John Tobin's presentation the members of New Hampshire's Commission to Study School Funding regarding the history of school funding litigation and the current ConVal case.

1. COMMISSION ON SCHOOL FUNDING
ADEQUACY AND FISCAL POLICY WORK GROUPS
JUNE 1, 2020
The Brief of 25 Amici School Districts
in the ConVal Case:
Applying NH Constitutional Principles to
Current Property Tax Rates
and Adequacy Grants
Presenter: Attorney John Tobin (jtobinjr@comcast.net)
Co-counsel: Attorney Natalie Laflamme

2. The 25 Participating Districts
Large: Manchester, Nashua, Derry, Concord, Keene
Five Regional School Districts: Mascoma Valley, Merrimack
Valley, Winnisquam, White Mountains, Governor Wentworth
Former Mill Towns: Berlin, Claremont, Newport, Pittsfield
Mid-Size/Small Rural Districts: Hopkinton, Haverhill, Warren,
Piermont, Bath, Chesterfield, Harrisville, Marlborough, Marlow,
Nelson, Westmoreland
Together, these Districts serve more than
30% of NH’s public school students.
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3. Goals of the Amici Brief
• Educate the NH Supreme Court about how the
current system works and its inherent unfairness
• Show that this problem harms students, taxpayers
and school districts across the state
• Demonstrate that the system’s inequities have
worsened in the past decade
• Convince the Court that the problem is urgent and
that sending the case back to the Superior Court
to address procedural issues will serve no purpose
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4. Themes of This Presentation
I. Constitutional Principles
Guardrails and Opportunities for the Commission
II. The Amici Brief’s Argument
A. Adequacy: The Big Contradiction Between the State’s
Definition and Its Funding Formula
B. Tax (and Spending) Inequity: Widespread and Growing
C. The Supreme Court Should Set a Deadline for the
Legislature to Act.
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5. The Two Provisions of the NH Constitution
at the Core of the NH Supreme Court Decisions
in the Claremont Cases
• The State has a duty to pay for the cost of a constitutionally
adequate education for every K-12 public school student.
Claremont v. Governor (Claremont I, 1993),
citing NH Constitution, Part 2, Article 83
• The taxes that the State uses to pay for this education must
have a uniform rate across the state.
Claremont v. Governor (Claremont II, 1997)
citing NH Constitution, Part 2, Article 5
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6. The State’s Four School Funding Duties
Throughout the past three decades, the Supreme
Court has identified four core obligations that the
Legislature and the State must meet:
• Define an adequate education;
• Determine its cost;
• Fund it with constitutional taxes; and
• Ensure its delivery through accountability.
Londonderry Sch. Dist. v. State,154 N.H. 153, 155-56 (2006)
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7. The Scope of Adequacy:
Expansive and Future-Oriented
“Mere competence in the basics—reading, writing,
and arithmetic—is insufficient in the waning days of
the twentieth century to insure that this State's
public school students are fully integrated into the
world around them. A broad exposure to the social,
economic, scientific, technological, and political
realities of today’s society is essential for our
students to compete, contribute, and flourish in the
twenty-first century.”
Claremont II, 142 N.H at 474.
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8. “Adequacy” is a Dynamic Concept
and It is Intended to Protect and Serve
All of NH’s Students
“A constitutionally adequate public education is not a
static concept removed from the demands of an
evolving world. It is not the needs of the few but the
critical requirements of the many that it must
address.”
Claremont II, 142 N.H at 474
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9. The Resources Needed to Achieve Adequacy
May Differ from District to District
“We emphasize that the fundamental right at issue is
the right to a State funded constitutional adequate
education. It is not the right to horizontal resource
replication from school to school and district to
district.”
Claremont II, 142 N.H. at 473-474
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10. The Connection Between Defining and
Funding an Adequate Education
“Any definition of constitutional adequacy crafted by
the political branches must be sufficiently clear to
permit common understanding and allow for an
objective determination of costs. Whatever the State
identifies as comprising constitutional adequacy it
must pay for. None of that financial obligation can be
shifted to local school districts, regardless of their
relative wealth or need.”
Londonderry School District v. State 154 N.H. at 162 (2006)
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11. Challenging the Current Adequacy Standard
KEY POINTS
• The adequacy formula is completely incongruent with and
contradictory to the Court’s decisions and the State’s own
expansive statutory definition of constitutional adequacy,
including key portions of the State’s “Minimum Standards.”
• Because the State pays for less than one-third of the actual
cost of K-12 public education, it is nonsensical for the State
to assert that it covers the true cost of adequacy. How can
we really provide adequacy with only 1/3 of our current
teachers, buildings, computers, etc.?
• Even if we don’t know exactly how much constitutional
adequacy costs, it must be far more than $3,709 per pupil.
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12. School Tax Rates That Vary Greatly from
Town to Town Are Unconstitutional
“There is nothing fair or just about taxing a home or other
real estate in one town at four times the rate that similar
property is taxed in another town to fulfill the same
purpose of meeting the State’s educational duty.”
“Compelling taxpayers from property-poor districts to pay
higher rate and thereby contribute disproportionate sums
to fund education is unreasonable.”
Claremont v. Governor (1997) (Claremont II)
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13. Regardless of the Educational Role of
Local School Districts, the State Must Fund Schools
with Taxes at Uniform Rates
“While the State may delegate its obligation to
provide a constitutionally adequate public education
to local school districts, it may not do so in a form
underscored by unreasonable and inequitable tax
burdens.”
