The Speaker of the House, Sherman Packard, together with 28 members of his Republican caucus and two Republican senators, have asked the New Hampshire Supreme Court to overrule the orders issued by the justices in the Claremont cases of the 1990s, with which the Legislature has failed to comply for the past three decades.
The lawmakers filed an amicus brief with the New Hampshire Supreme Court, which will consider the state’s appeal of the decision of Judge David Ruoff of Rockingham County Superior Court in the suit brought by the ConVal School District. Last November Ruoff ruled that the state is failing to fulfill its constitutional duty to fund an adequate education as ordered by Supreme Court in the Claremont litigation.
In their brief the lawmakers claim that the initial Claremont ruling that the Constitution placed a duty on the state to provide an adequate education to every child was “incorrectly decided” and “all subsequent decisions emanating from it have lacked constitutional legitimacy.” Among these subsequent decisions, the most significant was the order that the state must fund an adequate education with constitutional taxes ”equal in valuation and uniform in rate throughout the state.”
In the 2022-2023 school year, local school property taxes represented 61.4% of the $3.8 billion in total net revenues to school districts. State aid amounted to $969.4 million, or 25.5% of the total. However, the Statewide Education Property Tax (SWEPT) amounted to $363 million. In other words, property taxes — local and state — funded 70% of the cost of public schools.
The brief was written by Gregory Sorg, an attorney from Franconia, who served several terms in the House between 2002 and 2008. He has been writing critiques of the Claremont decisions since they were issued, and in 2021 he wrote an amicus brief for five Republican lawmakers urging Ruoff to dismiss the ConVal suit.
The lawmakers’ amicus brief likens the New Hampshire Supreme Court’s handling of school funding to the U.S. Supreme Court’s handling of abortion rights. The brief argues that in both cases the courts misconstrued the historical origin of a constitutional right, infringed on the authority of the executive and legislative branches, and mired public policy in litigation — all without resolving the underlying issue.
The brief devotes 11 of its 16 pages to the jurisprudence of abortion, including nine pages to Justice Samuel Alito’s opinion overturning Roe v. Wade. In particular, the brief leaned on Alito’s treatment of the separation of powers. “Under the Constitution,” he wrote, “courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.” Likewise, Alito held that, while “precedents should be respected,” when courts issue important opinions that are “egregiously wrong” prior precedent “is not a straitjacket.”
The brief shares Alito’s approach to the law, which shuns any interest in the consequences of his opinion. “We do not pretend to know how our political system or society will respond to today’s opinion,” he wrote. “We can only do our job, which is to interpret the law.”
Alito’s arguments echo those the state has mounted in its appeal of Ruoff’s order. Unlike the lawmakers, the state shrank from explicitly asking the Supreme Court to overrule the Claremont orders, but instead proposed that if Ruoff’s orders hinged on these prior precedents, they should be at the least revisited and perhaps reversed.
Reversing the Claremont orders would place the state’s minimal share of funding its public schools at risk. “Legislative leaders,” said Zack Sheehan, executive director of the NH School Funding Fairness Project, “are arguing for the court to repeal the Claremont decisions that required the Legislature to create adequacy aid in the first place.”
“The logical extension of this brief,” Sheehan said, “is that the state will stop paying adequacy aid all together if Claremont is overturned, and that would have drastically negative consequences on students and taxpayers in every community in the state.” He noted that the state is slated to distribute an estimated $817.8 million in aid to school districts in 2024-2025 school year.
Apart from the Speaker of the House, those joining the amicus brief include two Senators: Tim Lang of Sanbornton, a member of the Senate Education Committee, and Howard Pearl of Loudon. House leadership is represented by Jason Osborne of Auburn, House Majority Leader; Fred Doucette of Salem, Deputy Majority Leader; Jim Kofalt of Wilton, Deputy Majority Leader; Joe Sweeney of Salem, Majority Floor Leader; and Assistant Majority Whip Julia Harvey-Bolia of Tilton.
Ten chairs of House Standing Committees joined in the brief, including Representatives Rick Ladd of Haverhill, Education; Ken Weyler of Kingston, Finance; Len Turcotte of Barrington, Municipal and County Government; William Infantine of Manchester, Labor; Wayne MacDonald of Londonderry, Health and Human Human Services; Carol McGuire of Epsom, Executive Departments and Administration; Andrew Renzullo of Hudson, Resources, Recreation and Development; Michael Vose of Epping, Science, Technology and Energy; Thomas Walsh of Hooksett, Transportation; and Gregory Hill of Northfield, Legislative Administration.
The other Representatives on the brief are: Keith Ammon of New Boston, Harry Bean of Gilford, Jose Cambrils of Loudon, Glenn Cordelli of Tuftonboro, Jess Edwards of Auburn, Keith Erf of Weare, Dan McGuire of Epsom, Kristine Perez of Londonderry, Katy Peternel of Merrimack, Alvin See of Loudon, John Sellers of Bristol, Vanessa Sheehan of Milford, Chris True of Sandown, and Scott Wallace of Danville.
