Distant Dome: The Real Value Of The Claremont Education Decisions

By GARRY RAYNO, Distant Dome, InDepth NH

The Supreme Court’s two Claremont Education rulings in the last century have not drastically changed the state’s public education system or the way it is funded.

In fact the inequities in the system are greater today than when the suit was filed in 1991.

Claremont I in1993 found the state has a constitutional duty to provide its children with an adequate education and to fund it.

Claremont II in 1997 found the funding system unconstitutional because it relied on local property taxes with widely varying rates to pay the bulk of public education costs.

The state’s constitution calls for proportional and reasonable taxation, which widely varying property tax rates from community to community are not.

The two rulings protected both the state’s children and — from residential to industrial — property taxpayers.

After the Claremont decisions, the state through its lawmakers defined an adequate education as cheaply as they believed they could; instituted a statewide property tax, and a utility property tax to grab money from towns with power generating facilities like Seabrook, Bow, Newington and Portsmouth; raised a few tax rates like for the business enterprise tax to add some additional money, and targeted more state aid to property poor communities like Claremont that struggle to educate their children.

What they have done since that time is change some formulas to distribute the money, allow property rich communities to keep the excess money they raise through the statewide property tax, and generally try to reinstate the old system the court ruled unconstitutional.

This last session they passed a law that says going forward, paying for an adequate education will be a shared responsibility between the state and local taxpayers, and weakened the confines of an adequate education.

In the past five years, they have created the beginnings of a second education system using vouchers so wealthy enough parents who send their children to religious or private schools can receive state taxpayer dollars to the tune of $130 million and growing, while cutting the rates of business taxes and eliminating the interest and dividends tax, costing the state over $1 billion in lost revenue.

No wonder Superior Court Judge David Ruoff lost his patience and said essentially the legislature lacked the political will to address the problems and ordered them to spend $500 million dollars more annually to actually pay for what they defined as an adequate education.

Two special justices sitting on the Supreme Court when it heard the case, also agreed with him that the state should be made to pay, but three other justices did not, citing the separation of power argument between the branches of government.

These recent attempts to undermine the two Claremont decisions are nothing new and occurred soon after the first decision was released.

State Sen. Jim Rubens, R-Etna, introduced a constitutional amendment the year after the Claremont II ruling making public education strictly a local responsibility and not a state obligation.

It was the first to fail.

Governors on both sides of the aisle tried to change the constitution so that the courts did not have jurisdiction.

They employed some of the best constitutional attorneys in the state to develop the exact language to at least remove the case from the strict scrutiny requirements which are the highest and strictest standards for judicial review as those cases usually involve fundamental constitutional rights.

The court’s two rulings treated public education as a child’s fundamental constitutional right and required the highest standards in order to overturn the rulings.

At one point, the legislature was taking up competing constitutional amendments, some proposed and backed by Republicans and their constitutional attorneys and by Democrats and their constitutional attorneys.

Perhaps the one thought to have the best chance of passage was one proposed by former Gov. John Lynch’s office that had attorneys from both parties trying to craft the wording to do enough to give the legislature and executive branch control over education and its funding while, leaving enough room for the judiciary to continue to have a say in the most egregious circumstances.

The amendment resulted from the Supreme Court’s 2006 Londonderry decision which found the state failed to define what constituted an adequate education or segregate its specific costs.

It, like all the others, however, never passed either body of the legislature. None were even close.

The Claremont decisions may have been unpopular with lawmakers, but not with New Hampshire residents, many of whom benefited from the changes the rulings brought.

The state went from supporting education with about $100 million annually to almost $1 billion in a decade, most of that money however, was from a sleight of hand called a statewide property tax.

What one year was local property tax money, the next year was state property tax money, but it did raise it in a fairer manner as the rate of the tax was the same for everyone in the state.

The first year of the new education funding system saw property taxes drop by several hundred million dollars, but that did not continue as they soon began rising again.

The new system did provide more state money for cities like Manchester, Nashua and Rochester and poorer communities like Newport, Pittsfield and Franklin.

Lawmakers in those communities did not want the rulings overturned or ignored and in those days lawmakers represented their communities not an ideology as many do today.

It was not long before the wealthy communities took the state to court over the statewide property tax claiming their local property tax dollars were spent in other communities where they had no say over how it was used.

While they won at superior court, they did not at the Supreme Court.

Eventually, the legislature in 2011 passed a law allowing the property wealthy communities to retain the excess statewide property tax money as long as it was spent on education, although much of it has not.

The most recent rulings in the education funding fight have also gone against the state — the ConVal and Rand cases — with the Rand case about to go before the Supreme Court on appeal by the state.

The state’s track record before the courts is not good. It is hard to win when you have been out of compliance for three decades now.

But for all the legal victories, the education funding system has changed little since the landmark decisions were handed down, local property taxes continue to fund the bulk of the costs of educating children, not the state.

It is not a question of how much money is spent on education as the state is near the top per student expenditures in the country, but who pays for it, where the state is last in the country.

The real value of the two Claremont decisions is not what has happened since that time to change the education system and its funding, but that those rulings said out loud what most everyone in the state knew and knows.

The children in property wealthy communities like those that border water bodies, or have a more than solid property tax base like Hebron, Bartlett, Bridgewater, Albany, Holderness, Jackson, Bedford, Hanover and Waterville Valley, have greater educational opportunities and are more likely to succeed academically than those from property poor communities like Claremont, Newport, Franklin, Berlin, Charlestown, Greenfield and Pittsfield.

That is the same issue the courts faced 30 years ago.

The question now is whether the current Supreme Court will overturn the Claremont decisions. The Ayotte administration’s attorney general’s office told the court last month it intends to ask the court to overturn those decisions.

When lawmakers tell who they are repeatedly, you really ought to listen to them.

If you want a more equitable education funding system, vote them out of office. Otherwise nothing is going to change.

Garry Rayno may be reached at garry.rayno@yahoo.com.

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn and their two rescue dogs.

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.