ConVal decision appealed by state in Supreme Court Thursday 

  • ConVal High School in Peterborough, N.H. (Monadnock Ledger-Transcript photograph) Monadnock Ledger-Transcript

Granite State News Collaborative
Published: 9/24/2020 4:34:25 PM

The state’s appeal of the ConVal decision had its oral arguments in the New Hampshire Supreme Court in Concord Thursday morning.

The state is appealing Cheshire County Superior Court’s June 2019 decision, which sided with the ConVal School District’s argument that the state’s current law which sets the base adequacy aid for schools is “unconstitutional” because it underfunds the ConVal School District and three other school districts that had joined the petition soon after it was filed by ConVal.

In the state’s August 2019 appeal, it argued it is not “unconstitutional” for the state not to fund school expenses such as transportation. The state is also appealing the Superior Court’s decision that the state is now responsible to pay for the school districts’ attorney fees, which was about $130,000 at the time the appeal was filed.

“The state’s argument is that the trial court went at it the wrong way,” Daniel E. Will, Solicitor General at NH Department of Justice at the Attorney General’s Office, argued in court Thursday morning. “The trial court put the cart before the horse.”

Will said the court and the plaintiffs failed to prove the state’s definition of an adequate education is too low to actually provide an adequate education.

“In order to put the burden on the state to justify a limitation on a constitutional right, you have to first prove that you’ve been deprived of it. And so in a case where a plaintiff wants to say, ‘I can’t provide an adequate education on the base adequacy amount that the state has provided’ … the burden remains on that plaintiff then to prove that that plaintiff cannot provide an adequate education on the base adequacy amount that the state has provided,” Will said. “The state’s position is that the statute sets forth the base equity amount. … They bear the burden of proof that, that constitutional right has been deprived, that, that adequate base adequacy amount is too low.”

Will also argued the Superior Court proceedings failed to provide evidence through discovery.

“How do we know that you can’t provide an adequate education based on this. You’ve got to prove that. You’ve got to prove what you can’t provide,” Will said. “Instead what the trial court relied on was actual costs that the school districts purport to pay in various categories of their educational enterprise.”

When asked by a justice why there was no discovery period in the Superior Court case, Will said it was a speedy case. “I don’t think that’s a realistic argument, your honor. This case, this case happened at warp speed,” he said.

“The real disparity is between actual costs and between what the adequacy costs are. Actual does not equal adequacy. ... asking everyone to look at your actual costs, it doesn’t really tell you anything,” Will said.

Representing the school districts, attorney Michael Tierney said one of the reasons the case moved swiftly last year was because the state had moved for a summary judgment without discovery. Tierney also said the court did have proof and discovery through the four affidavits provided by the superintendents of the school districts involved with the case.

“We’re here to enforce this court’s existing precedents. As we just heard from the state, there’s no challenge to those existing precedents. Those existing precedents include that in this state, a constitutionally adequate education is a fundamental right. And this fundamental right is by a state-funded, adequate, public education. The state has the exclusive obligation to fund that obligation. And the state may not shift any of that responsibility to local communities,” Tierney said. “In addition, this court has previously held that the judiciary has a responsibility to ensure that constitutional rights are not hauled out. And the lack of action by other branches, a traditional remedy is not only appropriate but is essential. It’s important for the court to remember you heard just here today, the state not claiming that the amount of funding that it’s providing is constitutionally adequate.”

Tierney said it was proved in the Cheshire County Superior Court in Keene that the four school districts involved cannot provide constitutionally adequate education with the funding being provided by the state, which is $3,600 per student each school year.

The original lawsuit was filed by the ConVal School District on March 13, 2019. The Mascenic, Monadnock and Winchester school districts later joined in the legal fight.

The complaint said using the state’s own formula and the state’s own data, the state’s base adequacy funding falls far short of constitutionally sufficient funding for the children of the ConVal, Mascenic, Monadnock and Winchester school districts as well as throughout New Hampshire.

ConVal and the other school districts claimed in the petition that the actual cost of an education, based on Department of Education data, is about $18,901 per student. The complaint asked the court to set the base adequacy amount at $9,929 per student for the fiscal year 2020 and $10,843.60 for 2019.

“We’re not asking that the state necessarily apply what our actual costs are,” Tierney said. “We’re asking that the state apply a costing formula, okay? That is rational and based on real facts so that there can be real funding.”

The state currently sets the base adequacy aid award for all schools at $3,562.71 per student. The state’s number is based on a formula determined by a legislative committee, 11 years ago, in 2008.

“In this case and for the past 25 years they have substantially underfunded … with promises that they’re going to fix it next year, next year, next year, next year. ... And actually, the $3,500 in state aid goes back to the foundation formula from 1986, that $3,500. The legislature is capable of keeping up with any changes that may be necessary, but in this particular case we need to have a specific remedy to cure unconstitutional actions that were recognized by the Superior Court in this case,” Tierney said in court Thursday morning.

Tierney argued that these rural school districts cannot fund an adequate education as defined by the state because they face challenges urban and larger school districts don’t, saying the disparity gets larger for rural schools. For instance, the Winchester School District tuitions its students to attend high school in the Keene School District at $14,053 per student each year because it would cost the school district more than $15,000 annually per student to just meet the bare minimum requirements to educate the students within its own school district.

“They can’t provide the minimum for less than they are tuitioning to Keene,” Tierney said.

Additionally, rural school districts like these four in the Monadnock Region, he said, pay substantially more for bussing students to and from school because of the additional miles that have to be covered. The state needs to recognize “a one size fits” all approach to funding transportation does not work.

Tierney added that in 2008, the legislature did determine that transportation is part of the cost of an adequate education. “The error is that they just took 33 percent off the top and decided that high school transportation is something that the state shouldn’t pay for,” Tierney said. “We have an obligation to provide an education to all of our students, including our high school students.”

Thursday afternoon Tierney said a written decision from the justices is expected to be handed down sometime in the next three to six months. The decision could be to send the case back to the Superior Court, he said.

“The state is asking a remand back to the Superior Court and to have a trial to determine if the state funding formula is unconstitutional,” Tierney said. “And we’re asking for a remand back to the Superior Court for only what the proper remedy would be.”


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