Would a proposed school choice proposal be constitutional in NH?

From the Concord Monitor

As legislators continue to work on Senate Bill 193, which creates a voucher system through educational freedom savings accounts in New Hampshire, questions remain about the bill’s constitutionality (read the latest coverage of the debate here). During the legislative session, lawmakers questioned whether the taxpayer-funded savings accounts could be used at religious schools. As reported in the Concord Monitor, the question remains unanswered:

As they work on Senate Bill 193, Republican lawmakers in committee have so far relied heavily on a legal brief released by the Josiah Bartlett Center for Public Policy, a free market think-tank in Concord. The brief, produced in partnership with the Institute for Justice, a libertarian organization from Washington, D.C., argues that the bill would pass constitutional muster in New Hampshire, even without excluding religious schools.

The American Civil Liberties Union of New Hampshire couldn’t disagree more.

“The Report’s conclusion is wrong and contradicted by the plain language of both the New Hampshire Constitution and multiple cases from the New Hampshire Supreme Court,” ACLU lawyers wrote to lawmakers in reply to the IJ analysis.

The state attorney general’s office agrees. Associate Attorney General Anne Edwards warned House lawmakers in committee that if the bill became law as is and allowed families to use state funds at parochial schools, a constitutional challenge would come – and be successful.

“Our concern is that if you leave that language in there, it would be a very quick end to this bill,” she said.

The legal argument by school choice advocates goes like this: the state can’t give religious schools money. But it can give money to parents, who are free to choose where to spend that money.

“ESA programs are not institutional assistance to religious (or other private) schools. ESAs programs are, instead, student assistance programs. The proper interpretation of Articles 6 and 83 (of the New Hampshire constitution) prohibit institutional assistance to religious schools, but do not prohibit student assistance programs,” the Institute for Justice wrote in its brief.

The ACLU-NH doesn’t agree. It said that the New Hampshire Supreme Court has repeatedly ruled against sending tax dollars to religious schools, and won’t be sympathetic to attempts at a work-around. In one ruling, its justices wrote that government can’t circumvent constitutional provisions by “(doing) indirectly that which it cannot do directly.”

There are also other constitutional questions that must be addressed, including the issue of accountability:

John Tobin helped litigate Claremont and is the former director of New Hampshire Legal Assistance. He thinks there’s a very real practical concern about the funding problems this bill could cause for public schools, but he’s not sure someone could hang a legal challenge to the bill on that. But Claremont could still be relevant here.

“One of the key holdings of the Claremont litigation, (is that) the state has to have a system of accountability for the schools where it sends its money. And this bill doesn’t really have that,” Tobin said.

State Rep. Rick Ladd, the House Education committee Republican chairman, has said beefing up accountability on the bill is next on the committee’s docket.

Source: Would a proposed school choice proposal be constitutional in NH? | Concord Monitor