Liar, Liar Pantyhose on Fire!

By Edward C. Mosca

There are those who would rather be right than popular. Then there are those who would rather be Attorney General than right. State Attorney General Kelly Ayotte, whose term comes to an end shortly, definitely falls into the latter category.

 Ayotte recently issued an opinion in which she fairly swoons over Governor Lynch’s education funding plan:

"(Your plan) does not use a per pupil cost as the basis for determining the funding to each municipality. Instead, our analysis shows that (the plan) measures various logical factors related to providing education and creates an education equity index to measure a community’s risk of not continuing to provide the opportunity for an adequate education," Ayotte wrote. "The approach of using the education equity index is also designed to direct state adequate education funds so that the substantive education rights guaranteed by the New Hampshire Constitution are upheld."

But Lynch’s plan is based on a "per pupil cost" – $8,291.00 per student. The way that funding is distributed is that each town is assigned a "measure of risk" by the plan, which is simply the percentage of the $8,290 per pupil cost that is to be funded by the state. For example, Allenstown’s measure of risk is .5733, and the state pays 57.33%, or about $4,753 per pupil in that town.

And the distribution formula of Lynch’s plan is hardly "logical." The primary components of the formula are property tax base (40 percent), student performance (30 percent), and income (20 percent). The formula penalizes municipalities that have expanded their property tax bases by, for example, encouraging businesses to locate there. It also acts as a disincentive to improving student performance because it takes money away from schools that improve student performance. And it really is no different as a matter of policy from the state property tax, whose allegedly pernicious effects the Lynch plan is supposed to eliminate, because low income residents of high income towns continue to pay relatively higher property taxes than high income residents of low income towns.

But, more importantly, since when does the constitutionality of a law depend on whether the Attorney General thinks it is good policy?

Finally, Ayotte avoids the real question, which is not whether the Lynch plan "direct[s] state adequate education funds so that the substantive education rights guaranteed by the New Hampshire Constitution are upheld." But whether the taxes used to raise these funds comply with the Claremont II decision. The answer to this question is clearly "no." The lack of any state aid to so-called rich towns means that the local property tax must be paying for the cost of an adequate education in those towns, which the Supreme Court in Claremont II said was unconstitutional.

Ayotte’s opinion should be seen for what it is. An attempt to be reappointed as Attorney General by Governor Lynch when her term expires.

Mr. Mosca is an attorney practicing in New Hampshire. LINK

Posted March 22, 2005

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