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As the New Hampshire Supreme Court considers the $500 million ConVal education funding decision, GOP lawmakers have come up with a solution for the endless legal drama: Get rid of the Claremont decisions.

In an amicus brief filed with the court this week, a group of 31 House and Senate Republicans justify ending Claremont by linking it to the logic behind the Roe v. Wade decision that created a woman’s right to an abortion. 

The U.S. Supreme Court overturned Roe with the recent Dobbs decision, restoring the right of voters to set the abortion laws in their own states. Like Roe, they argue, Claremont was a bad decision that took authority away from local communities and created endless legal battles.

“In Dobbs, the U.S. Supreme Court acknowledged the morass into which it had ventured in 1973 and overruled Roe and Casey, returning the controversial policy issue of abortion to the policy-making branches of the 50 state  governments,” the brief states.

The landmark state Supreme Court Claremont decisions from the 80s and 90s found that all New Hampshire children have a right to an “adequate education” and that the state has a financial obligation to fund that education. 

State Sen. Tim Lang (R-Sanbornton) said the Claremont rulings have done more harm than good, taking away local control from communities and creating the legal environment for the costly ConVal decision.

“The decision has run its course and its not taking into account the entire state of New Hampshire,” Lang said.

But Noah Telerski, with the liberal NH School Funding Fairness Project, said the brief is an example of blame shifting by the GOP lawmakers.

“Instead of owning up to their failure to adequately fund education in compliance with the Claremont rulings, these legislators are instead arguing that Claremont should be thrown out,” Telerski said in a statement. “They are trying to blame the court for their own failure to comply with the court’s rulings over the past 30 years. And this begs the question, what do they think the state’s role in funding education should be?”

Lang, along with House Speaker Sherman Packard (R-Londonderry) and 29 other GOP lawmakers, signed on to the amicus brief, promoted partially by the fact the New Hampshire Department of Justice isn’t trying to overturn Claremont. The DOJ, in representing the state in the ConVal appeal, makes the error of not challenging Claremont, the brief states.

The DOJ is focusing on getting the ConVal decision overturned, but that leaves open the possibility for more lawsuits over school fusing down the line, the brief states.

“If this Court were to reverse the lower court order, it would soon  enough be called upon to pass on the constitutionality of another school funding law, and another, and another, until the Court would be forced to confront the decision the amici are urging it to confront now,” the brief states. 

In the ConVal ruling, Rockingham Superior Court Judge David Ruoff sided with the Contoocook Valley Regional School District which argued the state’s per pupil adequacy grant of $4,100 was too low to provide the constitutionally guaranteed adequate education. Ruoff determined the grants should be a minimum of $7,300 per pupil for every pupil, representing an immediate $530 million spending increase.

Some lawmakers were horrified by the notion of a single judge arbitrarily creating a taxpayer-funded mandate, entirely outside the legislative process.

The $4,100 adequacy grants are average for most districts, but the legislature increases those grants for the poorest communities under the current system, Lanf said. Ruoff’s solution takes away the legislature’s ability to target school aid to poor communities like Claremont, he said.

“Towns like Claremont, towns like Berlin, would be devastated,” Lang said.

New Hampshire could see economic growth grind to a halt, tax rates explode, and the state government take control of local schools if the state Supreme Court upholds the rulings in the Rand and ConVal education funding cases.

That’s the scenario laid out by free-market think tank American Institute for Economic Research in its amicus brief filed in court this week.

The state is appealing the Superior Court rulings in the Rand and ConVal lawsuits which, if enforced, upend the current school funding system by bringing back so-called donor towns and adding more than $500 million of taxpayer money to the state adequacy grant system.

AIER Senior Research Fellow Jason Sorens told NHJournal school funding isn’t about left or right politics, but about avoiding negative consequences like ballooning taxes, anti-business and growth measures, and the loss of local control. 

“Should we encourage towns to have low property values? Should we punish towns for choosing to allow apartments or commercial development?” Sorens said.

Last year, Rockingham Superior Court Judge David Ruoff ruled in the Rand v. New Hampshire lawsuit the state’s Statewide Education Property Tax system is unjust since it allows communities with high property values to keep excess SWEPT funds, essentially paying an unequal tax rate than communities with lower property values.

