Tag: new hampshire

NH Court: You Can Choose a School So Long as It’s Secular

Earlier today, a New Hampshire district court upheld the “Live Free or Die” state’s nascent scholarship tax credit (STC) program, but limited the use of scholarships to non-religious private schools.

Earlier this year, the ACLU and Americans United for the Separation of Church and State filed a lawsuit claiming that New Hampshire’s school choice law was unconstitutional under the state’s Blaine Amendment, which prohibits the public funding of religious schools. The law grants tax credits to corporations in return for contributions to non-profit scholarship organizations that fund low-and-middle-income students attending the schools of their choice.

The decision hinged on whether or not tax credits constitute “public money.” Previously, the U.S. Supreme Court held that they do not, noting that when “taxpayers choose to contribute to [scholarship organizaions], they spend their own money, not money the State has collected from respondents or from other taxpayers.”

Likewise, the Arizona state supreme court upheld the constitutionality of Arizona’s STC program, forcefully rejecting the “public money” argument:

According to Black’s Law Dictionary, “public money” is “[r]evenue received from federal, state, and local governments from taxes, fees, fines, etc.” Black’s Law Dictionary 1005 (6th ed.1990). As respondents note, however, no money ever enters the state’s control as a result of this tax credit. Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with “public money.”

While neither the Arizona supreme court nor U.S. Supreme Court serve as binding precedent for how a New Hampshire court may interpret the New Hampshire state constitution, their reasoning should have carried great weight as the question before the court was the same. Nevertheless, the NH trial court rejected this traditional understanding of “public money” in favor of the plaintiff’s “all your money are belong to us” argument. In the words of the trial court judge:

This Court concludes that the program uses “public funds,” or “money raised by taxation” … Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.

This is precisely the understanding of “public money” that the U.S. Supreme Court rejected: 

Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. Private bank accounts cannot be equated with the … State Treasury.

The U.S. Supreme Court held, in essence, that your money is your own whether or not it qualifies for a tax deduction of some kind. A taxpayer’s money only becomes “public money” once the government actually collects it in the form of taxes. The NH trial court judge, by contrast, holds that any taxpayer’s income on which the government might have a claim is instantly “public money,” even before collection, and it remains so even if the existence of a tax credit or deduction means that government will never collect it.

Unfortunately, the legal theater of the absurd doesn’t end there. Charlie Arlinghaus, President of the Josiah Bartlett Center, which advised legislators on crafting the law, noted that the trial court’s logic leads to another absurd conclusion:

This ruling is particularly odd. The entire program is fine unless a parent by their own choice chooses a religious school. By this logic a program is illegal if neutral and only legal if actively hostile to religion. 

The Institute for Justice, which intervened on behalf of the Network for Education, the state’s first scholarship organization, will be appealing the decision to the state supreme court. IJ Senior Attorney Richard D. Komer stated:

The court’s ruling inflicts again the blatant discrimination that motivated New Hampshire’s bigoted Blaine Amendment in the first place.  We will immediately seek a stay of the court’s decision so that parents receiving scholarships can choose the educational options that best suit their child’s unique educational needs, regardless of whether that is a religious or secular school.

The trial court’s order halting the program is wrong on both the facts and the law. As a factual matter, the program is funded with private, not public dollars.  As a legal matter, the federal Constitution prohibits states from preferring non-religious schools over religious schools, which is precisely what the court’s ruling does.

We can only hope that the Granite State’s supreme court will exercise better judgment.

School Choice Survives Repeal Attempt in New Hampshire

Just moments ago, New Hampshire’s state senate rejected an attempt to repeal the state’s nascent scholarship tax credit law by a 13-11 vote*. The program grants tax credits to businesses worth 85 percent of their contributions to nonprofit scholarship organizations that fund low- and middle-income students attending private or home schools. The program took effect on January 1 of this year but scholarships will not be distributed until the new school year in the fall.

The support of Senate Education Committee Chairwoman, Senator Nancy Stiles, was decisive in saving the program. Last year, Sen. Stiles had voted against the school choice proposal, but she decided to oppose the repeal because she believed “it would be irresponsible to overturn it without seeing whether the legislation made a positive difference.” She also noted that without having had the opportunity to evaluate the program’s effectiveness, the opponents of the school choice program want to “rescind a program, not based on its effectiveness, but on philosophical differences. I cannot support or be a part of this effort.”

The legislative battle does not end here, however, since the NH House also repealed the scholarship tax credit program in the House version of the budget. Budget negotiations between New Hampshire’s Democrat-controlled House and Republican-controlled Senate are expected to continue until about mid-June.

