Suit Claims Education Freedom Accounts Funded Illegally

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Frank Edelblut, commissioner of the Department of Education and the department are being sued over the divisive concepts law.

By GARRY RAYNO, InDepthNH.org

CONCORD — The new Education Freedom Account program violates state statutes by using funds earmarked for public education for private programs, according to a lawsuit filed Thursday against Education Commissioner Frank Edelblut.

The suit challenging the funding for what has been described as the most expansive voucher program in the country, claims money raised by the Lottery Commission, and money from the Education Trust Fund may only be used for adequate education grants to school districts, citing the law creating the fund in 1999.

The suit seeks an injunction blocking the state from using any more of the Trust Fund Money to fund the EFA program.

“If the state desires to operate an Education Freedom Account or similar program, whereby it grants public money for parents to utilize for private use, it must separately fund it through additional taxation or another source of funds,” the suit claims, noting there currently is no mechanism for doing so.
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 claims.
The complaint, brought by Deb Howes as a citizen taxpayer, who is also president of AFT (American Federation of Teachers)-New Hampshire, was filed in Merrimack County Superior Court.

The complaint also claims the state is delegating its duty to to provide an adequate education to a private entity, The Children’s Scholarship Fund, which runs the EFA program without any “meaningful oversight” by the state.

“The state specifically earmarked this money for public education. Instead, the state is stealing from public school students in plain sight to pay for its private voucher program,” Howes said. “Public school students are losing out on millions of dollars that are needed to fix leaky old buildings, purchase and maintain modern computer equipment, buy books and materials published at least in the last decade to support student learning, and provide more social and emotional assistance and other needs that will help students excel.”

“If Commissioner Edelblut wants to continue with his cherished voucher program, he needs to figure out a legal way to fund it,” she said, “but definitely not on the backs of public school students.”
The controversial EFA program was approved as part of the two-year budget package in 2021 after it stalled in the House, but the Senate resurrected it and put it in the budget.

Since it began, it has cost much more than Edelblut told lawmakers to expect, which was essentially $3.4 million over the biennium, but has cost $23 million over that period. 

Sold as a program to help students find different educational environments in order to thrive, instead about 75 percent of the participants attended private and religious schools prior to the program’s launch last year, meaning less than 25 percent of the participants were in public schools the year before the program began.

Parents can use EFA grants for tuition and fees for private schools and private online learning programs, private tutoring services, textbooks, computer hardware and software, school uniforms, fees for testing, summer programs, therapies, higher education tuition and fees and transportation.

The biggest beneficiary of EFA funds during the program’s first year, 2021, was Amazon with 18.2 percent of state grants totaling $437,736, according to the suit.
Randi Weingarten, president of the American Federation of Teachers, said Edelblut’s crass diversion of funds is detrimental to the very students he is supposed to help in his role as commissioner.
“New Hampshire can’t fund its voucher program by illegally putting its hand in the taxpayer cookie jar that’s intended for public school students,” she said. “It’s as simple as this: No matter what program the state wants to fund, it has to do it legally.”

Weingarten said the state’s first priority should be fully funding public schools, so the state’s kids and teachers have  the resources they need to learn and thrive. 

“Any scheme to divert public funds into a voucher program without fully funding public schools first is an insult to the students, teachers and families of New Hampshire, not to mention a violation of the law,” Weingarten said. “Let’s stop attacking and undermining public education and start supporting our public schools and their students.”

The suit also takes issue with the program’s administration and operation, saying it is the state’s duty to provide students with an adequate education but a private entity runs it.

The suit claims the program is marketed as expanding education separately from the public school system and includes a requirement that program participants must not enroll in their local public school making the EFA the entity providing education for the state.

“However, the EFA program delegates virtually all authority to CSF with no meaningful oversight,” according to the suit, by delegating to CSF the authority to “administer and implement” the EFA program.

“This authority includes the sole discretion to determine key details of the EFA program, including, which entities are funded with state education funds and for what purposes, what qualifies as an ‘educational expense,’ and how education is delivered to students participating in the program,” the suit says. “All this is done with little state oversight, no transparency, and no clear means of public access to CSF records under the State’s Right-to-Know Law.”
The suit asks the court to stop any future transfers of money from the Education Trust Fund, to the EFA program.

Proposed legislation for the upcoming session would expand the program and eliminate or raise the income threshold to participate.

Another bill would allow local property taxes to fund local programs as well.

Garry Rayno may be reached at garry.rayno@yahoo.com.

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