Then in the ConVal v. New Hampshire case, Ruoff ruled in favor of the coalition of school districts led by the Contoocook Valley School District that argued the state is violating the constitution by failing to fund an adequate education. Ruoff ruled the state’s per-pupil adequacy grants need to go up from $4,100 per pupil to at least $7,300.

Sorens and AIER President William Ruger said they want New Hampshire to keep its current system and find other ways to fix education without restrictive government action or more taxes.

“School finance equalization has been a big driver of new taxes and unnecessary government growth across the country,” Ruger said. “AIER’s economic analysis shows that it has mostly been based on misconceptions about the alleged ‘inequity’ of locally funded education. With this case, we hope the Court will set a new precedent, based on sound economic reasoning, that vindicates local control of school funding and decentralized competition among governments.”

The old donor town system of transferring tax dollars from property-rich towns to property-poor communities will return if Rand is upheld, Sorens said. That system brings economic stagnation and real inequality.

Asked if he would describe the donor town system as a “progressive property tax,” Sorens said it’s worse.

“It’s punishing whole towns for having high property valuations, not individuals,” Sorens said.

Advocates for a state school system funded by handouts from so-called “wealthy” towns need to check their math, Sorens said. He pointed out the proposed plan would see people in Lebanon subsidizing education in communities like Brookline, despite the latter having one of the highest median incomes in the state. Meanwhile, Lebanon has one of the highest child poverty rates, Sorens said.

“It redistributes income from poor people to rich people,” Sorens said.

The Rand decision ignores the fact towns that encourage business, commercial enterprise, and housing tend to have higher property valuations. If donor towns come back, New Hampshire will see municipalities in an arms race to kill business, discourage building more housing, and drive out innovation with restrictive zoning laws, Sorens said.

“It incentivizes towns not to grow their property tax base,” Sorens said.

With ConVal, Sorens said nearly every school district in the state can already afford to fund an adequate education without the state adequacy grant. Instead, New Hampshire should give parents more options like more charter schools, more Education Freedom Accounts, and open enrollment for all public schools, Sorens said.

Vermont’s misguided attempt to fund its education system should serve as a warning to New Hampshire, according to Sorens. The 1997 Act 60 plan to pool all education property taxes in Vermont and send that funding to each district has resulted in a restrictive government that punishes communities for spending more on education money than poorer communities. Vermont has also taken away control of the education system from local boards and forces consolidation into large, regional districts.

“The state gets deeply involved in local budgeting and administration,” Sorens said. “We doubt many New Hampshire residents would be happy with their towns being forced to join these big regional school districts.”

Sorens may be familiar to Granite Staters as the man behind the Free State Project. He is credited with coming up with the plan to have libertarians move to New Hampshire in 2001 in order to enact a libertarian agenda. 

Granite State taxpayers have broken the $20,000 barrier on school spending, even as K-12 academic performance remains flat and school enrollment declines.

“Last week, the New Hampshire Department of Education released its newest cost per pupil data for the 2022-2023 school year,” the department said in a press release. “The new statewide average operating cost per pupil of $20,323 is a 4.8 percent increase from last year’s average cost per pupil of $19,400. Total expenditures for the 2022-2023 school year were more than $3.8 billion in New Hampshire.”

To put the $20,323 in perspective, tuition to attend Bishop Guertin High School, a highly-ranked private Catholic school in Nashua, is $16,400. Mount Royal Academy is the highest-ranked Catholic school in the state. High school tuition is $10,700.

New Hampshire also spends far more per pupil than most of the nation. Across the U.S., the average cost per pupil is shy of $14,295, putting New Hampshire in the top 10 nationally for education spending. And as state Education Commissioner Frank Edelblut told NHJournal, taxpayer spending on public schools has been soaring for more than a decade.

“The statewide average for New Hampshire’s cost per pupil has increased by nearly 87 percent since 2000 when it cost less than $11,000 per student. During this same time frame, public school enrollment has dropped by about 20 percent statewide,” Edelblut said.

According to Edelblut, student enrollment numbers in the Granite State have dropped from 207,684 in 2002 to 165,095 in 2023. That’s a decrease of 42,589 public school students, or about a 20.5 percent decline during the past 21 years.

Despite the massive increase in spending, Granite State students are struggling on achievement tests like the SAT. House Education Committee vice chair Rep. Glenn Cordelli (R-Tuftonboro) said it’s time to pay attention to the poor return on investment.

