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Published in Print: September 20, 2006, as N.H. Court Strikes Down School Aid System

N.H. Court Strikes Down School Aid System

Justices threaten action if state legislature fails to find a remedy.

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New Hampshire’s school finance saga took a new turn this month, when the state supreme court struck down the funding system and threatened to step in if legislators failed to fix it by next summer.

Ruling Sept. 8 in a case brought by 19 towns and school districts in the southern part of the state, the five-judge panel unanimously agreed that the 1-year-old school aid system was flawed because lawmakers had failed to define an “adequate education” under the state constitution.

Without that definition, the justices said, it’s impossible to determine what an adequate education costs, or whether the state is meeting its constitutional duty to provide one. The judges disagreed, however, on what steps the court should take to enforce that ruling.

The ruling is the latest in the 15-year-old Claremont v. Governor school finance case, which was brought by the town of Claremont and four other towns that claimed the state’s practice of relying heavily on local property taxes to pay for schools unfairly penalized communities with low property-tax bases. In a 1997 ruling in the case, the New Hampshire Supreme Court said the state had a constitutional duty to define and pay for an adequate education for all children.

Since then, however, the court has rejected every successive attempt by the state to revise its school finance system.

Adding ‘Teeth’

In its latest ruling, though, the high court for the first time signaled its impatience with the legislature’s failure to address the issue to its satisfaction.

“Respectful of the roles of the legislative and executive branches, each time this court has been requested to define the substantive content of a constitutionally adequate public education, we have properly demurred,” Justice Gary E. Hicks wrote for the majority. “Deference, however, has its limits.”

If the legislature fails to craft a definition by June 30, the majority added, the court will step in and appoint a special master or return the case to the lower court.

Richard E. Galway, another justice, issued a partial dissent arguing against continued court intervention in the case. Another partial dissent came from Justice James E. Duggan who said he would have returned the case to the lower court to sort out questions involving the cost of an adequate education.

The court also said the state must not shift its financial responsibilities to local school districts and communities. That point was important because state policymakers had sought for years to pay for schools with a statewide property tax that resulted, Robin Hood-style, in wealthier communities’ underwriting of school costs in poorer districts.

“We think the court struck a move in the right direction, and the justices put some teeth in the decision for a change,” said Theodore E. Comstock, the executive director of the New Hampshire School Boards Association, which filed a brief in support of the 19 towns, which call themselves New Hampshire Communities for Adequate Education.

Stephen E. Young, the chairman of the school board in Londonderry, the school district that led the latest lawsuit, said the ruling would force state legislators to tackle the funding issue in a different way.

“They can’t start by asking how much money do we have, and how do we divvy it up,” he said.

The 7,800-student Londonderry district and its partner communities in Londonderry School District v. State of New Hampshire brought suit last year after the legislature approved a “targeted” funding system that funneled more money to poorer districts and came close to eliminating the controversial statewide property tax. Under that plan, though, Londonderry and its coalition partners stood to lose millions of dollars in state aid to schools, according to Mr. Young.

Back to Court?

Whether lawmakers will step up to the supreme court’s challenge is uncertain. Leaders of the Republican-controlled legislature have criticized the decision and are threatening a constitutional amendment to remove the court’s jurisdiction over schools.

“We have to find a way to define ‘adequate’ so that the over half a billion dollars that we fund now for education fills the need,” said Rep. W. Douglas Scamman, a Republican from Rockingham and the retiring speaker of the House. “If [lawmakers] can’t do that, then I would favor a constitutional amendment,” he added.

Other legislative leaders, including Republican Senate President Theodore L. Gatsas, say they want to place an amendment proposal before voters as soon as November. Critics of that tactic point out that such a move would require approval by 66 percent of the 402-member legislature.

Resolving the school funding question has been particularly difficult for the Granite State because of its famous, long-standing opposition to imposing any income or sales taxes—the mechanisms most states use to raise money for schools. Both Gov. John Lynch, a Democrat who is up for re-election this year, and his Republican challenger, Jim B. Coburn, oppose a state income or sales tax.

“I’m not confident that the legislature and the governor will be up to the challenge,” said Andru H. Volinsky, the Manchester, N.H., lawyer who represents the five cities and towns in the original Claremont coalition, which filed a brief supporting the Londonderry-led lawsuit.

Other communities that have mounted challenges to previous iterations of the finance system, such as the 34-member Coalition Communities, stayed out of the court battle this time around.

“I expect,” Mr. Volinsky said, “that we’ll all be in court again next summer.”

Vol. 26, Issue 04, Pages 25,27

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