Londonderry School District SUA No. 12 et al. v. State, No. 05-0406 (N.H. Super. Ct. March 8, 2006)
A state superior court has ruled that New Hampshire's school funding system violates the state constitution's requirement that the state provide New Hampshire's children with an adequate public education. Under the current funding system, which changed the statutes previously enacted to comply with a series of state supreme court decisions on the constitutional adequacy of public education, three state aid grant programs to municipalities with the greatest "need" are funded through a Statewide Enhanced Education Tax (SEET). The SEET is set at a level to generate $363 million, with no provision for increase. Two school districts and the New Hampshire Communities for Adequate Funding of Education sued the state, claiming that the new system is unconstitutional because it: (1) fails to define, cost out, and ensure delivery of a constitutionally adequate education; (2) requires a number of municipalities to fund a constitutionally adequate education through their local taxes; and (3) all but eliminates "donor communities," from which excess state education property taxes previously funded grants to "property-poor" municipalities, while imposing an unreasonable and disproportionate tax burden on the poorer municipalities. They also argued that the funding system violates the right to equal protection under the state constitution by creating a classification of former "donor communities" that retain all the revenue they raise through the SEET. Because the court granted the coalition's motion for summary judgment on the other claims, it declined to address this last one.
Relying on the state supreme court's previous rulings in
Claremont School District v. Governor, 138 N.H. 183 (1993) (
Claremont I),
Claremont School District v. Governor, 142 N.H. 462 (1997) (
Claremont II) and
Claremont School District v. Governor, 147 N.H. 499 (2002) (
Claremont Accountability), the superior court examined the current funding scheme to determine whether it meets the four mandates for a constitutionally adequate education set forth in
Claremont II. The court concluded that current system fails to satisfy the first mandate, to define an adequate education, because the law merely establishes "aspirational guidelines" without adopting "specific criteria implementing the guidelines." The law fails to satisfy the second mandate, to determine the cost of an adequate education, because the legislature failed to establish in any rational way what an adequate education will cost but instead "arbitrarily set the amount which it is willing to dedicate to the task…." Lacking this cost calculation, the court was unable to determine whether the state is meeting the third mandate, to fund adequate education with constitutional taxes.
As for the final mandate, to ensure adequate education through accountability, the court concluded that the current system fails to satisfy this requirement as well. Although some of the accountability weaknesses identified in
Claremont Accountability have been addressed through changes the state has made pursuant to the No Child Left Behind Act, the current system still allows the state board of education to approve "a 'high school' that does not meet the minimum standards based solely on the financial condition of the school district" and to grant a delay in compliance where there is a reduction in the local tax base. Moreover, noting that the legislature has provided that schools need not fully comply with state standards until school year 2013-14, the court indicated that it "cannot conceive of any extraordinary circumstances which could possible permit the [l]egislature to postpone accountability for another seven (7) to eight (8) years."
Finally, because the real effect of having "property-rich" municipalities retain excess SEET proceeds is that they can avoid payment of statewide taxes in excess of the amount needed to provide adequate education, while "property-poor" municipalities must use the full amount of revenues collected to meet this cost, the system creates a non-uniform tax rate in violation of the state constitution.
Londonderry School District SUA No. 12 et al. v. State, No. 05-0406 (N.H. Super. Ct. March 8, 2006)
[Link to full opinion][
Editor's Note: Ted Comstock, a former lawyer for the group that won the Claremont II
decision who now heads the New Hampshire School Boards Association, tells the Portsmouth Herald that the legislature has repeatedly avoided defining an adequate education, opting instead to appropriate a set amount of money and hope that it proves constitutional. Andru Volinsky, lead attorney for that group, tells the Manchester Union-Leader
that state funding peaked at 26 or 28% in the years immediately after Claremont II
but has since declined to 20% or below. In response to the ruling, New Hampshire State Senate President Ted Gatsas, who proposed the plan that was struck down, now has proposed a constitutional amendment to "take state courts out of the education funding issue." Such amendments have failed in every legislative session since Claremont II
. The move comes in the same week as former U.S. Supreme Court Justice Sandra Day O'Connor reportedly warned in a "forceful" speech that attacks by politicians on independent judges threaten constitutional freedoms. According to a National Public Radio account, "O'Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with." See below.]
Portsmouth Herald[Link to full story]Manchester Union Leader[Link to full story]Manchester Union LeaderBy Tom Hahey
[Link to full story]National Public RadioBy Nina Totenberg
[Link to full story]