The law is also being challenged in court by the Americans for Separation of Church and State and the ACLU, who claim that the school choice program violates the state’s historically anti-Catholic Blaine Amendment, which prohibits public funding of private schools. Their argument is based on a false premise, which is why the courts have ultimately rejected it wherever it has been tried. A citizen’s money is her own until it reaches tax collector’s hand. A private donation therefore does not constitute “public funding” even if it qualifies for a tax credit or deduction. While impossible to predict the future, it is likely that the Granite State courts will rule in line with other states’ interpretations of the Blaine Amendment and the U.S. Supreme Court’s understanding of tax credits.

*UPDATE: I originally reported that the vote was 14-10 to table the repeal bill. In fact, one state senator had mistakenly voted for the motion when he intended to vote against it and that was later corrected. The 13-11 vote was along party lines.

“Nice Charter School Bill You Got There… Shame If Anything Were To Happen To It”

The latest politician to blur the lines between legislating and running a protection racket is Representative Dan Eaton, division chairman of the New Hampshire state legislature’s powerful House Finance committee.

In what Charles Arlinghaus of the New Hampshire Union Leader generously described as “a rare moment of candor”, Rep. Eaton recently stated during a committee hearing that he was going to hold up an entirely uncontroversial bipartisan charter school bill purely for political purposes. As he explained, “I’m looking at this as political. We have a [budget] negotiation [with the state senate] coming up in June and I want to have a trump card or two, and this is … a very healthy trump card.”

Arlinghaus breaks it down:

Consider what he’s saying: He liked the bill and supports the policy, but he believes he can use the bill as part of a hostage negotiation with the Senate. He wants to say to the Senate “I know you want this, but we’ll kill it even though we like it too unless you do something else we want that is completely unrelated.”

Without question, some give and take and normal compromise will be part of a budget process. Everyone expects the House and Senate to pass different budgets and to then negotiate over the details of what gets included. But this bill isn’t part of that process and wouldn’t be part of that negotiation unless Eaton gets to keep it captive in a back room. In effect, he’s looking at charter schools and saying, “I’m sorry you got caught in the crossfire, but I think I can sell you for a good price.”

The bill in question was intended to clear up a misunderstanding about a recent change to the Granite State’s charter school law that the state attorney general’s office understood to mean the opposite of what the legislative authors had intended. The bill, which restored the previous statutory language, had already received a positive recommendation from the NH House Education Committee and passed the full NH House on a voice vote, meaning that the support was so overwhelming that it was unnecessary to count the votes in favor and opposed. What seemed like common sense to most legislators apparently looked like an opportunity for political hostage-taking for Rep. Eaton.

Without the fix, the five new charter schools that are already in the governor’s budget cannot be authorized. Even a delay until the budget negotiations in June will jeopardize the ability of these charter schools to be ready to open in September.

As a former member of the New Hampshire House of Representatives, I can attest that the “Live Free or Die” state’s citizen legislature often embodies the highest ideals of self-government. Most of the legislators I encountered in both parties were principled and completely dedicated to making New Hampshire an even better place to live. Unfortunately, these sort of legislative shenanigans leave a stain on the august institution. Let us hope that sunlight proves to be a sufficient disinfectant.

New Hampshire’s Governor vs. Kids and Taxpayers

In her budget address before the legislature last Thursday, New Hampshire Governor Maggie Hassan pledged to repeal the nascent Opportunity Scholarship Act (OSA). The law grants tax credits to businesses that help low- and middle-income students afford independent and home schooling.

If the governor’s goal is saving money, as she claims, then she should oppose the repeal. The fiscal note prepared by the governor’s own Department of Education states that repealing the OSA would actually cost the state half a million dollars over the next biennium.

The OSA was designed to aid low- and middle-income families while saving money. The maximum average scholarship size is only $2,500, significantly lower than the more than $4,300 that the state allocates for each public school student, and vastly lower than the total public school spending figure of $15,758 per pupil. Moreover, businesses receive tax credits for only 85 percent of their donations, so even assuming the maximum average scholarship size, the state saves nearly $2,200 whenever a student switches out of the public school system—and the savings for local taxpayers are far larger. 

The Josiah Bartlett Center for Public Policy estimates that the OSA would save the state $8.3 million over the next four years. A repeal would eliminate those savings and increase costs.

High-income families already have school choice. They can afford to live in communities that have high-performing public schools or to send their children to independent schools. Low-income families have few, if any, choices besides their assigned local public school.

On the 2011 New England Common Assessment Program (NECAP) mathematics exam, eighth grade public school students in Bedford and Windham scored 84 percent and 89 percent proficient and above respectively compared to 55 percent in Claremont and 42 percent in Stratford. Unsurprisingly, the median household income is $121,452 in Windham and $114,681 in Bedford compared to $41,721 in Claremont and $33,571 in Stratford.

