2006-258, LONDONDERRY SCHOOL DISTRICT SAU #12 v. STATE OF NEW HAMPSHIRE

on the brief, for the Claremont Petitioners, as amici curiae. on the brief), and John E. Tobin, Jr., of Concord, and Scott Johnson, of Concord, Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Andru H. Volinsky

Senate, as amici curiae. Hampshire House of Representatives and the President of the New Hampshire Mr. Murphy on the brief, and Mr. Murphy orally), for the Speaker of the New Patrick E. Donovan and Kenneth D. Murphy, of Concord (Mr. Donovan and

Ms. Edwards orally), for the State. general, and N. William Delker, senior assistant attorney general, on the brief, and Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney

by E-mail at the following address: Mr. Chapman orally), for the plaintiffs. Orr & Reno, P.A., of Concord (William L. Chapman & a. on the brief, and

LONDONDERRY SCHOOL DISTRICT SAU #12 & a. corrections may be made before the opinion goes to press. Errors may be reported

Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that No. 2006-258 requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Hillsborough–southern judicial district

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct

as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well decided.” Accordingly, the plaintiffs’ action was dismissed without prejudice.

p. 2 development is necessary in the superior court before those questions are

of its remaining findings. constitutional law are presented by this case, we believe further factual

has failed to define a constitutionally adequate education and stay consideration original jurisdiction, we concluded that “while substantial questions of After considering the parties’ briefs regarding whether we should exercise our court in 2005 seeking a determination that House Bill 616 is unconstitutional.

Groff New Hampshire Constitution. We affirm the trial court’s finding that the State

funding law) creates a non-uniform tax rate in violation of Part II, Article 5 of the requirement of accountability, and that House Bill 616 (the current education school administrative units and towns, filed a petition for declaratory relief in this

education as required by Part II, Article 83 of the New Hampshire Constitution.

failed to determine the cost of an adequate education, and failed to satisfy the Adequate Funding of Education, a non-profit organization consisting of nineteen #12, Merrimack School District SAU #26 and New Hampshire Communities for The plaintiffs, Londonderry School District School Administrative Unit (SAU)

State has failed to fulfill its duty to define a constitutionally adequate education, The State appeals a decision of the Superior Court (, J.) finding that the

needs of the children of New Hampshire and the State’s obligation to ensure and HICKS, J. Once again, we are called upon to address the basic educational

Granite State Taxpayers, as amicus curiae. Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief), for

Eugene M. Van Loan III, of Manchester, by brief, pro se, as amicus curiae.

Hampshire, as amicus curiae. James F. Allmendinger, of Concord, staff attorney, on the brief, for NEA-New

Hampshire School Boards Association, as amicus curiae. and Barrett M. Christina, of Concord, staff attorney, on the brief, for New Theodore E. Comstock, of Concord, executive director and general counsel, guidelines.”

p. 3 for summary judgment. court found House Bill 616 unconstitutional on its face and granted the motion

would] promptly develop and adopt specific criteria implementing these

government.” enhanced education tax, resulting in a violation of equal protection. The trial guidelines, the Legislature is obligated to give

public education” and “anticipate[d] that [the other branches of government

word and to the program it deems necessary to provide that ‘education’ within the education, the knowledge and learning essential to the preservation of a free specific substantive content to the communities that retain all the revenue they raise through the statewide construe and interpret the word ‘education’ by providing broad constitutional with respect to the funding of education; and (4) creates a class of former donor Id. at 475. As we explained, “[w]hile the judiciary has the duty to unreasonable and disproportionate tax burden on property-poor municipalities

expressly viewed these guidelines as “benchmarks of a constitutionally adequate educational adequacy.” Claremont II, 142 N.H. at 474 (emphasis added). We Court of Kentucky as establishing general, aspirational guidelines for defining In Claremont II, we looked to “the seven criteria articulated by the Supreme

Id. at 193.

