Does New Hampshire make the grade?
illustration by gloria diiani
Twenty years ago, the state Supreme Court turned New Hampshire’s tight-fisted frugality and borderline feudalism on its head by declaring that the state’s lack of support for public education, long considered a local obligation, was unconstitutional. The landmark Claremont decision made the state — not local school districts — responsible for paying for a minimum, or adequate, education for every child. Doing so required redistributing wealth and equalizing educational opportunity. While progress has been made since then, and more money is being spread over fewer school children than ever before, according to a new study released by the New Hampshire Center for Public Policy Studies, little has changed in the inequity between property-poor and rich schools.
“There is still wide variation in local tax rates as well as per-pupil expenditures, a leveling of which was at the heart of the Claremont lawsuit,” wrote the center’s Executive Director Steve Norton and economist Greg Bird.
The case, brought by several property-poor school districts, including
Claremont, for which the suit is named, was supposed to even the disparity for both the per-pupil education costs and the school property tax rate with property-rich districts. The court didn’t prescribe a specific solution, but the conventional wisdom was that the state would need money — and lots of it — to meet this new obligation. This constitutional requirement ran into an even bigger political obstacle: New Hampshire’s nearly religious, bipartisan opposition to a broad-based sales or income tax.
Opponents of the decision, like former Supreme Court Justice and Congressman Chuck Douglas, a Concord attorney, said the original decision was the “high-water mark” of a failed national judicial trend to expand and fund public educational opportunities. It was a judicial overreach, he said, into vexing policy rightly determined by the Legislature.
So it’s predictable, Douglas says, that we are “right back where we were [with] no material change.” The court, he contends, works best when construing rights and worst when wading into thorny policy matters — like establishing the curriculum goals that define an adequate (or constitutionally minimum) education. For some opponents, it’s simply more pie-in-the-sky confidence that government can equalize outcomes in an unequal, imperfect world, citing as a cautionary example the failure of the well-intentioned forced-busing to integrate urban schools in the 1970s.
Beyond the appropriate limits of judicial activism, Douglas contends the court fundamentally erred when it interpreted the 1784 NH Constitution’s mandate to “encourage” public education. The court took this to mean that the state should be solely responsible for paying for an adequate education. He notes that, for the first 50 years, New Hampshire provided no money at all to public education, but required the establishment of schools by local communities.
Over the past two decades, some laws were enacted, court missives were issued and money was spent taking small steps toward meeting or gently conforming to the goals of the Claremont decision. All told, New Hampshire is now spending 40 percent more on state education aid than it did 20 years ago. “We do way more than we used to,” says Nashua attorney Joe Foster, a former attorney general, who grappled with this issue while in the state Senate. “It’s a huge challenge,” he adds, but “the Legislature is always responding.”
Progress is hardly the first thing that comes to mind in Groveton, a battered and beleaguered village in the old mill town of Northumberland in Coös County. Decline is the more common word on the lips of Michael Kelley, the superintendent at Northumberland’s three-school supervisory district. Kelley has seen his school enrollment drop by 25 percent in the 10 years since the local paper mill closed, and state aid is tied to student population. The Center for Public Policy report estimates that state aid will decline by more than 10 percent in the next five years, and hints at further school consolidation and residential migration to more affluent populated areas.
With a property tax rate of $36.80, Groveton’s residents — some of the poorest and oldest in the state — are among the most taxed in New Hampshire. Just 5.3 percent of Groveton citizens are working consistently full time for a 12-month period, but the average total cost to educate each of their 333 students is $17,600. With decline all around them, Kelley said the “school has become the center of the community.”
Groveton is a place retired Concord attorney John Tobin knows all too well. He spent years as a legal aid lawyer in the region before taking the helm of the state’s legal assistance program, from which he took temporary leave to work on the original Claremont case on behalf of the plaintiff schools, taxpayers, parents and students.
The state, Tobin says, is neglecting places like Groveton, and adds, “It’s worse than neglecting; it’s bleeding them.” He points out that, because of the great disparities in the total value of real estate from “property-rich” towns like Rye and “property-poor” towns like Groveton, homeowners and businesses pay far higher rates in the poor towns while raising less money for schools. A property-rich town can raise enough money to spend very generous amounts for its schools with a much lower property tax rate.
He says he was surprised by the lack of political will to solve the problem: “I guess I was a little naïve. I thought there would be more compliance [with the ruling].”
While acknowledging the additional education aid, Tobin says it has not kept up with inflation, increased requirements on schools, growing poverty, an expanding heroin epidemic and declining population in rural, isolated and economically depressed areas.
He says the issue is “a tax equity problem — [demonstrated by] gross disparity in spending and a gross disparity in tax rates. The court said the tax rate [for education] can’t be four times higher in Pittsfield than Moultonborough.”
One possible solution that stalled several years ago was a Constitutional amendment to allow the state to target aid to the neediest schools. It has recently won the support of the state’s Business and Industry Association. New Hampshire is one of the only states that distributes aid based on student population, rather than need. But the current proposed amendment, CACR 7, doesn’t say anything about targeted aid for needy schools. It would simply give the Legislature unfettered discretion to do whatever it wants on school funding.
Few observers see a court-legislative showdown, but more of combination of forces. As Tobin says, “Ultimately the remedy is about Constitutional law and political will.”