But even in high-performing districts, we should not expect that any one school is capable of meeting all the diverse needs of all the students who happen to live nearby. Not all children thrive in the traditional classroom environment. Some students need extra support academically, socially or emotionally. Traditional public schools may work well for most children, but there is no school that is right for all children.

The overwhelming consensus of randomized controlled studies, the gold standard of social science research, have demonstrated that students attending schools of their choice perform as well or better than their public school peers. Moreover, a study of Florida’s scholarship tax credit program also found a modest improvement in the academic performance of public school students in response to the increased competition.

A Quick Round-Up on Education Policy and the 2012 Elections

Californians approved Prop 30, a $6 trillion dollar tax hike intended to save public schools from “devastating” cuts. In fact, the state is already spending around $30 billion more today on public schooling than it did in the early 1970s, after controlling for both enrollment growth and inflation—and SAT scores, the only academic outcome measure going back that far, are down. Prediction: this $6 billion will have little impact on children’s education even if it does make it to the school level. Instead, it will further slow California’s economy and drive a few more businesses out of the state.

Georgia approved a new charter school authorizer, which should lead to more rapid growth of charter schools in that state. Based on recent research published by the Cato Institute, this will increase generally mediocre options within the public school sector by, in part, cannibalizing generally better options in the private sector. Georgia can avoid a net reduction in educational diversity, freedom, and quality by expanding its existing education tax credit program.

Washington becomes the 43rd state to adopt charter schools. Initiative 1240 caps the state-wide charter school count at 40 over the next five years, however, so it will have little short term impact. If the charter cap is expanded before Washington state levels the financial playing field for private schooling through a tax credit program like Georgia’s, the existing independent education sector in the state will be largely consumed by the competition from new “free” charter schools.

High profile Indiana state schools superintendent Tony Bennett has been defeated by his rival Glenda Ritz. Ritz not only opposes the statewide voucher program championed by Bennett, she is among the plaintiffs in a lawsuit to overturn it. Indiana’s voucher legislation accords the state department of education the power to adopt rules and regulations pertaining to its implementation, including determination of students’ eligibility to receive vouchers. If Ritz does not use these powers in an attempt to hobble and curtail the program, I will be shocked.

The political balance in New Hampshire’s legislature has shifted toward Democrats strongly supportive of the educational status quo. This raises the possibility that there will be efforts to cripple or repeal a K-12 scholarship donation education tax credit in that state. Though the program is quite small, it was among the best-designed in the country and it would be an unfortunate turn of events for low-income children in that state if the program is killed.

None of these developments or possible developments are likely to derail the growing interest in expanding educational freedom in America as a whole, but they do suggest that reformers have more work to do in educating themselves and the public about what works and what doesn’t in education policy.

New Hampshire Says No to National ID

New Hampshire has been a bellwether state in national ID debates before. I wrote about its push-back against the E-Verify federal background check system in a recent post entitled “Cardless National ID and the E-Verify Rebellion.”

The bill that was the subject of that post, HB 1549 by Rep. Seth Cohn (R-Merrimack 6), has now passed the Senate, and it is on its way to Governor John Lynch’s desk for his signature.

It is pared down from its original version, but it now makes clear that state driver’s license records cannot be used in a national identification system. That is what E-Verify is rapidly becoming, and New Hampshire has rapidly said “No.”

National Surveillance Programs and Their State Impediments

Having originally come to Washington to defend federalism, I am always delighted to see the division of powers among the states and the federal government have its proper effect: to protect liberty and limited government.

As with REAL ID, the E-Verify federal background check system is meeting up with state resistance. The Republican Liberty Caucus of New Hampshire reported yesterday:

This afternoon, the House passed HB 1549, which would prohibit the state’s participation in the E-Verify system, with a nearly unanimous voice vote. The House also killed HB 1492, which would require employers to verify an employee’s eligibility to work in the United States using the E-Verify System, with a 226-59 vote.

E-Verify is essentially a national identification system that requires employers to verify all job applicants’ citizenship in a national database system before they can employ them. If the state agreed to participate, all citizens would have to be listed in this national database as a U.S. citizen in order to get a job.

You want to fix immigration, feds? You do it without putting American citizens into a national ID system. Good message.

Here’s the clear language of HB 1549, which the New Hampshire House has approved to govern release of motor vehicle records. It embraces legitimate law enforcement while rejecting national identification schemes.

III. Motor vehicle records may be made available pursuant to a court order or in response to a request from a state, a political subdivision of a state, the federal government, or a law enforcement agency for use in official business. The request shall be on a case-by-case basis. Any records received pursuant to this paragraph shall not be further transferred or otherwise made available to any other person or listed entity not authorized under this paragraph. No records made available under this section shall be used, directly or indirectly, for any federal identification database. (New language in bold.)

To learn more about E-Verify and its role as a nascent national identification scheme, read my Cato Policy Analysis: “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”