The New Hampshire Supreme Court ruled Tuesday that the state is underfunding public education but said the Legislature has the sole authority and responsibility to correct that and did not order any specific increase in spending on schools.
While the decision — the latest in a decades-long court battle over what the state is obliged to spend to educate its students — does not mandate a dollar amount, the justices said lawmakers and the governor must address the underlying shortfall in school spending.
“It is now incumbent upon the legislative and executive branches to remedy the constitutional deficiency that we have identified,” read the opinion authored by Justice James Bassett.
Quoting from a prior school funding decision, Bassett said those branches are “duty bound to devote every effort” to increasing funding for schools.
The court, however, stopped short of giving lawmakers an explicit deadline.
Still, the decision was heralded as a win by school officials whose districts sued the state over what it spends on K-12 education. Superintendent Robert Shaps of the Oyster River Cooperative School District in Durham said it was validating to hear the court agree that the state fails to provide students an adequate education.
“This certainly will add a sense of urgency on our end – and hopefully our community – to demand a change and positive change and fiscal support,” he said.
Hill Superintendent Brian Connelly, whose district serves just over 100 students, agreed but said the ruling itself won’t solve his district’s funding challenges.
“It is terribly exciting,” Connelly said. “But you know, when that wears, what's going to happen? What will they do? You know, how will they fund it? Where is that money going to come from?”
Ayotte: 'Wrong decision'
Leading state Republicans rejected the decision, saying the court has no role in education funding matters, even if Tuesday's ruling leaves final spending decisions to lawmakers.
“The Court reached the wrong decision today,” said Gov. Kelly Ayotte in a statement. “The fact is, New Hampshire is top 10 in the country when it comes to funding our children’s education. We are evaluating the ruling to determine the appropriate next steps.”
Senate President Sharon Carson and House Speaker Sherman Packard – the Legislature’s two top Republicans – issued a joint statement criticizing what they called the court's judicial overreach.
“We are disappointed that the Court continues to insert itself into the Legislature’s role in determining state aid to local school districts,” they said, adding that the state has increased public school investments since the case was filed.
The cost of an ‘adequate education'
Tuesday’s ruling came in a case that was first filed in 2019, when the Contoocook Valley School District sued the state arguing it was spending too little to provide students an adequate education as required by the New Hampshire constitution. Seventeen other districts joined the case, including Manchester, Nashua, and Claremont.
Two years ago, a lower court agreed with the school districts. Rockingham County Superior Court Judge David Ruoff ordered the state to increase its per student spending from about $4,100 to at least $7,356 – or about $537 million a year.
Even that increase was “constituency insufficient,” Ruoff wrote. He said he couldn’t go higher based on the limitations of evidence presented at trial — but he noted the Legislature could.
“In light of the compelling evidence presented at trial, the court trusts that the Legislature will set a base adequacy aid figure meaningfully higher than the $7,356.01 threshold: a figure that will fulfill the State’s obligation to fund the opportunity for a constitutionally adequate public education," Ruoff wrote.
The order prompted three House Republicans to file short-lived legislation aimed at impeaching Ruoff.
The state appealed that ruling, and the parties argued their cases before the state Supreme Court in December, with two retired state superior court justices sitting in for Chief Justice Gordon MacDonald and Justice Barbara Hantz Marconi. MacDonald, who served as attorney general when the case was filed, recused himself. Hantz Marconi has been on administrative leave amid criminal charges that she sought to impede an investigation into her husband.
Core issues in case
The case addressed three questions: What are the necessary costs of an adequate education? How much money do school districts need to cover those costs? And, how does that amount compare to what they are getting from the state?
The majority upheld most of Ruoff’s findings, including what educational costs the state should be covering and what it should pay. For example, transportation, administrative and school nursing costs should be added. But the court said it was premature to order the state to increase its spending immediately, as Ruoff had ordered.
Attorney John Tobin, who represents clients in a related education tax case, said he was reassured to see the court reaffirm prior decisions upholding the value of an adequate public education.
“The decision really soundly and vigorously reaffirms the (prior rulings) that education is a state responsibility that is essential to maintaining a free government, and therefore it's really important in the courts not wavering from that,” Tobin said. “They hadn't spoken on school funding in more than 15 years, so I think it's great that they did that, that those principles are alive and well and vigorous.”
Looking ahead
Tierney said he believes the court gave the Legislature and governor a year to address the funding shortfall, based on the prior education funding decisions it cited.
“And so we're confident that the Legislature will act within one year of today's decision in order to fully fund an adequate education,” he said.
House Majority Leader Jason Osborne disagreed. He noted the Legislature added language to the state budget that passed last month claiming sole authority to make education funding decisions.
“So we're pretty clear on what our responsibilities are,” Osborne said. “I'm not sure where the judiciary thinks that they're coming up with their authority to make these opinions.”
Osborne said the court ruling misunderstands how education is funded in the state. The state and local communities share the cost of education but they look to the same taxpayers, he said.
“At the end of the day, it's coming from the taxpayers,” Osborne said. “So whether you take it out of the taxpayer's left pocket or their right pocket, it's really of no consequence.”
Tobin, who has followed education funding cases for decades, said he thinks that approach will land the state back in court. He said the Supreme Court’s ruling essentially gives lawmakers a chance to increase education funding before the justices do it for them.
“So now the court's taken a big step and said, ‘Your (funding amount) is wrong, Legislature. It's not constitutional. But we're going to give you a little bit of a grace period to fix it.’ ”
Professor Lawrence Friedman of New England Law in Boston has studied state education funding lawsuits in New Hampshire and elsewhere. He said he sees a less clear path ahead.
“It is definitely significant that the court has agreed with the plaintiffs that the current funding formula doesn't meet constitutional requirements. And that's not nothing,” Friedman said. “But that's not the same as the Legislature fixing it in the way the plaintiffs hope because the Legislature and the executive can do what they've done in the past and try and fix it in ways that might not be exactly what the plaintiffs have in mind.”
Last month the New Hampshire Supreme Court issued a decision in a different education funding case that challenged how local education tax revenue is distributed statewide. In a 3-1 decision, the court upheld the state’s current practice of allowing communities to keep their local school tax revenue.
This story was updated with additional comment at 9:30 p.m. Tuesday.
