Interview with Andru Volinsky, N.H. Plaintiff Attorney

Commencing 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 are.

Q. What role, if any, do you anticipate playing in the creation of the performance-based accountability system?

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 government.

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 funding?

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.