defining the specifics of, and the appropriate means to provide through public legislature and the Governor would “fulfill their responsibility with respect to legislature and the Governor.” Id. at 192. We expressed our confidence that the local taxes; (3) all but eliminates so-called “donor communities” and imposes an mandated by the constitution as that task is, in the first instance, for the (Claremont I), we stated that “[w]e do not define the parameters of the education education. In Claremont School District v. Governor, 138 N.H. 183 (1993) deferred to the legislature’s prerogative to define a constitutionally adequate Since the inception of the education cases in 1993, we have consistently

the first mandate: defining a constitutionally adequate education. comprise the State’s duty to provide an adequate education. We focus here upon ensure its delivery through accountability,” and that these four mandates adequate education, determine the cost, fund it with constitutional taxes, and v. Governor, 142 N.H. 462 (1997) (Claremont II) issued “four mandates: define an 505 (2002), we acknowledged the State’s assertion that Claremont School District number of municipalities to fund a constitutionally adequate education through In Claremont School District v. Governor (Accountability), 147 N.H. 499, of, and ensure delivery of a constitutionally adequate education; (2) requires a House Bill 616 on grounds that the statute: (1) fails to define, determine the cost II

summary judgment in the superior court challenging the constitutionality of The plaintiffs then filed a petition for declaratory relief and a motion for responsible citizens.

democratic process and to make informed choices as

them.

Equitable Education,” provides: and make rational decisions.

critically. geography, and history to enable them to participate in the IV. Knowledge of civics and government, economics,

enable them to understand and appreciate the world around III. Knowledge of the biological, physical, and earth sciences to

education in RSA 193-E:2 (Supp. 2005). That statute, titled “Criteria for an science to enable them to analyze information, solve problems, II. Skill in mathematics and familiarity with methods of

them to communicate effectively and think creatively and I. Skill in reading, writing, and speaking English to enable adequate education must be defined, in the first instance, by the legislature.” opportunity to acquire:

An equitable education shall provide all students with the

adequate education. Today, the State argues that it has defined a constitutionally adequate master for purposes of fact-finding to determine the definition of a constitutionally

at p. 4 478.

adequacy had yet to be defined and that “[t]he content of a constitutionally School Financing System), 1 p. 4 45 N.H. 474 (2000), we noted that constitutional plan for constitutional adequacy). In Opinion of the Justices (Reformed Public (on remand, trial court appointed special master to oversee development of master

1 p. 4 44 N.H. 210 (1999), we denied as premature the plaintiffs’ request to assign a Id. In Claremont School District v. Governor (Statewide Property Tax Phase-In), invitation to determine whether the definition adopted is facially unconstitutional.” education.” Id. at 160 (quotation omitted). We, therefore, “declined the . . . yet to achieve “a system to ensure delivery of a constitutionally adequate Deadlines), 143 N.H. 154 (1998), the State acknowledged that the legislature had In Claremont School District v. Governor (Motion for Extension of

duties imposed by Part II, Article 83. broad guidelines,” id. (quotation omitted; emphasis added), all consistent with the facilities and proposes changes in the educational financing system.”

p. 5 of a “thorough and efficient” education. common schools throughout the state.” had complied with its constitutional mandate to “provide an efficient system of

directed the legislature to “re-create . . . and re-establish a system of common

system for financing public schools violated that state’s constitutional guarantee students brought an action challenging whether the Kentucky General Assembly

educational role of the various state and local agencies, sets forth specific extensive compilation of detailed concepts and standards that defines the involved “significant and far-reaching public issues,” to oversee the development of an educational master plan that contained “an declared the system of common schools to be constitutionally deficient and 790 S.W.2d 186, 189-90 (Ky. 1989) (quotation omitted). The state supreme court the elements of a thorough and efficient system of education.” Rose v. Council for Better Educ., Inc.,

example, an action was brought by parents of school children contending that the Similarly, in Kentucky, a group of school districts and public school education system.”

remanded the case “for further evidentiary development,” because the case 324 S.E.2d at 132 (quotation omitted). The trial court appointed a special master participate effectively in a changing society.

promulgated by the board of education were “far too general and minimal to define formulating high quality standards for education” because the standards and statutes in those states, however, reveals otherwise. In West Virginia, for had failed “to perform its constitutional and statutory duties with respect to West Virginia, Kentucky, Montana and Washington. An examination of the cases Id. at 861. On remand the trial court found that the State definitions upheld by the judiciaries of other states around the nation,” citing legislature has the constitutional duty “to develop a high quality Statewide of a “[t]horough and [e]fficient” educational system, ultimately holding that the proposed certain guidelines to the trial court, including identifying the parameters

Va. 1979) (quotation omitted). Although the state supreme court of appeals technological skills, to enable them to learn, work, and Pauley v. Kelly, 255 S.E.2d 859, 861 (W.

