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Just days after a New Hampshire Department of Education report showing public school enrollment plunging amid spending hikes, a judge has ordered the state to pay even more.

Rockingham Superior Court Judge David Ruoff released his long-awaiting ruling in the ConVal education funding lawsuit on Monday, declaring the state must pay a per-pupil minimum state adequacy grant of $7,356. The net cost to state taxpayers would be nearly $538 million per year. And, Ruoff said, that’s likely just the beginning.

“What is the base cost to provide the opportunity for an adequate education 239 years after that fundamental right was ratified in our Constitution? The short answer is that the Legislature should have the final word, but the base adequacy cost can be no less than $7356.01 per pupil per year, and the true cost is likely much higher than that. At a minimum, this is an increase of $537,550,970.95 in base adequacy aid to New Hampshire Schools,” Ruoff wrote.

Ruoff wasn’t done. In a separate ruling in the Rand vs. State of New Hampshire case, Ruoff ruled that property-rich communities can no longer keep excess Statewide Education Property Taxes revenue in reserve. That practice allowed these communities to set a negative SWEPT tax rate.

Ruoff initially tried to avoid setting a number in the ConVal case. He ruled for ConVal in 2019, finding that the state’s education funding system results in an inadequate amount per pupil, and is therefore unconstitutional. However, he originally ruled that it is up to the legislature to determine the number, not a judge.

After the state appealed, the New Hampshire Supreme Court ordered Ruoff to hold a trial and determine what the cost per pupil ought to be. 

Ruoff’s order still faces a possible challenge from the state. Gov. Chris Sununu called Ruoff’s decision an overreach.

“New Hampshire currently spends among the most per capita on public education than nearly any other state. Today’s decision is deeply concerning and an overreach into a decades-long precedent appropriately placed in the hands of our elected representatives in Concord,” Sununu said.

New Hampshire Department of Education Commissioner Frank Edelblut’s office declined to comment. Michael Garrity, communications director for New Hampshire Attorney General John Formella, said Ruoff’s decisions are being reviewed.

“We have received the court’s order. We will review it and consider potential next steps,” Garrity said.

But the Josiah Bartlett Center for Public Policy, a pro-education-reform think tank, immediately blasted the premise of the judge’s ruling, noting that education spending in New Hampshire has exploded, even as the number of students in the k-12 fallen drastically.

“NH public schools are not ‘underfunded’ and have not experienced a decline in funding this century. On the contrary, as school district enrollment fell by 30,000, spending, adjusted for inflation, rose by nearly $1 billion,” the Barlett Center posted on X.

As for the judge’s arbitrary price of an “adequate” education, the center responded:

“Trying to figure out the true cost of an adequate education by measuring what monopoly school districts spend is like trying to figure out the true cost of package delivery by measuring Post Office prices before the arrival of FedEx and UPS. Markets, not judges, set prices.”

But Democrats, who’ve been pushing for more state spending for decades, were delighted.

State Sen. Democratic Caucus Leader Donna Soucy (D-Manchester) is ready to start charging. Ruoff’s decision will be the template she and other Democratic lawmakers will use going forward as they look to increase school spending to at least the $7,300 minimum,

“Our caucus will closely review the court decisions released today, and we will examine legislative action to ensure that a constitutional formula is enacted,” she said.

Zack Sheehan, the executive director of the left-leaning New Hampshire School Funding Fairness Project, called the decisions big wins for students and property taxpayers. He said that the legislature’s refusal to fund education at the state level has pushed the bill down to local property taxes and burned homeowners.

“These are exciting rulings, but for their impact to be felt, the legislature has to get to work and bring our school funding statutes into line with this and all past school funding rulings,” Sheehan said. “The changes promised in the Claremont decisions have been denied to Granite Staters for too long already, so I want to see the state accept this ruling and not continue wasting time by appealing it to the New Hampshire Supreme Court.”

In actuality, New Hampshire hit a state-spending record on k-12 education in the current budget, while few communities cut their property taxes.

In deciding that $7,300 is the minimum adequate education amount, Ruoff used numbers provided by public school districts and the Department of Education. There was no data from public charter schools or private schools, Cline said. He added that it is like deciding what the price of a hamburger ought to be based on just the McDonald’s Big Mac while ignoring Burger King and Wendy’s.

“Markets, not judges, determine prices. That’s the fundamental flaw in this whole game. New Hampshire needs a market for educational services,” Cline said.

The ConVal and Rand lawsuits are the ideological, if not legal, sequels to the Claremont lawsuits of the 1980s and 1990s. In Claremont, the New Hampshire Supreme Court ruled all New Hampshire children have a constitutional right to an adequate education, and the state is on the hook to make sure that happens. The Supreme Court, however, left the funding details up to lawmakers.

