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State Rep. Glenn Cordelli: The constitutionality of education savings accounts



For the Monitor
Monday, April 16, 2018

Recently two of my colleagues in the New Hampshire House wrote that Senate Bill 193, the “school voucher” bill, is unconstitutional (Monitor Forum, March 24). I believe that my friends are incorrect, and the U.S. Supreme Court agrees with me.

Let me start out by correcting the repeated line about a voucher bill. SB 193 has nothing to do with vouchers. SB 193 established education savings accounts, which are similar to health savings accounts. The state money that would have gone to the school district to educate the child would instead go to parents so they could find the best education opportunity for their child. That is what this bill is all about – the best education for every New Hampshire child.

The repeating of ACLU talking points on constitutionality does not stand up to the facts. They cite a 1992 “ruling” of the New Hampshire Supreme Court. In fact, there was no “ruling.” There was an advisory opinion of the court in 1992. The proposed program would have required the local school district to send 75 percent of school’s tuition to a school selected by the child’s parents. This was very different than the SB 193 program in which the state funds go to the parents for use for a variety of allowable education services to best meet the needs of their child. It should also be stated that court advisory opinions simply reflect justices’ opinions of proposed legislation. They set no legal precedent.

Last year, the U.S. Supreme Court ruled in the Trinity Lutheran v. Comer case. My colleagues stated that the case had nothing to do with the education of a child. They are correct that the specifics of the case involved the state prohibiting sending of rubber playground materials to religious schools, which the court overturned by a 7-2 vote. Several facts, however, were left out of their letter. The Supreme Court also vacated (invalidated) the decisions of state supreme courts in New Mexico (text book sharing with religious schools) and Colorado (actual voucher program to religious schools) telling them to re-examine their decisions based upon the Trinity Lutheran ruling.

If SB 193 is passed and signed into law, it is possible that it will be challenged in our courts. Our governor and attorney general have stated they are ready to defend the legislation in court. Challenges to school choice legislation around the nation (and in New Hampshire) have been rejected by courts. Parents want education choice and opportunities for their children.

(Glenn Cordelli of Tuftonboro represents Carroll District 4 in the New Hampshire House of Representatives, where he serves on the Education Committee.)