CONCORD — After 25 years of failure, the state Supreme Court needs to step in and ensure that schools are properly funded in the state, the lawyer representing five school districts said Thursday.
Manchester lawyer Michael Tierney told reporters that he wouldn’t have brought the latest school funding suit if the governor and the Legislature did their jobs.
But despite the decades-old Claremont I and Claremont II that found a state responsibility to pay for a constitutionally adequate education, the state only anted up $3,636 per student last year.
“In this case and for the past 25 years, they (the Legislature) have substantially underfunded with the promise of next year, next year, next year,” Tierney told the justices.
Tierney spoke as the Supreme Court took up its first school funding cases since 2008. Tierney said 11 others have reached the court since the initial Claremont decision.
The Claremont precedents were on the minds of the five justices.
Queried repeatedly, the state’s top appellate lawyer did not clearly agree that they were correct.
Rather, Solicitor General Daniel Will acknowledged that the Supreme Court had ruled as such. And at another point, he said that his office had not weighed in that specific question, even though a handful of lawmakers had filed a brief that refutes the rulings.
“My office’s job is to defend the statute, and that is what we are doing in this case. We have not made that argument (about the Claremont precedents),” he said.
The case before the justices was brought by the Conval Regional and four other school districts in southwestern New Hampshire.
The districts say that the $3,636 per student — it increased to $3,708 this year — falls far short of their ability to provide an adequate education.
The four current members of the high court — two appointed by Republican Gov. Chris Sununu and two appointed by his Democratic predecessors — peppered the two lawyers with questions.
The only silent justice was Kenneth Brown, a retired judge tapped to fill a seat that Sununu has kept vacant. Former Gov. John Lynch appointed Brown to the bench in 2007. He retired as a judge in late 2018.
Sununu’s first appointee, Anna Barbara Hantz Marconi, helped Will buttress his case. For example, she noted that online and charter schools could possibly provide an adequate education at lower costs than public schools.
And she questioned whether the entire case doesn’t come down to a budget issue.
“When you’re talking about the (adequacy) statute so, you’ve just blown it up now, chances are there will be a basis to blow it up next time,” Hantz Marconi asked Tierney.
Will contended that the school districts must prove that the adequacy grant does not provide enough to pay for an adequate education. They have not done so, he said, repeatedly stressing that the costs for an adequate education are different from what a school district spends in total.
He also complained that the case went through the Cheshire County court at warp speed and he should have had access to school district records to divide out costs for an adequate education from total costs.
Yet he would not go as far as to say the state adequacy grant was enough. Other justices directed more pointed questions toward Will.
Sununu appointee Patrick Donovan noted that transportation costs alone can exceed $4,000 a student. “Isn’t that sufficient?” he asked.
Isn’t such a disparity sufficient to draw an inference? Justice Gary Hicks asked.
Conval and the other school districts have introduced affidavits of superintendents who say they cannot provide an adequate education with the state grant. They have also calculated the cost at $9,929, nearly three times what the state provides.
Court decisions can take as long as six months. And if the Supreme Court were to rule in the favor of Conval, the justices would likely order the case back to Cheshire County Superior Court Judge David Ruoff and tell him to fashion a remedy in the case.