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Claremont case attorney says new education lawsuit ‘urgently needed’



Monitor staff
Friday, April 27, 2018

An attorney who represented the plaintiffs in the landmark state Supreme Court cases out of Claremont that established the state’s responsibility to pay for an adequate education believes another lawsuit is “urgently needed.” And he’s recruiting others to the cause.

In the April edition of the New Hampshire Bar News, John Tobin, the former executive director of New Hampshire Legal Assistance, argues that recent cuts in state aid to education exacerbate the core problem of the state’s over-reliance on local property taxes to pay for schools.

“In my view, and that of many others, this deterioration has now reached constitutional dimensions, so much so that a new school funding lawsuit is urgently needed,” Tobin writes.

The consequences, the piece says, are perennial budget crises in certain towns and deeply unequal and untenable property tax rates. It compares property-poor communities like Claremont, with a tax rate of $24.20 per $1,000 in assessed value, to property-wealthy towns like Rye, which has a tax rate of $6.20 despite spending thousands more per student.

Earlier cases have firmly established the state’s responsibility to pay for schooling, Tobin writes, and to do so using a uniform tax.

“Now the question is, can we enforce those principles based on current reality?” he said in an interview.

The piece concludes by asking interested parties – potential plaintiffs and fellow attorneys alike – to reach out to discuss the possibility of a lawsuit. Tobin said he wrote the article to gauge support in the legal community for mounting such an effort.

“I think it needs to be done. I think it’s just a question of can we put together the people and the resources to do it,” he said. “I know I can’t do it myself from my kitchen counter.”

Tobin has at least one recruit: Tom Connair, a Claremont-based attorney who was Claremont’s school board chairman when the district first sued the state.

But he, too, emphasized the need for more help.

“We’re hoping for some renewed energy and maybe some younger blood to carry the torch, but I think there is growing interest in the towns,” he said.

Meanwhile, certain property-poor towns have started having tentative discussions about a lawsuit, including in Claremont, which served as the lead plaintiff in a succession of state Supreme Court cases between the 1990s and the 2000s.

Middleton McGoodwin, the superintendent in the Claremont school district, responded to a request for comment by sending a reporter a PowerPoint outlining a slew of personnel, technology, athletics, and supply cuts the district needed to make next year, totaling nearly $1.7 million, in order to hold the line on taxes.

“In truth, today, in N.H., a child’s zip code determines their educational opportunities,” McGoodwin wrote. “There is a very clear need, or appetite in Claremont, and similar communities, for the type of suit John Tobin is considering.”

Discussions about a suit are also happening on the Franklin city council, where the high school was recently put on warning by its accreditor, the New England Association of Schools and Colleges, specifically because of funding cuts.

And in Pittsfield, also one of the original plaintiffs in the funding cases, the school board has reached out to Executive Councilor Andru Volinsky, who was the plaintiffs’ lead attorney for the Claremont cases. In a telling moment, a meeting between the school officials and Volinsky was postponed a month as the board scrambled to find an additional $450,000 in cuts after the district’s budget failed at town meeting.

Volinsky has pledged not to sue the state while in office, but agreed to talk to Pittsfield on an informational basis. He’s also repeatedly said that his run for Executive Council was spurred, in part, on the belief that a change to the New Hampshire’s taxing structure couldn’t necessarily come from the courts.

But he said this week that litigation might help push the Legislature and governor into eventually doing the right thing.

“I think it’s one of a couple approaches that need to happen at the same time,” he said. “The two are not mutually exclusive. I think they’re actually compatible.”

But if the past is any indication, such a lawsuit would be a heavy lift, he said.

“When we did the trial I had 18 lawyers. We had that many because very few of us could afford to do it on a substantial basis,” he said.

Property-poor towns recently mounted a failed legislative campaign to freeze cuts to stabilization grants, a roughly $150 million program that in particular buoys the state’s poorest school districts. The program is being phased out at a rate of 4 percent each year.

Cuts to stabilization, the decades-long moratorium on school building aid, and reductions in state reimbursements for things like special education are all compounding to create a growing sense of frustration in towns about rising property taxes, said Carl Ladd, the executive director of the state’s administrators association.

“At some point, something’s gotta give. And I’m just not sure what that is,” he said.

They’re hasn’t been a unifying call thus far, he said, for a lawsuit, and towns have been holding out for a legislative fix. That’s because litigation is expensive, he said – and divisive.

“It really points out kind of the haves and the have-nots. And that makes people very uncomfortable. And so I think people shy away from that until there’s absolutely no other choice.”

John Garvey, a professor of law at the University of New Hampshire and former Claremont case attorney, said he doesn’t know if another lawsuit could move the needle on school funding.

“When you look at the history of the cases, how many there have been, how often this has come up, where we started, and where we are now, I can’t be excited about the progress that has been made even with all of the judicial decisions in favor of providing an adequate education,” he said.

But whether or not it goads the Legislature into action, Garvey said a suit is probably still worth pursuing.

“I think if people just give up and say, ‘oh well, it’s up to the Legislature, and this is just a political question,’ that we lose something very important. Because we do have a constitution for a reason. And the constitution is supposed to trump legislation. It’s supposed to be the thing that we must comply with, no questions asked,” he said.

 

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)