Would a proposed school choice proposal be constitutional in NH?

Monitor staff
Published: 10/1/2017 9:12:04 PM

Would education savings accounts – or ESAs, the controversial school voucher-like proposal legislators will almost certainly take up again next session – be constitutional in New Hampshire?

The answer, depending on whom you ask, varies wildly.

As they work on Senate Bill 193, Republican lawmakers in committee have so far relied heavily on a legal brief released by the Josiah Bartlett Center for Public Policy, a free market think-tank in Concord. The brief, produced in partnership with the Institute for Justice, a libertarian organization from Washington, D.C., argues that the bill would pass constitutional muster in New Hampshire, even without excluding religious schools.

The American Civil Liberties Union of New Hampshire couldn’t disagree more.

“The Report’s conclusion is wrong and contradicted by the plain language of both the New Hampshire Constitution and multiple cases from the New Hampshire Supreme Court,” ACLU lawyers wrote to lawmakers in reply to the IJ analysis.

The state attorney general’s office agrees. Associate Attorney General Anne Edwards warned House lawmakers in committee that if the bill became law as is and allowed families to use state funds at parochial schools, a constitutional challenge would come – and be successful.

“Our concern is that if you leave that language in there, it would be a very quick end to this bill,” she said.

ESAs were first established in Arizona in 2011, and crafted specifically with so-called Blaine amendments in mind. Blaine amendments are those clauses in state constitutions – New Hampshire has one – that explicitly prohibit tax dollars from going to religious schools.

ESAs function a little bit like vouchers – they allow families to receive public funds to spend on private education expenses. As it’s currently written, the bill under consideration here would give families 90 percent of the state aid their local school district would have received to educate their child. The base amount would be about $3,500, but students could get more based on demographics.

But there’s a key difference between vouchers and ESAs. With vouchers, money is transferred directly from state coffers to a private school. With ESAs, there’s a middleman. Money is transferred from the state’s accounts to an “education savings account,” which families can use to spend on a host of eligible expenses, including private school tuition, tutoring, even online coursework.

The legal argument by school choice advocates goes like this: the state can’t give religious schools money. But it can give money to parents, who are free to choose where to spend that money.

“ESA programs are not institutional assistance to religious (or other private) schools. ESAs programs are, instead, student assistance programs. The proper interpretation of Articles 6 and 83 (of the New Hampshire constitution) prohibit institutional assistance to religious schools, but do not prohibit student assistance programs,” the Institute for Justice wrote in its brief.

The ACLU-NH doesn’t agree. It said that the New Hampshire Supreme Court has repeatedly ruled against sending tax dollars to religious schools, and won’t be sympathetic to attempts at a work-around. In one ruling, its justices wrote that government can’t circumvent constitutional provisions by “(doing) indirectly that which it cannot do directly.”

But in some places, the pro-ESA argument has prevailed in court. In Nevada, where the state constitution explicitly prohibits state aid to religious schools, the state supreme court ruled that the program itself was constitutional because aid wasn’t transferred directly to the schools. It did, however, rule against the program’s funding mechanism, and the program has been stalled since.

Preston Green III, a professor of educational leadership and law at the University of Connecticut, agrees with the Institute for Justice’s analysis where the federal Constitution is concerned. A successful challenge over ESAs funneling money to religious schools there, he said, is “probably off the table.”

But while he doesn’t share their certitude where New Hampshire’s constitution is concerned, he thinks they might have a point when they argue that the state has often looked to federal precedent.

“Don’t know what the state Supreme Court will do here. Can’t say. But I think there’s a good possibility that if the state Supreme Court uses the same analysis as the U.S. Constitution that it would be okay. Because it’s parents making the decision,” he said.

But he also thinks the program could run into other legal pitfalls. In the five states where they’ve been established, only a small percentage of students have used ESAs. But eligibility has been tightly restricted. New Hampshire’s bill right now envisions basically universal eligibility, with any student enrolled at a public school for at least one semester allowed to participate.

Green thinks that if the program gets too big, opponents could argue the funding shortfalls at public schools undermine the state’s ability to provide an adequate education, which the state Supreme Court ruled it was required pay for in the landmark Claremont cases.

“One thing that (IJ has) not talked about in their brief is Claremont. That that’s the question that they need to consider,” Green said.

It’s not an argument skeptics of the bill in New Hampshire have made, although, they, too, have pointed to the school-funding cases.

John Tobin helped litigate Claremont and is the former director of New Hampshire Legal Assistance. He thinks there’s a very real practical concern about the funding problems this bill could cause for public schools, but he’s not sure someone could hang a legal challenge to the bill on that. But Claremont could still be relevant here.

“One of the key holdings of the Claremont litigation, (is that) the state has to have a system of accountability for the schools where it sends its money. And this bill doesn’t really have that,” Tobin said.

State Rep. Rick Ladd, the House Education committee Republican chairman, has said beefing up accountability on the bill is next on the committee’s docket.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)


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