A handful of members of the New Hampshire Commission to Study School Funding have filed an amicus brief with the NH Supreme Court in the state’s appeal of the order by Superior Court Judge David Ruoff, ruling that the state has shirked its duty to fund an adequate education.
The brief is joined by Dave Luneau, who chaired the Commission, Mary Heath, Richard Ames and Mel Myler. All were Democratic Representatives serving on the House Education Committee when the Commission was convened. They are represented by Attorney Bill Ardinger, who leads the Tax Policy Group at Rath, Young and Pignatelli, P.C., and was appointed to the commission by Governor Chris Sununu. They filed their brief “in support of neither party.”
Instead the brief is intended “to assist the Court in crafting clear and sensible judicial standards that will empower the Legislative and Executive branches to enact a public school system that will strengthen and fulfill the State’s duty declared under Claremont I — to provide all New Hampshire children with a high-quality public education and to guarantee adequate funding for that system.”
More specifically, the amici urge the court “to reaffirm, strengthen and clarify the Legislature’s constitutional duty to enact a comprehensive public school law that provides clear definitional standards for desired educational programs, that establishes a transparent accountability framework by which the state can evaluate whether the educational program is achieving the standards, and that mandates funding through a mandated integration of state and local resources that is rationally structured to guarantee adequate funding, including most importantly to improve student equity and achievement across the state.”
In short, the brief is designed to persuade the court to tailor its rulings to suit the recommendations of the Commission. “In its final report, the Commission found that the top priority should be to increase state budget funds that are directed to less affluent cities and towns to improve student equity and reduce unfair property tax burdens,” Luneau said. “The amicus brief urges the Supreme Court to clarify that the Legislature has clear constitutional authority to achieve the recommendations approved by the commission.”
The commission found that the current system of funding fails to direct sufficient aid to districts with greatest needs and leanest resources as measured by property wealth and student characteristics. These inequities are reflected in lower levels of academic performance among students and higher property tax rates on households and businesses.
The ConVal suit turned on the narrow question of whether the allocation of $4,100 per pupil is sufficient to meet the state’s obligation to fund an adequate education. Ruoff found this amount insufficient and calculated that at least $7,356 and likely more was required.
The amicus brief argues that Ruoff erred by confining his order to “base adequacy aid” per pupil while disregarding differential aid allotted to school districts for students qualified for free and reduced-priced lunch, learning the English language and receiving special education services. Differential aid represents 20% of the total cost of an adequate education of $810.2 million.
By sustaining ConVal’s challenge to a single component of a comprehensive state aid distribution system, the amici contend that “the Superior Court erroneously construed the Constitution to mandate that the Legislature must narrowly and rigidly determine the cost of an opportunity for an adequate education, and distribute that cost on a singular and uniform per-pupil basis throughout the state.” The court made no finding with respect to either the quality of education provided or level of performance achieved in the plaintiff districts.
“This brief,” said Ardinger, a graduate of Stevens High School in Claremont, “criticizes the trial court’s disregard of state differentiated aid, which disproportionately helped poorer communities. The Constitution and this Court’s Claremont cases require the Legislature to help poorer communities like Claremont, and not just to distribute state aid on a rigid uniform per pupil basis, regardless of need.”
The amici urge the Supreme Court to find the ConVal decision wrongfully decided and at the same time to clarify “the scope and meaning” of the Claremont rulings. First, the court should confirm that the Legislature has “wide latitude” in determining the cost of an adequate education and is not bound solely by “input costs” or “cost drivers.” Nor should the Legislature be constrained to apportion the costs of an adequate education based solely on a uniform per-pupil basis.
Perhaps most significantly, the brief asked the court to clarify that it has not held, and the Constitution does not require either that expenditure per pupil must be uniform throughout the state or that the cost of an adequate education must be funded solely by the state budget. Instead, he brief argued that the Claremont decisions held that the state must “guarantee adequate funding” provided by constitutional taxes. The commission recommended that state funding be supplemented by a “minimum local contribution” in the form of a local property tax levied at a uniform rate across the state.
The commission recommended that funding should not be exclusively determined by the cost of inputs like salaries or materials, but by the funding required to raise the performance of all students to the statewide average as measured primarily by graduation rates and assessment scores. “We also urge the Court,” said Ames, “to reaffirm, strengthen and clarify the Legislature must enact a system that clearly defines educational standards and mandates state and local funding achieve those standards.”
Myler, who is retiring from the Legislature, said he joined in the brief “because the Supreme Court needs to emphasize that only a program focused on improving student outcomes for all our children can satisfy the fundamental duty under our state Constitution.”
The commission submitted its report in 2020, only to have it shelved by the Legislature. Twice legislation was introduced to implement the commission’s recommendations and twice it was rejected.
