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MacDonald gives education savings accounts constitutional OK

New Hampshire Union Leader

December 30. 2017 6:13PM
Gordon J. MacDonald 

CONCORD - Attorney General Gordon J. MacDonald has waded into one of the most highly charged legislative debates of 2018, concluding a Senate-passed bill giving parents state money to send their children to private schools, including religious ones, would be constitutional.

This legal seal of approval comes days before what could be a showdown vote in the House of Representatives next Thursday and potentially removes one of the obstacles that has prevented similar legislation from ever winning House approval in recent years.

The New Hampshire Union Leader obtained a copy of an email that Associate Attorney General Anne Edwards sent to Terry Pfaff, House chief of staff, confirming that MacDonald was giving his legal OK to SB 193.

"As discussed with Attorney General MacDonald this morning, we believe that SB 193, with its proposed amendment 2018-2530h, is constitutional," Edwards wrote, referring to the extensive amendment that cleared the House Education Committee on a 10-9 vote last November.

"There are a few areas of the proposed amendment that could be enhanced and we are ready to provide technical assistance to the House."

Even some of the most ardent supporters of these education savings accounts (ESAs) had thought until now that MacDonald's office thought otherwise.

Edwards had testified last April that the bill had serious constitutional issues.

At that time, Edwards had warned lawmakers they would need to tweak the bill in order to make it stand up to legal and constitutional challenges, adding that she was particularly worried about the bill not excluding religious schools.

Gregory Moore, state director of Americans for Prosperity, said this is a big boost to the campaign.

"ESAs are the best way to empower families to find the best educational opportunity to meet their student's needs. This money goes to the family who control the funds, not to a school, which is why these aren't vouchers and an important distinction constitutionally," Moore said in a statement.

"We're thrilled that Attorney General MacDonald supports this common sense plan to improve education for New Hampshire families."

The Civil Liberties Union of New Hampshire and many public school support groups insist the bill would fail a legal test before the New Hampshire Supreme Court.

When the Josiah Bartlett Center for Public Policy produced a legal brief insisting the bill would pass constitutional muster, lawyers, for the ACLU vigorously disagreed.

"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.

Senate Bill 193 would allow families to take 90 percent of the money their local school district receives from the state to educate their children and, after funneling it through a scholarship organization, put it instead toward other education expenses - including home-schooling or private school tuition.

Gov. Chris Sununu has gotten solidly behind the latest version after the House panel adopted changes he wanted that included limiting eligibility for this benefit to low- and moderate-income families.

At issue legally is the New Hampshire Constitution, Part II, Article 83, which states: "... 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."

Supporters said the state can't give religious schools money but if the money goes to parents, they are free to choose how to spend on the schooling of their children.

"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 for the Josiah Bartlett Center.

Legal critics say the bill can't escape a constitutional infirmity.

Despite the fact Republicans have controlled the New Hampshire House since the 2014 elections, backers have failed to this point to get the lower chamber to embrace vouchers that by any means went to religious schools.

When Education Commissioner Frank Edelblut was in the House, he authored such legislation. At that time, the House would only pass state money going to parents who send their children to "nonsectarian private schools."

MacDonald giving this bill the constitutional thumbs up could change that outcome.

Kate Baker, executive director of the Children's Scholarship Fund, had urged lawmakers to adopt the bill even if it faces a legal challenge.

She runs the program by which businesses receive tax credits for donations they make to the scholarship fund.

Critics challenged that law but the New Hampshire Supreme Court upheld it.

"I believe this will be in the courts no matter what you do," Baker said as the House panel was reviewing its changes. "When you create a program giving families the right to choose and the dollars go with that family, there will be challenges to that."

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