Echoes of Claremont in Dover funding case

Some people can’t seem to let go of their long-held grudges on paying for education

Students at a Bronx high school recently wrote a play about school funding called, “A Minimally Adequate Education.” Ironically, I heard about the play the day after I argued the latest round of the Dover school funding case. 

Most of the Dover hearing focused on the constitutionality of laws passed in the wake of the Claremont school funding decisions more than 20 years ago. However, some of the hearing echoed undertones I remember well. There was the hint of masked threats should the court take action. The Legislature’s arguments at our hearing boiled down to a dare, a claim that the judge could not require the Legislature to do anything. 

Our courts have not lightly stepped into school funding disputes. Having put the legislative and executive branches on notice of a problem with school funding in 1973, the NH Supreme Court did not act until it issued the first Claremont ruling in December 1993. This ruling expressly recognized the right to a state-funded, constitutionally adequate education for every child. The ruling should have been a call to action that made the need for further litigation unnecessary. Instead, the decision was ignored. 

In 1997, the court found our state’s school funding system unconstitutional and directed the state to craft a new, fairer funding system. Eight years later, after many rounds of additional litigation, the state adopted a school funding plan that identified the components of a constitutionally adequate education and costed them out.

This plan, which remains in force today, assigns a cost to an adequate education of $3,450 per pupil, even though the average cost of education in New Hampshire exceeds $14,000 per pupil. But the Dover schools do not challenge the meager cost of adequacy conjured by the Legislature.

The Dover School case is about a legislative effort to reduce the amount paid for adequacy even further by adopting arbitrary caps on education adequacy payments.

Since 2009, the Legislature has paid less than its own formula requires by imposing a cap on payments to districts that grow by more than an established percentage. The cap was initially set at 15 percent, but has fluctuated.

Dover grew by more than the established cap every year since 2010. In the current school year, Dover received $1.4 million less than the adequacy formula requires. It has lost more than $14 million overall. The fact that the cap fluctuates year to year makes clear that the cap is not the product of a legitimate process designed to determine the true cost of an adequate education.

The cap is the legislative leadership’s means of fitting the state’s bill for adequacy into their preconceived notion of what the state should pay, regardless of the actual cost. 

The result is to downshift costs to local communities. The fluctuation is also a reflection of the influence of certain legislators because, as the cap changes, different communities gain and lose.

The NH Attorney General concedes that the cap is not constitutional. The House speaker and the Senate president have directed lawyers for these bodies to defend the cap at all cost, even though the Legislature has not authorized this defense by any vote, nor has the Legislature authorized the expenditure of state funds to pay the lawyers.

It is clear to me that the concern is not so much that the state lacks the funds to make full payment. The state is currently looking at a fiscal year surplus of over $100 million. The Legislature’s conduct really speaks of grudges long held and not easily forgotten.

To this day, some legislators would like to re-litigate Claremont and return absolute power to the Legislature, power that was used to ignore the needs of children and taxpayers in our poorer communities.

Those holding these grudges give little thought to the fact that the state’s failure to pay for schools means the payments are then made up by local communities, some of which, like Dover, struggle financially. Nor is thought given to this cap’s focus on punishing growing communities that attract young families. 

The judge assigned to our case has promised a decision by late June. Perhaps the House speaker and Senate president will voluntarily make up the lost funding to avoid a court ruling. Perhaps the governor will join the discussion to affirmatively lend her voice to fair school funding. One can hope. 

Attorney Andru Volinsky, former counsel to the Claremont school funding petitioners, is counsel for the city of Dover, SAU 11 and the Dover School District.