#

Lawmakers are considering a new solution to New Hampshire’s (potential) $500 million education funding dilemma:

Ignore the state Supreme Court.

A proposed House concurrent resolution (HCR) allows lawmakers to say the state Supreme Court’s 1993 Claremont decision, which defines a constitutional right to an adequate education, is a non-binding suggestion and not a court mandate.

“This simply affirms that the power of judicial review is not the power to force the other branches to pass legislation,” said Rep. Greg Hill (R-Northfield), a lead sponsor of HCR 11.

Hill brought his proposed resolution to the House Judiciary Committee on Wednesday, hoping to inspire lawmakers to take control of the education spending issue. He argued the Claremont decisions regarding “adequate funding” were wrongly decided and violated the separation of powers. 

“This (resolution) says that we, the House and Senate, find the lines of responsibility between the legislative and judiciary to have been crossed,” Hill said.

The Claremont Decision is a fiscal time bomb that could finally go off this year. The pending ConVal school funding decision, which could force a $500 million per year state spending increase, is based on the court’s view of how much funding is “adequate.”

The House Judiciary Committee also heard testimony Wednesday on a proposal to possibly impeach the ConVal judge, Rockingham Superior Court Judge David Ruoff. The proposal does not make any specific claims that Ruoff committed an impeachable offense; it only seeks an investigation into his conduct.

In November 2023, Ruoff sided with the Contoocook Valley School District in finding the state is still violating the Claremont decision by underfunding schools. Ruoff ordered the state to up the per pupil adequacy grant from $4,100 to at least $7,400. The state has appealed to the Supreme Court and a decision is pending.

HCRs do not have the force of law in New Hampshire, making the proposal as a defiant gesture rather than a policy change, said Greg Sorg, an attorney who backs the resolution. Defiance against judicial overreach is now needed, he said.

“I always felt it would be a healthy thing in an egregious case like this if the legislature repudiated the court,” Sorg said. 

House Judiciary Committee member Rep. Tim Horrigan (D-Durham) said the legislature is already ignoring the Claremont decision, and has been for the past three decades. In the 16 budgets passed since the 1993 decision, the legislature effectively ignored the ruling and continues to underfund education.

“Haven’t we gotten away with not funding education? Haven’t we triumphed over the courts?” Horrigan said.

New Hampshire lawmakers approved about a $150 million increase in public school funding in the last budget. The state spends more than $1 billion on public education, including adequate education grants and statewide property tax revenue. If the ConVal lawsuit decision is upheld by the Supreme Court, the state will need to come up with another half a billion dollars. 

Zach Sheehan with the New Hampshire School Funding Fairness Project, said the state only pays for less than a third of public education costs. Local taxpayers carry the heaviest burden, paying 70 percent of the education costs through local property taxes. That burden is because the state has failed to live up to Claremont, Sheehan said.

Horrigan suggested increasing statewide taxes to pay for education — the most obvious option being an income tax — would lower the local property tax burden. 

“Isn’t that an option?” Horrigan asked.

Sorg is skeptical that adding an income tax would lead to a smaller overall tax bill for Granite Staters.

“I think the appetite of the schools for money is just limitless,” Sorg said.

New Boston residents opposed to a two percent spending cap warrant article are going to court to stop voters from being able to decide on the measure. And they have a hearing scheduled for Friday.

A group of pro-spending-hike residents filed a lawsuit this week asking a Hillsborough Superior Court judge to force selectmen to reschedule a canceled deliberative session on the spending cap. Residents Jon-Paul Turek, Robert Belanger, Richard Backus, Dan MacDonald, Keith Prive, Elizabeth Whitman, Eileen Belanger, Marie MacDonald, and William Gould want to be able to change the proposed two percent cap ahead of the Town Election.

State Rep. Keith Ammon (R-New Boston) is backing the spending cap in response to years of rising property taxes in town. He recently told NHJournal opponents want to raise the cap to as much as 50 percent before it goes to voters, making the measure meaningless. 

“I don’t think that’s legal,” Ammon said.

