A week after appealing Judge David Ruoff’s order ruling the statewide education property tax unconstitutional, the state has appealed his order in the suit brought by the ConVal School District finding that the state is shirking its duty to fund an adequate education as required by Part II, Article 83 of the Constitution and ordered by the NH Supreme Court in 1993 and reaffirmed in 1997.

In appealing Ruoff’s decision striking the statewide education property tax, Solicitor General Anthony Galdieri cast doubt on the Supreme Court opinions in the foundational Claremont litigation. His appeal of the ConVal case took the same tack, suggesting if Ruoff’s orders hinge on the prior precedents set by the Supreme Court in the Claremont cases, “then they should be overruled.”

The ConVal case was filed in 2018. Following a trial, Ruoff ruled for the plaintiffs but declined to peg the cost of an adequate education, acknowledging that duty rested with the Legislature. Both parties appealed the decision to the Supreme Court. The justices, stymied by the factual issues the case presented, remanded it for a second trial, asking Ruoff to place a dollar figure on the cost of an adequate education.

After weighing the evidence presented at trial, Ruoff calculated the cost of base adequacy amounted to at least $7,356 per pupil, which he described as a “conservative minimum threshold such funding must exceed,” while noting “the true cost is likely much higher than that.” This figure, he concluded, demonstrated “the insufficiency of the $4,100 base adequacy figure” set by the Legislature in 2023 and represented an increase in state funding for education of $537,550,970.95 “at a minimum.” Ruoff issued an injunction ordering the state to pay the amount, which was subsequently stayed.

The state has yet to offer an affirmative defense either at the trial or in its appeal that the $4,100 base adequacy figure is sufficient to provide an adequate education. During the trial, Ruoff remarked the state “offered no evidence to justify the base adequacy amount.”

Instead, as Galdieri argues in his brief, the state’s obligation is strictly confined by two statutes, one defining the content of an adequate education and the other prescribing its cost.

The content consists of 11 “learning areas”: English/language arts and reading, mathematics, science, social studies, arts, world languages, health and wellness, physical education, engineering and technology, personal finance and computer science. The costs consist of base adequacy at $4,100 per pupil together with differentiated aid per pupil of $2,300 for those eligible for free and reduced-price lunch, $800 for those learning English as a second language and $2,100 for those receiving special education services.

These statutes, Galdieri argues, do not “suggest that the state’s funding obligations extend beyond the legislatively defined educational program to reach any ancillary items that a school district might need to operate a school.”

In other words, the state claims it bears no responsibility for the cost of transportation services, facilities maintenance, technical support, library staff, custodial services, school nurses, guidance counselors, principals or administrative staff.

At trial, the state sought unsuccessfully to exclude testimony about these expenses by school district officials. Moreover, Galdieri notes some of these ancillary costs are addressed in other statutes while noting others are incurred at the discretion of local school districts.

“The trial court erred in concluding otherwise,” Galdieri wrote. “The result constitutes an egregious violation of the separation-of-powers doctrine. If upheld by this court, this ruling would constitute an unprecedented transfer of power from the Legislature to the Judiciary by allowing a single trial judge to effectively define an adequate education and through an injunction appropriate and spend more than half-a-billion dollars in state taxpayer funds without any approval or oversight.”

In 2006, the Supreme Court expressed its concern “that this court or any court not take over the Legislature’s role in shaping educational and fiscal policy.” However, the justices added, “The judiciary has a responsibility to ensure that constitutional rights not be hollowed out and, in the absence of action by other branches, a judicial remedy is not only appropriate but essential.”

The state has yet to offer an affirmative defense either at the trial or in its appeal that $4,100 is sufficient to provide an adequate education.