ConVal school funding trial starts Monday, expected to last into May

Apr. 9—Lawyers for the state of New Hampshire once again will be defending the amount of money that state government devotes to education when trial opens Monday in Rockingham County Superior Court.

The trial comes 30 years after the New Hampshire Supreme Court issued its first decision related to education funding, also known as Claremont, which found the state has a constitutional obligation to provide and pay for an adequate education.

Seventeen school districts say that the average, base per-pupil payment they receive from the state — $3,787 last year — is far from their true cost of providing an adequate education.

While the cost of an adequate education varies depending on the school district, the lead school district in this case, the Peterborough-based ConVal School District, needs $10,843 per student to provide an adequate education, according to their analysis.

Lawyers representing the school districts plan to call top officials from each of the school districts that brought suit. They will explain their budgets, what entails an adequate education and how much it costs.

Evidence will involve pages of budget figures and supporting documentation, as well as reports from legislative commissions that back up their $10,800 estimate.

In court papers, lawyers working on behalf of Attorney General John Formella are expected to give their definition of an adequate education and argue there are different ways to deliver that education.

They have filed papers to challenge the expert status of most witnesses who will testify on behalf of the school districts; on Thursday, Superior Court Judge David Ruoff rejected those challenges.

School districts say that the base amount they receive from state government to deliver a constitutionally adequate education doesn't come close to covering their costs. They say assumptions used by state officials to calculate adequacy are flawed:

—The state doesn't provide anything to bus kids to school. Transportation costs can vary between $620 and $1,040 a year per student, depending on the district.

—The state relies on flawed teacher-student ratios of 1 teacher to 25 students for the lowest grades and 1 to 30 for grades 3 and up. The state average is 1 to about 12.5.

—The state calculates only $11,728 for teacher benefits, about a third of the cost of the benefit package for state employees.

—The state provides $195 per student to cover the cost of school buildings, maintenance and utilities. On average, the districts pay $1,460 per student.

—The state calculations include nothing for nurses, school district superintendents and school lunches, the districts say.

State plays defense

According to filings, the last thing the state seems to want to do is get into a debate of what involves an adequate education.

Formella's lawyers say the state should be legally protected from the lawsuit, citing legal principles ranging from sovereign immunity to the statute of limitations.

They say that an adequate education is whatever the Legislature defines it as and whatever it funds it. The state legal definition of an adequate education includes traditional subjects such as English, math, science and and history. Arts, music and visual arts are included, as well as health, wellness and Holocaust studies. The definition also includes physical education, engineering and technology, personal finance, computer science.

But it doesn't include school nurses, facility maintenance, transportation and a superintendent.

The state also says it shouldn't meddle in local decisions.

"There are some school districts that are offering a teacher ratio that is far and above what the state requires. ... That is a local decision to do that," Commissioner Frank Edelblut said during a September deposition last year.

How did NH get here?

In 2019, ConVal and three districts in the Monadnock region filed suit in Cheshire County Superior Court, faulting the state for not living up to the original Claremont decision and 11 subsequent Supreme Court rulings on school funding. Other districts, including Manchester, Derry, Oyster River, Nashua, Lebanon and Claremont, joined the case.

After the trial court refused to dismiss the case, the defendants, who include Gov. Chris Sununu and Education Commissioner Edelblut, appealed to the Supreme Court.

The Supreme Court said the trial judge was right to keep the suit alive. But they returned the case to him and told the judge to determine what entails an adequate education.

Judge Ruoff had initially planned a jury trial. But he recently said he would not empanel a jury. A jury would only be advisory when issues involve constitutional law.

The trial was moved to Rockingham County when Ruoff was assigned there.

It is scheduled to run this week and next, take a break for a week, resume, then conclude May 3.

Who is involved?

Ruoff was a defense lawyer when nominated to the bench by Democratic Gov. Maggie Hassan. He started his career as a public defender and also worked as an assistant attorney general.

The lead attorney for the state is Samuel Garland, the chief of the Attorney General Civil Litigation Unit. Beside him are two other assistant attorneys general, Anthony Galidieri and Lawrence Gagnon, as well as two outside attorneys who the state has authorized to pay up to $1 million.

Garland would not be interviewed for this article. A Formella spokesman cited state ethical rules that discourage pretrial publicity.

The lead attorney for the school districts is Michael Tierney, who works for the Manchester firm of Wadleigh Starr.

While the original Claremont case involved lawyers who went on to make a name for themselves as liberal advocates, Tierney has run for the Executive Council as a Republican. As a lawyer, he has represented pro-life causes.

"This is not a political issue," Tierney said about the adequacy trial. "It's an issue of what are the costs of an adequate education; a question of fact and law." Another Wadleigh Starr lawyer, Elizabeth Ewing, is the other co-counsel.

State Education Commissioner Edelblut would not be interviewed for this article, his office said. He is scheduled to testify the afternoon of April 18.

Meanwhile, a group has emerged — New Hampshire Funding Fairness Project — to highlight issues involving adequacy and fairness.

"We believe in a Granite State where all students are educated excellently, all schools are funded equitably, and all homeowners are taxed fairly," the organization says on its website. The organization estimates that the state downshifts $2.3 billion in education funding to local school districts in violation of Claremont rulings. No conservative groups have emerged as an alternative.

"It's a question of whether you're reaching into the state's pocket or the local taxpayer," said Greg Moore, state director of Americans for Prosperity.

But he sees a silver lining if Ruoff increases the adequacy grant. His organization supports the Education Freedom Account vouchers, and the EFA grant is pegged to the adequacy grant.

Who's on the outside?

Although a party to the lawsuit, Sununu does not have to testify and did not have to be deposed, according to a ruling issued in October by Ruoff.

Also out are John Tobin and Andru Volinsky, two of the original Claremont lawyers, who are representing state residents challenging the wide variation of tax rates used to fund education. Initially, they had hoped to have their case combined with the ConVal case.

The Tobin-Volinsky case, also before Ruoff, is scheduled for trial in September.