The State argues that this definition of adequacy “accords with the

VII. Skills for lifelong learning, including interpersonal and

them to enhance their own well-being, as well as that of others. VI. Sound wellness and environmental practices to enable

interest and involvement in these areas. them to appreciate our cultural heritage and develop lifelong V. Grounding in the arts, languages, and literature to enable p. 6 Wash. Rev. Code § 28A.150.220(4).

“adopt rules to implement and ensure compliance with the program requirements,” of the school district’s children,” Wash. Rev. Code § 28A.150.220(1)(a), (b), and to activities as the school district shall determine to be appropriate for the education

frameworks), § 1I (performance reports, evaluation system and assessments); (statewide educational goals and academic standards), § 1E (curriculum “educationally relevant” factors the legislature must consider. Mont. Code Ann.

enforceable, affirmative duty.

essential academic learning requirements . . . and such other subjects and such

as contributors to its economy”), § 1B (duties of the board of education), § 1D system of free quality public elementary and secondary schools is built,” and the content to a basic education and a basic program of education. statutory scheme also identifies “the minimum standards upon which a basic elementary and secondary schools. Mont. Code. Ann. § 20-1-102 (2005). The

the education of all children residing within its borders,” as creating a judicially performance and accountability measures for every public school student, teacher, (Massachusetts Education Reform Act of 1993 established uniform, objective Hancock v. Commissioner of Educ., 822 N.E.2d 1134, 1137-38 (Mass. 2005) state board of education is required to establish a program that includes “the

lead lives as participants in the political and social life of the commonwealth and quality to extend to all children the opportunity to reach their full potential and to pursuant to that duty, the legislature has the responsibility to define and give (West 1996) (intent of statute is to provide “public education system of sufficient definitions. In Montana, the legislature established five “goals” for public See also Mass. Gen. Laws Ann. ch. 69, § 1

provision that “[i]t is the paramount duty of the state to make ample provision for

and skills in four broad categories. Wash. Rev. Code § 28A.150.210 (2004). The district “to provide opportunities for all students to develop” essential knowledge “Basic Education Act,” codified in the Washington statutes, requires each school

P.2d 71, 83, 85 (Wa. 1978) (quotation and emphasis omitted). The court held that the substantive content of the educational program implementing the general Seattle Sch. Dist. No. 1 of King City v. State, 585 general definitions of an adequate education, in each state the legislation defines

In Washington, the state supreme court interpreted the constitutional

§§ 20-9-309(2)(a), (3); system of public education” in that state. see Mont. Code Ann. § 20-9-309(4)(b)(i) (2005).

In Montana and Washington, although the applicable statutes contain

234 (Ky. 1992).

enacted the Kentucky Education Reform Act of 1990, “which radically changed the adequate education.” Id. at 214 n.22. The Kentucky legislature subsequently seven characteristics “should be considered as minimum goals in providing an through an efficient system of education. Id. at 212. The court indicated that the identifying seven “capacities” with which each and every child was to be provided 214. In doing so, the court set out standards for a new system, including schools within this state which will be in compliance with the Constitution.” Id. at afforded. Determining the substantive educational program that delivers a

p. 7 a special master would have to determine the adequacy of the “opportunity” to be

“opportunity to acquire” such skills and knowledge. Without more, a trial judge or entitled. Moreover, RSA 193-E:2 mandates that students be provided the “knowledge,” “grounding” and “sound wellness” to which an educable child is

core issue before us. If the statutory scheme that is in place provides for provided, a trial judge would likely have to determine the levels of “skill,”

we will accept these assertions. These assertions themselves, however, expose the Similarly, to assess whether a constitutionally adequate education is being environmental practices,” and “[s]kills for lifelong learning.” RSA 193-E:2. “[g]rounding in the arts, languages, and literature,” “[s]ound wellness and

surpass the constitutional minimum of adequacy.” For purposes of this appeal, approval standards go well beyond the constitutional floor of adequacy” and “far adequacy as defined by the legislature in RSA 193-E:2”; and that the “school 7 “[k]nowledge of civics and government, economics, geography, and history,”

statewide performance targets. . . . far exceed the constitutional standard of meaningful judicial review. methods of science,” “[k]nowledge of the biological, physical, and earth sciences,” Consequently, its cost cannot be isolated. Such a system is also impervious to writing and speaking English,” “[s]kill in mathematics and familiarity with the public schools in order to provide the opportunity to acquire “[s]kill in reading,