The current controversy centers on the Feb. 3 Town Meeting deliberative session where the spending cap proposal was discussed. Both Town Moderator Lee Nyquist and Town Attorney Michael Courtney told people at that meeting the numbers in the two percent spending cap could not be changed under state law. 

But the residents opposed to the cap say that’s wrong, and they should have been allowed to change the numbers on Feb. 3.

“The misinformation provided by the Town Moderator and Town Attorney at the deliberative session constitutes a clear procedural defect, as it directly misled voters and deprived them of their legal right to amend (the spending cap,)” the lawsuit states.

After getting stymied at the Feb. 3 meeting, the anti-spending-cap group pushed New Boston’s Board of Selectmen for an emergency deliberative session where they could get their way. But Ammon went to court arguing such a move is illegal. The Selectmen stood down, canceling the planned Feb. 18 session.

Now, residents who want to spend beyond the cap are asking the court to force selectmen to hold the special deliberative session anyway, claiming it is the only way to protect the integrity of Town Meeting.

“The decision to cancel the Special Town Meeting was not an act of prudence but an act of abdication—one that directly harms the registered voters of New Boston by allowing an improperly handled warrant article to proceed to the ballot without correction,” the lawsuit states.

New Boston education spending has been soaring for years. Between 2001 and 2019, the school population grew by 22 percent, but spending jumped by 104 percent. Per pupil spending rose from about $16,000 to more than $27,000 over that same period.

With New Boston’s Town Meeting set for March 11, timing is running short to make any changes. A hearing in the lawsuit is scheduled for Friday in the Hillsborough Superior Court — North in Manchester. 

The New Hampshire Supreme Court could soon decide whether judges, or elected officials, should determine how much the state kicks in for local schools. If it decides the power belongs with the courts, the result could be a more than $500 million increase in state taxpayers’ share of funding for education.

Justices heard oral arguments Tuesday in the ConVal education funding appeal as New Hampshire Solicitor General Anthony Galdieri argued Superior Court Judge David Ruoff’s decision is unconstitutional.

Ruoff ruled in 2021 the real cost of the constitutionally mandated adequate education is at least $7,300 per pupil, while Galdieri and the state say it’s $3,900. Galdieri said Tuesday that Ruoff erred by including line items like school buses, building maintenance, and facility costs into his calculation. The legislature only funds direct costs, such as teacher salaries and learning materials, through the education adequacy grant system.

“The (Supreme Court) already decided the legislature only has to pay for what’s been defined,” Galdieri said. 

But Michael Tierney, ConVal’s attorney, said the legislature’s funding definitions exclude costs like heating oil, cleaning supplies, and even positions like principals and superintendents from the formula. 

“The state’s funding is woefully inadequate and unconstitutional,” Tierney said.

Galdioeri also objects to Ruoff overstepping the legislature by setting a number at all, arguing that violates the separation of powers. Tierney counters judges set damage amounts in court cases all the time.

In addition, Ruoff’s number crunching didn’t come out of the blue. He was ordered to come up with a number by the Supreme Court.

The Peterborough-based Contoocook Valley Regional School District filed its lawsuit in 2018, and was soon joined by dozens of other school districts, saying the state’s then $3,600 per pupil was well below the real cost of an education. The districts wanted at least $10,000 per pupil.

The state has since increased the per pupil amount up to $4,100

The Supreme Court ruled in the 1990s Claremont decisions that all New Hampshire children have a right to an adequate education and that the state must fund it. Galdieri said the base adequacy grants system is not constitutionally mandated, but simply the way the legislature decided to meet the constitutional obligation to fund an adequate education.

But the legislature’s solution focused solely on funding basics like teachers and materials, leaving individual communities to pay for the buildings, school busses, maintenance, and other school costs on their own.

While the parties dispute where the funding should come from, there is no debate over the fact that New Hampshire taxpayers spend more for K-12 education than nearly every other state. Average per pupil spending in the Granite State has passed the $20,000 mark, and no district spends less than Ruoff’s $7,300 per pupil minimum.

