Rep. Tamara Le: SB 8 is fundamentally flawed and unconstitutional

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Representative Tamara Le (Rock-31), a member of the House Education Committee, submitted this piece to Seacoast Online about Senate Bill 8, also known as the “Croydon bill.” SB 8 would allow districts to pay student tuition to private schools for the grades that the district does not serve on its own. 

Here’s the full piece:

Call it the Croydon bill. The ALEC bill. The Freestater’s Dream Private Education bill. Or Senate Bill 8-FN. In any case, it’s a chip-away bill. One of several that came to floor of the New Hampshire House of Representatives on June 1.

I rose for the first time as a state representative to speak at the well in opposition of the bill. In opposition of the philosophy driving it and in opposition of the New Hampshire commissioner of education who has helped pay the legal bills of the group pushing it.

Beyond chipping-away at public education, the bill as amended remains fundamentally flawed and most unconstitutional.

The premise of SB 8 allows local, public school boards to gift to private schools, local tax dollars raised and appropriated under state adequacy laws when that community, doesn’t have or doesn’t like its public-school option.

The reality is SB 8 permits state dollars to go toward private schools, which, as a matter of policy, discriminate in their enrollment procedures against students with disabilities.

There is nothing in the Croydon bill that expressly prohibits local school boards from establishing contracts with private schools that refuse to accept all of New Hampshire’s public students.

If a public school establishes a contract with a private school – in essence creates separate track – where only students without disabilities are able to participate, a clear chipping away of a students’ civil rights has occurred.

The obligation of a local school board, when there is no middle or high school in a community, is not to find a school for all students. This is incorrect. Boards that create contract tuition agreements with another school, cannot create multiple contracts – that in the aggregate – cover all students. All students must have the same and equitable opportunity when public money is involved.

Beyond violation of the Claremont decision – this situation is ominously like the one that led to Brown vs. Board of Education.

Additionally, SB 8 violates RSA 198:39 – the Education Trust Fund statute. There is nothing in the RSA about money going to private schools and SB 8 currently does not amend this part of the statute.

198:39 Education Trust Fund Created and Invested. –

I. The state treasurer shall establish an education trust fund in the treasury. Moneys in such fund shall not be used for any purpose other than to distribute adequate education grants to municipalities’ school districts and to approved charter schools pursuant to RSA 198:42, to provide low and moderate income homeowners property tax relief under RSA 198:56-198:61, and to fund kindergarten programs as may be determined by the general court. The state treasurer shall deposit into this fund immediately upon receipt:

This bill raises clear constitutional issues. SB 8 would allow for an unconstitutional delegation – chipping away – of authority. SB 8 would delegate authority that the N.H. Supreme Court has clearly said belongs with the Legislature to local school boards.

As with the voucher bill (SB 193) the N.H. attorney general’s office testified it is not clear that the Legislature can delegate this authority.

This bill creates an unfair playing field. SB 8 creates a situation where public schools could lose students to nonpublic schools that are held to an entirely different and lower level of oversight.

SB 8 as amended states that the contracted private school education must be, “substantially equal in quality to state performance standards.”

“Substantially equal,” is not the same as standard.

It’s like asking two football teams to play a game – but one is allowed to ignore half of the rules.

Public education in New Hampshire must meet certain criteria and standards of adequacy. Private schools in New Hampshire have different adequacy standards. Using public tax dollars to fund a school with lower or no adequacy standard, moreover is constitutionally invalid.

Despite N.H. law stating the statewide assessment test is a requirement of the adequate education standards, a sending town under SB 8 could send publicly funded students to a private school where they would no longer have to take the statewide annual assessment.

There is little or no triangulated data proving scholastic outcomes fare better in private schools than public. A recent op-ed in the New York Times cited a study that found Indiana students who transferred from public schools with their public tax dollars to private schools, “experienced significant losses in achievement in mathematics,” and “saw no improvement in reading.”

SB 8 sets a new and lower standard for accountability. The bill allows for passively handing over authority from the N.H. state board to local school boards to make the determination of whether a private school is providing an adequate education. Yet again, a local school board does not have this authority. Only the state is qualified to do this.

Consider this. Where a local school board gets to determine whether a private school provides a constitutionally adequate education – could not and would not any taxpayer who doesn’t agree with that determination challenge that school board to show how they arrived at the decision? And more so – how they met (or didn’t meet) stipulations for adequacy under RSA 193-E:2?

There is nothing in that RSA about money going to private schools, and SB 8 currently does not amend this part of the statute.

SB 8 furthers a troubling trend to underfund and cripple N.H. public schools. From devastating cuts to adequacy aid, catastrophic aid and building aid, if signed into law this bill alone would continue to deconstruct education in New Hampshire.

Public schools are accountable for every dime, every penny of public money raised and appropriated. Private schools do not have the same transparency requirements.

Public school boards are elected and hold public meetings; public budget hearings; take public comments; comply with Right-to-Know law requirements; allow open access to public records; and, and comply with public votes on the local school district budget.

Private schools can keep the public in the dark. There is no guarantee, no accountability how those tuition dollars gifted to private institutions are actually being used. Is the money going toward education? Or is it being squirreled away in the private school’s endowment fund?

Tax dollars sent out of a community only increases the burden on taxpayers. Gone is the opportunity to share the cost with surrounding communities that wish to leverage resources. New Hampshire cannot support multiple, separate school systems out of the same limited tax base.

To be perfectly frank, the main reason private schools do not receive federal IDEA money is because they discriminate against students with disabilities.

Consult the anti-discrimination policies of any private school in New Hampshire you are told is superior. At least 90 percent of the time, students who experience disabilities are excluded. Determined less than equal. In fact, SB 8 affords special rights to typical children living in towns without specific grade levels public in their schools.

Proponents try to rationalize that sending districts would retain the obligation to ensure the delivery of special education services. That is very, very different from requiring receiving schools not discriminate.

Could discrimination of LGBTQ children be far behind? There are no provisions in the bill to ensure students will be treated fairly and equitably. There are no provisions in place to ensure that dollars raised for the common good are being used for the common good.

Ask your local school board members – are they ready to accept responsibility for tackling constitutional issues? Are they ready to guarantee emerging Supreme Court decisions that ensure rigor for special education students?

Do not mistake the public-tax-dollar funding of private schools as supporting parental choice. In order to have choice, parents must have legitimate options. For all of their children. Be mindful of what SB 8 asks for and what our children may not get in return. There are genuine financial concerns with SB 8. There are genuine legal concerns and of course, constitutional concerns.

In New Hampshire, children don’t come with price tags. Their education and future cannot afford to be taken advantage of in a classic public/private school bait and switch.

Source: Senate Bill 8 fundamentally flawed and unconstitutional | Seacoast Online