By Gerald M. Zelin
Two bills pending in the New Hampshire legislature, House Bill 115 and Senate Bill 295, propose to amend New Hampshire’s current school voucher law, RSA 194-F. The law offers public money to help defray tuition, transportation, technology, books and other expenses when parents enroll their children in private schools, religious schools, online schools, home-based programs, or public schools located outside the district where the family resides.
Vouchers are currently available only to families whose annual household income is under 350 percent of the federal poverty guideline. That threshold, currently $109,000 for a family of four, is somewhat less than New Hampshire’s median household income, which was $88,000 in 2024. Importantly, this income limit applies only when a student first enrolls in the EFA program. Once enrolled, a student may continue to reap the benefits no matter how much the parents’ income later rises.
The proposed amendments would abolish the income limits, making accessibility to vouchers “universal.”
The vouchers are funded by New Hampshire’s Education Trust Fund, which is fed by a variety of sources including taxpayer dollars. The amount of each student’s voucher is based on what the school district where the student resides would have received had the child attended that district’s public schools. This includes: (a) $4,182 annually as basic “adequacy aid”; plus (b) bonuses (“differentiated aid”) if the student who qualifies for special education ($2,142 annually), free or reduced-price meals ($2,346 annually), or as an English Language Learner ($816 annually).
Parents are permitted to supplement the voucher with their own funds. Thus, 64 percent of all EFA students were already attending private schools or home education programs before joining the EFA program. (Portsmouth Herald, Nov. 16, 2024.)
The state contracted with the Children’s Scholarship Fund of New Hampshire (CSF) to administer the EFA program. That organization keeps 10 percent of each student’s voucher.
Although CSF doles out public money, it refuses to comply with New Hampshire’s Right to Know Law. For example, CFS ignored my request for a copy of its criteria for determining which schools and vendors qualify to receive EFA funds.
The EFA statute does not prohibit spending voucher money on schools or books that teach religion. According to one recent report, “Nearly 90 percent of tuition dollars from the Education Freedom Account program … was spent on religious education.” (Concord Monitor, Dec. 9, 2024.)
HYPOCRISY #1. THE SPECIAL EDUCATION GIMMICK.
Amidst all the controversies surrounding the EFA statute, scant attention has been paid to the State Board of Education’s rules implementing the statute.
Those rules, at Ed 804.01(a) and (c), include a gimmick allowing EFA students who do not qualify for special education to receive an extra $2,142 annually in voucher money as if they truly qualified.
Amazingly, parents need not spend any of the voucher money, not even the special education bonus, on special education!
Here’s how the State Board’s rules bloat vouchers by an additional $2,142 annually.
The state and federal special education laws establish a process for determining whether a non-EFA child qualifies for special education. First, the school district evaluates the student. Next, an IEP team (consisting of school district personnel and the student’s parents) reviews the results of that evaluation and any independent evaluations the parents obtained. The IEP team may identify a child as eligible for special education only if the student satisfies both prongs of the following two-prong test: (1) the student must have at least one of the disabilities listed in the special education laws; and (2) as a result of that disability the student requires specially designed instruction in order to make appropriate educational progress. Parents who disagree with the IEP team’s decision may appeal to an independent hearing officer appointed by the State Department of Education.
The State Board’s EFA rules allow parents to bypass what the special education laws demand, such as testing by the school district and an eligibility determination by the IEP team. According to these rules, parents may instead purchase independent evaluations by licensed specialists anywhere in the country. If the evaluator finds the student eligible for special education, parents gain the $2,142 bonus.
These EFA rules encourage counterfeit findings of eligibility for the bonus. For example, they fail to recite the two-prong test set forth in the special education laws. This invites naïve or dishonest evaluators to find students eligible for special education by simply diagnosing disabilities, such as the widespread condition of ADHD, without addressing whether the disabilities are so severe as to necessitate specially designed instruction.
Since the Children’s Scholarship Fund keeps 10 percent of every voucher, it has no incentive to weed out shoddy independent evaluations.
The State Department of Education’s January 2024 instructions for EFA students further encourage counterfeit eligibility for the special education bonus. These instructions advise that the mere existence of a “disabling condition” is enough to gain the bonus. They jettison the question of whether the student requires specialized instruction as a result of the disability.
According to data published by the New Hampshire Department of Education, during the 2024-25 school year 377 EFA students received the special education bonus. The Department has not revealed how many of these students gained the bonus through independent evaluations that bypassed the IEP team process or that failed to address whether the student actually requires specialized instruction.
HYPOCRISY #2. THE DOUBLE STANDARD FOR TEACHING DIVISIVE CONCEPTS.
Hypocrisy #2 in New Hampshire’s school voucher program emerges when we compare the state’s “divisive concepts” statute, RSA 194:40, with expenses that qualify for public funding under the EFA statute.
RSA 194:40, enacted in 2021, prohibits public schools from teaching that one person’s “creed” or “religion” is “inherently superior.” It gives a free pass to private schools, including religious schools.