the constitutional requirements of accountability”; that “the annual testing and comprehensive system for holding its schools accountable, the State has exceeded the distinct substantive content of a constitutionally adequate education. with the federal No Child Left Behind Act of 2001 and “establishing a master appointed by this court, will be required to decide what is to be taught in creates the potential for a situation in which a superior court judge, or a special legislature. Claremont II, 142 N.H. at 475. By failing to do so, the legislature The task of developing specific criteria of an adequate education is for the

scheme there is no way a citizen or a school district in this State can determine with a specificity that far exceeds constitutional requirements”; that by complying scheme comprise constitutional adequacy. More specifically, under the statutory than constitutional adequacy, then the State has yet to isolate what parts of the

duties. through which educational content is identified in fulfillment of constitutional definition of an adequate education, each state also establishes a mechanism

argues that “statutes and regulations . . . implement [the definition of adequacy] Hampshire goes well beyond constitutional adequacy. In its brief, the State In the case before us, the State asserts that the system of education in New

noted above provides, as part of a comprehensive statutory scheme, a general administrator, school and district in the state). Therefore, although each state and end. p. 8 State’s obligations to fund the cost of a constitutionally adequate education begin on their compliance with the standards. [

content of each subject taught. 8 meaningless without standards that are enforceable and reviewable.

mention the legislative and executive branches themselves, to know where the Board has responded by enacting comprehensive and detailed standards are monitored by DOE, which grades individual schools New Hampshire. RSA 194:23; RSA 186:8; RSA 21-N:9. The State

be organized and staffed as well as the particular educational educational program are. The right to a constitutionally adequate education is manner that the citizens of this state can know what the parameters of that define the substantive content of a constitutionally adequate education in such a (Emphasis added.)

306.40(b)(1)-(4).

306.37 (detailing requirements for English program). These the duty to prescribe uniform standards for all public schools in 306.17 (setting forth maximum class sizes); [N.H. Admin. Rules] Ed

a school’s operation. The standards prescribe how schools must are very detailed and demanding; they govern nearly every facet of board.” RSA 186:5; RSA 186:8. The school approval standards to be defined. Standing alone, RSA 193-E:2 does not fulfill the State’s duty to statute to “comply with the rules and regulations of the state Rules] Ed 306.01 et seq. Local school boards are required by minimum standards for public school approval. See [N.H. Admin.

application). Furthermore, without a substantive definition of constitutional

[t]he Legislature has delegated to the State Board the authority and

definition of adequacy in RSA 193-E:2, The State further argues that, aside from the constitutionally sufficient

this court and the State have acknowledged that constitutional adequacy has yet

made clear that the legislature was expected to develop and adopt

constitutionally adequate education must have standards subject to meaningful Claremont School Dist. v. Governor (Accountability), 147 N.H. at 508 (definition of

for implementing the guidelines. In the years since RSA 193-E:2 was adopted,

“general” and “aspirational” guidelines for defining educational adequacy and Claremont II, 142 N.H. at 474-75. We characterized those criteria as establishing RSA 193-E:2 largely mirrors the seven criteria that we cited with approval in

suited for the legislative or executive branches, not the judicial branch. constitutionally adequate education is a task replete with policy decisions, best definition of a constitutionally adequate education,

p. 9 Galway; (2) appointing a special master to aid in the determination of the

established in House Bill 616 as set forth in the concurring opinion of Justice Such appropriate remedies may include: (1) invalidating the funding mechanism enforce the mandates of Part II, Article 83 of the New Hampshire Constitution.

2007. Should they fail to do so, we will then be required to take further action to

components of a constitutionally adequate education before the end of fiscal year the expectation that the political branches will define with specificity the uniform tax rate. As to the core definitional issues, we will retain jurisdiction with

requirements established in this court’s and “definitional” statutory framework falls well short of the constitutional constitutional muster. Viewed together, however, the current education funding

alone need not necessarily contain such a definition for the bill itself to pass

containing the trial court’s findings that the legislature has failed to determine the demarcation cannot currently be determined. the method by which to raise the necessary funds, we stay that portion of the case education beyond that of a constitutionally adequate education, the point of see Below v. Secretary of State, to all other issues, including the cost of a constitutionally adequate education and regulations, curriculum frameworks and other statutes provide some level of

shifted to local school districts, regardless of their relative wealth or need. implementing the

constitutional adequacy in accord with this opinion, House Bill 616 standing 616 simply modifies the adequacy aid formula. Although the State must define because it does not contain a definition of constitutional adequacy. House Bill

Because the definition of a constitutionally adequate education is essential statutory scheme. Alternatively, if, as the State asserts, the education rules and

