new hampshire

School Choice Lawsuits Update: Summer 2016 Edition

As school choice wins in the court of public opinion, opponents have resorted to fighting it in the courts of law. Here are a few brief updates regarding pending lawsuits against school choice programs around the country.

Colorado: Douglas County’s School Choice Grant Program

Last summer, the Colorado Supreme Court struck down Douglas County’s school voucher program with a plurality ruling that the law violates the state’s historically anti-Catholic Blaine Amendment, which forbids public money from being used at religious schools. District officials responded to the ruling by creating a new voucher program that excludes religious schools, which drew lawsuits from both opponents and supporters of school choice.

The Institute for Justice, which had previously defended the school voucher program, sued the county for unconstitutionally discriminating against religious groups. According to IJ, the “exclusion of religious options from the program violates the Free Exercise, Establishment, Equal Protection, and Free Speech Clauses of the United States Constitution, as well as the Due Process Clause, which guarantees the fundamental right of parents to control and direct the education and upbringing of their children.” IJ contends–correctly, in my view–that the First Amendment requires the government to be neutral both among religions and between religion and non-religion, but it may not actively favor nor discriminate against either religious or non-religious groups or institutions. This case is still pending.

In a separate lawsuit, opponents of school choice contended that the new voucher program was not materially different than the old one. Earlier this month, a district court agreed, striking down the program yet again. Although by excluding religious schools, the new program appears to be in compliance with the Colorado Supreme Court’s ruling, the district court explained that the state supreme court did not rule on the merits of several other alleged violations of state constitutional provisions under which the district court had previously invalidated the program. This case is likely going to return to the state supreme court for resolution.

Florida: Tax-Credit Scholarships

There are currently two lawsuits pending against Florida’s tax-credit scholarship program. As RedefinED reports, a judge recently denied an attempt to fast-track one of the two suits, which primarily concerns the adequacy of the state’s funding of district schools. A judge dismissed the portion of the suit related to the tax-credit program but plaintiffs filed an appeal and asked for the case to skip the appellate court and go straight to the state supreme court. That request has been denied, so the case will go before the appellate court first. That means the program is likely to serve more than 100,000 students by the time it comes before the state supreme court.

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.

New Hampshire Legislators Seek School Choice Solution

New Hampshire legislators are working to end a legal battle between a small town and state education bureaucrats over the town’s school choice program.

The town of Croydon (2010 population: 764) has fewer than 100 elementary-and-secondary-school-aged students. Unsurprisingly, the town found it was not cost effective to run its own K-12 school system. Instead, the town runs a very small K-4 district school and had a longstanding, exclusive agreement with a neighboring district to educate 5th through 12th graders. However, when their contract was nearing expiration, town leaders decided to allow students to take the funds assigned to them to a school of choice.

Sadly, the New Hampshire Department of Education wasn’t about to let a town empower parents to escape the district school system so easily. After a series of meetings and threats to withhold state funds, the department ordered Croydon to end their school choice program, which it claimed violated state law. However, former NH Supreme Court Justice Charles G. Douglas, III, the attorney for Croydon, that the department was misreading state law:

The letter from Douglas and [then-Croydon School Board Chairman Jody] Underwood argues against the state laws [NH Commissioner of Education Virginia] Barry used to support her order to stop school choice in Croydon:

“You cite RSA 193:1 and purport that it says that districts may only assign students to public schools. This is inaccurate. RSA 193:1 defines the duties of parents to ensure school attendance, and neither describes the duties districts have nor restricts the assignment ability of districts. In addition to your inaccurate interpretation, you cite to the portion of that statute that states: ‘A parent of any child at least 6 years of age … shall cause such a child to attend the public school to which the child is assigned.’ You fail to cite section (a) of the statute which clearly states that private school attendance is an exception to attending public school.”

The dispute is now being litigated.

Recently, some NH legislators sought to clarify any ambiguities in the law by explicitly authorizing local authorities to allow local education funding follow children to private schools of choice. As the New Hampshire Union Leader editorialized, this is a step in the right direction. However, the legislation does contain one serious flaw: it limits parental choices to non-religious schools, thereby discriminating against schools based solely on their religious affiliation.

New Hampshire Ends Brief Flirtation with National ID Compliance

When the REAL ID Act passed in 2005, Senator Joe Lieberman (D-CT), no civil libertarian, called the national ID law “unworkable” for good reason. It seeks to herd all Americans into a national ID system by coercing states into issuing drivers licenses (and sharing information about their drivers) according to complex federal standards.

The hook REAL ID uses in seeking to dragoon states into compliance is the threat that TSA agents will refuse IDs from non-complying states at our nation’s airports. The threat is an empty one. Consistently over years, every time a DHS-created compliance deadline has come around, state leaders with spines have backed the Department of Homeland Security down. I detailed the years-long saga of pushed-back deadlines last year in the Cato Policy Analysis, “REAL ID: A State-by-State Update.”

DHS has stopped publishing deadline changes in the Federal Register–perhaps the endless retreats were getting embarrassing–and now it has simply said on its website that TSA enforcement will begin sometime in 2016. But it’s evidently back-channeling threats to state officials. Those folks–unaware that REAL ID doesn’t work, and disinterested in the allocation of state and federal power–are lobbying their state legislatures to get on board with the national ID program.

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