Judges weighing latest school aid law

CONCORD, N.H. --State Supreme Court justices questioned Thursday whether lawmakers had done enough to define and determine the cost of a constitutionally adequate education.

The court heard arguments over whether to uphold a lower court ruling and invalidate the latest school funding law or to order a trial to develop more facts in the case.

The Londonderry and Merrimack school districts and about 20 others want the law held unconstitutional because it doesn't spell out what the state is required to pay for and then determine how much that cost.

The districts also argue the largest source of money for schools -- the statewide property tax -- is jiggered to give wealthy towns a break compared to poor ones.

The state argues the law is constitutional and wants a lower-court trial that would force the schools to submit evidence proving students have been harmed by the aid system. The state maintains the property tax is constitutional because everyone pays the same rate.

Chief Justice John Broderick challenged lawyers defending the law to tell him what standard is used to determine whether a student receives an adequate education.

"After 13 years, how many credits of English is the state required to pay for versus the local school district?" Broderick asked.

Associate Assistant Attorney General Anne Edwards insisted the state not only has defined an adequate education, but has spelled out what is expected in curriculum frameworks and school-approval standards.

But Broderick pressed the question repeatedly.

"What are the component parts?" he asked. "The answer is no one has defined it. Isn't that the truth?"

"They have defined it," responded Edwards.

Broderick then asked Kenneth Murphy, representing the House and Senate, if he could tell him the essential elements of an adequate education. Murphy, like Edwards, insisted the law already does that.

Broderick wasn't satisfied.

"You have to write the check for it. I'd think you'd know what it is," he said.

The Supreme Court ruled in 1993 the New Hampshire Constitution guarantees children an adequate education, adequately funded.

Justice Richard Galway put state lawyers on the spot by asking whether the constitution guarantees an adequate education as a "safety net." He answered himself: "There's nothing to compare it to," he said. "Where is it?"

But the court appeared to be divided on how to rule.

Justice James Duggan said he was troubled by the lack of factual evidence that would be produced if the case were sent back for trial, as the state has requested.

Justice Linda Dalianis noted the towns suing to invalidate the law receive less school aid under it.

"So, it really comes back down to the dollars," she said.

Duggan asked William Chapman, the lawyer for the suing schools, how they could prove students aren't getting an adequate education if they graduate from high school.

Chapman said that question wasn't before the court.

"That's the problem," Duggan said, referring to the lack of a factual record.

Chapman urged the justices to agree with the lower court that the state lacks a substantive definition of adequacy to use to determine cost.

He likened it to playing golf well: "If you don't get the grip right, you're done."

Broderick repeatedly said the courts should not define adequacy themselves.

"It's not for the court to decide. It's not our job," he said.

But he warned that that might happen if lawmakers don't do it.

Broderick said past court decisions have given the Legislature broad latitude to lay out what every student should learn to meet the adequacy test.

"That's where it ought to be," he said. "We here who interpret the constitution should not be in a dark room."

In 1991, Claremont and four other property poor towns sued over the state's reliance on local property taxes to pay for schools. A series of Supreme Court decisions followed holding that the state has a duty to provide an adequate education that is adequately funded.

A key 1997 ruling found the state's reliance on local property taxes for most school funding unconstitutional.

In the years since, the Legislature has repeatedly revised the aid system -- anchoring it with a statewide property tax -- but nothing has quelled the court battles. Critics repeatedly insist the state has failed to spell out what an adequate education entails or to determine its cost.

For several years, property-wealthy towns have fought the statewide property tax because it required them to subsidize schools in property-poor towns.

Last year, lawmakers enacted a targeted aid system that effectively eliminated the required subsidies.

The new system assesses each town's ability to raise money, given its tax base, and helps those with the fewest resources. It also targets some aid based on a town's number of poor and disabled pupils and those still learning English. But that money only goes to communities with relatively low median incomes and property values.

Londonderry, which got less money under the new system, sued.