The trial court found House Bill 616 facially unconstitutional in part

objective determination of costs. Whatever the State identifies as comprising statutory definition establishes a constitutionally adequate education, there would must be sufficiently clear to permit common understanding and allow for an note, however, that if the current system of delivery in combination with the Any definition of constitutional adequacy crafted by the political branches constitutionally adequate education, we defer to the legislature’s judgment. We

whether $837 million, the amount currently allotted for public education under

entire statutory scheme. Indeed, if that is the case, we question

rules and regulations, curriculum frameworks and other statutes define a If it is the State’s position that RSA 193-E:2 together with the education adequate education, there exist concrete methodologies for determining the cost. p. 10 determination of its cost, and, unlike the task of defining a constitutionally

provisions suggests that there may be some validity to the plaintiffs’ argument adequate education. A specific definition of adequacy is meaningless without a

other branches, a judicial remedy is not only appropriate but essential. that constitutional rights not be hollowed out and, in the absence of action by continue to refrain today. However, the judiciary has a responsibility to ensure

A brief examination of the history of House Bill 616 and some of its current provides municipalities with sufficient funding to pay for a constitutionally

for a trial on that and the other related issues in this case. through a trial. Accordingly, I would remand this case to the superior court now and dissented in part. education, however, is a factually-driven question appropriate for resolution The sufficiency of funding in light of the cost of a constitutionally adequate and fiscal policy. For almost thirteen years we have refrained from doing so and

with sufficient specificity, I believe we should focus on whether House Bill 616 than focus on whether the State has defined a constitutionally adequate education DUGGAN, J., concurring specially in part and dissenting in part. Rather whether the State is providing sufficient funding to pay for a constitutionally

specially in part and dissented in part; GALWAY, J., concurred specially in part this court or any court not take over the legislature’s role in shaping educational BRODERICK, C.J., and DALIANIS, J., concurred; DUGGAN, J., concurred Deference, however, has its limits. We agree with Justice Galway’s concern that constitutionally adequate public education, we have properly demurred. Affirmed in part; and stayed in part.

We urge the legislature to act.

Below, 151 N.H. 135 (2004).

remedy outlined in the concurring opinion of Justice Duggan and remanding the Legislature failed to [do so] following the 2000 census”); or (3) implementing the

this court has been requested to define the substantive content of a Respectful of the roles of the legislative and executive branches, each time

new district plan for the New Hampshire Senate . . . because the New Hampshire 148 N.H. 1, 2-3 (2002) (“the supreme court has been called upon to establish a and other statutory provisions, p. 11 education. Second, the substitution of “equitable” for “adequate” in RSA 193-E:2

providing each community with the funds necessary to provide an adequate

fact-driven and requires further factual development. to fund a constitutionally adequate education. That argument, however, is heavily from the statutory scheme whether the distribution of education aid is linked to the plaintiffs’ argument that the funding provided in House Bill 616 is insufficient

important context for the issues now before us. 2001, the statewide cost of an adequate education to be over $909 million for fiscal year

distribute State educational aid based upon property value, calculating the cost of an adequate education, replacing it with provisions that attorney general was concerned: (1) House Bill 616 repeals the statutory provision plaintiffs’ claim that it does not pass constitutional muster. First, it is unclear only $837 million for fiscal year 2006, then there may be considerable strength to N.H. 474, 476 (2000), and if, as the plaintiffs allege, the legislature appropriated see Opinion of the Justices (Reformed Public School Financing System), 145 legislation certainly does not render House Bill 616 unconstitutional, it provides education. Third, given that the office of the legislative budget assistant projected whether House Bill 616 is actually designed to fund a constitutionally adequate

identical to that earlier legislation, it includes two of the features about which the Furthermore, various provisions of House Bill 616 appear to support the

Although criticism from legislators and the attorney general regarding previous e.g., Laws 2005, 257:15. See also Letter from Attorney General Peter Heed, supra. children of this state.”:22, II; and (2) the word “adequate” has been stricken throughout the statute, see, for an adequate education based on the numbers[,] not based on the needs of the see Laws 2005, 257:6,

adequate education costs.” legislature was “only going to spend so much money, regardless of what [an] (April 27, 2004) (reprint on file with court). Although House Bill 616 is not General Peter Heed to Governor Benson, President Eaton, and Speaker Chandler debated during the 2003 and 2004 legislative sessions. regarding the constitutionality of that legislation. See Letter from Attorney the house in 2004, the attorney general raised significant and specific concerns In a letter written to the Governor, the senate president and the speaker of

to spend on an adequate education” and then “backed into figuring out how to pay that the legislature “arbitrarily set $428 million as the amount . . . [it was] willing

