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N.H. Court Will Hear School-Finance Challenge

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A suit is to be filed within the next few weeks challenging the constitutionality of New Hampshire public schools' heavy reliance--the heaviest in the nation--on local property taxes.

The plaintiffs, according to their lead counsel, Arthur Nighswander, will be seven local school boards and seven individuals representing taxpayers and students. The suit, he said, probably will be filed in the Superior Court of Merrimack County, where Concord, the state capital, is located.

Like similar challenges mounted in more than 20 other states over the past decade--most recently in Arkansas, where a special chancery judge this month found the state finance system unconstitutional--the New Hampshire suit will be based on the contention that students in "property-poor" districts are denied educational opportunities that are available to their counterparts in wealthier systems, Mr. Nighswander said.

"Statistically, I think we may have the best case of anybody," he added.

And, as in other school-finance cases, the plaintiffs will argue that property owners in poor districts are discriminated against because they must pay up to four times as much in taxes as do taxpayers in wealthy districts to obtain the same levels of public services.

But conditions peculiar to New Hampshire promise to distinguish the case there from those in other states.

New Hampshire's public schools receive the lowest share of state aid in the nation.

Less than 7 percent of the schools' revenues will come from state government this year, compared to a national average of approximately 48 percent. And the state's schools are the most dependent in the country on local property taxes, which constitute some 85 percent of school revenues; the national average is approximately 40 percent.

The state has a foundation program for the purpose of aiding poor school systems, but the legislature has never appropriated enough money to carry out the law. For the current biennium, for example, the legislature has allocated $3.6 million for the foundation program--only 10 percent of the amount required under the aid formula.

Disparities in Spending

Disparities in school systems' spending, Mr. Nighswander said, are greater than those found in most states--ranging from $900 to $1,000 per pupil in the poorest districts to nearly $4,000 in the wealthiest.

The case also differs from most others in that the education clause of New Hampshire's constitution is "not as clear-cut" as those of other states, Mr. Nighswander said. Several finance cases have been won on state constitutional guarantees of "thorough and efficient" or "thorough and uniform" education.

Furthermore, New Hampshire is the only state in the nation that has no general income or sales taxes--the usual sources of statefunds for schools. And there are strong political pressures against the institution of such state taxes, even though they would probably lower property taxes, the lawyer said.

"A corporation executive here could be making $150,000 a year," Mr. Nighswander said, "and if he doesn't smoke, drink, or go to the racetrack, he doesn't pay anything."

The state's strong tradition of "local control" over schools also could present problems, the lawyer predicted.

Most of the 1,500 citizens who participated in 45 public forums held around the state during 1979 and 1980 said they believed the school-finance system was unfair. But a large majority also expressed the fear that an increase in state funds would result in a loss of local control.

Mr. Nighswander argues that most of the schools' money, regardless of its source, is spent on satisfying federal and state standards; thus, he asserts, school systems enjoy little "local control" as it is. One of the systems challenging the finance law, he said, is so poor that it cannot afford to meet state accreditation standards.

"If you have no money," he said, "there's no such thing as local control." The second-highest court in New York, in holding that state's finance methods unconstitutional, recently made a similar assertion.

The suit will be based in part on research by the Center for Educational Field Services at the University of New Hampshire, conducted with support from the Ford Foundation andNew Hampshire's associations of school boards and school administrators.

In an unusual step, 27 local school boards will pay for the litigation itself, Mr. Nighswander said. Most school-finance suits have been supported by foundations--primarily Ford--and by poverty-law centers.

Law Declared Unconstitutional

The suit will not seek any specific changes in the law, Mr. Nighswander added, although one study by the Center for Educational Field Services suggested that the state share be increased to at least 20 percent. "We're not going any further at this point," he added, "than asking that the law be declared unconstitutional and asking the state what it's going to do about it."

Nor will the plaintiffs concentrate on the academic consequences of the finance system, as have their counterparts in West Virginia's current school-finance trial.

"We have some data on outcomes, but it's a morass to get into it," Mr. Nighswander said. "We're most concerned about fiscal things. Without the money, you can't buy library books and you can't pay teachers competitively. Some of the buildings are very old and not safe, but they can't do anything about it. When you look at the equipment for vocational training, you can see the differences between wealthy and poor districts."

A similar suit challenging New Hampshire's school-finance methods was filed in 1973 in U.S. District Court. But it was dropped after the U.S. Supreme Court ruled, in San Antonio Independent School District v. Rodriguez, that school finance is a state, not federal, issue.

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