The Peterborough-based Contoocook Valley Regional School District filed the lawsuit in 2018, arguing the state’s then-adequate education grant of $3,600 per pupil was far below the true cost and, therefore, was unconstitutional. ConVal and the dozens of school districts that joined the lawsuit wanted closer to $10,000 per pupil.

Since the ConVal suit was filed, lawmakers and Sununu bumped up the grants to $4,100 per pupil, an amount Ruoff still found unconstitutionally low. The total cost of education in New Hampshire, including the portion paid through local property taxes, averages just shy of $20,000 per pupil. 

The Rand lawsuit saw parents in property-poor towns challenging the way they claimed wealthier communities were able to game the SWEPT system, increasing the propeller of education funding inequality.

SWEPT accounts for 30 percent of education funding in New Hampshire. Under the law, as many as 30 wealthy Granite State communities keep a portion of the money raised through the SWEPT, while some poorer towns are paying more, according to the lawsuit.

Opponents of New Hampshire’s popular Education Freedom Accounts (EFAs) suffered yet another setback when union chief Deb Howes’ lawsuit was tossed out of court by a Merrimack Superior Court judge.

Judge Amy L. Ignatius’s order dismissing the lawsuit was a rebuke to the arguments put forward by the plaintiff, Deb Howes, president of the New Hampshire chapter of the American Federation of Teachers. 

Parents like Amy Shaw were thrilled by the ruling.

“The EFA program helps my daughters attend a school that meets their unique needs and in which they are thriving,” said Shaw, one of the parents who intervened in the lawsuit. “It is a great relief that the program will continue to support educational options that work for my kids and for so many other families across the state.”

EFAs allow parents to use the state’s share of per-pupil funding for their children to choose educational alternatives, including a different public school, private school, or home school.

Howes called the dismissal disappointing but not surprising. She blames the EFA program for taking money away from public schools despite the state increasing public education spending.

“Vouchers have exacerbated an already disparate burden placed on local property taxpayers to fund the basic right to a quality public education,” Howes said.

In fact, because EFAs only use the state portion of a student’s funding — usually around one-third of the total — school systems that lose students through EFAs increase their per-pupil funding.

The key allegation in Howes’ lawsuit was that the EFA program was unconstitutional.

Jason Bedrick, a Research Fellow in the Center for Education Policy at The Heritage Foundation, said the judge’s ruling ended that debate.

“We knew from the outset that this legal complaint lacked any merit. The court agreed,” Bedrick said. “The judge decisively rejected every single one of the plaintiff’s frivolous claims. This is a massive win for Granite State families whose children benefit tremendously from the Education Freedom Accounts.”

Senate Education Committee Chair Ruth Ward (R-Stoddard), who helped craft the EFA program, said Howes and the teachers unions don’t want parents to be able to choose the best education for their children.

“Currently, 4,200 New Hampshire students are using Education Freedom Accounts to build a better education. The teachers’ union sued because it wanted every student to take the same path. I’m glad that Judge Ignatius sided with parents,” Ward said.

Senate President Jeb Bradley (R-Wolfeboro) called the decision a victory for Granite State families.

New Hampshire’s Department of Education Commissioner Frank Edelblut said EFAs are making a positive difference for families and children throughout the state.

“The court’s decision underscores the legality of the EFA program previously approved by legislators, but more importantly allows New Hampshire students and families to find the best educational pathway available for their unique needs,” Edelblut said. “The value of this program continues to be far-reaching, with numerous success stories emphasizing just how impactful EFAs have been statewide.”

Ignatius wrote in her order Howes completely failed to show any of her complaints about the program had any legal merit.

First, Howes tried arguing that EFAs are unconstitutional since the state uses money from the Education Trust Fund to award the EFA grants to parents. Howes claimed since the Education Trust Fund includes lottery revenue, any payout from the fund to the EFA program violates the state constitution.

New Hampshire’s constitution restricts lottery revenue to fund only public schools. But, Howes failed to show any proof any lottery money is going towards EFAs.

“Howes does not meet this burden, even with the allegations in her complaint taken as true and viewing all reasonable inferences in her favor,” Ignatius wrote.

The Education Trust Fund took in more than $1.1 billion in 2022. Of that, lottery revenue was $125 million. The EFA program was budgeted to take $9 million from the Education Trust Fund in 2022. Howes bears the burden to show lottery money is being unconstitutionally used for EFAs, Ignatius wrote, and she didn’t come close to doing that.

