Tuesday’s opinion in Contoocook Valley School District v. State once again finds the judiciary wading into questions that the New Hampshire Constitution entrusts to the elected branches of government.
Although the court ultimately recognized that the Superior Court’s order compelling an immediate $7,356.01-per-pupil payment “violates the separation-of-powers doctrine” and reversed that mandate, its broader analysis still substitutes judicial policy preferences for the choices of the people’s elected representatives.
Here is explicitly where the New Hampshire Supreme Court is wrong:
- Appropriations belong to the legislature. Part II, Article 2 of the NH Constitution vests the legislature with “supreme legislative power,” including the exclusive authority to make appropriations. Thus, for example, as the court has said in an earlier decision, the executive branch may spend “only to the extent, and for such purposes, as they may have been appropriated by the legislature.” By fashioning its own cost model and announcing a “conservative minimum threshold” for school funding, the court has, in the words of two dissenting justices, “invad[ed] the legislature’s policy-making function” and “improperly subject[ed] the legislature to judicial supervision.” The court is not accepting such an appropriations constraint on itself that it so readily acknowledges constrains the co-equal executive branch.
- Public policy should not be made in a courtroom. The opinion candidly concedes that defining acceptable class sizes, staffing ratios, transportation needs, or health-insurance contributions are value judgments, not legal determinations. Yet the majority endorses a judicially derived cost schedule that even it admits is “likely much higher” than the statutory figure, then declares the statute unconstitutional for failing to match that judicial price tag. That approach improperly elevates court-authorized expert testimony and judicial hubris above the deliberations, compromises, and fiscal constraints weighed by the legislature. The result reveals a profound disrespect for the duly elected representatives of the people, who are carrying out their constitutionally mandated duties, and, therefore, ultimately a disrespect for the people themselves.
- The U.S. Supreme Court has just reaffirmed these limits. In Trump v. CASA (2025), the nation’s highest court reminded lower tribunals that their role is to interpret statutes, not to rewrite them and not to interpose their policy choices—or to direct how tax dollars must be spent to support those choices—simply because judges might craft what they perceive to be “better” policy. The decision before us disregards that warning. Instead, it continues a judicial journey down a dead-end of never-ending judicial decisions that one after another violate our constitution.
- It is balanced dialogue, not judicial command, that should guide education funding. New Hampshire’s lawmakers should remain committed to providing every child with a meaningful educational opportunity. They should continue to evaluate—openly and transparently—the adequacy of existing appropriations. However, they must also defend the constitutional order that locates taxing and spending powers in the legislative branch, which is accountable to the voters, not the courts.
Accordingly, the legislature should:
- Acknowledge the court’s contribution to public discussion on school funding;
- Continue its own constitutionally mandated fact-finding and debate, informed and not dictated by the court’s opinion; and
- Preserve the constitutional balance by rejecting any suggestion that courts may compel specific appropriations or impose their preferred policy judgments upon the people of New Hampshire.
All branches of our state government must fulfill their proper roles and honor those of the other branches. Time and again, the legislature has fully discharged its duties regarding the education of our children—deliberatively, democratically, and within the constitutional framework that has served our state for more than two centuries.
The courts should likewise discharge only their duties and recognize that their mandate — their lane — is limited to deciding cases and controversies between litigants and does not include using those court cases to substitute their policy and spending choices for those of the legislature.