(June 9, 2005). During those debates, one senator acknowledged that the

House Bill 616 was based in large part on funding legislation that was

education. that the State has sidestepped its constitutional obligation to provide an adequate starting point.

p. 12 raised in this case. Rather, I believe that RSA 193-E:2 provides a sufficient regarding the definition is a prerequisite for consideration of the other issues compelled by the Constitution. I do not think that further legislative action

statutory specificity as to the definition of a constitutionally adequate education is

should define that “substantive content.” It is thus unclear to me what level of specificity and neither provides meaningful guidance to the legislature as to how it general definition[]” of adequacy, each statutory scheme offers a different level of

through accountability,

“define[] the substantive content of [an] educational program implementing [a]

adequate education. While the obligation to articulate this definition remains, merely because it does not explicitly define the components of a constitutionally

defined with specificity, I think it is important to identify the real issue presented adequacy” that we articulated in Regardless of whether the components of an adequate education have been

that education with constitutional taxes, and ensure provision of that education III

these two statutory schemes, among others, as demonstrating how a State might this reason alone. Claremont II does not require us to declare funding legislation unconstitutional for

made under any of the with Justice Galway’s conclusion that House Bill 616 is rendered unconstitutional mandates will automatically be unconstitutional. I therefore respectfully disagree piece of education funding legislation failing to satisfy any one of the Claremont II 147 N.H. 499, 505 (2002), it does not create a scheme under which any single merely reflects the seven “general, aspirational guidelines for defining educational see Claremont School Dist. v. Governor (Accountability),

constitutionally adequate education, determine the cost of that education, fund Moreover, although Claremont II requires the State to define a which we should instruct the legislature to aspire. Although the majority cites

education would certainly be more conducive to judicial review in any challenge

in RSA 193-E:2 (Supp. 2005). I acknowledge that the definition contained therein

of a constitutionally adequate education. schemes of Montana and Washington, for example, are illustrative of any ideal to

statutory articulation of the specific components of a constitutionally adequate 462, 474 (1997) (hereinafter Claremont II). Although I agree that a further

The State argues that it has defined a constitutionally adequate education

juncture only on what it views as the legislature’s failure to define the components unconstitutional on a variety of grounds. The majority chooses to focus at this As explained by the majority, the plaintiffs argue that House Bill 616 is

p. 13 the judiciary. one far better suited for elected decision-makers rather than a single member of in order to ensure that it is being funded by the State. “It is our duty to uphold adequate education. Making this determination would be an arduous process –

factual development regarding whether the funding provided in House Bill 616 is

trial court to consider that cost. 13 absence of any further action on the part of the legislature, it would be up to the other statute purports to calculate the cost of an adequate education, in the

away from the need to determine the cost of a constitutionally adequate education provided by the State in House Bill 616 is sufficient to fund a constitutionally

adequate education. Thus, I would remand this case to the trial court for further municipalities that are not receiving sufficient funding from the State to pay for an appeal. Further factual development is necessary to determine whether there are

constitutionally adequate education. Because neither House Bill 616 nor any

State to determine the actual cost of providing that education). We should not shy hands of educational experts to inform the trial court as to whether the funding the constitutionally-required level of education in New York City and ordering the (affirming trial court’s determination that state funding system failed to provide the State has, in House Bill 616, fulfilled its constitutional obligation to Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326, 349 (N.Y. 2003) order to make policy but in order to assure the protection of constitutional rights.” rights and review challenged acts of our co-equal branches of government – not in However, courts are “well suited to interpret and safeguard constitutional the provisions of House Bill 616 and the limited factual record before us on

insufficient funding, the trial court would have to consider the cost of a constitutionally adequate education.

a constitutionally adequate education must provide, it would likely fall into the an easy task. With RSA 193-E:2 already established as the starting point for what Determining the cost of a constitutionally adequate education may not be State previously provided. The core of this appeal is the basic question of whether

fund a constitutionally adequate education cannot be done solely by examining

On remand, in order to determine whether any municipalities are receiving on the question of whether the State has satisfied its obligation to define a

past. They seek to invalidate House Bill 616 so as to restore the funding that the receiving less education funding from the State than they have received in the complaint is that, by virtue of House Bill 616, the plaintiff school districts are