Next, Howes claimed EFAs allow the state to avoid its constitutional obligation to provide an adequate education by delegating the job to parents. The Supreme Court’s Claremont decisions from the 1990s found the state must provide an “adequate” public education to all New Hampshire children.

But Ignatius flatly stated Howes was wrong again. The Claremont obligation is limited to public schools, not private education. Further, EFAs don’t keep students out of public school. Families in the EFA program can leave and enroll their child into a public school at any point or use the EFA funding to attend a different public school.

“(T)he Court finds that the State did not delegate its duty to provide an adequate education because it has no duty to students not enrolled in public school and RSA 194- F (the EFA law) does not prevent students from attending public school,” Ignatius wrote.

Finally, Howes argued that the EFA program unconstitutionally allows parents to buy educational materials without government oversight. However, the organization administering New Hampshire’s EFA program, the Children’s Scholarship Fund, is delegated to make sure all spending adheres to the law. Ignatius wrote Howes failed to show proof of any improper EFA spending and failed again to show any legal problem.

“The legislature delegated the authority to approve expenses extraneous to the specific items listed to the scholarship organization but required those expenses be ‘educational,’ and Howes has not identified any expenditures that are not educational,” Ignatius wrote.

Now that she has lost in court, Howes wants lawmakers to spend more on public education instead of EFAs.

“The legislature should be focusing far more time and resources on the needs of the 160,000 Granite State public school students who deserve a robust curriculum and fully staffed schools, not on the 4,000 students whose families choose to take state-funded vouchers,” Howes said in a statement.

Could the next 60 days see an end to New Hampshire’s school funding system as we know it?

Rockingham Superior Court Judge David Ruoff told lawyers Wednesday he is set to rule sometime in the next 60 days on either the final decision in the Contoocook Valley Regional School District adequacy grant lawsuit or the summary judgment for the Grafton County lawsuit seeking to cancel the Statewide Education Property Tax or SWEPT.

“Time is of the essence here for everyone involved,” Ruoff said.

New Hampshire lawmakers, education leaders, and local school boards have been tussling for decades over how to fund a constitutionally-mandated adequate education. Despite hundreds of millions in new funds going to education this year alone, there is still no agreement on how to pay for public schools.

Ruoff is now the one man in the state who could change everything thanks to the lawsuits which landed before him in court. 

The original judge on the Grafton County case, Grafton Superior Court Judge Lawrence MacLeod, recused himself last year, citing a potential conflict of interest. MacLeod is a property owner in one of the property-rich towns pushing to keep the current SWEPT system in place.

MacLeod’s recusal sent the case to Ruoff. Ruoff is also under orders from the New Hampshire Supreme Court to decide in the ConVal case exactly how much the state should pay per pupil.

In both cases, the school districts claim the way the state is currently funding education, using an unevenly enforced SWEPT to pay for adequacy grants that do not cover all necessary expenses, is unconstitutional.

Ruoff initially ruled in ConVal’s favor, agreeing the state is not paying enough per pupil, but he left setting a particular amount to legislators. On appeal, the Supreme Court ruled Ruoff needed to hold a trial and set a specific dollar amount.

New Hampshire upped its per pupil adequacy grant this year to $4,100. But the plaintiffs in the ConVal case are looking for just short of $10,000 per pupil. Ruoff listened to weeks of testimony this year; his highly anticipated ruling is pending.

With approximately 160,000 students in the state’s K-12 public schools, a $10,000 adequacy payment would cost state taxpayers $1.6 billion yearly.

Meanwhile, lawyers representing the state and the Grafton County plaintiffs argued in court Wednesday over an injunction to set the SWEPT rate at 0, as the plaintiff wants. Ruoff indicated he would issue a judgment in the case without need for a trial since neither side disputes the facts about how schools are funded.

SWEPT accounts for 30 percent of education funding in New Hampshire. Under a law change in 2011, a loophole was created. Now as many as 30 wealthier communities in New Hampshire are keeping a portion of the money raised through SWEPT, essentially getting to set a negative property tax rate, while poorer communities end up with higher SWEPT rates to make up for their low property values.

Michael Jaoude, an attorney for the plaintiffs, said the uneven SWEPT burden violates the Claremont decision from the 1990s, which ruled there is a constitutional right to adequate education and that the cost needs to be shared equally.

“No resident should have a greater burden of funding that constitutional right than another,” Jaoude said.

SWEPT started in 1999 as a response to the Claremont decision, which found the state has a constitutional obligation to fund adequate education. The money raised, more than $360 million estimated in the coming year, is used to fund state adequacy grants. 

