Yesterday the NH Supreme Court tackled the second challenge to the State’s financing of its public schools to come before the justices in as many months when it heard oral arguments in the State’s appeal of a Superior Court ruling that its contribution to the cost of providing all public school children an adequate education falls far short of what the Constitution requires.
The appeal arises from a suit brought by the ConVal Regional School District and joined by 18 others, including the two largest — Manchester and Nashua — which all together represent a quarter of all students enrolled in the state’s pubic schools.
A year ago, Judge David Ruoff of Rockingham County Superior Court ruled that the cost of base adequacy computed by the Legislature of $4,100 per pupil is insufficient. He set the figure at $7,356.01 at a minimum, adding “the true cost is likely much higher than that.” He estimated raising the cost of adequacy would increase state funding by $537.5 million. The State promptly appealed Ruoff’s opinion.
Senior Associate Justice James Bassett, Justice Patrick Donovan and Justice Melissa Countway heard the appeal. Chief Justice Gordon MacDonald, who as Attorney General represented the State in the initial litigation brought by ConVal, was disqualified from sitting for the appeal, and Associate Justice Barbara Hantz Marconi remains on administrative leave.
Throughout the court trial and appellate proceedings, the State has offered no tangible evidence or made no substantive argument that an adequate education can be provided at the cost of $4,100 per pupil. Instead, Solicitor General Anthony Galdieri echoed the defenses presented at trial.
First, he charged that by assigning a dollar value to the cost of base adequacy the trial judge encroached on the exclusive prerogative of the Legislature, calling it “an abuse of his discretion” and an “egregious violation of the separation of powers.” Second, he insisted that the State’s funding obligation is strictly confined to two statutes, one defining the content and the other addressing the cost of an adequate education.
The content of an adequate education consists of eleven “learning areas,” or academic disciplines and intellectual skills. “The Legislature,” Galdieri told the court, “only has to pay for what is in that definition.” As for the cost of an adequate education, the statute prescribes only that the Legislature “shall use the definition of the opportunity for an adequate education to determine the resources necessary to provide essential programs, considering educational needs.”
Justice Bassett asked if the statute included the cost of teacher salaries. Initially Galdieri answered no, but under further questioning, conceded that the cost of teachers in those prescribed learning areas as well as instructional materials and assessments are included because they are necessary to provide the required instruction and hold the state and districts accountable.
However, Galdieri insisted the statutes, which he called “an agreement to pay,” do not require the State to bear the cost of administrative personnel, transportation services, building maintenance, utilities or nursing services, which are required by the Minimum Standards for Public Schools Approval prescribed by the State Board of Education. He said these cost items were mistakenly “read into the statutes by both the plaintiffs and the judge.”
Justice Bassett also asked if the State considered $4,100 per pupil enough to fulfill its funding obligation. Yes, Galdieri replied, explaining that based on evidence presented at trial as long as the statutory definition of an adequate education is properly interpreted the cost of base adequacy would be $3,988 per pupil. However, he explained “if the court instead is going to deviate from the definition and going to say the definition doesn’t really matter we’re going to pretend whatever it costs to operationalize a school, that is a problem.”
At the same time, Galdieri faulted the plaintiffs and the trial judge for failing to include state funding for differential aid, in the form of additional stipends for each student qualified for free and reduced-price lunch, learning English as a second language and receiving special education services. The plaintiffs also overlooked grants awarded to school districts with relatively low property values and disproportionate share of low-income pupils.
Galdieri stressed that base adequacy is one component of a funding system, drawing on multiple sources of revenue and distributed by a variety of criteria. He suggested that, if the court conferred constitutional status on the cost of base adequacy alone, the Legislature’s capacity to structure the system could be “hamstrung.”
Justice Conway asked if there is a distinction between providing and guaranteeing sufficient funding for an adequate education. The obligation, Galdieri replied, need not necessarily be borne by the State but could be leavened with local contributions. His response prompted Bassett to remind him of a prior Supreme Court order stipulating that what the State defines as adequacy it must pay for. Galdieri agreed the State is bound to ensure there is sufficient funding in the system, but questioned whether the obligation must be met only with state funds.
Urging the justices to uphold the Superior Court’s order, Attorney Michael Tierney representing the plaintiff school districts said, “The overwhelming evidence is that the State’s funding for base adequacy is woefully inadequate. It doesn’t even come close.” He emphasized that, in the Claremont litigation, the Supreme Court ruled that the New Hampshire Constitution entitles all schoolchildren to an adequate education as a fundamental right, the protection of which rests solely with the court.
Tierney described the Superior Court order as “extremely moderate and conservative,” pointing out that no school district spends as little per pupil as the $7,356 minimum Judge Ruoff prescribed for base adequacy and most spend at least twice that.
Both teachers’ unions — the National Education Association NH and the American Federation of Teachers NH — together with American Civil Liberties Union of New Hampshire and New Hampshire Charitable Foundation and the plaintiffs in the Rand school funding case filed amicus briefs asking the court to affirm the lower court’s order.
The Speaker of the House, Sherman Packard, together with 28 members of his Republican caucus and two Republican Senators, have asked the Supreme Court to overrule the orders issued by the justices in the Claremont cases of the 1990s, which would absolve the State of its obligation to fund public schools.
