State Asks Supreme Court To Overturn Claremont In Sweeping New Hampshire School Funding Appeal

By Damien Fisher, NH Journal

After decades of debate and dealmaking over the state’s level of funding for local schools, the Ayotte administration is asking the state Supreme Court to wipe the slate clean. It wants the court to review — and reverse — the original Claremont school funding decision.

On Tuesday, New Hampshire Attorney General John Formella and Solicitor General Anthony J. Galdiri filed a Notice of Mandatory Appeal asking the court to revisit the Claremont decisions, which laid the groundwork for the courts to determine the required level of state funding for public schools.

The Claremont cases of the 1990s created a court-ordered constitutional right to “adequate” state education funding and, in turn, set the stage for decades of legal fights over what the funding should look like.

“If the New Hampshire Supreme Court agrees, then the courts are out of the business of telling us how much we should spend on primary and secondary education and how we should pay for it,” attorney and former GOP Speaker of the House Bill O’Brien told NHJournal.

The state recently lost two major education funding lawsuits in the ConVal case and the Rand case. Rockingham Superior Court Judge David Ruoff presided over both cases and, in each, determined that New Hampshire’s legislature is violating the Claremont decisions by underfunding the constitutionally mandated adequate education. In the Rand case, Ruoff found that underfunding resulted in the imposition of unfair local property tax burdens.

“The plaintiffs proved at trial, however, that Adequacy Funding levels are insufficient for this purpose. The plaintiffs further proved that total State funding for education is insufficient to meet the demands of Constitutional Adequacy, and thus some portion of the State’s education-related constitutional obligations is being funded through local property taxes,” Ruoff wrote.

In the ConVal decision, Ruoff ruled that the state’s $4,200 per-pupil adequacy grant should be at least $7,200 to comply with the Claremont decisions. After an appeal in ConVal, the Supreme Court upheld Ruoff’s decision but ordered that the legislature did not have to comply with Ruoff.

Now, Formella is using the appeal in the Rand case to reset the clock altogether, asking the court to overturn both Claremont I and Claremont II.

Among the questions the state intends to raise at appeal is “Whether this Court should overrule Claremont Sch. Dist. v. Governor, 138 N.H. 183 (1993) (Claremont I), and its progeny, restore the original meaning of Part II, Article 83, and hold that Part II, Article 83 does not mandate a qualitative standard of education that must be met and does not impose a financial standard or arrangement that must be met.”

Rick Lehmann, the state Senate’s legal counsel, has long advocated reversing the Claremont decision.

“The legislature’s been focused on complying with Claremont mandates rather than designing the best education system possible,” Lehmann said during a recent symposium on ending the Claremont funding system.

The Claremont decision is based on the New Hampshire Constitution’s Article 83, which states: “it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools.”

Lehmann said the Supreme Court overstepped its role with the original Claremont decisions by creating legal and financial obligations to fund education that do not actually exist. A “duty to cherish” is not the same thing as an obligation to tax and spend, Lehmann said.

“When I go to the gas station, I can’t say ‘I’ll take five gallons of cherish,’” Lehmann said. “Nobody knows what an adequate education is.”

According to O’Brien, the state is arguing:

• The New Hampshire Constitution does not require a qualitative standard of education;
• The courts should not review how the state funds education because it is a political question;
• Local property taxes used for education are not state taxes;
• The plaintiffs lack standing;
• The trial court relied on improper expert testimony and insufficient evidence.

Supporters of Claremont, like former Executive Councilor Andru Volinsky, have made no secret of their belief that a broad-based tax — specifically an income tax — should be used to provide state funding for public schools. They believe the current system is unfair and that equity cannot be achieved while relying on property taxes.

In an op-ed published last fall, “The unthinkable – an income tax in NH – is thinkable,” Volinsky described the Claremont II ruling as “a courageous NH Supreme Court [giving] the governor and legislature 15 months to come up with a fair funding plan. We’re still waiting.”

The solution? “Except for fears grounded in political cowardice, an income tax will work,” Volinsky wrote.

In response to Formella’s filing, Zack Sheehan, NH School Funding Fairness Project executive director, told InDepthNH that Formella’s team isn’t interested in making education better or fairer.

“Overturning Claremont does not reduce property taxes. It does not increase support for students. It does not address the inequities that school districts across New Hampshire face every day,” Sheehan said.

This story was originally published by the NH Journal, an online news publication dedicated to providing fair, unbiased reporting on, and analysis of, political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.