State arguments on Rand suit

Plaintiffs argue against state's summary of what constitutes an adequate education

While Justice David Ruoff of Rockingham County Superior Court weighs his decision in the school funding suit brought by the Con Val School District, another round of similar litigation simmering on his calendar for the past year has begun heating up.

Steven Rand, a Plymouth business owner, and five other property owners, represented by Attorneys Andru Volinsky, John Tobin and Natalie Laflamme, have challenged both the sufficiency of state education funding and the constitutionality of the taxes levied to support it.

Their suit claims the state has not only shirked its constitutional duty to fund an adequate education but also foisted the lion’s share of its obligation on to municipal property taxpayers through the Statewide Education Property Tax (SWEPT) and local school taxes. Both of these taxes, the plaintiffs charge, vary in rate among municipalities, contrary to the ruling of the New Hampshire Supreme Court that, “To the extent the State relies upon property taxes to fund a constitutionally adequate public education, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the State.”

In July, the state moved for summary judgment, asking the court to forgo a trial and rule in its favor as a matter of law. The state offered no justification for its share of the cost of an adequate education, which rests on a base cost of $4,100 per pupil supplemented by differential aid for those pupils with special needs. All together, state funding represents 28 percent of total public school expenditures.

Instead, the state contends that the cost of a constitutionally adequate education, as defined by the Legislature and expressed in statute, “does not, on its face, purport to cover everything a school district is required to provide or may choose to deliver.”

As defined by the Legislature, the content of an adequate education is confined to 11 “learning areas” together with those administrative rules or “minimum standards” that apply to them. In other words, while school districts are required to provide superintendent, principal, health, counseling, custodial, maintenance, and transportation services as well as debt service on capital investments, these costs do not fall within the definition of an adequate education.

Finally, the state argues that the burden of proof falls on the plaintiffs “to demonstrate that everything school districts spend money on falls within the definition of an adequate education the Legislature adopted.”

This week, the state’s motion drew a sharp rebuke from the plaintiffs. “In a case as important as this is to so many property taxpayers, school children, educators, and to the State’s fiscal responsibility,” their response began,” it is unfortunate that the State seeks summary judgment by mischaracterizing Plaintiffs’ Complaint and legal burden. In doing so, the State asks the Court to ignore Plaintiffs’ plainly stated (and in some instances bolded) Causes of Action and Claims for Relief.”

“Unable to challenge Plaintiffs’ evidence on the merits,” the plaintiffs charge, “the State mischaracterizes the facts and the law in its Motion for Summary Judgment.”

By not challenging plaintiffs on the merits, they added, “the State seeks to further a system designed to prevent anyone from defending their constitutional rights. This cannot be what Claremont intended. Plaintiffs are entitled to prove their case at trial.”

The plaintiffs argue that ”the cost of an adequate education is inherently tied to real-world costs borne by districts,” for which the best evidence is the actual expenditures districts incur. They refer to the evidentiary record that demonstrates no school district spends less than three times the cost of an adequate education set by the state together with expert testimony that no school district could provide an adequate education for that same cost.

Likewise, the plaintiffs note that when the Londonderry School District sued the state in 2006, the New Hampshire Supreme Court held that the definition of an adequate education “must be sufficiently clear to permit common understanding and allow for an objective of costs,” adding otherwise it would be “impervious to judicial review.” But, neither the statutes or rules isolate the cost elements.

The plaintiffs flatly reject the notion that they bear the burden of proof to specify the share of school district expenditures attributed to funding an adequate education and to demonstrate that whatever districts spend falls within the definition of an adequate education. “It is up to the State to then defend its determinations as to the cost of adequacy,” the plaintiffs assert, “a defense the State is unwilling or unable to make.”

Instead, the plaintiffs insist “they must show only that the arbitrarily low cost of base adequacy payments and differentiated aid adopted by the state are insufficient, which they have done.” In support of this claim, they cite a report prepared by Dr. John Freeman while serving as Superintendent of the Pittsfield School District, which found that state aid alone would not fund enough teachers to legally operate the district’s schools.

“Because there is no dispute that the local education tax rates vary, the only fact Plaintiffs must prove to prevail is that adequacy funding (base and differentiated aid) is insufficient to meet the State’s definition of adequacy,” the plaintiffs claim. “Accordingly, the State’s argument — that Plaintiffs need to demonstrate “that everything school districts spend money on falls within the definition of an adequate education the Legislature adopted — is disingenuous and intentionally misleading.”

In May, Ruoff heard closing arguments in a suit brought by the Con Val School District that charged the state has failed to fulfill its constitutional duty to fund an adequate education, indicating he expected to reach a decision this fall. At the same time, his calendar includes two pending motions for summary judgment, the one filed by the state and another by the Rand plaintiffs to find the SWEPT unconstitutional.

In the meantime, the Rand case itself, originally scheduled for trial in September, has been stayed.