The Bulletin Board

Court rejects attempt to strike down ‘education freedom account’ program

By: - November 17, 2023 12:03 pm

The state is set to spend $22.1 million this year on the “education freedom account” program, up from $8 million in the 2021-2022 school year. (Getty Images)

A New Hampshire superior court ruling rejected an attempt to dismantle the state’s “education freedom account” program, holding that the program does not violate the state constitution and granting a motion to dismiss.

The American Federation of Teachers New Hampshire, a teachers union, had sued the state over the program, which allows parents to use public education funds towards nonpublic school expenses and homeschooling expenses.

The AFT argued the program violates the constitution because it is partially funded by state lottery funds, which Part 2, Article 6-b of the constitution states must be used “exclusively for the purpose of state aid to education” and “not for any other purpose.” That violation occurs because the EFA program is funded out of the state’s Education Trust Fund, which itself is funded by a number of sources that include business taxes and lottery profits, the AFT contended.

But in her ruling, Judge Amy Ignatius of Merrimack County Superior Court countered that she could not conclude that EFAs are funded by lottery sources because the Education Trust Fund is filled by a number of revenue sources at once. The Education Trust Fund, which disburses over a billion dollars per year, primarily funds the state’s per-pupil payments to public schools.

“For that reason, it is impossible to track the flow of one income source, such as lottery money, to its final use: either to a public school district or to the EFA program,” Ignatius wrote in her ruling. “The Court must presume that RSA 194-F is constitutional,” she added, referring to the education freedom account statute.

Ignatius also rebuffed an argument by the AFT that the state is unlawfully delegating its constitutional responsibility to provide an adequate education to the Children’s Scholarship Fund, the nonprofit organization that is contracted to run the EFA program. Ignatius said the parents using the EFA program are already not in the public school system and aren’t the state’s responsibility.

“The state does not have an obligation to provide a constitutionally adequate education to children whose parents opt to provide them a private education,” Ignatius wrote. 

The EFA program has been lauded by conservatives and school choice advocates as a means to provide alternatives to public school for lower-income families. But Democrats and public school advocates have criticized the program for using state money they say should bolster public schools. 

The program has grown 158 percent since its first year, in 2021; for the 2023-2024 school year, more than 4,200 students are enrolled in EFAs, according to the Department of Education. The state is set to spend $22.1 million this year on the program, up from $8 million in the 2021-2022 school year.

Supporters of the law praised the ruling.

House Majority Leader Jason Osborne said in a statement the EFA program “reinforces parents’ rights” and said next year he would push to expand eligibility. This year the Legislature raised the income eligibility cap from 300 percent to 350 percent of the federal poverty level, or up to $105,000 for a family of four. 

“I am pleased this latest attempt to stunt education has failed,” Osborne said. “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.”

Deb Howes, the president of the AFT, called the ruling “disappointing but not surprising.”

 “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,” she 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.”

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email: [email protected]