Now is the time to solve the school funding problem in New Hampshire. The court has clearly and sternly supported our efforts. It is time for the Legislators, Senators and Governor to stand up to the plate and craft a fair and equitable solution for all the students and taxpayers of New Hampshire.

On September 8th 2006 the Supreme Court issued the rulling on;

The holding of the case – its essential ruling – affirmed the trial court’s decision that the State has failed to define a constitutionally adequate education. The Court stayed the other rulings of the trial court: HB 616 failed to cost out an adequate education and fund it with constitutional taxes, and the State has failed provide an accountability system. Staying those rulings means they remain undisturbed but do not take effect. Thus, the level funding under HB 616 will go forward for the 2006-2007 school year, and schools will continue to operate under the current accountability system.

Most importantly, the Court did not retreat from its earlier Claremont decisions. In fact, it went further as I will discuss.

The court began Part II of its opinion by acknowledging “the State’s assertion that Claremont … issued ‘four mandates: define an adequate education, determine the cost, fund it with constitutional taxes, and ensure its delivery through accountability,’ and that these four mandates comprise the State’s duty to provide an adequate education.” As both Justices Duggan and Galway stated in their opinions, these mandates are imposed on the State by the constitution.

Addressing the State’s argument that it has defined an adequate education, the Court agreed with our position that the seven criteria set forth in RSA 193-E:2 represent “‘general’ and “‘aspirational’ guidelines,” not a definition of constitutional adequacy. The Court rebuffed the State’s alternative argument that RSA 193-E:2 together with other educational statutes and regulations “‘go well beyond the constitutional flaw of adequacy’ and ‘far surpass the constitutional minimum of adequacy.’” For purposes of the appeal, the Court took the State at its word but then pointed out the flaw in its position:

“If the statutory scheme that is in place provides for more than constitutional adequacy, then the State has yet to isolate what parts of the scheme comprise constitutional adequacy. More specifically, under the statutory scheme there is no way a citizen or a school district in this State can determine the distinct substantive content of a constitutionally adequate education. Consequently, its cost cannot be isolated.”

The Court did not stop there. It took the State’s position to its logical conclusion as it relates to the issue of funding:

“We note, however, that if the current system of delivery in combination with the statutory definition establishes a constitutionally adequate education, there would be no need for any local educational taxes as the State would be required to pay for implementing the entire statutory scheme. Indeed, if that is the case, we question whether $837 million, the amount currently allotted for publication under House Bill 616, is facially sufficient to fund the school system as required by that statutory scheme.”

Building off its earlier Claremont decisions, the Court emphasized that a definition must provide “the substantive content of a constitutionally adequate education in such a manner that the citizens of this state can know what the parameters of that educational program are. The right to a constitutionally adequate education is meaningless without standards that are enforceable and reviewable [by the courts].” The Court retained jurisdiction of the case, noting its “expectation that the political branches will define with specificity the components of a constitutionally adequate education before the end of fiscal year 2007 [ June 30, 2007 ].” Yet in doing so, it sent an unmistakable signal to the Legislature that “time is running out.” For the first time in any of the Claremont decisions, the Court set forth “appropriate remedies” it might order if the political branches fail to act. Those remedies include: (1) invalidating House Bill 616; (2) appointing a special master to determine the definition of a constitutionally adequate education; or (3) implementing the remedy outlined by Justice Duggan of remanding the case to the trial court “‘for further factual development and a determination of whether the State is providing sufficient funding to pay for a constitutionally adequate education.’”

That the Court’s deference to the political branches has reached its limit is clear not only from its willingness to set forth possible remedies, but from the last sentence of its opinion: “We urge the legislature to act.”

In doing so, the Legislature and Governor must do more than define an adequate education. Their task flows from the logic of the four Claremont mandates: cost necessarily will be affected by whatever definition the Legislature develops, as will how the funds are raised and an accountability system. For anyone who might question this logic, the Court made plain what is required of the State in the last paragraph of Part IV:

Any definition of constitutional adequacy crafted by the political branches must be sufficiently clear to permit common understanding and allow for an objective determination of cost whatever the State identifies as comprising constitutional adequacy it must pay for. None of that financial obligation can be shifted to local school districts, regardless of their relative wealth or need.

