June 14, 2016 1:55PM

NH Governor Vetoes School Choice Bill

For a few years now, the town of Croydon, NH (population 651) has been fighting with the governor and state board of education over their school choice policy. The town isn't large enough to sustain its own K-12 district school, so it contracts with a neighboring town to educate most of its residents' children starting in 5th grade. But when its contract was approaching expiration a few years ago, the town decided to give local parents the option of sending their children to private schools as well, and the town would cover tuition up to the amount that it was spending per pupil at the neighboring district school (about $12,000).

That's when the governor and state education bureaucrats got involved. They objected to the town's use of tax revenue at non-government schools, though they had difficulty pointing to exactly which law or statute the town was violating. They're currently embroiled in a lawsuit to sort out whether Croydon has the authority to decide how to spend its local tax dollars, but meanwhile the state legislature passed a bill clarifying that Croydon and similar towns have the authority to enact their own school choice policies. 

Last week, NH Gov. Maggie Hassan vetoed that bill citing two arguments I had already refuted in a Union Leader op-ed earlier in the week. In her veto message, Gov. Hassan wrote:

House Bill 1637 diverts taxpayer money to private and religious schools with no accountability or oversight, a clear violation of the New Hampshire Constitution, which states, ‘… no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.’ Not only is the bill unconstitutional, it also has no mechanism to ensure a student’s constitutional right to the opportunity to receive an adequate education and would undermine the state's efforts to ensure a strong and robust public education system for all New Hampshire students.

"Under current New Hampshire law, public schools are required to provide the opportunity for an adequate education, as defined by the Legislature, and are held accountable through laws and rules that require monitoring and review by the Department of Education. Additionally, as required by statute and as a result of Supreme Court decisions requiring a statewide education accountability system, New Hampshire schools are required to participate in the Statewide Educational Improvement and Assessment Program. If House Bill 1637 is enacted, public funds would be used to send students to private schools – which are only approved by the Department of Education for attendance and not curriculum, without the same accountability standards as the public schools – violating the requirements of state law and the state Constitution.

These are red herrings. As I noted in my prebuttal last week:

During the debate over the bill, opponents raised two main objections related to accountability and constitutionality. Neither withstands scrutiny.

One legislator claimed that there are “no safeguards for quality assurance” because private schools are not subject to all the same rules and regulations as district schools. However, this has it exactly backward.

District schools are primarily accountable to school boards and the state department of education, which promise an “adequate education” in principle but don’t always deliver in practice. Private schools are subject to even greater accountability because they’re held directly accountable to parents.

If a private school isn’t working out for a child, the parents can take their child (and their money) somewhere else. Knowing this, private schools have a strong incentive to be responsive to the needs of students and their parents.

Opponents also claim the bill would violate the state constitution’s “Blaine Amendment” provision, which states that “no money raised by taxation shall be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

However, in a 1955 Opinion of the Justices sanctioning the use of publicly funded vouchers at a religiously affiliated nursing school, the New Hampshire Supreme Court held this constitutional provision only forbade the state from supporting “a particular sect or denomination,” but that did not mean “that members of a denomination should be deprived of public benefits because of their beliefs.”

In other words, the state constitution permits students to use public funds at a religious school so long as they could use the funds at a variety of other secular or religious schools. The state constitution demands religious neutrality, not discrimination against religious groups or institutions.

In short, state regulations are no guarantee of quality (nor does their absence imply a lack of quality) and the New Hampshire state constitution does not mandate religious discrimination. If only someone had told the governor...