School Funding

CONCORD — The state’s appeal of the ConVal school-funding decision had its oral arguments in the N.H. Supreme Court Thursday morning.

The state is appealing a Cheshire County Superior Court judge’s June 2019 decision siding largely with the Peterborough-based ConVal School District, which had argued the current law setting the base adequacy aid for schools is unconstitutional because it underfunds the ConVal district and three other districts that joined the petition soon after ConVal filed it.

Those districts are the Mascenic Regional, Monadnock Regional and Winchester school districts.

In the state’s August 2019 appeal, it argued it is not unconstitutional for the state not to fund school expenses such as transportation. The state is also appealing the superior court’s decision that the state is now responsible to pay for the school districts’ attorney fees, which were about $130,000 at the time the appeal was filed.

“The state’s argument is that the trial court went at it the wrong way,” Solicitor General Daniel E. Will of the N.H. Attorney General’s Office argued Thursday morning. “The trial court put the cart before the horse.”

Will said the court and the plaintiffs failed to prove that the state’s definition of an adequate education does not fully cover the costs of providing an adequate education.

“In order to put the burden on the state to justify a limitation on a constitutional right, you have to first prove that you’ve been deprived of it. And so in a case where a plaintiff wants to say, ‘I can’t provide an adequate education on the base adequacy amount that the state has provided’ … the burden remains on that plaintiff then to prove that that plaintiff cannot provide an adequate education on the base adequacy amount that the state has provided,” Will said. “The state’s position is that the statute sets forth the base equity amount. … They bear the burden of proof that that constitutional right has been deprived, that that ... base adequacy amount is too low.”

Will also argued the superior court proceedings failed to provide evidence through discovery.

“How do we know that you can’t provide an adequate education based on this? You’ve got to prove that. You’ve got to prove what you can’t provide,” Will said. “Instead what the trial court relied on was actual costs that the school districts purport to pay in various categories of their educational enterprise.”

When asked by a justice why there was no discovery period in the superior court case, Will said it was a speedy case. “I don’t think that’s a realistic argument, your honor. This case, this case happened at warp speed,” he said.

“The real disparity is between actual costs and between what the adequacy costs are. Actual does not equal adequacy. ... Asking everyone to look at your actual costs, it doesn’t really tell you anything,” Will said.

Representing the school districts, attorney Michael Tierney said one of the reasons the case moved swiftly last year was because the state had moved for a summary judgment without discovery. Tierney also said the court did have proof and discovery through the four affidavits provided by the superintendents of the school districts involved in the case.

“We’re here to enforce this court’s existing precedents,” Tierney said. “As we just heard from the state, there’s no challenge to those existing precedents. Those existing precedents include that in this state, a constitutionally adequate education is a fundamental right.

“And this fundamental right,” he went on, “is by a state-funded, adequate, public education. The state has the exclusive obligation to fund that obligation. And the state may not shift any of that responsibility to local communities.”

Tierney said the courts have a responsibility to make sure constitutional rights are not diminished.

Given “the lack of action by other branches, a traditional remedy is not only appropriate but is essential,” Tierney said. “It’s important for the court to remember you heard just here today, the state not claiming that the amount of funding that it’s providing is constitutionally adequate.”

Tierney said it was proved in Cheshire County Superior Court in Keene that the four school districts involved cannot offer a constitutionally adequate education with the funding provided by the state.

Currently, the state is providing districts with a baseline of $3,708 per student in “adequacy aid” — plus additional amounts tied to students’ socioeconomic status, special education and other factors. (Districts also receive what’s known as stabilization aid and, this fiscal year, a couple of one-time boosts based on property values and socioeconomic makeup.)

The original lawsuit was filed by the ConVal School District on March 13, 2019.

The complaint said using the state’s own formula and the state’s own data, the state’s base adequacy funding falls far short of constitutionally sufficient for the children of the ConVal, Mascenic, Monadnock and Winchester school districts, as well as throughout New Hampshire.

ConVal and the other school districts claimed in the petition that the actual cost of an education, based on Department of Education data, is about $18,901 per student. The complaint asked the court to set the base adequacy amount at $9,929 per student for the fiscal year 2020 and $10,843.60 for 2019.

“We’re not asking that the state necessarily apply what our actual costs are,” Tierney said. “We’re asking that the state apply a costing formula, okay? That is rational and based on real facts so that there can be real funding.”

The state adequacy number is based on a formula determined by a legislative committee in 2008, and rises with inflation every two years.

“In this case, and for the past 25 years, they have substantially underfunded … with promises that they’re going to fix it next year, next year, next year, next year,” Tierney said in court Thursday.

“... And actually, the $3,500 in state aid goes back to the foundation formula from 1986, that $3,500. The Legislature is capable of keeping up with any changes that may be necessary, but in this particular case we need to have a specific remedy to cure unconstitutional actions that were recognized by the superior court in this case.”

He argued that these rural school districts cannot fund an adequate education as defined by the state because they face challenges urban and larger school districts don’t. For instance, the Winchester School District pays tuition for its students to attend high school in the Keene School District at $14,053 per student each year because it would cost Winchester more than $15,000 per student to just meet the bare minimum requirements to educate high-schoolers within its own school district.

“They can’t provide the minimum for less than they are tuitioning to Keene,” Tierney said.

Additionally, rural school districts like these four in the Monadnock Region, he said, pay substantially more for busing students to and from school because of the additional miles that have to be covered. The state needs to recognize a “one size fits all” approach to funding transportation does not work.

Tierney added that in 2008, the Legislature did determine that transportation is part of the cost of an adequate education. “The error is that they just took 33 percent off the top and decided that high school transportation is something that the state shouldn’t pay for,” Tierney said. “We have an obligation to provide an education to all of our students, including our high school students.”

On Thursday afternoon, Tierney said a written decision from the justices is expected sometime in the next three to six months. The decision could be to send the case back to the superior court, he said.

The state is requesting a remand to the superior court “to have a trial to determine if the state funding formula is unconstitutional,” Tierney said. “And we’re asking for a remand back to the superior court for only what the proper remedy would be.”

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