State Mandate for Public Kindergarten is Fully Funded

I haven't posted for a while, but I am going to try to get back into it. I want to cover various topics relevant to this year's vote on March 11th.

The key issue on the school side this year is the subject of public kindergarten. There are three petition warrant articles on the ballot that each have a different point of view on the subject. I will discuss each of these in additional posts.

I first want to summarize my understanding and viewpoint on the background of the legislation that governs the situation.

Court Decision

In October 2006 in Londonderry School District SAU #12 v. State of New Hampshire the State Supreme Court held that the previous state education funding schemes were unconstitutional. There is a long history of court cases that preceded this recent case, but this is the one that is currently being implemented.

There were four specific actions that were required based on this decision. They were:
* Define an adequate education , by 2007,
* Determine the cost, by 2008,
* Fund it with constitutional taxes,
* Ensure its delivery through accountability.

These four mandates comprise the state's duty to provide an adequate education. The state's duties do not extend beyond adequacy.

Step 1 - Define an adequate education

In June 2007, the legislature passed an update to RSA 193-E that defines an adequate education. There were a number of changes to this law, but one notable change is that it now appears to include half-day kindergarten as part of an adequate education. There is a bit of controversy on that since the language is not 100% clear, but it is likely that there will be some clarifying changes to make it clear. Certainly, everyone is going on the assumption that half-day kindergarten is included in the definition.


Step 2 - Determine the cost of an adequate education

The legislature set up a committee to determine the cost of an adequate education. The committee issued the Final Report and Findings of the Joint Legislative Oversight Committee Pursuant to 2007 Laws Chapter 270 a few weeks ago. The report details the findings of the committee.

The report found that the universal cost of an adequate education was $3,456 per student. Additional funds will be added to this for:

* Students that are English language learners (ELL) ($675 per ELL student)
* Special education students, ($1,798 or $3,610 per special ed student depending on category)
* Economically disadvantaged students and students in schools with significant concentrations of economically disadvantaged students. (They did not quite finish their work in this area. Funds will be allocated based on a formula based on the percentage of students receiving free or reduced price lunches. This aid could go up to $3,456 depending on the formula, which was not available in time for the final report.)

Half day kindergarten will be funded at half the regular adequate education aid level. This equals $1,728 per student plus half of the other applicable funding items.

Section X of the final report was a special section that discussed the findings of the subcommittee that identified "Transitional Assistance for Kindergarten" for the 11 districts in the state that do not currently have public kindergarten. These were some of the key recommendations in this section:

* Implementation of public kindergarten may be delayed to September 2009 from the September 2008 date originally specified in the updated RSA 193-E.
* Full funding of portable classrooms will be made for 3 years.
* The kindergarten construction aid program will be reauthorized. This program pays 75% of the construction cost for kindergarten facilities.

The report will now be reviewed by the full house and senate, and a final definition of the cost of an adequate education is expected in June 2008.

Article 28-A of the State Constitution

In 1984, Article 28-A was added to the state constitution. This article states: "The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision."

There have been very few actual court cases that test the scope of article 28-A, but these are the keys aspects of it as relates to the implementation of public kindergarten.

* Half-day public kindergarten is a new state mandate that has come into existence after 1984. As such, article 28-A applies and the mandated new spending needs to be fully funded.

* The court mandate is for the state to supply full funding for an adequate education, not to fully fund all aspects of public education. This is a key point in determining whether the state is funding the mandate or not.

* There are two types of funding associated with this new mandate. The first is start-up expense, and the second is ongoing operational expense.

* By definition, if the final costing formula for an adequate education is deemed constitutional (and is fully funded), then the portion that relates to public kindergarten will be constitutional and will be fully funded. Therefore, the ongoing operational expense aspect will be fully funded and passes the 28-A test.

* The state is offering to pay for all expendable start-up expense, and they will also pay for portable classrooms to provide the space for the new programs. This covers all the start-up expense at a minimal level, and meets the requirements of fully funding an adequate education. There is one point in that the state is expected to only offer to pay for portables for three years, but the portables could be purchased on a three year lease-to-own basis which would convert the three year time frame to a permanent time frame.

* The offer of 75% funding for permanent classroom construction is in excess of an adequate education funding level, and in my opinion, will meet the requirements of 28-A.


The public kindergarten mandate is fully funded and 28-A does not apply

In my opinion, the fact that the state is paying 100% of the start-up expense at an adequate level, and that they are paying 100% of the cost of an adequate education on an ongoing expense basis, then the new public kindergarten program is fully funded on an adequate education basis, and article 28-A does not apply.

In my opinion, a lawsuit against the state to require additional payments for new public kindergarten programs is doomed to failure and would be a waste of money.

The last phrase of article 28-A in essence states that a favorable vote by the political subdivision will negate the application of 28-A. In my opinion, this is a moot point since the requirements of 28-A are met by the proposed funding levels, so there is no point in applying the second test.