Claremont II, 142 N.H. at 476
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14. The Legislature Has Great Discretion
about How to Raise Revenue
“Decisions concerning the raising and disposition of
public revenues are particularly a legislative function
and the legislature has wide latitude in choosing the
means by which public education is to be
supported…The legislature has numerous sources of
expertise upon which it can draw in addressing
educational financing and adequacy, including the
experience of other States that have faced and
resolved similar issues.”
Claremont II, 142 N.H. at 476
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15. The Constitutional Standard for Using
Property Taxes for School Funding
“To the extent that the property tax is used in the
future to fund the provision of an adequate education,
the tax must be administered in a manner that is equal
in valuation and uniform in rate throughout the State.”
Claremont II, 142 N.H. at 471
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16. Focusing on Disproportionate and
Inequitable Property Tax Rates
KEY POINTS
• As the result of the insufficiency of state funding, local school
districts must make up the gap between what the State
requires and what it pays for.
• Because property wealth among school districts varies so
greatly, the taxes that districts must impose to make up the
State’s shortfall are levied at highly unequal rates. These
nominally “local” education taxes are in reality state taxes
used to meet the State’s duty.
• The unequal rates violate the NH Constitution and the
Supreme Court’s rulings in the Claremont cases, which
require that taxes assessed to meet the State’s educational
duties must be assessed at uniform rates.
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17. Local Property
Tax, 62.1%
Statewide
Property Tax
(SWEPT), 11.2%
State Cash
Adequacy Aid,
17.0%
Other State Aid,
2.9%
Federal Aid,
5.1%
Tuition, Food &
Other, 1.6%
2018/19 Revenue of NH School Districts: 3.29 Billion
Not including
sale of bonds
and notes
2018-19 Revenue of NH School Districts
$3.29 billion
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18. Change in School District Revenue, 2008 - 2018
$570,434,605
$34,362,668 $32,679,121
$354,681
$(20,225,961)
$(100,000,000)
$-
$100,000,000
$200,000,000
$300,000,000
$400,000,000
$500,000,000
$600,000,000
$700,000,000
Local
Taxation
State
"Adequacy"
Aid
Federal
Sources
Tuition,
Food, &
Other Local
Revenue
Other State
Sources
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19. $0
$1,000,000
$2,000,000
$3,000,000
$4,000,000
$5,000,000
$6,000,000
$7,000,000
$8,000,000
Equalized Property Value per Pupil 2018/19
Red line is state average
$1,118,065
Equalized Property Value Per Pupil, 2018-19
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20. Change in Equalized Property Value, 2007 - 2017
-30%
-20%
-10%
0%
10%
20%
30%
40%
50%
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21. Town
Local
Education
Tax Rate
Equalized
SWEPT
Rate
Total
Education
Tax Rate
Spending
Per Pupil
Portsmouth $4.50 $1.98 $6.48 $18,685
Moultonborough $1.83 $1.96 $3.79 $25,687
Derry $14.13 $1.87 $16.00 $15,336
Hopkinton $18.76 $1.97 $20.73 $17,175
Berlin $15.71 $1.71 $17.42 $16,779
Tax Rates and Spending Per Pupil, 2018-2019
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22. Hanover and Some of Its Neighbors
District
Equalized
Value per
Pupil
Education
Tax Rate
Education
Tax for
$250,000
Home
Elementary
School
Spending
Per Pupil
Spending
Gap Per
20
Students
Hanover $2,112,981 $11.11 $2,776 $22,484
Canaan $804,665 $21.95 $5,488 $19,933 -$51,020
Charlestown $457,067 $24.13 $6,032 $18,426 -$81,160
Claremont $422,632 $24.08 $6,020 $16,917 -$111,340
Keene $740,885 $17.87 $4,468 $17,654 -$96,600
Lebanon $1,726,217 $13.89 $3,472 $25,575 +$61,820
Lyme $1,292,344 $17.06 $4,265 $23,185 +$14,020
Marlow $905,841 $13.86 $3,465 $19,999 -$49,700
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23. School Tax Rate Variations within
Timberlane Regional School District
(based on 2017-2018 Equalized Tax Rates)
Equalized
Value Per
Pupil
Equalized
Education Tax
Rate
Tax on
$200,000
Home
Atkinson $1,350,548 $13.70 $2,740
Danville $696,084 $20.46 $4,092
Plaistow $1,101,747 $15.01 $3,002
Sandown $692,687 $18.76 $3,752
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24. 77% of Children Attend School in Communities
with Below Average Equalized Property Values
$0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
$3,000,000
$3,500,000
$4,000,000
$4,500,000
$5,000,000
$5,500,000
$6,000,000
One dot for each of 227 towns, sorted from low to high
(10 towns above $6 million are off the top of the chart)
2018 Equalized Property Value per Pupil (ADM/R) for 237 Towns
77% of students
attend school in 133
towns with below
average tax base.
23% of students
attend school in 104
towns with above
average tax base.
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25. The Court, Commission, and Legislature
• The Legislature is the audience and then the decision-maker
• The Court provides binding direction on Constitutional
parameters (by January 1, 2021?)
• The Commission provides policy choices, based on research,
expertise, and public input (by January 1, 2021)
• July 1, 2021 is a reasonable deadline for legislative action
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26. QUESTIONS?
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