Contoocook Valley School District v. New Hampshire shows need for quality education in NH public schools

EDUCATION

In Contoocook Valley School District v. New Hampshire, the Superior Court ruled that New Hampshire’s education funding approach violates the state constitution.

The court found that the plaintiff school districts had “overwhelmingly established that no school could provide the opportunity for an adequate education if it had to rely solely on the base adequacy aid ($4,100 per pupil) from the State.”

The court further found that “the base adequacy cost can be no less than $7,356.01 per pupil per year and the true cost is likely much higher than that.”

These numbers don’t make sense. New Hampshire, as a state, is not spending too little on education. The most recent analysis from the U.S. Census Bureau reports that New Hampshire spends an average of $22,189 per pupil, ranking eighth highest in the nation.

The New Hampshire Department of Education reports that total spending on K-12 public schools totaled $3.5 billion in 2022-23, and that no district spent less than $15,000 per pupil. And the most recent “Quality Counts” Report from Education Week places New Hampshire at third highest quality in the nation, only behind Massachusetts and New Jersey.

Contrary to the ConVal ruling, these resources suggest that New Hampshire, on average, is doing a pretty good job providing a reasonable opportunity for a quality K-12 public education for its roughly 155,000 students.

Why, then, does the ConVal case focus on such low numbers? Because the plaintiff school districts are asking, and the court is answering, the wrong question.

Most parents don’t think about these numbers. Instead, they worry about educational quality and student outcomes. They ask the quality question: “Is New Hampshire offering every child an opportunity for a high-quality education, regardless of where they live?”

The recent legislative Commission to Study School Funding, on which I served as a member, did address this quality question. After a year of work, the commission’s fi nal report observed that, “We have a lot to be proud of in New Hampshire when it comes to our public schools. On average, our kids perform among the best in the country.”

It also found that “New Hampshire’s current system of funding fails to direct aid to more needy communities in a meaningful manner, and inequities manifest themselves in more needy districts through lower student outcomes and higher property tax burdens.”

The ConVal decision does not address these critical equity considerations. Instead, it focuses on a “pay for” rule, suggesting that the state budget must “pay for” some uniform “base” amount per pupil ($7,356.01) to both well-off and needier communities alike.

Such a uniform “pay for” rule would not close the opportunity gap; it would widen it. The legislative commission disagreed with the “pay for” approach, stating, “The Commission concludes that a singular consideration of a ‘pay for’ rule must not be allowed to stand in the way of the Legislature or executive branch’s development of a constitutionally sound solution that improves progressivity of state aid distribution and student equity.”

The misfocus of the ConVal analysis is made even more stark by its refusal to consider “differentiated” aid.

In the year at issue, the state not only distributed $645 million of “base” aid per pupil, it also distributed an additional $165 million of “differentiated” aid to districts based on their unique needs (measured by factors such as number of low-income families, special education demands, test scores, students learning English as a second language and low property tax bases).

The Legislature intended that this aid — representing 20% of total state funds devoted to public education — be directed to needy communities precisely to address inequities.

That we continue to have cases like ConVal — where lawyers wrangle over uniform “base” aid numbers and then disregard aid intended to help needy districts — is a symptom of vague and conflicting language in Supreme Court cases from Claremont II forward. The responsibility for correcting this judicial disconnect lies directly with the New Hampshire Supreme Court.

The court’s 1992 Claremont I decision is one of the best and most important in New Hampshire’s history: “We hold that part II, article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding.”

The court found that our constitution “expressly recognizes that a free government is dependent for its survival on citizens who are able to participate intelligently in the political, economic and social functions of our system.”

While the legislative and executive branches have broad discretion to structure public schools, including a substantial role for local governance and funding, Claremont I requires the state to be the ultimate guarantor of the promise of a high-quality education everywhere in the state, for every child.

Consistent with Claremont I, the court should clarify that this duty requires the state to provide the right answer to the right question, the quality question. Under the quality question, plaintiffs would bring cases to prove that the state is failing to support specific children and districts with greater needs.

Rather than arguing that the state must pay some nonsensically low number to both wealthy and needy towns alike, plaintiffs and their attorneys would know that their job is to enforce the state’s guarantor role to protect children most at risk.

Now is a particularly good time for this clarification. The 2024 Legislature is considering a specific proposal, HB 1586, that would implement the findings of the commission.

The bill would establish a “foundation opportunity” program that would use modern statistical analysis to identify how resources should be allocated among districts on a fair and equitable basis.

It would also provide accountability measures and an integrated state and local funding plan to ensure that all our children have access to a high-quality education.

I urge readers to learn more about the foundation opportunity program.

And I urge our Supreme Court to clear a bright legal pathway that will encourage the legislative and the executive branches to ask and answer the right question: How do we build a public education system that guarantees that all our children have access to a high-quality education, regardless of where they live?

Bill Ardinger is an attorney at Rath, Young and Pignatelli, P.C.; member of the New Hampshire Legislative Commission to Study Public Schools; graduate of Stevens High School in Claremont; and parent of children educated in NH public schools.