State Rep. Howard Moffett: The trouble with ‘education freedom savings accounts’

For the Monitor
Wednesday, April 04, 2018

In a March 29 op-ed, state Rep. Mike Moffett argues that the “education freedom savings account” bill, Senate Bill 193, is constitutional. That legal issue will be debated by lawyers and decided by the N.H. Supreme Court, but as the other state representative for Loudon and Canterbury, and a lawyer myself, I think Mike misses the mark on several counts.

First, the N.H. Constitution provides, in Part I, Article 83: “No money raised by taxation shall ever be granted or applied for the use of the schools of ... any religious sect or denomination.” Mike argues that this prohibition “does not preclude rebated funds going back to families to use at their discretion” – i.e., if tax dollars are not granted directly to religious schools but go first to a private “scholarship organization,” then to families, and then to religious schools, there’s no problem. Actually, there are several problems. 1) The Legislature may not engage in money laundering. As noted in a March 24 op-ed by Reps. Mel Myler and David Luneau, Burrows v. City of Keene, 121 N.H. 590, 597 (1981), says “the government ... cannot do indirectly that which it cannot do directly.” 2) Article 83 expressly prohibits tax money being “applied for the use of” religious schools, even if it is not granted directly. 3) By Mike’s logic, why shouldn’t a portion of my gas taxes be “rebated” to pay for my private road?

Second, Part I, Article 12 (which Mike does not mention) provides: “No person shall ever be compelled to pay towards the support of the schools of any sect or denomination.” Like many state legislators, I support “choice” in education: charter schools, private schools, parochial and other faith-sponsored schools, home schools. I just don’t believe public tax dollars should go to families who may – but choose not to – send their children to public schools.

Third, Mike cites “our state attorney general’s opinion that SB 193 is constitutional.” With due respect to Attorney General Gordon MacDonald, his “opinion” was a two-sentence email sent by Associate Attorney General Anne Edwards to the House chief of staff. As noted in William Chapman’s March 29 op-ed, that email said in relevant part: “As discussed with Attorney General MacDonald this morning, we believe that SB 193, with its proposed amendment 2018-2530h, is constitutional.”

No analysis. No citations to precedent. No legal reasoning. No explanation of why the Attorney General’s Office appears to have reversed Edwards’s testimony to the House Education Committee in April 2017 that SB 193 was not constitutional.

In any case, it is the N.H. Supreme Court, not the attorney general, that will have the last word on whether SB 193 passes muster under our state constitution.

A final note: Mike asks legislators with an “open mind” to consider how SB 193 “might help Granite State families.” They might also consider that SB 193 was not drafted by New Hampshire legislators. It is based on “model legislation” from the American Legislative Exchange Council (ALEC), a partnership between large corporate interests and legislators from different states whose primary interest is in reducing the size of government – including public education. Among ALEC’s leading funders are the Koch brothers and their network.

(Rep. Howard Moffett – no relation to Rep. Mike Moffett – represents Merrimack District 9, Loudon and Canterbury, in the New Hampshire House of Representatives.)