Charlie Arlinghaus

October 28, 2015

As originally published in the New Hampshire Union Leader

The state is refusing to defend itself and the governor is attacking herself for having bad ideas. Welcome to the world of education funding where lawsuits make everyone weird and no one seems to be able to figure out which way is up.

The City of Dover is suing the state because an education funding law in place for years limits the amount their state education aid increases. To make matters more confused, Dover’s lawsuit stipulates that they do not and will not agree that the underlying system is constitutional only that there is an unconstitutional cap on a system that they don’t have an opinion on.

With much fanfare a few legislatures ago, the state passed a new education aid formula to govern the distribution of state education aid. It was said to be “more constitutional” but from the beginning it made concessions and alterations and had caveats.

About one-third of the $3 billion in school spending comes from state revenue sources. That is distributed through a complicated formula based largely on the number of pupils in a given district in a given year. The formula creates a number but that number is then modified to make sure no town loses too much funding or gains funding rapidly and to make sure there are no net donor towns.

The law was duly passed and reauthorized multiple times. The state’s Attorney General is charged with defending the state of NH and its laws in court. If we pass a law and are sued, they are the state’s attorney. But not this time.

The law was passed by both houses of the legislature. Capping increases has been voted for by Democratic legislatures, Republican legislatures, and divided legislatures. It was signed by Governor Lynch, supported multiple times by Governor Hassan. There is no evidence that the Attorney General or legal counsels for any legislative chamber or governor’s staff protested.

Today is a different story. The Attorney General has decided that it will not defend the law as passed and reaffirmed so many times. The governor who proposed caps in her budget and didn’t support legislative plans to eliminate them has had a change of heart. She announced she agrees with the Attorney General and that she hopes the legislature will “fully fund” what the districts want.

To “fully fund” would require $14 million for Dover alone and another $25 million for the other cities and towns. Presumably the governor’s next press release will include a proposal for just where that money would come from.

Fortunately for taxpayers, the legislative legal counsels have announced they will take up the baton cast aside by the executive branch and defend the law. Senate legal counsel Rick Lehman takes the position “the legislature passed the law, it should be defended.” He and the House legal counsel, Chuck Douglas, will be defending the law. If they are successful, Governor Hassan won’t need to figure out how to find an additional $40 million to pay for her press release.

The lawsuit underscores the serious issues related to education funding that have been ignored for most of the last decade. Our whole approach is and has been contradictory.

When a newly installed legislature passed a new formula in 2008 they trumpeted their constitutional nobility in contrast to the supposed compromisers and slackers of previous legislatures who made political calculations at the supposed expense of the guidelines set out by court opinions. Yet in doing so, they specifically made an exception for towns with excess property tax — the old donor towns.

The law also sought to exempt towns losing students from the law and not do too much right away for towns gaining students. In essence, the legislatures and governors made political decisions about how aid should be distributed as a practical matter — the same kind of decision lawmakers make on every subject under the sun.

The lawsuit seeks not just to abrogate a law but also to have the court appropriate money — a function expressly limited to the legislative branch. It seems like that would have been worth defending.