Story Produced by The Concord Monitor, a Member of 
Editor’s note: This is the second in an occasional examination of the effort to restructure the state’s approach to education funding.
Courts and legislatures in 45 states, including New Hampshire, have been battling it out for decades about whether schoolchildren have been denied the opportunity for an equal education.
The history and latest developments in school money litigation are tracked by the Center for Educational Equity at New York’s Columbia University on its website, SchoolfundingInfo.org. As old and exhaustive a topic as this may be, there is a steady flow of news from around the country.
The issue was reinvigorated here last year, when Cheshire County Superior Court Judge David Ruoff, in a case brought by the ConVal School District and three others, threw out the formula that has been used for the last 12 years as the basis for calculating state education funding.
That decision, strongly contested by the Attorney General’s Office, has been appealed to the New Hampshire Supreme Court. While that case plays out – oral argument is scheduled for Sept. 24 – the Commission to Study School Funding has been grappling with the impact of earlier court decisions.
There have been 13 school finance cases since 1993 when the Supreme Court first declared that the state has a constitutional obligation to provide and fund an adequate education for all school children. The commission, established by the Legislature last year and backed by $500,000 and a team of school finance experts, has taken on what have seemed like intractable – and disheartening – debates about school financing.
For years, the Attorney General’s Office has pointed to language in a 2006 Supreme Court decision involving the town of Londonderry, which reinforces the state’s obligation to define and pay for the cost of a “constitutionally” adequate education and says that none of that cost can be shifted to school districts “regardless of their relative wealth or need.”
“The challenge is we have to be able to meet the Londonderry standard,” Associate Attorney General Anne Edwards told the commission recently. “If we as a state declare what is constitutional adequacy is then we have to pay for it,” she said.
Commissioner member state Rep. Dick Ames of Jaffrey said one of the reasons previous school funding efforts had failed to resolve the issue was the “temptation to dumb down the costs to a point where you can pay for it with state money and that’s a perilous course.”
“You lose support and you are trying to defend a formula that is hard or impossible to defend,” Ames said at last week’s meeting.
Currently, the state’s base adequacy cost per pupil is set at $3,709; the ConVal district says the true cost of an adequate education per pupil is $9,929. According to the Department of Education, the average overall cost per pupil statewide is $16,000, excluding transportation and buildings. In New Hampshire, 73 percent of school funds are raised through local property taxes at rates that vary widely from property-poor to property-wealthy school districts – tax inequity that school finance reformers say violates the state constitution’s mandate that taxes be “proportional and reasonable.”
Daphne Kenyon, an economist at the Lincoln Institute of Tax Policy who has studied school finance and the property tax – including New Hampshire’s experience – for more than 20 years, told the commission recently that realistically, the restrictive “first and last dollar” language makes it impossible to solve the school funding problem because the cost would be enormous. The judge in the ConVal litigation estimated that the funding request in that case would increase the state budget by $1.6 billion a year.
But Attorney Michael J. Tierney, who represents the school districts in the ConVal case, says the $1.6 billion isn’t “new” money – it’s part of $3.2 billion in revenue already being spent by school districts every biennium.
“The problem is the state is meeting its obligation through property taxes at very different rates in different municipalities throughout the state,” Tierney said. “The funds need to be raised proportionally across the state.”
Edwards, who was the state’s lead lawyer on the education funding cases for 20 years, told the commission recently that unless there is a constitutional amendment – she didn’t specify what it would say – New Hampshire is “stuck” with the “first and last dollar” calculation as it searches for a school funding solution.
Not everyone agrees, most vocally commission member William Ardinger, a prominent Concord tax lawyer, who has been immersed in school financing issues for years and was appointed to the study commission by Gov. Chris Sununu. Ardinger, who graduated from Stevens High School in Claremont, says that interpretation of the state’s obligation is so “constraining” that it is an obstacle to getting aid to communities that need it, which he says is the intent of all the school funding court decisions.
“It’s a cop out,” said Ardinger. “We all have a duty to explore what the best policy answer is first before we apply some perceived limitation that would prohibit consideration of the best policy answer,” Ardinger said.
Ardinger believes New Hampshire has a “distribution” problem with education funding, which should be addressed first, before the debate about tax policy – and politics – slows down the effort to get more money to needy school districts. But school reform advocates argue the two issues must go hand in hand – equalize educational opportunities for all students and equalize the burden on taxpayers.
“We just have to figure out how to raise that $3.2 billion in a fair way,” said attorney John Tobin, who has advocated for school financing reform since 1993, “then the property tax disparities will finally be addressed.”
When the four sitting associate justices at the Supreme Court hear the ConVal case in September, they will be joined by retired Superior Court Judge Kenneth C. Brown, who was appointed to the case at random. The fifth seat on the court has been vacant since August of last year when then-Chief Justice Robert J. Lynn retired and the Executive Council rejected Sununu’s choice to lead the court, the state’s attorney general, Gordon J. MacDonald.
Meanwhile, the final report from the school funding study commission is due to the governor and Legislature on Dec. 1.
A record of the commission’s work and access to meetings via teleconference, is available at carsey.unh.edu/school-funding.
READ ⇒ Part 1: The Quest for Fairness in Education
READ ⇒ Part 2 – Opportunity for All: Politics, Money and the State’s Education Funding Conundrum
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.
