Some say N.H.’s school funding formula could lead to a lawsuit

  • Freshman Lily Benoit (center) and Jade Fauteux (left) talk during an art class at Bow High School in Bow on Feb. 21, 2018. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Monday, March 05, 2018

With property-poor towns clamoring to stop cuts to state education aid, lawmakers decided last legislative session to study the state’s formula for funding schools more closely over a year.

But with the panel’s work focused on redistributing what aid the state currently provides – not more, and perhaps less – and cuts to the poorest districts continuing apace, some are openly talking about another school funding lawsuit.

Lawmakers on the special panel have been meeting since summer, and will report out in November. Kearsarge Republican Rep. Karen Umberger, its chairwoman, said the committee is looking closely at transportation aid and might revisit “differentiated aid,” the extra dollars schools get for such things as low-income and special education students. But the total pot allotted to schools from the state likely won’t change.

“We certainly don’t want to spend more than we have. Because that’s what we have,” she said.

Not everyone on the panel is sympathetic to the plight of cash-strapped school districts.

Rep. Ken Weyler, a Republican from Kingston, in written testimony slammed districts for adding staff while enrollment declined.

“This appears to be evidence that the system is not governed by any rules of common sense, but by the unions,” Weyler wrote, adding that the state should withhold all dollars if districts didn’t agree to stop adding positions. All extra aid given to school districts for low-income children should be converted into grants, he also suggested, with funds cut-off if there were not immediate, measurable gains.

But those hoping the panel might recommend the state shoulder a greater portion of the cost of schooling have walked away sorely disappointed.

Doug Hall, the former founding director of the New Hampshire Center for Public Policy Studies, gave the panel advice about how to better re-distribute stabilization aid to best target poorer towns. It isn’t a proposal he’s particularly enthusiastic about.

“That is, in my mind, talking about how to arrange the deck chairs on the Titanic,” he said.

The committee should be discussing whether the base, $3,600 per-pupil grant it gives schools, is anywhere near enough, he said.

“That question, as far as I can see, is not being discussed very openly, if at all. And because it’s not, it might be time for another lawsuit,” he said.

And some are considering doing just that. The Pittsfield school board recently reached out to Executive Councilor Andru Volinsky, who was the plaintiffs’ lead attorney for the landmark state Supreme Court Claremont cases of the 1990s that established the state’s responsibility to pay for an adequate education.

“I promised that as long as I hold office, I won’t sue the state, and I’m keeping to that promise. But I do know how this works, and I’m not opposed to being an honest broker of information,” Volinsky said.

And John Tobin, the former director of New Hampshire Legal Assistance – and another Claremont attorney – has separately been mulling litigation.

“Since we did the lawsuit, demographics have in certain ways made the situation worse,” he said.

Tobin said he didn’t yet have any concrete plans, and hadn’t recruited additional attorneys or clients. But he said he’d been working through what the legal arguments could be, and that several aspects of the state’s current system flagrantly violated prior Supreme Court rulings.

Take, for example, the statewide property tax, which helps pay for state education aid. In particularly property-rich towns, revenues from the statewide tax exceed what the state is obligated to pay out to that town. The excess – right now, about $30 million annually – gets remitted back to those towns.

“There were two explicit Supreme Court decisions about how they can’t do what they’re doing now,” he said. “That is blatantly unconstitutional.”

For his part, Volinksy is skeptical a lawsuit should be initiated. Despite a string of successful suits, resistance in both parties has kept New Hampshire heavily reliant on local property taxes to pay for schools. A report out this summer from the N.H. Center for Public Policy Studies highlighted that disparities in spending and tax rates are as bad now as they were before Claremont.

“It’s not necessary that it should be the only way to go. There is a ballot box,” Volinksy said. “I did run for office because I’m not confident that you can change this dynamic simply by lawsuits.”