“It’s pretty evident that over probably a couple of decades, spending is going up, and achievement scores are pretty much flat,” Cordelli said.

New Hampshire’s 2023 SAT scores dropped off slightly again. The junior class scored 35 percent proficient in math compared to 37 percent in 2022 and 42 percent in 2021. Students also lost ground on reading proficiency in 2023, with 60 percent proficiency compared to 61 percent proficiency in 2022 and 63 percent proficiency in 2021.

Edelblut said the increasing cost per pupil is partly due to increasing costs, and partly due to the steady drop in the number of students. 

“While we have and will continue to work to expand resources for all students, it is clear that we are in a challenging environment of escalating costs and decreasing student enrollment,” Edelblut said. 

Some school districts manage to come in under the new average, with Manchester at $16,636, Nashua spending $18,107, and Bedford at $17,418. Concord is spending $22,190 per pupil, and New Hampshire’s highest cost per pupil is New Castle at $41,754, a little more than the $41,650 tuition at The Derryfield School, an exclusive private day school in Manchester.

The record spending for public school students comes as the legislature is being pressed to find a way to change the way public education is funded. New Hampshire relies largely on local property taxes to fund public education, with the state sending an adequacy grant to districts that average $4,100 per pupil.

The district responsible for New Hampshire’s current school funding scheme thanks to lawsuits in the 1980s and 1990s, Claremont, is spending almost $22,000 per pupil. The Contoocook Valley Regional School District, behind a lawsuit that could change New Hampshire’s funding system again, is spending more than $25,000 per pupil.

The recent decision in the ConVal lawsuit has the state under court order to increase the adequacy aid grant to at least $7,300. Cordelli said that increase puts New Hampshire on the path to an income tax. The ConVal decision is stayed as the state appeals to the New Hampshire Supreme Court, giving the legislature time to find another funding plan.

Parents and homeowners frustrated with high property taxes and poor achievement are going to demand changes, Cordelli said.

“At some point, the public is going to become aware, and something is going to happen,” Cordelli said.

Parents are already finding lower cost, and sometimes better quality, opportunities outside the public school system. Kate Baker Demers, executive director of Children’s Scholarship Fund New Hampshire, said the average Education Freedom Account grant in New Hampshire is $5,255, about a quarter of the new cost per pupil for public school students.

“So, if a parent taxpayer is concerned about the high spending and cost, they could choose an EFA and save the state $14,745 per child. Which is, what, the amount that other states spend in total?” Baker Demers said.

This school year, EFA enrollment went up 20 percent to 4,211 students in New Hampshire. Of that total, 1,577 are new to the program. Taxpayers are now paying a little more than $22 million for EFA grants.

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.

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.

New Hampshire taxpayers are spending as much as 100 percent more per student as school enrollment continues to slide, and some school districts are fighting to have the state pay more per student.

“The tax burden is incredible, and half of it goes to the schools,” said Dublin’s Leo Plante.

Plante is a local activist who tried unsuccessfully to get his town to withdraw from the Contoocook Valley School District, citing the town’s dwindling student population. As part of the ConVal district, Plante thinks too much Dublin money is leaving and going for students in the eight other towns in the district. 

ConVal has been losing students for 20 years. At the same time, spending on K-12 education has risen. On a per-pupil basis, it’s up more than 100 percent.

And it is not just in Dublin. According to data released by the New Hampshire Department of Education, across the state the cost per pupil has gone up an average of 78.4 percent since 2000. That was faster than the rate of inflation.

The steady increase is coupled with a 22 percent drop in the number of students since 2002. That year, there were 207,648 students enrolled in schools. The number has fallen to 161,755 enrolled for the current school year.

As a result, taxpayers are spending an average of nearly $20,000 per pupil, with the total cost of New Hampshire’s education system coming in at $3.5 billion in the 2021/2022 school year.

ConVal’s 20-year trend has seen a 34.6 percent decline in the number of students while the cost per pupil has shot up 103.5 percent. ConVal started the 2022/2023 school year with 1,969 students, and 10 years ago there were more than 2,200 students in the district.

Taxpayer activists want to know when declining enrollment means lower property taxes for Granite State homeowners.

“Clearly, school boards and SAUs are shrinking class sizes and padding school administration,” said Dan McGuire with Granite State Taxpayers. “If student performance was improving this extra spending might be justified, but unfortunately it is not. Voters need to pay attention to who they put on school boards, and those boards in turn need to rein in their superintendents.”