In May 2024 the U.S. District Court for the District of New Hampshire struck down the divisive concepts statute as impermissibly vague. The state appealed to the U.S. Court of Appeals for the First Circuit, where the case is now pending.
One of the Children’s Scholarship Fund’s approved vendors is the St. Augustine Academy Press. In other words, parents of EFA students may purchase with taxpayer money books published by that company.
The St. Augustine Academy’s books are deeply religious. One I purchased, “The Spiritual Way Manual by Mother Bolton,” preaches that every born child is born with the taint of “Original Sin,” or “inherited sin,” which can be overcome only by achieving “Grace” through “baptism.” The book advises that “people who refuse to know, to love, and to serve God are unwise.” It warns that some souls will go to heaven and others to hell.
Aren’t those divisive concepts as defined in RSA 194:40, because they teach that one person’s “creed” or “religion” is “inherently superior”?
The question is not whether these religious beliefs deserve respect, for they certainly do. The question is whether taxpayers must subsidize them. Which takes us to the next hypocrisy.
HYPOCRISY #3. FORCING ONE TAXPAYER TO SUBSIDIZE ANOTHER’S RELIGION IS NOT “FREEDOM.”
In New Hampshire, any discussion of public funding for religious education necessarily leads us to two provisions in our State Constitution. Part 1, Article 6, adopted in 1783, says “No person shall ever be compelled to pay towards the support of the schools of any sect or denomination.” Part 2, Article 83 was amended in 1877 by adding, “No money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”
The latter provision (Article 83) is a “Blaine Amendment.” During the 1870s Senator James Blaine of Maine, an unsuccessful candidate for President, persuaded many states to amend their constitutions by prohibiting public spending for religious education. The movement was fueled by anti-immigrant and anti-Catholic bigotry.
Focusing on that nasty history, the U.S. Supreme Court recently held in Espinoza v. Montana (2020) and Carson v. Makin (2022) that Blaine Amendments violate the U.S. Constitution. The upshot is that states adopting school choice programs cannot categorically exclude religious schools “solely because they are religious.”
Article 6, adopted a century before New Hampshire’s Blaine Amendment, serves a more noble purpose. It erects a wall between church and state. As New Hampshire’s highest court explained in Muzzy v. Wilkens, 1 Smith 9 (N.H. 1803), Article 6 “wholly detaches religion, as such, from the civil State. By the mixture of civil and spiritual powers, both become polluted…. Under our Constitution there is no such union, no such mixture.”
The EFA statute claims to foster “freedom,” but that’s a charade insofar as the program finances religious education. Compelling taxpayers to subsidize religious teachings (or irreligious bigotries) with which they disagree restricts their freedom.
Furthermore, if public schools are forbidden from teaching that any one group is inherently superior, why exempt EFA-funded programs from that same prohibition? The U.S. Supreme Court’s recent decisions do not bar school choice programs from imposing reasonable curricular standards that private schools, even religious schools, must satisfy in order to qualify for public funding. Nor do those decisions compel states to discriminate in favor of religious schools.
HYPOCRISY #4. COMPETITION IS GOOD EVEN WHEN THE LEGISLATURE TILTS THE PLAYING FIELD.
During the New Hampshire House Education Committee’s January 16, 2025 hearing on HB 115, which proposes universal school vouchers, one of the bill’s sponsors argued that competition is good because it encourages public schools to improve.
That theory is valid only when all competitors play by the same rules.
For the past several years the New Hampshire legislature has waged a war against public education, bombarding school districts with scores of new laws and responsibilities each session. These statutes rarely extend to private schools or even publicly funded charter schools.
Take for example special education, which consumes a significant portion of each school district’s budget. When a state creates charter schools of the sort that exist in New Hampshire, Federal law expects the state department of education to provide and finance special education at those schools.
In the words of one charter school director, New Hampshire is a “unicorn.” It is the only state that delegates to school districts the duty to provide and fund special education when parents enroll a child with disabilities at a charter school. This downshifts costs from the state budget to local property taxes.
Legislators who preach frugality and the merits of school choice are often the ones most likely to pile new demands on school districts while giving private schools and charter schools a free pass.
This year alone, according to the New Hampshire School Boards Association, the New Hampshire House Education Committee is considering over 100 bills. That’s a sharp rise from 1996, when the same committee considered approximately 35 bills.
This blizzard of red tape has predictable consequences: school districts must divert resources from instruction to administration. According to the Josiah Bartlett Center for Public Policy, a New Hampshire think tank critical of public schools, the number of school district administrators in the Granite State increased by 57 percent from 2001 to 2019.
So to legislators who espouse the merits of competition, I say this: Do the laws you propose, and the ones you vote to pass, encourage fair competition? Do they impose the same requirements on all schools funded with tax dollars?
Jerry Zelin, a resident of Portsmouth, N.H., has practiced education law for 50 years. He is a shareholder in the law firm of Drummond Woodsum, which represents many school districts in both New Hampshire and Maine. The opinions expressed in this piece are not necessarily the opinions of Drummond Woodsum.