N.H. Attorney General Refuses to Defend Cap on State Aid to Schools

Oct 27, 2015

The Attorney General’s office has refused to defend the law that caps state aid to schools in a case brought by the city of Dover.  It’s the latest in a long string of battles over education funding in the state.

The Legislature’s education spending cap limits districts to no more than an 8 percent annual increase in state aid.  This kind of cap has been in place since 2011.  And it means that for around two dozen districts like Dover, where enrollment has boomed, their state aid has not kept up with student growth.

Dover is now asking the court to declare the cap unconstitutional and for the court to order the state provide back-pay for the years Dover was negatively affected by the spending cap.

Battles like this over school funding are nothing new in New Hampshire, but what’s unusual about this case is the state Attorney General has already conceded a part of Dover’s lawsuit: that the spending cap is unconstitutional.

Anne Edwards is associate Attorney General. She says that while the AG is defending the state on other issues raised in the case, they won’t mount a defense to the constitutionality of the spending cap.

“We are lawyers," explains Edwards, "and we have ethical responsibilities with respect to the information that we provide to the court and we can only defend a law if we have a good faith basis for defending the law.”

Andru Volinsky is representing Dover in the case. He’s the same attorney who won the original Claremont case that set much of this debate in motion nearly two decades ago. He says even though the state plans to eliminate the spending cap in the next few years he’d rather settle this issue once and for all.

“Dover has been patient," says Volinsky. "Dover has had discussions with legislators, the governor, the commissioner of education, about this cap since 2011. Each year being promised that it would be removed the following year.”

Despite the AG’s decision to not defend the spending cap, that point will not go uncontested. Republican leaders in the House and Senate have taken it upon themselves to defend what they see as the constitutional turf of the legislature, saying in a statement, “It is imperative that a law passed by the elected representatives of the people of New Hampshire be given a complete defense.”

Richard Lehmann represents Senate President Chuck Morse in the case; he says the Attorney General’s decision sets a bad precedent.

“I think it’s troubling," explains Lehmann, "when the executive branch can pick and choose which legislatively enacted statutes are worthy of defense and which aren’t. I think it presents a problem.”

This tussling between the attorney general, the legislature, and the court system is at the heart of why education funding in New Hampshire can quickly become so complicated. And why it has been so protracted. 

“We so far have all managed to avoid a situation where the different branches of government are effectively in open warfare with each other," says Lehmann. "And nobody wants that and people expect their government to work within constitutional boundaries, but they expect all branches of their government to work within constitutional boundaries.”

Finding out just where those boundaries lie though, may turn out to be a byproduct of cases like these that is unpleasant for every party.

Hearings in the case begin in December.