Janine Lesser, vice chair of the Contoocook Valley School District, has heard the argument that it should not cost more to educate fewer students. She said looking just at enrollment figures and the cost per pupil data is misleading.

“There’s a lot of the perception that if you have fewer students your costs should decrease, that the general budget should somehow decrease, and in some sense that’s true,” Lesser said.

But there are many factors behind the steady cost increases. Pay for employees, health insurance, electricity costs, heating costs, and building maintenance have all gone up in price throughout the economy, and school districts are no different, she said.

Critics note that doesn’t explain how school costs have risen faster than inflation, nor does it factor in the key elements in classroom education whose costs have declined — most notably tech like laptops, tablets, etc. Even the claim about energy costs is dubious. The price of heating oil and gasoline both plunged significantly during the downturns of 2007 and the COVID pandemic. And yet, taxpayer advocates say, somehow school property taxes kept going up.

The student enrollment decline is steady, but usually slight year to year, Lesser said. ConVal shrunk by 13 students this year, not enough to really impact the budget for a district that includes nine towns and several school buildings.

“All of the overhead costs don’t decrease that way. You can’t do away with a bus route for 13 students, you can’t decrease heating costs by 13 students, and you can’t decrease building repairs by 13 students. All of the costs remain,” Lesser said.

Plante doesn’t buy that argument, saying ConVal is top-heavy with too many administrators uninterested in watching out for the taxpayers who fund a large part of the education.

“It’s the inability of the administration to reduce costs in line with enrollment,” Plante said. “Someone has to have the courage on these school boards to say we can’t keep doing it this way.”

In part, Lesser blames lawmakers in Concord and Washington D.C. for fueling the rising cost per pupil by shoving unfunded mandates onto the districts, forcing local taxpayers to pay more.

“The unfunded mandates come down fast and furiously from the legislature, from both sides,” she said.

The federal government mandates local districts provide services for special education students, and it mandates transportation for students, but it does not help the district pay for these services. In 2020, the state started mandating a new STEM curriculum starting in kindergarten, but it does not come close to covering the costs.

Lesser said more is coming, as there are already 218 bills introduced in the New Hampshire legislature dealing with education that could end up costing local taxpayers more. All of this leaves school boards and school administrators struggling to put together budgets that will give students the best education possible, while not spiking local property taxes.

“It’s a fight every year to balance the needs of students with the needs of taxpayers,” Lesser said.

Claremont School Board Chair Michael Petrin is working hard on striking that balance. He’s trying to get the district to put together a budget that includes a needed raise for teachers, and one that won’t give taxpayers any more sticker shock.

“Purse strings are starting to tighten and going to this community to ask for money to help our teachers is really a tough topic,” Petrin said. “My grocery bills at least doubled over the last year and a half. There are families out there struggling to make ends meet.”

Last week, the Claremont School Board sent the district’s budget proposal back to Superintendent Michael Tempesta and his team to find another $1 million in cuts, hoping to bring the total budget number in low enough for voters to support the plan at the ballot box in March.

“We’re working hard to not kill the taxpayers and keep the teachers at the pay rate that keeps them here in the district,” Petrin said.

Petrin’s balancing act is complicated by the fact the Claremont district has also been steadily losing students. Last year’s average daily attendance in Claremont schools was a little more than 1,600 students. The figure was more than 1,700 a decade ago.

During that time, Claremont taxpayers have seen the cost to educate the shrinking number of pupils rise nearly every year, typically around 3 percent a year, according to state data.

Over the past twenty years, the district lost 24.6 percent of its student population while the annual cost per pupil rose 57.2 percent.

Rep. Walter Stapleton, R-Claremont, said part of the rising cost is that the buildings in Claremont’s district are obsolete. They were built for a time when the district had more people, and the city had more jobs.

“We used to be a big industrial town here with a lot of students and a lot of people,” Stapleton said. “It costs a lot to maintain that big infrastructure to support a shrinking number of students. It’s a tough problem.”

Department of Education Commissioner Frank Edelblut said the main drivers of the student decline are New Hampshire’s aging population and the state’s low birth rate. There are simply fewer school-aged children living in New Hampshire. School districts need to understand the decline is likely to continue, he said.

