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State Reps. Mel Myler and David Luneau: School voucher bill is unconstitutional – and wrong



For the Monitor
Saturday, March 24, 2018

Public funds to pay for private schooling? This is the key question facing the issue of Educational Savings Accounts as outlined in Senate Bill 193. ESAs allow parents to use at least 95 percent of state education aid (about $3,600) to send their child to a private or religious school. Advocates and supporters of SB 193 have maintained that it would survive a state constitutional challenge.

Interesting, up until the week before the House vote on SB 193 Educational Saving Accounts, our Attorney General’s Office had advised the House Education Committee that the issue would not stand a constitutional test in our state. (The AG’s office has yet to give a full explanation of their position change.) Unlike other states, our state constitution clearly prohibits the spending of public money for religious schools. On June 2, 1784, the passage of the Constitution of New Hampshire Part First – Bill of Rights, Article 6 Morality and Piety, reads in part: “But no person shall ever be compelled to pay towards the support of schools of any sect or denomination.” Further, there are several state court cases that have acted on this issue.

In 1992, the New Hampshire Supreme Court ruled to prohibit any diversion of tax funds that could be used to support activities of religious educational institutions (136 N.H. 357). This invalidated a proposed school-voucher program that would allow parents to enroll their child in “any other state approved school,” including religious schools.

In 1981, the court ruled in Burrows v. City of Keene (121 N.H. 590,597) that the government cannot circumvent prohibitions of the state constitution by “do(ing) indirectly that which it cannot do directly” striking down legislation that would have authorized local governments to “grant a tax exemption of $50 per year on residential real estate to any person having at least one child attending a nonpublic (religious) school.”

Although the state Supreme Court failed to rule on the merits of the 2012 Education Tax Credit Program, the superior court barred the program’s use of public funds to religious schools.

Out-of-state legal advisors to ESA supporters cite the U.S. Supreme Court decision in Trinity Lutheran Church v. Comer as precedent for state public funds to be allocated to religious institutions. This decision had nothing to do with the education of students or ESAs. It is related to a Missouri state grant program that paved the playground at the church.

Finally, ESA advocates believe public funds for private/religious education will stand the constitutional test if parents are given an educational voucher so that the state would not directly send tax dollar vouchers to a religious or private educational institution. Parents would then choose how they want to spend public tax dollars on their child’s education. Some call this the “laundering” of public tax dollars. Thus, it is parent action versus state fiscal action.

Regardless of how you try to cut these ESA vouchers, it is public money being spent for private/religious education, which we think is unconstitutional. Further, we just don’t think this is right.

(Rep. Mel Myler, a Contoocook Democrat, is the ranking Democrat on the House Education Committee. Rep. David Luneau, a Hopkinton Democrat, serves on the House Commerce Committee.)