Lawyers and lawmakers assert the Department of Education is on the verge of violating the law

The New Hampshire State House in Concord.

The New Hampshire State House in Concord.


Granite State News Collaborative

Published: 05-07-2024 1:10 PM

New Hampshire’s state funding of public schools is the lowest in the nation, despite the state Constitution requiring the state government to finance an adequate education for every child.

The arguments over state school funding have raged in the courts since 1989, with no resolution. Local property taxes, which can vary largely from one community to the next, are still paying around 70 percent of the costs of running public schools.

Now, the N.H. Department of Education is updating its minimum standards for public schools, a process that occurs once every decade, and lawyers and educators assert that the department’s revised minimum standards will reduce funding even further.

The revisions, they say, water down the requirements for an adequate education and shift even more responsibility onto local taxpayers to fund public schools.

And, the critics assert, the state is ignoring rulings by the state Supreme Court that date back more than 30 years — rulings that ordered the state government to obey the state Constitution.

Especially concerned is Andru Volinsky, one of the lead lawyers for the Claremont case, in which the Supreme Court ruled school funding in New Hampshire was unconstitutionally low, and ordered the state to adequately pay for its public schools.

“This agency, the New Hampshire Department of Education, is going well beyond its authority in trying to adopt regulations that conflict with the controlling statutes,” Volinsky said. 

David Trumble, a retired lawyer who ran for state Legislature in 2022, told the State Board of Education April 3 that, because of the Supreme Court rulings, its revisions of the minimum school standards would be considered “invalid.”

Understanding state law

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Trumble says the Department of Education is on the verge of violating a state law, RSA 193-E.

The N.H. Department of Education website  states that the department must “operate according to the duties and limitations outlined in New Hampshire statutes.” 193-E is one of the statutes listed.

This statute defines how a school must demonstrate that it’s providing an adequate education through both “input” and “output” accountability. 

“Inputs” are the elements that go into providing a well-rounded education, such as qualified teachers, good facilities, classroom supplies and resources, maximum class sizes, specific program elements required for each subject taught, and per-pupil operating costs.

 “Outputs” are the ways in which student achievement is determined, such as assessments and testing.

Until the Legislature amended the law in 2018, the statute required only one or the other-either input or output – when proving accountability. However, now the statute requires both.

“It is only through a combination of both input and output accountability that we can ensure that we are living up to the constitutional duty to provide an adequate education,” Trumble told the state board. “The proposed regulations eliminate and unravel these input-based accountability measures.”

In particular, Trumble pointed to changes that would remove maximum classroom sizes of the revised minimum standards, eliminate a requirement for certified teachers for arts, music, health and physical education, and changing the word “shall” to “may” when referring to elements of certain programs, making those elements optional rather than mandatory, and therefore removing state responsibility to fund those elements.

Trumble argued that removal of those “inputs” violates the 2018 update of RSA 193-E.

“Taken together, this set of regulations is a major change in educational policy,” Trumble said. “It replaces a statutorily required system of both inputs and performance accountability with a vague performance standard. It replaces our understanding of what a school is — classrooms with teachers ... mandatory curriculum — with vague performance standards and no clear replacement model of what a school would look like.”

Trumble added that the N.H. Supreme Court ruled in 1981 that government agencies, such as the Department of Education, can “fill in details” of statutes, but that they cannot change statutes. Anything an agency puts forward that tries to modify the law would be considered “invalid.”

Volinsky voiced similar statements, specifically in the change from “shall” to “may.”

“It's pretty clear that in using terminology that's not defined and switching from the mandatory to the discretionary, (the department) is working to undermine the principles that come from the (Claremont) case,” Volinsky said. “And that's not the role of an agency. Agencies are designed to pass implementing regulations that follow the statutes, not that conflict with the statutes.”

Some members of the House Education Committee also spoke out against the proposed revisions of minimum standards.

“I can tell you that the Democratic caucus of the House Education Committee is extremely concerned,” said Rep. Hope Damon, D-Croydon.