“It is important for school leaders to understand how declining enrollment numbers may be impacting their districts and how to plan accordingly for the future,” Edelblut said.

Zack Sheehan, project director with New Hampshire School Funding Fairness Project, said the cost to educate students in New Hampshire will keep rising as long as the state and federal government continue to push down unfunded mandates.

“Schools are providing more services to students today than ever before, many of which are laws and regulations passed by the state that do not include increased funding. Many of these are important standards that support our students and schools, but they are not free,” Sheehan said.

How taxpayers will keep paying for fewer students is still being contested decades after the legal battle that was supposed to settle the question. Claremont’s district became the epicenter of the education funding fight with the Claremont education funding lawsuits of the 1980s and 1990s. That resulted in the New Hampshire Supreme Court decision that found every child has the right to an education and that the state has an obligation to fund that education.

Now, ConVal is taking the state to court claiming that the state’s $3,600 per pupil a year adequacy grant does not come close to paying for all the required services.

“This is our way to say, ‘this is what you require us to do, and yet this is what you actually give us money to do,’” Lesser said.

ConVal wants the state to fund closer to $10,000 per student per year. For a student population of 160,000, adding another $6,400 per pupil would cost state taxpayers more than $1 billion in new spending per year. With no guarantee that new state revenue would be used to reduce local property taxes.

As the ConVal lawsuit moves closer to trial, the original Claremont lawsuit attorneys are suing the state again, this time challenging the way the state-wide property tax is collected and distributed.

Attorney Andru Volinsky declined to comment on this story.

Stapleton said the state has money now in the form of a budget surplus, and he expects that to be used for education spending. He’s not sure what the long-term outlook will be if the ConVal and Volinsky lawsuits are successful.

“I personally can’t give you the forecast,” Stapleton said.

Plante thinks it’s time for New Hampshire to give parents their tax money back to make their own decisions about how to fund schools, but he admits that kind of a proposal is unlikely.

“I would give every parent the right to use school taxes to send their kids wherever they need to go, I would hand over the school tax to the parent and say, ‘take this money and do whatever you want with it.’ But that’s a pipe dream,” Plante said.

Grafton Superior Court Judge Lawrence MacLeod is recusing himself from the state education funding lawsuit, saying the property he owns in one of the towns intervening in the case could create the perception of a conflict of interest.

MacLeod recused himself from the case in an order he released Wednesday before he had a chance to rule on the injunction. The plaintiffs are seeking to stop the state from setting a property tax rate for the coming year.

MacLeod and his wife own more than $1 million of property in the city of Lebanon, one of the communities trying to now intervene in the case as part of the Coalition of Communities. It is fighting the plaintiff’s injunction that seeks to keep the Statewide Education Property Tax, or SWEPT, rate at $0.

“The undersigned justice and his wife have a legal and/or beneficial interest in one residence, two rental properties, and two undeveloped lots in Lebanon with a combined property tax assessment in excess of $1,000,000,” MacLeod wrote.

The Coalition, formed in 2006, is made up of mostly towns and cities with high property values working against the return of a “donor” and “receiver” town system for education funding.

The plaintiffs in the case, represented by Andru Volinsky, John Tobin, and Natalie Laflamme, claim the state continues to ignore the 1990s Claremont decisions issued by the New Hampshire Supreme Court by using varying rates for the statewide property tax. They claim it punishes poor communities with lower property values.

The plaintiffs argued last week before MacLeod that New Hampshire cannot set any SWEPT rate for the coming year as the system is currently in violation of the Claremont rulings and flies in the face of the state constitution. Currently, property-rich towns that raise more in taxes through the SWEPT tax are allowed to keep the surplus.

After that hearing, the Coalition filed to intervene in the case and stop MacLeod from approving the injunction. Coalition attorney John-Mark Turner wrote that these would-be “donor” communities would face chaos and uncertainty and be forced to raise local property taxes if the plaintiffs prevail. They oppose changing the current system.

MacLeod’s recusal states that since he and his wife could potentially benefit from the Coalition’s efforts, he needed to step aside.

“(I)t appears that the undersigned justice and his spouse may enjoy a tax advantage under New Hampshire’s existing education taxation structure given the assessed values and fortuitous locations of their real properties not available to the plaintiffs and other real property owners similarly situated, such that the undersigned justice and his spouse would or could be placed at more than a de minimis economic disadvantage should the plaintiffs prevail in the case,” MacLeod wrote.

