Claremont’s core flaw emerges in Education Freedom Account debate


Speaking in favor of Senate Bill 432, a bill to eliminate New Hampshire’s Education Freedom Account program, Sen. Rebecca Whitley, D-Hopkinton, argued that state education aid should not go to help lower-income students purchase educational services outside of their assigned school districts, but should directly aid their districts instead.

“We clearly have a problem with the way that education funding is distributed, public funds are distributed to our schools,” she said. “But the solution is not to send that money to private and religious schools. The answer is to send funding in a way that districts and the students with the greatest challenges receive the funding that they need. That’s where we should be focusing our efforts, not sending dollars to private and religious schools. 

“A fair school funding system must deliver more funds to those most in need, and those are our school districts with high concentrations of poverty that require additional resources to serve their students. That’s where we should be focusing on.”

Regarding the formula for distributing state aid to local school districts, Sen. Whitley is right. The state should be able to give more adequacy aid to lower-income districts than it gives to higher-income districts. 

But it can’t.

In its Claremont rulings (here and here), the state Supreme Court’s declared large disparities in state aid to school districts unconstitutional. The court held that state adequate education aid must be uniform statewide in pursuit of the state’s duty to fully fund an adequate public education.

The state is allowed to give additional aid for lower-income and special-education students on top of the base adequacy aid. But it may not, say, give property-poor districts $10,000 in adequacy aid per student while giving property-rich districts $2,000, or nothing at all.

The Claremont lawsuit was sold as a way to “level the playing field” between poorer and richer districts. But as critics pointed out at the time, Claremont would not do that, and could make those inequities worse, unless the court or the Legislature also prohibited local taxpayers from spending any local money on public schools. 

That, of course, did not happen. The court refused to rule local contributions to public education unconstitutional, and no Legislature would pass such a law. So instead of the state reducing funding disparities by giving more aid to poorer districts and less aid to richer districts, the Claremont ruling forced taxpayers statewide to subsidize all districts equally. Such equal state funding maintains preexisting disparities, and possibly makes them worse. 

Post-Claremont, the Legislature is forced to subsidize public schools in the state’s wealthiest communities even though everyone knows this sends to rich towns money that otherwise would go to poor towns.

As currently structured, New Hampshire’s Education Freedom Account program sort of gets around that. Only families with incomes at or below 300% of the federal poverty level qualify for Education Freedom Accounts. So through this program the state can give lower-income families the ability to leave their assigned public schools and find an alternative that might work better for their children.

Unfortunately, that leaves out students who struggle in their assigned schools but who don’t meet the income threshold. Educational fit is highly personal and is not dictated by income. 

A better way would be to make all options available to all students, let families choose whichever option works best for their children, and let the state vary the size of aid based on criteria such as income or a student’s individual needs. 

But as long as the state distributes aid directly to school districts, it should have the discretion to do as Sen. Whitley suggests: send significantly more aid to poorer districts. The Josiah Bartlett Center has advocated this for decades (see here and here, for example.) It’s good public policy. But it’s not allowed under current Supreme Court jurisprudence. 

Perhaps Sen. Whitley and other likeminded legislators would be interested in introducing a constitutional amendment to fix that in the future. Such amendments have failed in the past, but that doesn’t diminish the need to fix this problem created by the Claremont rulings, and only a constitutional amendment will do the trick.