Cap on Adequacy Aid to Education Ruled Unconstitutional

September 9, 2016



by Barbara O’Brien

A ruling handed down by Sullivan County Superior Court on Sept. 2 likely means that the Windham School District will receive an additional $4 million in adequacy aid funding; money that was previously denied due to a cap on the funding.  Windham is one of about 40 towns in New Hampshire that have not been receiving full funding for the past seven years.

Windham was not the school district that actually took the State Legislature to court, but local school and town officials did throw their support behind the City of Dover, the municipality which filed the complaint in Superior Court last year.  Although the lawsuit was brought by Dover, the decision of the court applies to all other affected school districts in New Hampshire, including Windham.

About a year ago, New Hampshire Attorney General Joseph Foster refused to defend the constitutionality of the state’s cap on education adequacy aid to individual school districts.  President of the State Senate Chuck Morse and Speaker of the House Shawn Jasper decided to defend the state’s position, however, causing Dover’s legal action to move forward.

Foster defended his decision not to proceed with defending the state’s stance on adequacy aid based on the fact that the dire economic climate that existed when the cap on funding was created in 2009 no longer exists.  Morse and Jasper said that progress was already being made in removing the cap on adequacy aid; a process that was scheduled to expire in fiscal year 2018.

“We could not find a defense we felt was meritorious,” said State Attorney General Foster, noting that the 2006 lawsuit, one which resulted in the Claremont Decision, requires the State of New Hampshire to fund an adequate education for every child and that placing a cap on that aid violates the ruling.  Dover’s lawsuit asked that the state begin fully funding adequacy aid dating back to September 2015.

State Representative David Bates of Windham said the Windham School District has been underfunded by about $11.7 million since the inception of the cap on adequacy aid.  For the past several years, Bates has been working diligently to have the cap removed.

Shortly after the court’s decision, declaring that the cap is unconstitutional, was announced, Bates met with members of the Windham School Board.  Sharing the good news, Bates said that the decision means that the Windham School District will receive an additional $2.9 million for the 2015-2016 school year and an additional $1.1 million for the current school year; for a total of $4 million.  “This should assure full funding,” Bates said.  The situation is still somewhat in a state of flux, however, Bates noted, since a 30-day appeals period is provided.

School board member Ken Eyring commended Bates for the tremendous amount of effort he expended in working on the adequacy aid dilemma.  “It’s phenomenal,” Eyring said, noting that the cap on adequacy aid was a non-partisan issue.  “This decision is an enormous benefit to this community,” Eyring said, commenting that the cap on state aid only affected a small number of towns; those viewed as being “well-to-do.”  The campaign to abolish the cap “was the right thing to do,” he added.

School Board Vice-Chairman Rob Breton recalled that Bates had made a campaign promise to pursue having the adequacy aid cap overturned.  “It was a promise you kept,” Breton told Bates.

Selectman Ross McLeod, who also participated in hearings regarding adequacy aid, said, “it goes without saying that this is excellent news for many towns and SAUs in New Hampshire, especially an underfunded town like Windham.”

In reaching his decision, Superior Court Judge Brian Tucker also granted a permanent injunction against re-establishing the cap in the future.  Judge Tucker stated that applying a cap to adequacy aid results in “a school district being left short of funds to pay the cost of an adequate education and either it must make do with the amount of state aid allotted or make up the shortfall on its own.”  “Either outcome violates (state law),” Tucker said, “because the state has the exclusive obligation to fund a constitutionally adequate education and may not shift any of this constitutional responsibility to local communities.”

Moving forward, it is anticipated that discussions will be held between local and state officials regarding a cooperative agreement for payment of the estimated amount due.