Determining whether the State has fulfilled its constitutional obligation to

adequate education. Accordingly, I disagree with the majority’s decision to focus

constitutionally adequate education. Rather, the plaintiffs’ fundamental in this case. The central issue is not whether the State has defined a of those components will cost.

p. 14 insufficient.

components are for providing such an education and, in turn, what the provision

which would suggest that funding of only the foundation budget amount is

education required by the Massachusetts Constitution.”

minimally-required skills or levels of achievement, what the necessary

whether they are spending, on average, above their legislatively-defined budgets, spending of those schools with their legislatively-defined budgets to determine standards, but rather than determine a base per pupil cost, it compares the net

represents the cost of adequacy. their core educational programs, distills a base per pupil spending figure that Massachusetts was failing to provide its students “with the level and quality of Id. at *120-21. Finally, the “value added” analysis standards and, by examining the amount that those school districts spend on

adequacy. educational experts who determine, based upon the state constitution’s

Id. at *122-24. The “professional judgment” model utilizes panels of

the cost of an adequate education.

of state funding for education. districts that perform at a predetermined level according to state performance

Judicial Court of Massachusetts on the issue of whether the Commonwealth of districts that perform at a predetermined level according to state performance

Id. at *118-29. The “successful schools” model identifies school

The report describes four basic analytical models for determining the cost of

number of expert witnesses who testified to the various methods for determining

877984, at *1. One of the many issues addressed in the report was the adequacy

methods exists in opinions from courts in other jurisdictions, the purpose of finding facts and making recommendations to the Supreme In Hancock I, a Massachusetts Superior Court judge conducted a trial for

Distribution Commission, SB 462 (Dec. 17, 1998) (attachment B). 1998), in Final Report of the Adequate Education Costs and Municipal Grant Adjustments for Use in a School Financing System in New Hampshire (Nov. 30, et al., Alternative Approaches for Determining a Base Figure and Pupil-Weighted legislatively-authorized study that is specific to New Hampshire, see J. Augenblick Commissioner of Educ., 822 N.E.2d 1134, 1136-37 (Mass. 2005), and also in one 2004) (hereinafter Hancock I), report and recommendation rejected by Hancock v. Driscoll, No. 02-2978, 2004 WL 877984, at *118-29 (Mass. Super. Ct. Apr. 26,

and other witnesses’ testimony, general guidance regarding computational Although the facts necessary to make a determination would come from experts first ever to consider how to determine the cost of an adequate education. If we were to remand this case, as I suggest, the trial court would not be the

obligation to provide an adequate education to the children of this State. ignore the possibility that the State may not be meeting its constitutional We must act to ensure that constitutional rights are protected, and we cannot and implement the New Hampshire Constitution.” Claremont II, 142 N.H. at 475. the grades tested on the day testing began, achieved a scaled score

districts where 40 to 60 percent of the elementary pupils enrolled in

follows:

elementary school level to attain the base expenditure per pupil. divided by the average daily membership in attendance at the elementary school . . . . For each school district, this amount shall be

Grant.” (1) The department of education shall identify those school

(b) The adequate education grant amount shall be calculated as

expenditure per pupil for each school district that operates an (a) The department of education shall calculate the base formula: I. [T]he cost per pupil shall be established using the following

See Laws 1999, 17:41. The statute provided, in pertinent part:

“Determination of Per Pupil Adequate Education Cost and Adequate Education study report. In 1999, the legislature enacted RSA 198:40 (1999), entitled The legislature appears to have adopted the final formula proposed in the an adequate education in New Hampshire. J. Augenblick performance on standardized tests at forty to sixty percent. Id. at 10. formula identified “successful schools” based solely upon one output factor – performance on standardized tests). Id. at 7-10 & tables 1-A, 1-B. The fourth and his colleagues. starting teacher salaries) and output measures (e.g., drop-out rate and was apparently derived from the 1998 study report prepared by John Augenblick by considering a variety of input measures (e.g., student-teacher ratios and schools.” See id. at 1-2. Three of the formulas identified the “successful schools” id. at 1. Each of the four formulas differed in its method of identifying “successful formulas were based upon the “successful schools” method described above. See Use in a School Financing System in New Hampshire, supra at 7-10. All four Approaches for Determining a Base Figure and Pupil-Weighted Adjustments for performing above their expected levels. et al., Alternative performance to determine whether increased spending results in students The study report proposed four possible formulas for calculating the cost of performance, based upon its demographic make-up, to its actual student Municipal Grant Distribution Commission, supra at 4-5.

