, meanwhile, want the justices to review various points where Ruoff declined to rule for them, such as his refusal to order the state to pay a certain amount of school aid.
The districts’ appeal also seems to invite more active judicial involvement.
“In light of the fact that the State has failed to implement a constitutional education funding system in the twenty years since Claremont I was decided,” the school district’s lawyer, Michael J. Tierney, wrote in the appeal, “did the Superior Court err in concluding that it was ‘prohibited from instructing the Legislature on what is included in a constitutionally adequate education or how funding must be calculated[?]’ ”
In past school-funding opinions, the Supreme Court has stressed that the details of policy decisions are best left to legislators and the executive — but hinted that it could take a more active role if the so-called “political branches” fail to get the job done.
“Those are really understandable (questions) in the sense of, this has been going on for a quarter century; when do we get specific and bring the hammer down on the Legislature?” said John Tobin, a lawyer who worked on the original Claremont lawsuit.
Tobin said the justices — if they uphold Ruoff’s ruling — would have a range of options, including firmly instructing the Legislature to act or setting a deadline for new school-funding legislation.
A more drastic step would be to circumvent lawmakers altogether, for instance by appointing a “special master” to study the issue and fashion a solution. But Tobin said he does not expect the court to jump to that option.
“It’s a constitutional case, it’s a legal case, but it implicates a lot of political issues,” he said. “… Courts historically are cautious.”
The justices could also send the case back to the lower court on technical grounds, for further litigation.
“There are various ways that the Supreme Court can approach this, and the parties have given them a bunch of questions,” Lewis said.
The issue has been to the Supreme Court multiple times since the first Claremont ruling. In the three years after Claremont II, the court weighed in on several proposed school-financing plans, none of which passed muster.
In 2006, the court found the N.H. Legislature had enacted a faulty definition of “adequate education” and sent it back to the drawing board.
The Legislature then passed a law with a new definition of adequacy and set up a legislative joint committee to calculate the correct funding. The committee’s calculations, issued in 2008, became the basis of the current aid formula.
Ruoff, in his June 5 ruling and a subsequent order, found that the formula shortchanged the plaintiff school districts by failing to cover transportation costs or account for enough teachers, with no reasonable justification.
“The Joint Committee’s unexplained, potentially unintended, costing methodology and conclusions effectively defined an adequate education without proper precision and with inconsistent adherence to Board of Education regulations and questionable judgment,” Ruoff wrote in striking down the formula.
Lewis said Ruoff’s ruling was relatively narrow, in that he invalidated the formula but did not set a new funding amount or wade into questions about tax-rate disparities between districts.
“Ruoff has issued a much more narrow opinion than the petitioners wanted him to,” Lewis said. “And I just think that the New Hampshire Supreme Court is not going to take on more than they have to take on either here, and one way of dealing with it is the way that Ruoff dealt with it.”