The state Supreme Court takes up the contentious issue of school funding on Thursday, faced with a lower court decision that found the state’s baseline contribution of $3,636 toward each student’s education is far from constitutionally adequate.
The case, brought by the ConVal School District and three other districts in southwestern New Hampshire, marks the first time since 2008 that the Supreme Court has dealt with the thorny issue of school funding.
Rulings in Claremont I, Claremont II and its 10 successor cases have established that New Hampshire children have a constitutional right to an adequate education, and state government must provide it.
“The state’s abdication of its constitutional obligation to fund an adequate education has gone on for decades as the court has granted the state latitude, time and again, to meet its obligations without judicial intervention,” wrote Michael Tierney, the Manchester lawyer representing the school districts.
Last year, the districts sued the state, Gov. Chris Sununu and Education Commissioner Frank Edelblut in Cheshire County Superior Court. After Judge David Ruoff ruled that the state award of $3,636 per student in 2019 did not cover the costs of a constitutionally adequate education, the state appealed.
Tierney has faulted the way the state calculates adequate education funding, arguing it should be $9,929 for his clients. Winchester schools, which are part of the suit, said they spend $10,892 per student to fund an adequate education.
In all of its filings in the ConVal case, state officials have never claimed that the $3,636 — it is now $3,709 — covers the costs of an adequate education, Tierney wrote.
In their filings, Attorney General’s Office lawyers said no one conducted a proper analysis of how ConVal and the other districts spend money on costs associated with an adequate education.
They also say Ruoff should have granted them access to school district financial records so they could analyze the spending on an adequate education as part of the larger school district budget.
“This is no different from trying to determine the cost of an engine based solely on the sticker price of a car. Without additional information, it can’t be done,” reads a brief signed by three assistant attorneys general and Solicitor General Daniel Will, who will argue the case.
Oral arguments are scheduled for 9:30 a.m. Thursday. The hearing will be livestreamed.
In a statement Tuesday, Gov. Chris Sununu said he increased education spending by $140 million and “restored stabilization grants, increased funding into the adequacy formula, and established full-day kindergarten.”
“I have long said New Hampshire’s education funding formula should be determined by the elected officials — not unelected judges,” Sununu said. “We have worked hard at the state level to increase state funding for education, but the sole power for a fundamental shift in the formula lies with the elected officials in the Legislature.”
Sununu’s Democratic opponent, Dan Feltes, said Sununu now wants to reduce spending to 2019 levels.
“I want to protect that budget and build off of it. That’s what’s at stake,” Feltes said. “Just like (President) Trump, Sununu said he supports education, but he has undermined it.”
When Ruoff issued his decision early this year, Sununu said at the time that education funding should be left up to local officials.
“We continue to believe these critical funding decisions are best left to local elected leaders — who represent the people of New Hampshire — not judges in a courtroom,” he said.
Four justices sit on the Supreme Court, two appointed by Sununu and two by his Democratic predecessors.
Sununu has kept the fifth slot open since last year, when the Democratically controlled Executive Council rejected his nominee for chief justice, Attorney General Gordon MacDonald. That means Sununu lacks a majority on the bench.
Retired Hillsborough County Superior Court Judge Kenneth Brown has been selected to to fill the fifth seat on the court for the case.
The American Civil Liberties Union and 25 school districts including Manchester and Nashua have filed briefs in support of ConVal. Two state lawmakers have filed a brief in opposition. They are not slated to give arguments.
Tierney has filed a cross appeal, asking the Supreme Court to order Judge Ruoff to devise a remedy to the underfunding, at least when it comes to his clients. He also disputes a decision by Ruoff to drop Sununu and Edelblut from the case.
A spokesman for Edelblut said any comment on the case would have to come from the Attorney General’s Office.
“We do not comment on ongoing litigation,” Grant Bosse wrote in an email.
AG spokesman Kate Giaquinto said the office does not usually comment on active cases.