198:40 (1999) (amended 2003, 2004; repealed 2005). That statutory formulation determine the cost of an adequate education in New Hampshire. See, e.g., RSA methodologies – the “successful schools” model – in arriving at a formula to Our own legislature, in previous legislation, utilized one of the above

subgroups of students and then compares each district’s expected student identifies the average statewide standardized test scores for certain demographic seven factors articulated in

p. 16 calculation of the cost of an adequate education is far from impossible.

to every child in the State. Rather, I would expect the trial court to begin with the

pay the cost of that education. constitution), I note its prior existence in order to illustrate that a legislative

education, or to determine with any precision the cost of providing that education would not expect the trial court to craft its own definition of an adequate sufficient funding to pay for a constitutionally adequate education. I note that I districts and the result shall be multiplied by .9025. 16

whether the funding provided under the current statutory scheme is sufficient to may not have reflected the students’ level of competence as required by the

further factual development and a determination of whether the State is providing attendance at the elementary school level in all of the selected school

adding 70 percent of total statewide transportation costs. weighted average daily membership in residence of pupils and then guidelines for the provision of an adequate education, and from there consider base per pupil cost of an adequate education by the statewide the test scores relied upon to identify “successful schools” under that formulation Claremont II, and codified in RSA 193-E:2, as

In light of the foregoing, I would remand this case to the trial court for shall then be divided by the total average daily membership in districts, and add the results across all districts selected. This sum daily membership in attendance at each of the selected school

education for all pupils shall be calculated by multiplying the average n.148 (criticizing a similar formulation as yielding illogical results, and noting that the cost of an adequate education, for a municipality as taking into consideration various factors.] cf. Hancock I, 2004 WL 877984, at *119-20 & While I do not necessarily endorse this particular formula for determining

adequate education in its entirety. See Laws 2005, 257:22, II. RSA 198:40 (1999). House Bill 616 repealed this p. 16 calculation of the cost of an

district identified in subparagraph I(b)(2) of this section by the average

III. For each fiscal year, the statewide cost of an adequate . . . . II. [Defining the “weighted average daily membership in residence”

level by multiplying the base expenditure per pupil of each school base cost per pupil of an adequate education at the elementary school (3) The department of education shall calculate the average

those school districts that have the lowest base expenditure per pupil I(b)(1) of this section, the department of education shall then identify (2) From the school districts identified in subparagraph equivalent to performance at the basic level or above. [on the statewide standardized educational test], in all areas tested, receive the state funding they anticipated. p. 17 should stay this ruling until the end of fiscal year 2007 so that school districts will

Bill 616 unconstitutional on its face. Consistent with the plaintiffs’ request, we

adequate education.

remand to the superior court, I believe that the court should today declare House should be unwilling to assume that risk. Rather than retain jurisdiction and later the legislature’s role in shaping educational and fiscal policy. The judiciary

determining that cost could also satisfy the need to define a constitutionally of a constitutionally adequate education using an acceptable method for Hampshire’s children. Indeed, in my view, a legislative determination of the cost

constitutionally adequate education. I fear that by so doing we risk taking over

constitutionally sound statutory scheme for the future education of New

provide every educable child with a constitutionally adequate public education.

the legislature, by the end of fiscal year 2007, continues not to define a

adequate education would more quickly advance the process of establishing a education will cost. A legislative determination of the cost of a constitutionally meaningless unless the legislature also determines what that specifically-defined history of the country . . . .” Under Part II, Article 83, it is the legislature’s duty to

would consider remand to the trial court, or appointment of a special master, if remedy for this failure. The majority would retain jurisdiction of this appeal and constitutionally adequate education. The majority and I part ways over the

provides a more specific definition of an adequate education, that definition is of agriculture, arts, sciences, commerce, trades, manufactures, and natural and . . . public schools, to encourage . . . public institutions . . . for the promotion the duty of the legislators . . . to cherish the interest of literature and the sciences, Part II, Article 83 of the New Hampshire Constitution provides: “[I]t shall be

with the majority that the New Hampshire Legislature has not defined a

constitutional concerns and addresses the issues raised by the plaintiffs.

components of that education. More fundamentally, even if the legislature the Washington and Montana statutes for guidance to further define the legislature to determine the cost of that education than it would be for it to look to

GALWAY, J.