Ruoff originally ruled in favor of the districts, but he did not set a number saying that is the job of the legislature. The state appealed that decision and the Supreme Court sent the case back to Ruoff, this time telling him to hold evidentiary hearings and come up with the real cost. 

Ruoff’s order has been stayed pending the outcome of the current appeal. If it were to go into effect it would suddenly require an additional $500 million in taxpayer money for education. Progressives have argued this spending would require that the state would have to give up its vaunted “New Hampshire Advantage” and embrace either a broad-based income or sales tax.

But Republican leaders like incoming Gov. Kelly Ayotte and new state Senate President Sharon Carson say tax hikes are not on the table. Carson was asked by WMUR if the courts should decide how much is “adequate,” she replied, “absolutely not.”

“That’s not their job. That’s our job. That’s the legislature’s job. The responsibility has been given to the legislature by the people of the state, not to the courts,” Carson said.

In 2002, the first Harry Potter movie hit the big screen, Gov. Jeanne Shaheen was making her first (unsuccessful) bid for U.S. Senate, and Nelly was singing it is “Hot in Herre.”

And the per-pupil school revenue for a New Hampshire public school student was $14,184.

Twenty years later in 2022, that number was $22, 738 — an increase of 60.3 percent and the third-biggest jump in inflation-adjusted revenue per student in the country. Only Illinois (61 percent) and  New York (81.4 percent) rose more.

And yet, despite the explosion in spending, New Hampshire Democrats at the state and local level say taxpayers need to pay even more.

In Nashua, the school board has approved a new $131,061,021 budget, a 4.49 percent increase over the prior year’s operating budget, on top of record spending.

In Concord, residents will see a 2.9 percent education tax increase thanks to the $107.9 million school budget. That total is 1.58 percent higher than Concord’s previous school budget — once again, already a per pupil record.

Manchester is also considering a record $227.9 million school budget. Mayor Jay Ruias calls the school total a compromise figure, and part of his overall effort to get the school and city budgets under control after years of former Mayor Joyce Craig’s leadership. 

At the state level, both former Manchester Mayor Joyce Craig and Executive Councilor Cinde Warmington support even more tax dollars for public schools. Craig is running on a pledge to “boost the state’s investment in public education.” And Warmington wants to shut down Education Freedom Accounts entirely and add that funding to public schools.

Neither Craig nor Warmington responded to a request for comment about soaring school spending, or the fact that it coincides with standardized test scores that are flat or falling.

The reason for New Hampshire’s high rank in per pupil spending is its decline in enrollment.

“Since 2002, student enrollment numbers in the Granite State have dropped from 207,684 to 165,095, which represents a decrease of 42,589 public school students, or about a 20.5 percent decline during the past 21 years,” the state Department of Education reported last year. The state’s public schools lost another 2,262 students (1.4 percent of enrollment) in 2022 alone.

Drew Cline, president of the Josiah Bartlett Center for Public Policy, says nobody should be surprised by these numbers.

All that spending for public school students comes as the state faces a potentially expensive court case on education funding. The ConVal decision, currently appealed to the New Hampshire Supreme Court, almost doubles the state’s portion of per pupil spending.

The ConVal decision increases the state’s adequacy aid grant $4,100 per student to at least $7,300. If the decision stands, it would represent a minimum $500 million annual tax increase.

Both Craig and Warmington have been endorsed in prior political campaigns by the state’s two teachers unions, the American Federation of Teachers and the National Educators Association. The union presidents, AFT’s Deb Howes and the NEA’s Megan Tuttle, also did not respond to a request for comment.

Warmington, Craig, and the unions, are all staunch opponents of New Hampshire’s Education Freedom Accounts, the school choice program that allows families to opt out of the public school system.

“We don’t take taxpayer dollars to subsidize private schools,” Warmington told WMUR last year. 

Both of Warmington’s children attended the elite Tilton School for secondary education, an independent boarding and preparatory school in New Hampshire. Tilton charges $38,500 for day school and nearly $67,000 for boarding school.

Craig said earlier this year if elected governor, her first budget would see an increase in spending for public schools.

“We need to fund public education in this state,” Craig said. “Right now, we are not.”