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

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

The debate is over the definition of “adequate.”

According to the plaintiffs, wealthy communities raise more funds per pupil through SWEPT than the state’s low standard for what it asserts is the cost of an “adequate” education. Further, since 2011, the state has allowed those wealthy towns to keep the surplus, which flies in the face of the Claremont decisions, according to the motion.

“The SWEPT tax as currently administered is not uniform in rate as the State allows towns with surplus SWEPT funds to either set a negative local education tax rate to offset the State’s official equalized SWEPT tax rate or retain the excess,” the plaintiff’s motions states. “Both of these mechanisms have been previously deemed unconstitutional by New Hampshire courts.”

MacLeod’s order states a new judge will be assigned to the case soon. It is not yet clear how much of a delay his recusal will add to the lawsuit’s timeline, or if the new judge will have to rehear the parties on the injunction against the SWEPT rate.

The way New Hampshire funds education could be completely upended as two separate lawsuits advance in court. One suit seeks to halt education property tax rates and the other attempts to increase the amount the state pays per pupil. 

Plaintiffs in the Grafton County education lawsuit are set to argue Friday that the state should not be able to set a rate for the Statewide Education Property Tax (SWEPT), arguing the tax is unconstitutional as implemented.

Meanwhile, Gov. Chris Sununu won’t be forced to sit for a deposition in the Contoocook Valley Regional School District lawsuit. Rockingham Superior Court Judge David Ruoff ruled the plaintiff school districts failed to show the governor is in possession of any unique knowledge.

Both lawsuits are attempting to force the state to pay more of the costs for local schools, with plaintiffs in both cases alleging the state has never followed the New Hampshire Supreme Court’s rulings in the 1980s and 1990s Claremont cases.

The Grafton County case involves several state residents who are also commercial and residential property owners. They claim New Hampshire is violating the 1997 Supreme Court’s Claremont II decision.

In Claremont, the court ruled New Hampshire has a constitutional obligation to provide an adequate education. That decision found, in part, that the use of local property taxes with varying rates to pay for the state’s obligation to provide its students with an adequate education is unconstitutional.

The ConVal case, which now includes dozens of school districts as plaintiffs, seeks to force the state to increase the per-pupil grants for an adequate education from $3,600 per pupil to around $10,000 per pupil, alleging the current grant does not cover the necessary services.

According to attorneys in the Grafton County case, Andru Volinsky, John Tobin, and Natalie Laflamme, the state continues to ignore the Supreme Court by using varying rates for the SWEPT, which in effect continues to punish poor communities with lower property values.

“Ever since (Claremont II,) the state has tried numerous mechanisms to avoid implementing an equitable tax system that would have the effect of imposing a fairer tax burden on wealthier towns, requiring the courts to intervene and protect the constitutional rights of New Hampshire citizens. Now, the state is primed to once again impose a tax using the same mechanisms previously held unconstitutional that will result in some taxpayers paying up to seven times as much for education funding as their wealthier counterparts,” the attorneys write in a new filing with Grafton County Superior Court.

The Grafton County plaintiffs are now seeking an injunction to prevent the state from setting a tax rate, asking the court to keep the SWEPT rate at $0. A hearing on the injunction is set for Friday.

The SWEPT accounts for 30 percent of education funding in New Hampshire. The tax started in 1999 as a response to the Claremont decisions, which found the state has a constitutional obligation to fund an adequate education. The money raised, more than $360 million estimated in the coming year, is used to fund state adequacy grants.

According to the plaintiffs, wealthy communities raise more funds per pupil through SWEPT than the state’s low standard for what it asserts is the cost of a state-funded adequate education. And since 2011, the state has allowed those wealthy towns to keep the surplus, which flies in the face of the Claremont decisions, according to the motion.

“The SWEPT tax as currently administered is not uniform in rate as the state allows towns with surplus SWEPT funds to either set a negative local education tax rate to offset the state’s official equalized SWEPT tax rate or retain the excess,” the motion states. “Both of these mechanisms have been previously deemed unconstitutional by New Hampshire courts.”

In the ConVal case, the plaintiffs sought to depose Sununu in order to get him to testify about the reasons he vetoed a bill that would have increased education spending by $140 million. The bill would have paid for the increase by rolling back some of Sununu’s business tax cuts.

