House Majority Leader Jason Osborne (left) and House Speaker Sherman Packard (right) are among the Republicans who signed the amicus brief. (Ethan DeWitt | New Hampshire Bulletin)
In 2022’s Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court erased nearly 50 years of precedent by finding Roe v. Wade was wrongly decided and overturning it.
This year, a group of Republican lawmakers are hoping the state Supreme Court takes a similar approach to two decisions that have underpinned New Hampshire’s school funding system for decades. And they’re citing Dobbs as a roadmap.
In an amicus brief filed to the Supreme Court this month, 30 House and Senate Republicans, including House Speaker Sherman Packard and House Majority Leader Jason Osborne, argue the New Hampshire Supreme Court wrongly decided the two Claremont cases in the 1990s and that those cases should be overturned.
“Abrogating the errant precedent – rather than reaffirming or extending it – might better preserve the law’s coherence, and curtail the precedent’s disruptive effects,” the lawmakers argue.
The Claremont decisions found that the state is required to provide an adequate education for every student. But the Republican lawmakers argue the rulings are based on an incorrect reading of the state constitution, and that towns and cities are responsible for education costs, not the state.
The brief was filed as the court takes on a pair of challenges to the state’s school funding model. Plaintiffs in those lawsuits say the current system is unfair to less wealthy towns and the state is constitutionally required to pay more to schools.
Last November, Rockingham Superior Court Judge David Ruoff agreed with the plaintiffs, finding that the state is paying too little per pupil for public schools for them to provide a public education, forcing many towns to raise local property taxes to fill the gap. Ruoff ordered the state to pay at least $7,356.01 per pupil, a near doubling from the current $4,100 per student payment; that ruling has been stayed by the high court.
The Supreme Court is expected to hear an appeal of that decision in the coming months.
In filing their amicus brief – a measure that allows them to request a ruling from the court without being a plaintiff or defendant – the Republicans are seeking to overturn a pair of landmark decisions that hang over the present-day lawsuits.
The first Claremont case, Claremont School District v. Governor of New Hampshire, known as Claremont I, established that students have a right in the state constitution to an adequate education, and that the state has a duty to ensure that education. In that opinion, decided in 1993, the Supreme Court did not specify how the state should ensure that education, directing the governor and Legislature to do so.
In a 1997 ruling, known as Claremont II, the Supreme Court built on its earlier decision and found that in order to fulfill its duty to provide an adequate education, the state must develop a school funding system that taxes its residents in an equal manner to do so.
Plaintiffs in the two current lawsuits, Contoocook Valley School District et al. v. State of New Hampshire and Steven Rand et al. v. State of New Hampshire, say the state has failed to meet the obligations imposed by the court in 1997, that taxpayers in different towns do not pay equal rates of taxes for education, and that students do not have equal access to quality public education.
The Republican lawmakers are taking a different approach in their amicus brief from the New Hampshire Attorney General’s Office, which is defending the school funding system.
That office has argued the current system is constitutional and that plaintiffs have not established that the state is providing less than needed for an adequate education. The state has also said the courts are barred from demanding lawmakers spend specific amounts on schools under the separation of powers doctrines.
But the attorney general has not suggested the court overturn the Claremont decisions. Republican lawmakers are making that request separately.
The lawmakers say the state Supreme Court in 1993 and 1997 wrongly interpreted a portion of the state constitution – Part II, Article 83 – as conferring on the state a duty to provide education.
That provision reads in part: “… it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools…” In the Claremont cases, the court interpreted the word “cherish” to create an obligation on the state to ensure that all students receive an adequate education.
The Republican lawmakers, however, say article 83 should be read in conjunction with another portion of the state constitution, Part I, Article 6. That article states that “the several parishes, bodies, corporate, or religious societies shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance or both.”
The lawmakers argue the constitution should be read to require an education for all students, but to give localities control over how to pay for and provide that education.
“The custom, belief and perceived need of late eighteenth century New England was that education should be kept local,” the amicus brief states. “At the same time, the need was felt that no locality should fail to provide public education.
“Article 6 preserved locally provided and locally funded education as a matter of right, but authorized the Legislature to compel every locality to provide it, at their expense.”
That argument clashes with much of the reasoning behind Claremont I, in which the Supreme Court cited laws and political speeches from around the time of the ratification of the New Hampshire Constitution in 1784 that suggested that state leaders considered education to be the responsibility of the state.
In one 1771 speech, for instance, Gov. John Wentworth told the Legislature of what was then the colony of New Hampshire that: “…the promoting of learning very obviously calls for Legislative Care. The Insufficiency of our present Laws for this purpose, must be too evident, seeing nine tenths of your Towns are wholly without Schools, or have such vagrant foreign Masters as are much worse than none…”
For most of the 18th and 19th centuries, New Hampshire schools were paid for by local property taxes that were raised locally and required by the state, and that were proportional to the property valuations in each town.
The lawmakers devote much of their filing to the argument that the New Hampshire Supreme Court does not need to be fully bound by its own precedent, known as stare decisis, drawing direct comparisons to the U.S. Supreme Court’s decision to overturn Roe v. Wade in Dobbs. Unless the court overturns the Claremont decisions, New Hampshire courts will continue to confront the question of how much the state should fund the schools and the lawsuits will never end, the lawmakers say.
The ask is dramatic. Should the court overturn the Claremont cases, the state would no longer be required to fund the adequacy formula, the structure that gives assistance to towns that cannot raise enough for their schools through the statewide education property tax (SWEPT) alone. That would allow lawmakers to significantly reduce or eliminate state spending on education, if desired.
To the 30 Republican lawmakers, restoring those decisions to the Legislature, not the courts, is appropriate.
Public school funding advocates say the request is over the line. Reacting to the amicus brief, Zack Sheehan, executive director of the New Hampshire School Funding Fairness Project, an organization that supports the lawsuits, said lawmakers were seeking to avoid responsibility for not fulfilling the requirements of the Claremont rulings.
“They are trying to blame the court for their own failure to comply with the court’s rulings over the past 30 years,” Sheehan said in a statement.
He added: “The logical extension of this brief is that the state will stop paying adequacy aid altogether if Claremont is overturned, and that would have drastically negative consequences on students and taxpayers in every community in the state.”
Signing the amicus brief are Reps. Packard, of Londonderry; Osborne, of Auburn; Keith Ammon, of New Boston; Harry Bean, of Gilford; José Cambrils, of Loudon; Glenn Cordelli, of Tuftonboro; Keith Erf, of Weare; Juliet Harvey-Bolia, of Tilton; Gregory Hill, of Northfield; William Infantine, of Manchester; Jim Kofalt, of Wilton; Rick Ladd, of Haverhill; Wayne MacDonald, of Londonderry; Kristine Perez, of Londonderry; Katy Peternel, of Wolfeboro; Andrew Renzullo, of Hudson; Alvin See, of Loudon; John Sellers, of Bristol; Vanessa Sheehan, of Milford; Joe Sweeney, of Salem; Chris True, of Sandown; Len Turcotte, of Barrington; Michael Vose, of Epping; Scott Wallace, of Danville; Thomas Walsh, of Hooksett; and Ken Weyler, of Kingston.
Republican Sens. Tim Lang, of Sanbornton, and Howard Pearl, of Loudon, also signed the brief.
The brief was filed by independent attorney Gregory Sorg, of Franconia, a former Republican representative.