PODCAST: ConVal case will bring school funding center stage

As the lawsuit heads to the NH Supreme Court, Attorney John Tobin explains how we got here, why it matters, and what might lie ahead

On Thursday, Sept. 24, The NH Supreme Court heard oral arguments in the ConVal Lawsuit, which claims the state is failing to adequately fund its public schools. Originally filed by the ConVal School District in March, 2019, the case has earned the support of school districts all over the state in the form of an amicus brief. In this podcast, John Tobin, who is representing the 26 school districts who’ve signed onto the brief, discusses what the lawsuit means for New Hampshire schools.


This is Sarah Earle from Reaching Higher NH, and I’m speaking today with John Tobin, one of the attorneys representing 26 New Hampshire school districts and the New Hampshire School Boards Association in a “friend of the court” brief in the ConVal case, which heads to the Supreme Court on Thursday. Filed in March, 2019, by the ConVal School District in Southwestern NH, the lawsuit claims that the state is failing to fund an adequate education for its young people. The Cheshire County Court ruled in ConVal’s favor in June 2019, but both sides appealed the case. 

Thank you for joining me today, John. First, can you bring us up to speed on the lawsuit and why the plaintiffs appealed it even after the lower court ruled in their favor? 

Well, there are a couple of different things going on. One is that the case was originally started by the ConVal School District and three other school districts, and they won in the trial court, in the Superior Court. The judge said that the state’s formula was irrational and unconstitutional. They said the Legislature should fix it. What (the plaintiffs) didn’t get (from the court ruling), was, they wanted an immediate order from the court to tell the state to give them more money, and they had some specific categories they thought were particularly egregious in terms of omissions in the formula. So the Court didn’t give them those specific amounts of money right away. It instead said the whole formula is outrageous, not just those things you pointed out. But it stepped back and said it’s up to the Legislature to fix this, which is what the courts have historically done. They’ve tried to defer to the Legislature, they’ve said, here’s the rules of the road, but you need to fix it, Legislature, not us. So the state appealed the decision that the formula was unconstitutional, and the ConVal districts appealed the decision not to give them any money right away. 

What we wanted to point out to the Court was that this was not just a problem of some districts in the Southwest corner of the state, it was something that afflicted, and has gotten worse for, districts across the state. So we gathered 26 districts to sign on to what’s called a “friend of the court” brief, or an amicus brief.  Those kinds of briefs are encouraged by the Supreme Court in important cases because they want to get an additional perspective from other people who may have knowledge or an interest. So what we did is we have in those 26 districts, we have Manchester, Nashua, Concord, Keene, Derry — almost all the largest districts — five regional districts, a bunch of smaller and midsize districts across the state. And the point is, and we provided data by each of them to show, the tax rates are unfair, the spending is uneven, and the system is really getting worse. And so the idea is to help show the Court how important the case is, why they should rule right away and not deal with these procedural things (that the state has brought up). And so in some ways it was a message to the Court: This is really a widespread problem, it can’t wait any longer, it afflicts all the big school districts in the state and lots of the little ones. So that was the idea of the amicus brief. 

For those of us tuning into oral arguments, what should we be listening for? 

What I will be listening for is whether the Attorney General persuades the Court that the case has to go back for a new trial, that there are some procedural steps that should have been taken first. What I’m hoping is that the Court will see through that and realize that the underlying issues are really not in dispute, and will press the Attorney General on the underlying problem: Aren’t these tax rates really uneven? Isn’t the spending really uneven? Isn’t it really hard in the property poor tax districts that have to have really high tax rates and even so raise less and spend less. So I’m hoping that the Court will move beyond the procedural arguments and talk about the problem, the constitutional problem. 

So what do you expect the judge’s decision to hinge on? And what’s the expected timeframe?

That’s a very good question. The Court doesn’t have any rule in terms of how fast they have to make a decision in his case, so there’s really nothing to rely on except our experience 25 years ago in Claremont I and Claremont II. In both of those cases, there were arguments in September and decisions at the end of December. So they may make a decision before the end of the year or early next year, but there’s no rule that says they have to, and there’s no way of knowing. 

And do you have any predictions about the outcome?

I’ve been a lawyer long enough to know not to predict what a judge will do. But I have hopes. Again, I hope the Court will see that this is an urgent problem and that the foundation of it is whether the Constitution is followed or not, which is why they should care about it and why they should rule on it. That it’s an urgent problem that affects taxpayers and kids across the state. It’s a really widespread chronic and worsening problem. The reason they’re in the game is because the current system violates the Constitution in a couple of big ways, so they need to step in and uphold the Constitution. So I’m hoping they see that and they sense the urgency of it. 

