The state does not provide enough funding for special education, forcing local taxpayers to cover the shortfall and creating unconstitutional differences in tax rates between towns, a judge ruled Monday.
Rockingham Superior Court Judge David W. Ruoff found that the additional amount the state allocates to local school districts for each student with an IEP – $2,185 – fails to cover the cost of special education services, which averages roughly $31,000 per student.
“The math does not lie,” he wrote.
The decision is the latest in a series of court rulings over the last three years that have concluded aspects of New Hampshire’s school funding formula are unconstitutional. The state spends the lowest, by percentage, on education in the country, according to a report by the National Education Association.
In July, the Supreme Court found that the state’s base adequacy payment was unconstitutionally low and called on the legislature to nearly double it. This latest ruling addresses the total adequacy payment, which includes base adequacy as well as additional aid for students who have special education needs, qualify for free or reduced lunch, or are English language learners.
In addition to finding state aid for students with disabilities unconstitutionally low, Ruoff also ruled the total adequacy funding level – which includes all of the additional components – was insufficient. He did not conclude, however, that the aid the state provides for low-income students and English language learners violated the state Constitution.
Ruoff stopped short of ordering the legislature to immediately address the violations, writing that he expected “the legislature will work diligently to enact a new school funding scheme that comports with the State’s constitutional obligations.”
Andru Volinsky, a lawyer for the plaintiffs, said in an interview Tuesday that he was “very pleased” by the ruling and called on Gov. Kelly Ayotte to immediately call a special session of the legislature to address it, along with the Supreme Court decision earlier this summer in the related case, ConVal v. State of New Hampshire.
“Gov. Kelly Ayotte and the Executive Council must bring the legislature back into session this fall to craft legislation to address both the ConVal [order] and this new decision and they must do it in time to protect taxpayers before they have to pay their December bills,” Volinsky said.
A spokesperson for Gov. Ayotte did not immediately respond to a request for comment.
Special education spending across all school districts totaled $978 million during the 2023-24 school year, roughly one-quarter of all spending on education in the state. The services can be difficult to predict and can hamstring school districts, particularly small ones. Out-of-district tuition and transportation are especially challenging to budget for because they can exceed $100,000 per student.
The state has two mechanisms to cover a portion of these costs. The additional adequacy payment is allocated to every student who has an IEP. Separately, the state reimburses a portion of costs for students whose services exceed a certain threshold, which was $71,000 during the 2023-24 school year.
However, the state has historically failed to allocate enough to fully cover the reimbursements. Last year, districts received only 68% of the $50 million they were eligible to get back from the state.
In 2022-23, local property taxpayers covered 82% of special education costs, a Concord Monitor analysis found.
“The state’s contribution to special ed is a joke,” Volinsky said. “With all of the administrative and evaluative requirements for special ed, the state winds up contributing about $400 a year to a cost that averages $30,000 per child who qualifies for special ed.”
Ruoff wrote in his 57-page ruling that the state “failed to admit a scintilla of evidence at trial to justify” the existing funding.
“That’s a shameful thing that they didn’t even try to defend the current formula, but they made everyone go through this whole rigamorole as we challenged it,” said John Tobin, a lawyer who also represented the plaintiffs, a group of taxpayers in Plymouth, Concord, Penacook, Hopkinton, and Newport.