By GARRY RAYNO, InDepthNH.org
CONCORD — Attorney General John Formella and Education Commissioner Frank Edelblut praised the judge’s ruling dismissing Deb Howes’ lawsuit challenging the use of the state’s Education Trust Fund money to pay for the Education Freedom Account program.
Merrimack County Superior Court Judge Amy L. Ignatius dismissed the suit filed by Howes, who is the president of the American Federation of Teachers, claiming the use of the trust fund money for non-public education was both illegal and unconstitutional.
Howes also challenged the legislature’s delegation of its authority to the Children’s Scholarship Fund NH to administer and regulate the program without what she said was meaningful oversight.
Howes said she was disappointed in the court’s decision but was not surprised.
“The court actually said the quiet part out loud, stating that the state does not have an obligation to provide a constitutionally adequate education to children whose parents opt to provide them a private education,” Howes said in a statement. “That stunning admission should shock the public to its core and give everyone pause about the accountability and quality of voucher schools.”
Program supporters were pleased with the decision.
Senate President Jeb Bradley, R-Wolfeboro, who sponsored a similar program before it was included in the state’s two-year budget in 2021 after it stalled in the House, said the program has helped thousands of students.
“Over the past three years, thousands of New Hampshire families have used the Education Freedom Account program to access the best education for their children,” Bradley said. “Today’s decision affirms that extending school choice to working families is a constitutional and cost-effective way to help students.”
Sen. Ruth Ward, R-Stoddard, who chairs the Senate Education Committee and helped craft the program said, “Currently 4,200 New Hampshire students are using Education Freedom Accounts to build a better education. The teachers’ union sued because it wants every student taking the same path. I’m glad that Judge Ignatius sided with parents.”
In the suit Howes filed as a private citizen and not as union president nearly a year ago, she claimed 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 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.
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 Howes to prove it is unconstitutional and she has not met that bar.
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.
“Interestingly, we had the law on our side because it had stated that lottery funds could only be used to fund public schools and the Education Trust Fund did not list vouchers as an allowable expenditure,” Howes said. “But this year, the Legislature amended the statute to allow the Education Trust Fund to be used for vouchers.”
The ruling also 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,” Ignatius writes in her ruling.
She also said Howes in her suit failed to identify any expenses in the program that were not educational.
“The legislature also included a catchall provision presumably designed to allow for flexibility as it would be difficult for the legislature to determine all potential expenses related to a child’s education,” Ignatius writes in her ruling. “The legislature delegated the authority to approve expenses extraneous to the specific items listed to the scholarship organization but required those expenses be ‘educational’ and Howes has not identified any expenditures that are not educational.”
For those reasons she granted the department’s motion to dismiss the suit.
House Majority Leader Jason Osborne, R-Auburn, whose wife’s company is a provider for the EFA program, praised the court’s decision.
“The Superior Court’s decision to dismiss the frivolous lawsuit against the wildly successful Education Freedom Account program reinforces parents’ rights and that families should make the education choices that best fits their children’s needs,” Osborne said in a statement. “I am pleased this latest attempt to stunt education choice has failed. I look forward to passing legislation in the next session to expand this successful program and allow more families to take advantage of opportunities to help their children excel.”
But Howes said the legislature should be more focused on the needs of the 160,000 public school students, not just the 4.200 EFA students.
She said the public school students “deserve a robust curriculum and fully staffed schools.
“Vouchers have exacerbated an already disparate burden placed on local property taxpayers to fund the basic right to a quality public education,” Howes said. “Every Granite State public school should be a safe and welcoming place where students have the academic challenge and support they need to thrive.”
Educational Commissioner Frank Edelbult said: “We are pleased that the court has ruled in favor of New Hampshire’s strong and prosperous Education Freedom Account program, which now has more than 4,000 participants and continues to grow.
“The court’s decision underscores the legality of the EFA program previously approved by legislators, but more importantly allows New Hampshire students and families to find the best educational pathway available for their unique needs. The value of this program continues to be far-reaching, with numerous success stories emphasizing just how impactful EFAs have been statewide,” Edelblut said.
The controversial EFA program has been more costly than anticipated when it was approved in 2021.
Edelblut told lawmakers at the time to expect the program to cost $3.4 million for the first biennium, but the actual cost was $24 million over that period.
During the current two-year budget cycle, $60 million has been appropriated for the EFA program.
Sold as a program to help students find different educational environments in order to thrive, instead about 75 percent of the participants in the first two years attended private and religious schools prior to the program’s launch in 2021.
Parents of EFA students received the state adequate education grant their school district would have received, under the program, to spend on what they believe are the best educational options for their child.
While proponents say the program saves school districts money when the average cost to educate a child is about $20,000, most schools would have to lose more than a handful students to reduce staffing or activities and lower overall costs.
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.
Last legislative session the earnings cap was increased but attempts to bring greater accountability to the program were defeated.
There are numerous bills expected to be introduced into the 2024 legislative session concerning the program.
Attorney General Formella said, “This decision preserves the ability of Granite State families to have real options so they can make the best educational choices for their students.All children should be able to receive the strongest education possible to meet their learning needs, no matter their economic status.
“I am grateful for the hard work our team put in to defend this program, and I would like to especially thank Senior Assistant Attorney General Laura Lombardi for her dedication and excellent work on this case,” Formella said.
Garry Rayno may be reached at email@example.com.