The news last week that New Hampshire’s Supreme Court accepted the state’s appeal in the latest school-funding case was hardly surprising.
In a June 5 ruling, Cheshire County Superior Court Judge David Ruoff ruled unconstitutional the statute by which the cost of an “adequate education” is determined. The state is obligated under its constitution to fund that cost, as spelled out in a series of Supreme Court rulings stretching back to its so-called Claremont I decision in 1993. Judge Ruoff’s ruling came in a case brought earlier this year by the ConVal Regional School District and joined by other area school districts, which argue that the state’s current base award — determined by a legislative committee — of just under $3,600 per student falls far short of the $10,000-$11,000 per student they say it actually costs to provide each student with an adequate education.
While holding that the Legislature’s costing methodology is unconstitutional, Judge Ruoff declined to set a figure for what an adequate education costs. He noted the adequate funding level sought by the school districts would increase the state budget by about $1.6 billion and stated that the judicial branch should not be making such a determination. And yet, he pointedly observed, what’s at stake is the constitutional right of students across the state to receive an adequate education and, in the 25 years since Claremont I, the state has not yet complied with its obligation to define and fund it.
Given the potential ramifications of the ruling, there was no doubt the state would appeal the decision. And thus it was clear when the ruling was issued in June that the Supreme Court will once again have to wrestle with how to strike a balance between exercising judicial deference to the legislative branch in its school-funding determinations and, on the other hand, upholding the state’s constitutional obligation to fund the adequate education mandated by the Constitution.
As if navigating those shoals wasn’t already challenging enough, the stakes for the Supreme Court have risen higher in the time between the June ruling and the court’s acceptance of the appeal last week. In July, the Executive Council voted along party lines to reject Gov. Chris Sununu’s nomination of current Attorney General Gordon MacDonald to replace retiring Chief Justice Robert Lynn. While there may be certain inadequacies in MacDonald’s resume — most notably his lack of any experience as a judge — the principal motivation for the Democrats who voted to turn him down turned more on their concern about his ideology than on his professional qualifications and potential judicial temperament.
As we’ve noted previously, though MacDonald would not have been our recommendation, there’s been a long New Hampshire tradition of nonpartisanship in judicial appointments and we find troubling the prospect that scrutiny of judicial appointees — and indeed of the state’s judiciary generally — will be increasingly based on ideology and political considerations rather than on how well the law is applied.
In MacDonald’s case, the principal shortcoming perceived by the councilors opposing his nomination was that he might not sufficiently stand up for women’s reproductive rights in the event the federal Supreme Court were to overturn its Roe v. Wade decision. But, in New Hampshire, school funding is already as hot-button a political and ideological issue as there is, with one side arguing the courts have absolutely no role to play in school funding and the other asserting the courts should step in because the state is effectively thumbing its nose at its constitutional obligations by setting a palpably inadequate level of funding.
In its past Claremont rulings, the high court has shown considerable patience with the Legislature’s shortchanging of its adequacy funding obligations. But, as Judge Ruoff noted, even the state has conceded in the pending ConVal District case that no New Hampshire school could provide an adequate education for $3,600 per student.
In addressing the ConVal District appeal, how the Supreme Court balances its desire to show deference with a commitment to its own past decisions spelling out what the Constitution requires will not only shape the school-funding debate for the near term. Sadly, it may well also inject even more politics and ideology into judicial appointments and the assessment of the judicial branch’s nonpartisanship.
At the very least, the issue will require a Solomonic ruling from the court. The worry is that it will also be Sisyphean — endlessly repetitive, yet unachievable.