“I am blown away by the degree of changes being proposed here. … This isn’t just administrative cleanup, or housekeeping to clarify rules. This is an absolute turn (in policy),” Rep. David Luneau, D-Hopkinton, said at the most recent House Education subcommittee meeting.

“One of the things that strikes me about all this is, where are the lawyers from the Attorney General's Office?” said Volinsky. 

“They should be, for everyone's benefit, advising the department and the state board that the things they're proposing violate the constitutional requirements set out in the 2002 Claremont decision, and are leading the state into another court battle.”

When asked about the legal requirements for the education minimum standards and specifically whether they are in compliance with RSA 193-E, Deputy Attorney General, James T. Boffetti declined comment. 

How did we get here?

In 1989, the public high school in Claremont, N.H., lost its accreditation because it did not have enough money to keep up with required safety regulations, let alone provide an adequate education. 

Funding from the state government was a fraction of the cost of educating students, and the city’s taxpayers did not have the means to make up the difference.

As a result, Claremont and four other low-funded N.H. public school districts sued New Hampshire’s state government, in a case known as Claremont School District v. Governor of New Hampshire. 

In 1993, the N.H. Supreme Court ruled that the state Constitution guarantees students a right to an adequate public education. In 1997, the court found that New Hampshire’s school funding system was so unfair — with tremendous disparities from one town to the next — that  it was unconstitutional. 

Overall, state funding was the lowest in the nation, providing just over 8 percent of total public education costs — so low that, if New Hampshire tripled its state funding for schools, it would still be the lowest. The court ordered the Legislature and governor to define what constituted an adequate education, and to pay for that adequate education with taxes that were equal across the state.

That has never happened. 

So, in 2006, the Supreme Court again found the school funding system unconstitutional. In response, then-Gov. John Lynch tried unsuccessfully to amend the state Constitution, to eliminate the requirement that the state government fund an adequate education for every child.

Decades later, state funding for schools remains highly variable from one community to the next. And, though the state funds now cover around 30 percent of public school costs, it remains the lowest in the nation for state education funding.

With the state’s education minimum standards up for their decennial revision, the topic of school funding has taken a front seat.

Commissioner’s response to criticism over funding

When asked about criticisms over funding, state Education Commissioner Frank Edelblut said that he thinks there is lots of “misinformation” about the document and the revision process, and encouraged people to read the document for themselves before jumping to conclusions.

“We've received a lot of feedback from individuals who have not read the proposal. They only listen to what someone said about the proposal, which is not true,” Edelblut said. “We want their actual comments, not just them repeating misinformation talking points to us, because it's more difficult for us to respond to that, because it's not accurate.”

Reaching Higher, an education advocacy nonprofit, along with teachers union members, superintendents, and others in the community, including Volinsky and Trumble, have all attested that they’ve read the document and are speaking out against the proposed changes. 

Christine Downing, director of curriculum, instruction and assessment for the Cornish, Grantham and Plainfield school districts, also held a series of educator review sessions at which teachers across the state extensively read the proposed changes together and highlighted areas of specific concern.

When asked, Edelblut did not comment on allegations of alleged intent to remove funding, instead commenting on how he felt the process has been very “transparent” having had over 13 listening sessions and working with educators.

Educators including Downing, Megan Tuttle, director of NEA-NH, and members of Reaching Higher, have countered this saying they had to push to have their voices heard.

 “We were not involved as an organization until the end of last fall,” said Megan Tuttle, referring to the over three-years long 306 drafting process. “We fought to get our way to the table.”

 A follow-up email was sent to the commissioner, asking for him to comment again on allegations of removing funding as well as violating RSA 193-E, however he was unavailable to comment. 

Chairman Drew Cline was also contacted but unavailable. 

What’s next?

For the revised minimum standards to pass, they must be endorsed by the Education Oversight Committee and the Joint Legislative Committee on Administrative Rules. 

Legislators and community members are now waiting to see whether the Department of Education will change the proposed revisions based on feedback, or if the State Board of Education will decide to put the existing draft through to the committees for final approval in June.

Volinsky emphasized that people who oppose the changes should reach out to representatives on both committees, as well as the governor, to oppose their adoption.

A final draft is expected in May.