State says it will ask Supreme Court to reverse Claremont school funding rulings

For what is believed to be the first time, the state plans to ask the Supreme Court to overrule its foundational 1990s school funding rulings that established a constitutional duty for the state to fund public education.

The state’s solicitor general indicated in a legal filing Tuesday that the request could come as part of its appeal of a superior court judge’s ruling last year. In that case, Rand et al. v. State of New Hampshire, the lower court ruled that the special education and total adequacy payments the state currently provides don’t meet its constitutional duty established in the 1990s cases.

Disagreement about the state’s level of compliance with the rulings in the original cases, known as Claremont I and II, has led to a series of subsequent court battles over the ensuing decades.

While Republican lawmakers have repeatedly criticized the Claremont rulings and the attorney general’s office has defended the state in the court cases that have followed, the state has never before asked for the underlying precedents to be reversed, according to school funding experts.

The request comes at a volatile time for school funding in New Hampshire, which contributes the lowest share of state money for public education in the country, according to a report by the National Education Association, an educators’ union.

Last July, the Supreme Court found that the state’s base adequacy payment was unconstitutionally low and called on the legislature to nearly double it. Republican lawmakers have balked at doing so and have recently introduced bills that would change the definition of an adequate education in an effort to comply with the ruling, but not increase funding.

Republicans have characterized the Court’s ruling, which relies on the Claremont precedents, as judicial overreach and some leaders have openly said they will not comply.

The efforts to undermine — and now overturn — the court rulings are part of a “coordinated and well-thought-out strategy across multiple branches of government,” Zack Sheehan, the executive director of the school funding reform advocacy organization NH School Funding Fairness Project, said in an interview Wednesday.

“We are taking it very seriously because it’s not happening in a vacuum,” Sheehan said.

If the Supreme Court were to reverse the Claremont rulings, it wouldn’t necessarily immediately change state funding for education, but it would eliminate any pressure Republican lawmakers currently feel to comply with court orders and eviscerate any legal precedent school funding reform advocates could rely upon in the future.

“I would imagine that was a very intentional and considerate conversation on their end to say: Let’s actually go after it explicitly — the whole thing,” Sheehan said.

Just because the state elected to include the challenges to the Claremont rulings does not guarantee they will maintain them all the way through the Supreme Court process. The notice of appeal includes 13 separate questions of law the state could ask the Court to rule on, any of which it could ultimately withdraw.

It is notable, though, that the state has not directly asked the Court to overturn the Claremont rulings in its other recent school funding appeals. A spokesperson for the attorney general’s office did not respond to a question about the state’s likelihood of proceeding with the reversal request.

The request to overturn a precedent is known as a stare decisis challenge and must surpass an exceedingly high legal bar.

John Tobin, a lawyer representing the Rand plaintiffs who also served as attorney for the Claremont plaintiffs, said that overturning the earlier cases “shouldn’t be a possibility”.

“This precedent has stood for 30 years, and the real problem is the state hasn’t followed it,” he said in an interview. “It’s not that the Constitution isn’t clear.”

The Claremont rulings rely on Part II, Section 83 of the state Constitution, which lays out a duty for lawmakers to “cherish” public education. Relying on a historical analysis, the justices decided that duty required the state to provide and fund an adequate education. Opponents of that interpretation have argued that the term “cherish” was aspirational rather than binding.

All five of the current justices are Republican gubernatorial appointees. The most recent addition to the court, Daniel Will, served as the state’s solicitor general when the state acknowledged it was not challenging the Claremont rulings in 2020.

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