The Valley News Editorial Board questioned the nature and timing of the Attorney General’s response to SB 193, the bill that would create a statewide voucher program through education freedom savings accounts:
Over the years, the New Hampshire Attorney General’s Office has routinely exercised its right to remain silent about pending criminal investigations, even when increased transparency would clearly advance the public interest. (A case in point is its current review of the circumstances surrounding the shooting of Enfield resident Jesse Champney, who was killed by a state trooper just before Christmas. As of this writing, nearly three weeks later, next to nothing has been disclosed.)
But a more unusual case of reticence occurred late last month when Associate Attorney General Anne Edwards, in consultation with Attorney General Gordon MacDonald, sent a two-sentence email to the House Speaker’s office expressing the opinion that SB193, pending legislation that would establish an expansive school choice program, passed constitutional muster.
“As discussed with Attorney General MacDonald this morning” Edwards wrote, “we believe that SB 193, with its proposed amendment 2018-2530h, is constitutional. There are a few areas of the proposed amendment that could be enhanced and we are ready to provide technical assistance to the House.” Several days later, the House approved the legislation, which has been amended at the behest of Gov. Chris Sununu to tighten eligibility requirements, and it now goes to the House Finance Committee for a hearing on Tuesday.
There is much in this bill not to like, but today we focus on the legal question. As the New Hampshire chapter of the American Civil Liberties Union was quick to point out, the bill appears to clearly violate two provisions of the state constitution as well as New Hampshire Supreme Court precedent, because it would allow parents to use public money to, among other things, send their children to religious schools. As recently as April, Edwards was making the same point to the House Education Committee, predicting that failure to amend the bill to exclude religious schools would surely result in a successful court challenge. According to the Concord Monitor, she told the committee, “We have to change our constitution if we want to have money — state, public money — going to religious schools.” This was just one of many warnings to that effect issued by the Attorney General’s Office.
This about-face is curious for several reasons. One is that the Attorney General’s Office did not feel compelled to provide a detailed legal rationale for a sharp reversal of course. Did the state’s lawyers find new meaning in the provisions of Article 6 of the state constitution, which states in part: “But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination”? Or in Article 83, which provides that “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”? Or did they buy the argument that because the $3,500 grant in state money per child would be funneled through nonprofit “scholarship organizations” authorized to administer the so-called Education Freedom Savings Accounts, that somehow renders the program constitutional? While we understand the concept that constitutions must be regarded as living documents interpreted according to changing circumstances, this mutation is a little too lively to be convincing. It is highly doubtful that what is constitutionally prohibited when done directly is constitutional when done indirectly.
Moreover, the timing is questionable. This bill has been wending its way through the Legislature for months, so there was plenty of opportunity for the Attorney General’s Office to reassess its stance well before the House was due to vote.
And finally, this opinion was apparently conveyed informally to the House Speaker’s office. As the ACLU points out, there is a formal, established process under New Hampshire law for the attorney general to render legal opinions on the constitutionality of legislation. “All such opinions must be, for the sake of transparency and accountability, made available to all legislators, as well as members of the public, so informed decisions can be made,” the ACLU asserts. This is sensible and furthers the public interest, neither of which can be said of the handling of this matter by the Attorney General’s Office.