New Hampshire Superior Court Judge dismisses suit challenging the state’s school voucher program

A Superior Court Judge dismissed a lawsuit challenging the state’s school voucher program, ruling that the state “did not delegate its duty to provide an adequate education because it has no duty to students not enrolled in public school” and the defendant did not meet the burden of proof to indicate that it was unconstitutional, according to InDepth NH

The school voucher program allows parents to receive public taxpayer dollars to pay for private and religious school tuition, homeschooling expenses, and other education-related costs. It has raised significant legal and ethical questions around whether the state should subsidize private education and homeschooling, especially when New Hampshire severely underfunds its public schools

From InDepth NH:

The ruling… sides with the Department of Education on the issue of delegating legislative authority to provide a public education.

“The Court finds that the State did not delegate its duty to provide an adequate education because it has no duty to students not enrolled in public school and RSA 194- F does not prevent students from attending public schools,” [Superior Court Judge Amy L.] Ignatius writes in her ruling.

Ignatius wrote that in determining the ruling, she had to first presume that the program is constitutional: 

She quotes the Contoocook Valley School District ruling by the Supreme Court to say she has to first presume the program is constitutional.

“In reviewing a legislative act, [the Court] presume[s] it to be constitutional and will not declare it invalid except upon inescapable grounds.”

The judge notes the burden of proof is on [defendant Deb] Howes to prove it is unconstitutional, and she has not met that bar.

The judge also dismissed the lawsuit’s claim that the state was illegally using lottery funds to pay for the school voucher program:

The New Hampshire Constitution states, “all moneys received from a state-run lottery and all interest received on such moneys shall, after deducting the necessary costs of administration, be appropriated and used exclusively for the school districts of the state,” according to the suit, which also notes the money “shall not be transferred or diverted to any other purpose.”

The law only allows the money to be used to distribute adequate education grants to school districts and approved charter schools, the suit claimed.

But Ignatius’s ruling notes that many other state revenue streams go into the Education Trust Fund, and the uses of the separate streams are not tracked so it is impossible to determine if the lottery funds are being used for the EFA program…

The judge also notes the amount of lottery funds is small compared (about 10 percent) to the total state funds that flow into the education trust fund.

“Due to the proportion that lottery money takes up of the Education Trust Fund and the respectively minor allocation to the EFA program, the Court’s required constitutional presumption is reasonable,” Ignatius writes in the ruling.

She also notes that the statute was changed in the 2023 legislative session to allow the funds to be used for the Education Freedom Account program, so Howes’ claim of illegality is moot.

Similar lawsuits have been filed across the country as states adopt similar school voucher programs. A lawsuit was recently filed with the Wisconsin Supreme Court, and courts in Ohio and Tennessee have declared school voucher programs unconstitutional.

Read the full article on InDepthNH here.

Learn more about New Hampshire’s school voucher program: 

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