The New Hampshire state Supreme Court is expected to release its long-awaited ruling in the ConVal education funding case Tuesday morning, the Josiah Bartlett Center for Public Policy reports.
“The ruling could let lawmakers decide how much the state should spend on public education, or it could order the state to pay a specific amount,” the free-market think tank headed by Drew Cline — who also serves as chair of the New Hampshire Board of Education — posted Monday night.
At the heart of the ConVal case (technically “Contoocook Valley School District et al. v. State of New Hampshire”) is a sentence in the New Hampshire Constitution: Part II, Article 83 states that it is the duty of legislators and magistrates to “cherish the interest of literature and the sciences, and all seminaries and public schools.”
What does “cherish” mean? For 30 years, the New Hampshire courts have ruled on that question. In the Claremont cases of 1993 and 1997, the Supreme Court established, some would say invented, the duty of the state to “adequately” fund education in a state where schools had historically been operated and funded at the local level.
But what funding is “adequate?”
In 2019, a group of 19 school districts, led by the ConVal School District, sued the state of New Hampshire, claiming the state’s $4,100 per pupil failed the adequacy test. The result, the schools argued, is an unfair system where some towns have more revenue than they need, while others struggle to cover their education costs.
When the ConVal case first came to the state Supreme Court, it was sent to Rockingham County Superior Court Judge David Ruoff to determine what the lower court believed would be an “adequate” level of funding.
Ruoff held a three-week trial on the question and, in 2023, ruled the state’s $4,100 per pupil failed to meet the “cherish” standard. He ruled that the state must pay local schools at least $7,356 per pupil. And even that, he said in his order, wasn’t enough. He used the lower number to show “appropriate deference to the Legislature,” but believed they should spend even more.
Ruoff’s “conservative” number would put the state on the hook for around $540 million a year in additional spending on local schools, on top of the more than $1 billion it already pays.
The state Supreme Court heard oral arguments in the case last December. Only three of the five members of the court will rule on the case: Justices James Bassett, Melissa Countway, and Patrick Donovan. The chief justice, Gordon MacDonald, has recused himself from the case because he was serving as New Hampshire’s attorney general when the lawsuit against the state was filed.
Those vacancies are being filled by retired Superior Court Justice Gillian Abramson and former Superior Court Chief Justice Tina Nadeau for the education lawsuits.
The fifth justice, Anna Barbara Hantz Marconi, is still on leave as the charges against her for allegedly attempting to influence the state’s investigation into her husband, state port director Geno Marconi, remain under investigation.
The state’s position is that the constitution gives the legislature the power to determine what level of funding is adequate to “cherish” education in the state. Anything else, it argues, is a violation of the separation of powers.
Defenders of the lawsuit argue that the inequity resulting from relying on local funding is itself unconstitutional.
Supporters of the state’s position are hopeful in the wake of the Supreme Court’s ruling last month, which overturned Judge Ruoff’s decision in the Statewide Education Property Tax (SWEPT) case. The court ruled 3-1 that “the SWEPT scheme is constitutional under Part II, Article 5 because it is ‘administered in a manner that is equal in valuation and uniform in rate throughout the State,’” MacDonald wrote for the majority.
And, seemingly fed up with the endless court cases since Claremont I, the legislature inserted language into the recently signed state budget trailer bill intended to reclaim the authority they say the have as ‘the sole branch of government constitutionally competent’ to determine education policy and spending. “[T]he legislature shall make the final determination of what the state’s educational policies shall be and of the funding needed to carry out such policies,” the bill reads.
EDITOR’S NOTE: An earlier version of this story failed to report the participation of retired Superior Court Justice Gillian Abramson and former Superior Court Chief Justice Tina Nadeau as fill-in justices for the ConVal case. We regret the error.