Of course, you were also one of the attorneys for the landmark Claremont lawsuits. In what ways is this lawsuit similar to past lawsuits around education funding and in what ways is it different? What has changed since then that might influence the outcome of this lawsuit and its  impact?

Well, in some ways it’s the same in that the same constitutional principles are at stake, the same kind of harm that was occurring two and three decades ago is still occurring. There was a brief period of modest progress after the second Claremont decision, but in the last 15 years the state has really backslid. The tax inequities have gotten worse again, spending inequities have gotten worse again, the shift from the state to local property taxes has gotten worse again, so we’re back where we started. In some ways what’s different is, the Court already figured out the constitutional principles and laid them out. There’s no mystery about that. It’s really simply a question of telling the state, “no you’re not in compliance and you need to get moving on that.” 

I guess another thing that’s different is that eventually after the Claremont decisions the state came up with a formula to decide how much they would contribute towards constitutional adequacy, but the formula’s really low, it hasn’t really changed much in more than a couple decades, and so that formula really needs to be struck down. In the beginning of the cases there was no formula. Now there’s a formula but it’s really woefully insufficient. 

You’ve been traveling the state talking with community members about inequalities in the current funding system and building support for the lawsuit, and I’m sure that’s been a little difficult in recent months. What are you hearing from people though, and is this topic resonating with the public in new ways?

Well, I think a couple of things have really changed in the two decades. One is that property taxes have gotten even a lot worse. That issue has been simmering for a long time. People are very — they’re struggling with their property taxes in a lot of towns and cities because they’ve gone up a great deal. And I think that issue has really helped light and elevate the enthusiasm and energy about this issue. That’s what really helped get it going in the Legislature in 2019. So I think that’s something that we’ve really tried to talk about. It’s not just about schools. It’s about, everybody who owns a home or has real estate in a business is suffering. And I think another thing that’s changed is that we can see the economic consequences of the current system in a lot of places. Places that have high tax rates and schools that are struggling are not going to be able to prosper economically over the long term. They are already struggling, if not failing. And we’re struggling to keep and attract young people. And the tax system makes that worse. So there a lot of things that have changed that have shone a different light on this problem and shown how detrimental it is to the state, beyond schools, but economically, demographically. So all of that I think has changed and helped get people to understand what’s going on. 

At the same time that you’ve been working on this case, the Commission to Study School Funding has been engaged in its work of assessing the way the state funds its public schools. Do you have any thoughts on their findings and research so far and how their upcoming recommendations and the Supreme Court decision might fit together?

That’s a great question. They’ve been working hard. They also had to figure out how to operate in the COVID era. One of the things they did was they commissioned a nationally regarded research firm to take a fresh look at this using New Hampshire’s own data for the past decade, and they just issued their draft report a couple of weeks ago, and it really lays it out, and fundamentally the key finding is the current system doesn’t work for students or taxpayers. It’s inequitable for students and taxpayers, and so, there it is laid out by an independent voice, and I hope that the Commission moves forward with that, embraces that and prescribes a bold remedy to fix a deep problem. 

Do you have any thoughts on what that bold remedy might be?

The report from this research entity —  and I think they were following the cues form the Commission — didn’t really look at any other ways to raise revenue except property taxes. They proposed a funding formula that would send a base amount of money to every district, but more money to the districts that would need it because of kids in poverty, kids needing to learn English, all those kinds of things. And the marvel of it is that they backed it all up with very sophisticated data analysis. They isolated these factors, they figured out, what are the things that really drive this problem? And they came up with a formula to try to address that by sending money to the places it’s needed the most. For paying for it, I think they took cues from the Commission itself and didn’t look beyond the property taxes, but came up with a statewide property tax where the rate would be the same across the state, the money would be pooled in Concord and divvied out where it was needed. And that’s a very promising solution. 

Is there anything else you’d like to say about the lawsuit?

I think it is a lawsuit and it is in court, but it really is something that can have an impact on the future of education, the ability of people to keep their homes and businesses, and our economic prosperity. It’s a long term problem that’s developed over decades and I’m hoping that, along with the Commission, the Court will issue a strong message, so that when the Legislature returns in January — and they’re the ultimate decision makers by the way, it’s the Legislature — they will have a Commision report that says, this is a terribly unfair system and here’s a possible way to fix it, and I hope they’ll have a decision from the Court that says, it’s your Constitutional responsibility, Legislature, to fix it. And I hope those two things will give the Legislature the motivation and a road map to fix it. 

Thanks again for joining me, John.

John Tobin is one of the attorneys representing 26 New Hampshire school districts and the New Hampshire School Boards Association in a “friend of the court” brief in the ConVal case. And I’m Sarah Earle from Reaching Higher. If you’re interested in staying on top of New Hampshire education news, be sure to sign up for our newsletter and follow us on Facebook.