If the New Hampshire Supreme Court heeds the state’s anticipated request to overrule a pair of landmark school funding rulings, it would be among the most significant reversals of precedent in the court’s history, former justices and other legal experts said.
The 1990s decisions are “New Hampshire’s version of Roe v. Wade,” said Bob Lynn, the former chief justice of the Supreme Court who now serves as a Republican state representative.
Both Lynn, who believes the school funding cases were wrongly decided, and those who fiercely disagree with him, said in interviews that the case is an apt comparison to the one that the state Supreme Court will likely soon confront.
In Roe, the U.S. Supreme Court established a constitutional right to abortion. In the 1990s cases, Claremont I and II, the New Hampshire court held that the state has a constitutional duty to fund an adequate education.
Last week, New Hampshire’s solicitor general, Anthony Galdieri, indicated the state plans to ask the Supreme Court to overrule the Claremont cases.
The justices’ analysis will depend not merely on whether they think their predecessors made the right or wrong call in the pair of cases some three decades ago. To preserve the stability of the rule of law and their own legitimacy, courts are reluctant to reverse their own precedents and consider a variety of factors in addition to the legal basis of the original ruling itself.
The experts interviewed were reluctant to say whether they thought this case would satisfy that high bar.
“I would certainly not say that this would be a slam dunk,” said Lynn, who served on the court from 2010 to 2019.
Those interviewed all said they believed reversal was a definite possibility, in part because of the makeup of the court. All five justices were appointed by Republican governors — the party, at least in recent years, that has been critical of the the school funding rulings.
The state’s challenge to the Claremont cases will come through an appeal of a lower court ruling last year that found that the state’s total and special education adequacy payments to school districts remained unconstitutionally low.
Andru Volinsky, the lawyer who represented both the original school district plaintiffs in the 1990s and the plaintiffs in the appeal the court is now set to decide, argued that overruling its own precedent would significantly damage the court’s reputation.
“I think the same kind of disrepute that the U.S. Supreme Court is held in as a result of reversing Roe and going to Dobbs will befall the New Hampshire Supreme Court if it reverses Claremont and worse,” said Volinsky, referring to the case in which Roe was overruled.
Volinsky said in an interview that his legal team will likely request that two of the justices — Chief Justice Gordon MacDonald and Daniel Will, the newest member of the Court — recuse themselves in the case. MacDonald and Will served as the attorney general and solicitor general, respectively, when the state was sued in another school funding case that recently reached the court. In its appeal in that case, the state elected not to ask the court to reverse its Claremont rulings.
How will the court decide?
The case is a stare decisis challenge, a legal principle that literally means “to stand by things decided.” When the court is asked to overrule its own precedent, it first considers whether the previous ruling was wrongly decided.
In the 1990s, the Supreme Court derived the state’s duty to fund an adequate education from Part II, Article 83 of the New Hampshire Constitution, which states that legislators must “cherish” education. The court relied on a historical analysis of the framers’ intention at the time of the Constitution’s drafting, though those who oppose the ruling have argued that the language was aspirational, rather than obligatory.
If the current justices do determine that the earlier interpretation was wrong, they would next analyze a series of stare decisis factors, which assess whether any relevant facts have changed, the extent to which a change would affect people’s daily lives, the earlier ruling’s relationship to other court holdings, and whether it has proven practical to follow.
“They’ll take a very hard look at [all of the factors] because overruling precedent is a big deal,” said Margaret O’Grady, an assistant professor at the University of New Hampshire’s law school.
The experts’ views on the Claremont cases predictably shaped their assessment of the four principles.
“One of the cornerstones of legal analysis in places like the United States is respect for precedent unless circumstances have dramatically changed,” Volinsky said. “Not because the justices have changed; the facts and history change. And that simply hasn’t happened.”
Others, including former justice Charles Douglas, argued that the Claremont cases never became “settled law.”
“The problem for Claremont is, from its inception, it was a controversial opinion,” said Douglas, who served on the court from 1977 to 1985. “In other words, it’s not something where people accept it and move on.”
In the last 10 years, the court has overruled its own precedent on at least two notable occasions. In 2020, it narrowed the types of governmental records that can be withheld in response to a right-to-know request, overruling a 1993 decision. A year later, the Court broadened the definition of adultery by removing a requirement that the people involved must be of the opposite sex from each other, overruling a 2003 decision.
What will happen to education funding if Claremont is overruled?
School funding advocates — and at times the court itself — have argued that the state has never complied with the Claremont rulings during the decades they’ve been law. Still, they believe the lack of compliance doesn’t mean they’ve been useless.
“If Claremont is reversed, the state contribution will become completely discretionary,” Volinsky said. “And given the politics currently in the New Hampshire State House, you should expect the state contribution to be dramatically decreased and local property taxes to skyrocket even further.”
Lynn said he doesn’t expect the reversal of Claremont to meaningfully lead to the reduction of state education funding. Like many Republicans, he believes the court has overstepped and school funding decisions should be left to the legislature.
“If Claremont were overruled and the legislature just sort of said, ‘Oh, well, so much for that. We don’t have to spend any money, or just a pittance, on education,’ presumably the public would have something to say about that,” he said. “And it might be that they would say, ‘Wait a minute, you Republicans. You’re crazy for not spending enough money; we’re going to throw you out.'”
“That’s the way,” Lynn said, “the democratic system should work.”