Finally, it is noteworthy that all the justices concurred in the Court’s opinion, including Justice Dalianis. Her concurrence represents a reconsideration of the position she set out in the dissenting opinion in Claremont (Accountability). There, she stated that RSA 193-E:2 together with the other state statutes and regulations “amply define the term ‘adequate education.’” 147 N.H. at 522.

Justice Duggan wrote a separate opinion stating he would remand the case to the trial court for a determination of the cost of an adequate education. I read his opinion as expressing concern whether the Legislature will fulfill its constitutional duty to determine what a constitutionally adequate education, in fact, will cost. I say this for three reasons. First, Justice Duggan reviewed the legislative history and made note of one senator’s statement that the Legislature had “‘backed into figuring out how to pay for an adequate education based on the numbers[,] not based on the needs of the children of this state.’” Second, he referred to a letter from Attorney General Heed that raised concerns for the constitutionality of very similar legislation considered during the 2004 legislative session. Third, he mentioned that the Office of the Legislative Budget Assistant had projected a statewide cost of an adequacy to be over $909 million for fiscal year 2001, whereas House Bill 616 appropriated only $837 million for fiscal year 2006.

Because of that concern, Justice Duggan stated that the Court had not gone far enough by requiring the Legislature to focus on the definition of an adequate education. He observed: “more fundamentally, even if the legislature provides a more specific definition of an adequate education, that definition is meaningless unless the legislature also determines what the specifically-defined education will cost.” Thus, “[t]he core of this appeal is the basic question of whether the State has, in House Bill 616, fulfilled its constitutional obligation to fund an adequate education.”

While noting that the Legislature is “far better suited” to determine cost than a single judge, Justice Duggan gave more weight to the Court’s duty “to ensure that constitutional rights are protected, and we cannot ignore the possibility that the State may not be meeting its constitutional obligation to provide an adequate education to the children of this State.” That, coupled with his concern discussed above, is likely why Justice Duggan concluded the case should be remanded.

And he made clear his position that remand for a determination of the cost of an adequate education would not present the trial court with a task it is ill-suited to carry out. He pointed out that trial courts in other states had decided the cost issue. He also referred to the 1998 Augenblick report that set forth “four possible formulas for calculating the cost of an adequate education in New Hampshire ,” as well as the formula chosen by the Legislature and enacted into law in 1999 as RSA 198:40 (which House Bill 616 repealed). The trial court, therefore, would have ready sources to guide it in framing the cost issue.

Justice Galway agreed with Justice Duggan that House Bill 616 does not provide for a calculation of cost that reflected the definition of an adequate education. But unlike Justice Duggan, he concluded that the Court “should declare House Bill 616 unconstitutional for the reasons the superior court sets forth in its decision.” Such a decision would eliminate any doubt that the task before the Legislature is to craft a new education law that meets all four mandates of the Claremont decisions. The political branches are where Justice Galway wants those mandates decided because he “believe[s] strongly that it is not our role to ‘sit in continuous judgment over educational policy decisions made by the legislature and the Governor.’” I do not read this statement to mean Justice Galway no longer believes the Court has the constitutional obligation to review educational laws, only that, in the first instance, the political branches have the responsibility to craft those laws.

While it might be tempting for the Legislature and Governor to focus solely on the Court’s statement that it must define an adequate education by June 30, 2007 , that would be a mistake. One must read not only the Court’s opinion but those of Justices Duggan and Galway to appreciate what the Legislature must do. In the words of Justice Galway, the Court did not impose Claremont ’s four mandates on the Legislature, they derive from our State Constitution.” Addressing all four mandates is what the political branches must do in the 2007 legislative session.

William Chapman

A Solution to the State Education Funding Crisis is Important

Will the General Court plan a fair and equitable bill this year? The State of New Hampshire should create a fair school funding bill for everyone. They need to define an adequate education They need to cost out an adequate education Provide Statewide funding for an adequate education Have a clear and easy to understand explanation of what is provided Do it by June 2007!

What happens next?

This site provides all New Hampshire Citizens, Educators, Local Officials and Legislative Representatives a place to share information.  It is our hope that this collaboration will result in a permanent solution for school funding in New Hampshire .

All like-minded individuals who would like to join this organization and participate in this grassroots effort are invited to add their E-mail to the list. You will be kept updated with occasional mailings about NHcafe efforts.

Who is NHcafe?

The New Hampshire Communities for Adequate Funding of Education (NHcafe) was established to promote appropriate funding and revenue sources for schools in the State of New Hampshire.