Editorial: Big problem with SB 193 is that it’s unconstitutional

Published: 1/14/2018 12:05:11 AM

Launder a taxpayer dollar, say by passing it through a so-called scholarship organization, and it’s still a taxpayer dollar, or in the case of the latest school voucher bill, 95 cents, since the organization takes a nickel of every tax dollar as an administrative fee.

Senate Bill 193 is yet another attempt to get around the constitutional prohibition against using public funds to support religious schools or religion-based instruction. The bill passed the House and has the backing of the governor, but there are many reasons for the Senate to defeat it. Not the least of them is this: The bill is unconstitutional.

The federal Constitution’s ban on public support of sectarian education under the Establishment Clause suffers from wrong-headed U.S. Supreme Court decisions – more about that later. The New Hampshire Constitution even more explicitly bars the transfer, directly or indirectly, of taxpayer money to religion-based institutions. The state attorney general’s office, however, seems to be confused by the bill.

Early in the bill’s history, Associate Attorney General Anne Edwards told the House Education Committee that, “We have to change our constitution if we want to have money – state, public money – going to religious schools.” Late last month, Edwards reversed course and said, after consulting with Attorney General Gordon MacDonald, that a revised form of the bill would be constitutional. It will be up to the state Supreme Court to decide which opinion is correct should the bill become law.

State efforts to direct public funds to private schools, including religious schools, are being promoted nationally by school choice advocacy organizations. Their campaign gathered steam after a 2002 U.S. Supreme Court decision that, by a 5-4 majority, ruled constitutional a Cleveland, Ohio, school voucher program that directed public money to religious schools. That decision was wrong, as Supreme Court Justice David Souter of New Hampshire wrote in the minority’s dissent.

The court’s majority, all Republican appointees, ignored precedent by narrowing the separation between church and state. The ruling, Souter said at the time, is “potentially tragic.” Souter’s words are worth reading today. We hope the state’s senators will do so.

“Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines ‘a nationalistic sentiment’ in support of Israel with a ‘deeply religious’ element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the Free Exercise Clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate.”

SB 193 would create a voucher system open to about one-third of the state’s students. A qualifying student and family would, depending on a variety of circumstances, receive between $3,500 to well upward of $5,000 in state funds that could be used to help cover the cost of private school tuition, secular or religious, or to pay for home schooling that may or may not be religion-based.

Though tremendous inequities still exist between property-poor and property-rich school districts, New Hampshire arguably has the best public schools in the nation. SB 193 would rob them of the ability to maintain that status. It would force taxpayers to support beliefs they believe to be wrong, objectionable or immoral. Passage would almost certainly result in discrimination against students with a disability, since private schools are not obligated to accommodate their needs or accept them.

Worst of all though, passage of SB 193 could bring about what Justice Souter feared, a society that mixed political debate with religious strife at the expense of its children’s education. Senators and Gov. Sununu: Reject this bill for the good of the state, the Constitution and public education.

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