Ruoff found the plaintiffs did not articulate how Sununu’s veto was directly related to the issues involved in the lawsuit, like funding for transportation, meals, and other necessary services.

Ruoff has already found the state is not following the Claremont decisions and that it is unconstitutionally underfunding education. The ConVal case is slated for trial in the spring to try and determine what the adequate education grant should be per pupil. 

States are inching closer to implementing their own education plans that fall in line with the Every Student Succeeds Act (ESSA). In a bipartisan manner, Congress got rid of the No Child Left Behind Act in 2015 and rolled back some of the federal government’s control over education policy, giving states more power to set their own goals and increase accountability.

In New Hampshire, state officials released their ESSA draft plan in May and accepted public comments until Friday. The draft version of the Granite State’s plan stresses competency-based tests over standardized assessments, and vocational education tied to industry needs. ESSA doesn’t change how often schools must give out standardized tests. It is still required that testing occurs in third through eighth grades and once in high school, but the law gives states flexibility in deciding what schools need to report, what their goals are, and what criteria determines if a school is struggling or not.

For example, New Hampshire school districts still need to report their high school graduation rates and the test scores of annual standardized assessments. Those school districts participating in the state’s pilot PACE program don’t take standardized tests every year, but use locally-designed assessments. If the federal government renews the state’s waiver, that program will continue.

However, under the state’s ESSA plan, schools would also be assessed based on new metrics, including progress toward English language proficiency and how well the average student is progressing from year to year at the elementary and middle school levels. Another indicator would also track how well the lowest-performing students are progressing each year.

High schools will also measure and report on college and career readiness. Schools will be scored on how many students fulfill at least two of nine requirements aimed at showing they’re ready for life post-graduation. Those requirements include SAT or ACT scores meeting or exceeding the college- and career-ready standard, getting a passing score on an AP or International Baccalaureate exam, scoring at least a Level III on the Armed Forces Qualifying Test, earning a career technical education credential, completing a N.H. Scholars program, or finishing a N.H. career pathway program of study.

Depending on how well students perform under those metrics, schools would be flagged for extra support if students aren’t reaching those benchmarks. Schools who need additional help would get it through Comprehensive Support and Improvement (CSI), and Targeted Improvement and Support (TSI).

Using the different metrics, schools would receive CSI help if they score in the bottom fifth percentile in the state or if their graduation rates are below 67 percent. TSI schools would be identified when subgroups consistently underperform according to the goals set by the state.

The state’s ESSA plan sets overall goals of 53.77 percent proficiency in math and 74.04 percent proficiency in English language arts by 2025. For different subgroups of students, the state has other goals. For example, students with disabilities are expected to hit 25.05 percent proficiency in math and 41.34 percent proficiency in English by 2025. Economically disadvantaged students are expected to be at 37.09 percent proficiency in math and 56.47 percent proficiency by 2025.

Some of those benchmarks could be hard to hit for school districts who are already strapped for cash and are seeing a decline in student enrollment. According to a report released last week from the New Hampshire Center for Public Policy Studies, it projects that state aid to school districts will shrink by $16 million over the next five years.

In December 1997, the N.H. Supreme Court issued its landmark Claremont decision, calling for equal access to an adequate education across the state, regardless of community wealth or property values. The policy institute concluded that little has changed since that decision was handed down.

Image Credit: New Hampshire Center for Public Policy Studies

The report notes that there has been a 40 percent increase in state aid to education since 1997, but there has also been a 15 percent decline in school enrollment statewide and significant disparities still exist from one community to another.

For example, property-poor communities like Claremont and Franklin continue to tax their residents at disproportionately higher rates to finance their education.

The research suggests that the disparities will continue and possibly worsen unless there comes a major change in how education is structured and funded.

In response, state education commissioner Frank Edelblut announced last week that the N.H. Department of Education would form its own committee, headed by the department Director of School Finance Caitlin Davis, to study the school finance problem and report its findings to a legislative panel that is considering changes to the state’s formula.

Since the release of New Hampshire’s ESSA draft plan, the education department has already received hundreds of comments, including some from civil rights advocates who want to ensure the state is held accountable for providing equitable learning opportunities, especially for marginalized students.

Now that the public comment period has ended, the state has about a month to tweak the plan based on the feedback before it’s submitted to the U.S. Department of Education for review and final approval in September.

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