Senior Assistant Attorney General Sam Garland said ruling for the Grafton County plaintiffs would have disastrous impacts on local town and school budgets. Garland said the plaintiffs have not shown that the SWEPT system is unconstitutional, and their arguments don’t hold up.

“We don’t think they’ve made that showing, and we don’t think they can make that showing as a matter of law,” Garland said.

Garland said even if the 2011 law creating the SWEPT exemptions might be unconstitutional, the tax itself is not, and Ruoff should allow the rate to be set.

Ruoff indicated the whole SWEPT issue might be moot depending on his eventual ruling in the ConVal case.

As the legal battle over school funding plays out in the ConVal lawsuit trial in the Rockingham Superior Court this week, new data show the massive increase in school spending is tied to the nearly 60 percent increase in the number of district administrators.

School superintendents are among the highest-paid public employees in the state, with salaries more than double that of the average teacher. That is certainly the case in the Contoocook Valley Regional School District, which is currently in court demanding more state funding.

According to data compiled by the New Hampshire Department of Education, Superintendent Kimberly Rizzo Saunders’s salary is more than $171,000 a year. That makes her one of the highest-paid superintendents in the state.

A study released this week by the Josiah Bartlett Center for Public Policy showed taxpayer spending on New Hampshire school districts rose by $1.5 billion over the last 30 years even as the number of students fell by 14 percent. Even adjusting for inflation, taxpayers poured in an additional $937 million to educate fewer kids.

“This massive spending increase–40 percent when adjusted for inflation–occurred as public school enrollment was cratering. From 2001-2019, New Hampshire district public school enrollments fell by more than 29,946 students or 14 percent,” the report stated.

It was particularly true for administrative costs. According to the report, that 14 percent drop in enrollment was accompanied by a 15 percent increase in district administrative staffing.

“Adjusted for inflation, per-pupil spending increased 83 percent for support services, 82 percent for general administration, [and] 74 percent for school administration.”

The trend appears to be at work in ConVal schools. For example, in 2001, the Contoocook Valley Regional School District had 3,227 enrolled students. By 2019, it had fallen to 2,176, or 32.5 percent.

At the same time, school spending — mostly paid for by property taxpayers — rose from $37.3 million a year to more than $47 million, an increase of 26 percent.

The numbers don’t lie, said Ben Scafidi, the author of the report and a professor of Economics at Kennesaw State University and director of the school’s Education Economics Center. “Taxpayers are spending more money on fewer students,” he said.

The problem isn’t teacher pay, which has risen modestly. Instead, one of the biggest cost drivers in public schools has been the number of district-level administrators and staff, up 57 percent, Scafidi said. They are employees who do not teach and who generally do not interact with students.

“Most of the spending increase went outside the classroom,” Scafidi told WFEA radio’s Drew Cline Wednesday. Cline is also the president of the Josiah Bartlett Center.

While the number of students dropped 14 percent, the number of school principals overseeing their education dropped by just two percent.

“It’s very out of whack with the decrease in students,” Scafidi said.

In the same period, schools were beefing up spending and losing students, and the rest of New Hampshire’s government was growing at a much smaller pace, Scafidi said. He said that public colleges and universities saw an 8 percent increase in the number of students and responded with a more than 7 percent increase in staff. All other state agencies grew by about 1.2 percent, with more than 300 employees, even though the state population went up 8 percent.

New Hampshire is now spending thousands more per pupil than other states; he said, around $3,900 more. The average state spending per pupil is close to $19,000. This hasn’t stopped districts like ConVal from fighting the state for more per-pupil spending.

The state sends nearly $4,000 per pupil to each school district as part of the adequate education grants. ConVal’s lawsuit claims the real cost of the constitutionally mandated adequate education is much higher, and it wants the state to send $10,000 per pupil.

In addition to Rizzo Sanders’ $171,000 a year — which puts her in the top bracket of school superintendents — the assistant ConVal superintendent earns more than $141,000. That’s more than many superintendents in nearby districts, where the pay ranges from about $100,000 to $150,000.

Not that ConVal is at the top of the heap for administrative salaries.

Hanover’s superintendent brings in $178,000, and Nashu pays its superintendent $172,500. Oyster River’s superintendent is the top earner, taking home more than $192,000.

Part of the blame for the increase in the number of outside-the-classroom administrators falls on state and federal governments issuing rules and mandates for local schools.

“Public schools get funding from the federal government, the state government, and local property taxes,” Sacfidi said. “You have many layers of government telling schools what to do, and each layer of government has its preferences, and they impose them on public schools.”

According to Sacfidi, the result is more taxpayer money going to schools that teach fewer students, and more of that money goes to employees who do not step inside the classrooms as part of their jobs.