One of two cases challenging the state’s formula to fund public education went before the New Hampshire Supreme Court on Wednesday, adding a new chapter to the high court’s decades-long role in parsing school funding decisions.

The case, Rand, et al. v. the State of New Hampshire, reached the justices after the state appealed a lower court decision last year that deemed the current statewide education tax system unconstitutional. The case pits homeowners from communities with low or moderate property values against those from wealthy communities, particularly those that have few school-aged children.

Lawyers for the Attorney General’s Office argued that in the event the Supreme Court upholds the lower court’s ruling, it should let the legislature determine how to proceed.

But, Justice Patrick Donovan asked, “How can we be confident that the legislature's going to fix it?”

“It's been 30-plus years now. They haven't fixed it,” he said.

Rockingham County Superior Court Judge David Ruoff ruled last year that the statewide education property tax is unconstitutional because it is unevenly applied between communities. Under the current system, towns with high property values and few school-aged children receive back a portion of their unspent statewide education property taxes, known as SWEPT.

The state, along with a group of 26 municipalities appealed Judge Ruoff’s order, arguing that their practice of returning excess SWEPT funding was a legitimate appropriation of state money and not a different effective tax rate.

The three justices present for Wednesday’s oral argument appeared somewhat skeptical of that point.

“We tax hundreds of thousands of residents who don’t have any children in the education system. They still pay for education, right?” Donovan said.

The dispute between the plaintiffs – a group of property owners from relatively “property poor” towns – and the state and wealthy communities hinges on whether the practice of returning unused SWEPT funds is akin to lowering the tax rate for those communities who receive money back.

“Everyone in the state benefits from an educated populous, so everyone in the state must contribute fairly,” attorney Natalie Laflamme said. “This means that taxes used to fund an adequate education must be uniform in rate across the state.”

But state Solicitor General Anthony Galdieri argued that the plaintiffs were challenging a state spending decision rather than a taxing decision, a distinction that has a bearing on the plaintiffs’ legal standing.

“No case before this court has ever said that an effective tax rate can be identified based on how money goes back to an entity or a municipality,” Galdieri said.

The justices questioned the appropriate solution in the event that they hold the SWEPT tax system unconstitutional. Judge Ruoff had ordered that communities cease retaining excess SWEPT funds starting in late 2023, with those funds going to statewide education spending instead.

The SWEPT debate is one of three school funding issues currently working their way through the state court system, and the first to reach the Supreme Court.

Last year, Judge Ruoff also ruled that the current per-pupil base amount provided by the state to school districts is unconstitutionally low, ordering that it be nearly doubled from $4,100 per student to $7,356. That decision has since been stayed by the Supreme Court, pending a separate appeal, with oral arguments set for Dec. 10.

In addition, a trial on a separate element of the case heard before the Supreme Court on Wednesday occurred in Rockingham County Superior Court in September. In that trial, the plaintiffs argued that the amount the state provided to school districts for differentiated aid – additional funding for students who are low-income, English language learners, or who have a disability – is unconstitutionally low. A lower court decision is pending in that case.

Jeremy Margolis can be contacted at jmargolis@cmonitor.com.