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Another View -- Tim Keller: Education savings accounts are constitutional and good policy

October 01. 2017 9:40PM

Education Savings Accounts (ESAs) are a school choice option gaining popularity nationwide. Opponents of giving parents more choice in their child’s education often claim that these accounts are unconstitutional. But they are certainly allowed under the U.S. Constitution and they can comply with the New Hampshire Constitution as well, a new study from the Institute for Justice and the Josiah Bartlett Center for Public Policy shows.

ESAs are an innovative solution to one of the most perplexing problems facing public education: how do you personalize a child’s education when the prevailing public school model does not? ESAs address this problem by depositing the lion’s share of an eligible child’s per pupil state educational allotment into a flexible, parent-controlled spending account.

Parents can then uniquely tailor their student’s learning experience by spending their child’s education funds on any combination of the account’s allowable expenditures — which currently include, among other things, private school tuition, tutoring, special education therapies and services, private online courses, individual public and charter school courses and curriculum for use outside of a traditional classroom.

ESAs thus give parents not only a choice of schools, but a choice among educational environments, goods and services. A family could pay for a geometry class from the local public high school, an online Spanish class, English 101 at a nearby community college, or a biology class from a private school. Children would have many more options than the local public school alone could provide.

No wonder six states have already adopted similar programs to give parents this type of flexibility and control over their children’s education. The decision to set up an ESA is entirely voluntary. Most parents would stay in the local public school. But for students who are not getting the type of education they need from the district public school, these savings accounts would open up new educational frontiers.

The evidence overwhelmingly shows that empowering parents to make detailed educational decisions for their children improves academic outcomes for those children. Having choices also positively affects high school graduation rates, racial integration, college enrollment, civic engagement, and parental and student satisfaction.

Additionally, there have been 34 studies of the effects of educational choice program on public schools. The majority — 32 — found that choice programs have a positive effect. One found no effect, while only one found a negative effect. There have also been 28 studies of the fiscal impact of educational choice programs on taxpayers and public schools; not one of those studies found a negative fiscal impact.

As the aforementioned report demonstrates, it is constitutional to give parents the freedom to choose how and where their children are educated, including religious education services providers. Another Institute report outlines the benefits of savings accounts and other educational choice programs.

ESAs satisfy the federal and state constitutions’ two defining characteristics of a constitutional educational choice program: religious neutrality and parental choice.

ESA funds can be used for educational services provided by religious schools, but the critical constitutional point is that the state is not directly funding sectarian religious instruction. Opponents say that all religious schools must be excluded. But excluding religious options would violate the religious neutrality commanded by both federal and state precedent.

Just this past term, the U.S. Supreme Court held in the case of Trinity Lutheran v. Comer that Missouri’s reliance on a state constitutional provision — which is very similar to the New Hampshire constitutional provision most often cited as a bar to ESAs — to exclude a church-run preschool from a public benefit program solely because it was church-run was odious to the U.S. Constitution and could not stand. Similarly, the New Hampshire Supreme Court held over a century ago, in Warde v. Manchester, that Catholic institutions could not be denied the same benefits as other religious institutions.

As legislators seek to improve education for all students, ESAs promise to spur innovation and personalize education so that students can attend college upon graduation, find a good job, and pursue their own American Dream; indeed, the New Hampshire Constitution explicitly encourages this!

Tim Keller is a senior attorney at the Institute for Justice, based in Arlington, Va.

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