Interview with Andru Volinsky, N.H. Plaintiff Attorney
with this issue, the ACCESS newsletter is initiating
a new series of interviews with attorneys involved in
major education finance litigations.
On July 14, New Hampshire Governor John Lynch signed
a law establishing a school accountability system in
response to the New Hampshire Supreme Court’s
final mandate in the state’s long-pending education
adequacy litigations. The statute requires schools to
meet both input- and performance-based standards of
adequacy. “Input-based school accountability”
requires schools to demonstrate that they are providing
students an educational opportunity that allows them
to meet approved academic standards in 9 specific content
areas. Specific performance standards, which include
student performance on standardized exams, will be devised
by the 2011-2012 school year by a taskforce to be chaired
by the commissioner of education; the commissioner will
also appoint 9-13 members of the taskforce and the legislative
leaders will appoint one member from each house. ACCESS
recently discussed the potential of the new statute
and the status of New Hampshire’s constitutional
compliance since the state Supreme Court litigations
terminated with Andru Volinsky, who has been counsel
for the plaintiffs in the Claremont School District
v. Governor litigations since 1991.
Q. Has the legislature responded appropriately
to the New Hampshire Supreme Court’s mandate?
Will this be the end of the Claremont litigation?
A. There is some wishful thinking
in terms of considering this as the bookend to the Claremont
litigation. There are potential problems with the funding
formula and potential problems with the accountability
statute. We need to see how the details work out. For
example, the accountability statute prescribes accountability
in terms of inputs and curriculum standards, but also
creates a committee to create a series of alternative
ways for school districts to achieve compliance with
the constitutional mandate. We don’t know whether
the statute will meet the principles of the Claremont
case without knowing what those alternative standards
Q. What role, if any, do you anticipate
playing in the creation of the performance-based accountability
A. The legislature and governor have
worked pretty hard to exclude us from a formal role
so it is unlikely that we will get a seat on the committee.
But we have a number of friends in the legislature through
whom we influence legislation when we can.
Q. When did the new funding formula
go into effect? To what extent is it promoting equity
and adequacy? Has the federal stimulus funding had a
significant impact in this regard?
A. The formula is in effect now. One
of the shortcomings of the formula is that, according
to the Claremont principles, the state of New
Hampshire is responsible for paying the full cost of
an adequate education. What the funding plan does is
assign a cost of $3,450 per student as being the full
cost of adequacy. Since we have a per pupil average
cost of $11,000-12,000, it is a little bit hard to think
that $3,450 is sufficient. The legislature has provided
extra increments of funding for districts with high
concentrations of poverty or second language learners
or special education populations. And right now those
increments appear to be well-funded because of federal
money. The question is how well New Hampshire will plan
to replace those federal money after we get through
the various cycles of stimulus funding, because we lack
a revenue infrastructure sufficient to support our state
Q. The accountability bill outlines
additional support for schools that don’t meet
adequacy standards. How do you feel about the tentative
level of support – is it fair / strong enough?
A. [The school funding problem in]
New Hampshire is always going to come back to its lack
of a revenue structures. There are some very well intentioned
legislators and staffers at the state department of
education. I am very skeptical that they will be able
to carry out any of their plans that depend on state
funding to any significant extent.
Q. Now that the Supreme Court has
terminated jurisdiction, how do you assess the years
of litigation and its impact? Has it been a success?
A. I think it has been successful
to some extent. Number 1, when we started, state funding
for schools was at 8%, now it is in the low 20s. Dollars
and cents wise it has made a difference. Number 2, the
whole idea of considering what educational components
are necessary for preparing children for the next step
has been publicized because of our case. Until the economy
crashed, education funding had been the top level policy
issue for the state for 15-16 years.
Prior to one of the rounds of litigation in Claremont
the state excused school districts from meeting minimum
state standards when the districts were financially
unable to meet those standards. That practice has been
found unconstitutional and stopped because of us.
We also created a fee-shifting provision in our case
for litigation against the state in the common interest
and that has helped public interest litigation within
and outside of education in New Hampshire.
Q. In several newspaper interviews,
you mentioned that your clients may pursue further litigation
once the new aid system is fully implemented. Is your
concern the formula itself, or the stability of the
A. The stability issue comes from
the way the formula is written, because it has grossly
understated the cost of adequacy. If the state clearly
accepted the responsibility of $8,000-10,000 per child
and had a funding source identified to support that,
then litigation would be less likely. We’re concerned
that as soon as the federal money disappears we’ll
be back in trouble.