Education Funding

A Judge Just Ruled That Another State’s School Funding System Is Unconstitutional

By Mark Lieberman — November 27, 2023 5 min read
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For the second time this year, a judge has ruled decisively that a U.S. state’s system for funding its public schools is unconstitutional.

Pennsylvania lawmakers have been grappling all year with the fallout from a judge’s Feb. 7 ruling that the state dramatically underfunds schools in low-wealth areas. Now it’s New Hampshire’s turn after a judge declared Nov. 20 that the state’s base aid to school districts is far too low, and that a state-level property tax policy gives wealthy school districts an unfair disadvantage.

The state’s current “base adequacy” rate—the minimum amount it provides each year to all school districts—is $4,100 per student. David Ruoff, a Rockingham County Superior Court judge, said in a ruling that that amount should be “meaningfully higher”—and no lower—than $7,356.01.

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Meanwhile, Ruoff also ruled unconstitutional a state policy that allows wealthy towns to retain excess money they collect from local property taxes specifically for school funding under a state law that requires every town to tax local properties at a set rate to generate education funding. Ruoff said towns should instead send excess money to the state for redistribution to poorer towns that can’t generate sufficient revenue for their schools at the state-designated property tax rate.

Chris Sununu, New Hampshire’s Republican governor, blasted the decisions as “an overreach into a decades-long precedent appropriately placed in the hands of our elected representatives in Concord.” The state has until mid-December to appeal the two separate rulings to the state supreme court.

Even if the case is upheld, New Hampshire schools likely face a long road ahead to substantial funding reform. Many states have taken decades to fulfill court-mandated obligations to ensure adequate funding for all schools.

In the Granite State, the judicially mandated boost in state aid for schools would amount to more than $530 million in additional state education funding annually, an increase of more than 50 percent from current levels, the New Hampshire Bulletin reported. That could be especially difficult in a state that boasts no state income or sales taxes and relies more than any other state on local property taxes to fund its public schools.

The verdicts arrived toward the end of a busy year for school funding lawsuits in states across America. This year marked the 50th anniversary of the San Antonio v. Rodriguez decision, in which the U.S. Supreme Court rejected a challenge to the system of funding schools through local property taxes and found the U.S. Constitution doesn’t provide for a federal right to an equal education.

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Since then, nearly every state has seen litigation challenging whether its school funding system lives up to its individual constitutional commitment to provide a free public education for all children.

Here are a few updates on recent developments in the chaotic landscape of school funding lawsuits:

Montana and its counties are sparring over how much they’re required to invest in schools

What happened: The state’s Department of Revenue ordered counties to collect property taxes from local taxpayers at a rate of $95 for every $1,000 of a property’s taxable value. Most counties, however, levied lower amounts from taxpayers and sued the state, arguing that state law places a cap on the amount counties must tax their residents.

What’s next: The state supreme court ruled on Nov. 22 in favor of the state. That means roughly four dozen of the state’s 56 counties will have to make up for their lower-than-required collections when they send their next tax bills to residents. Education advocates cheered the decision, arguing that they would otherwise have faced an uphill battle convincing state lawmakers to increase school funding going forward.

The attorney general of Kansas wants to close a long-running school funding case

What happened: Kansas lawmakers have implemented funding reforms in recent years after a series of court rulings required the state to spend more on schools and ensure equity for lower-wealth districts. The Republican attorney general of Kansas, Kris Kobach, is now asking the state supreme court to close the case and leave future funding decisions to lawmakers.

What’s next: Democrats, including Gov. Laura Kelly, oppose Kobach’s request. They argue that education supporters would have to spend years litigating a new legal challenge if the legislature failed to keep up with its school funding commitments, rather than being able to petition a judge to ask for intervention if necessary.

Advocates for education funding in Maryland have a long road ahead

What happened: Earlier this year, a state circuit court judge rejected a lawsuit, known as the Bradford case, that argued conditions in Baltimore schools violate the state’s mandated commitments to school funding that emerged in an earlier iteration of the case. Plaintiffs, aiming to expedite the process, then asked the state supreme court to take up the case. Advocates hope to convince courts that chronic underfunding of Baltimore schools represents the state’s failure to live up to its commitments to equity in school funding more broadly, even with robust recent efforts to improve school funding statewide.

What’s next: The state supreme court declined to hear the case. That means plaintiffs will have to take it to the Maryland Appeals Court, where it could linger for years.

North Carolina’s high court will re-hear a major education finance lawsuit

What happened: A judge ruled in 2021 that the state needed to make an immediate investment of more than $1 billion in schools to make up for chronic underfunding. The state supreme court, then controlled by Democrats, affirmed the judge’s authority to make that order in early November 2022. But majority Republican lawmakers balked at the amount and the order itself, arguing that legislators alone have the power to spend state funds. In September, they filed a formal request for the case to be relitigated.

What’s next: The state supreme court last month agreed to reconsider whether the judicial branch can order school funding increases. Plaintiffs in the case are now seeking the recusal of Justice Phil Berger Jr., a Republican whose father is currently a GOP state senator.

Critics of the decision to reconsider the case argue that defendants are improperly pursuing a retrial in order to secure a more favorable verdict from a court that flipped to majority-Republican membership after the 2022 elections.

“What’s going on in North Carolina is obviously the politicization of the state court litigation,” said Michael Rebell, the executive director of the Center for Educational Equity at Teachers College, Columbia University. “It’s just really disturbing.”


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