At the risk of putting everyone on a neck-jarring roller coaster of education policy emotions, I have to follow up yesterday’s good school choice news from Arizona with a brief account of a New Hampshire disappointment. Whereas the uplift came from an elected state legislature, the downer emerged from the courts. New Hampshire Judge John Lewis declared the state’s scholarship tax credit program partly unconstitutional.
As far as I know, this is the first-ever setback for a school choice tax credit program in the judicial system, at least as a less-than-100 percent positive decision. Both the Institute for Justice — which represents New Hampshire families who benefit from the program in the case — and the Cato Institute’s Jason Bedrick highlight the dangerous dual fallacy in the judicial logic:
- In direct contradiction with the U.S. Supreme Court and other sources, “money that would otherwise be flowing to the government,” even though it has never entered the state coffers, is in fact “public funds”
- Therefore, the “public funds” in scholarship tax credits only can support parental choices of secular private schools, but not religious schools
The first point ought to scare Granite State citizens. After all, it’s somewhat less than refreshing to learn that, for all legal intents and purposes, a portion of your money belongs to the government before it actually, or even potentially, gets there. What of the notion that someone who lawfully earns money is presumed to be entitled to the fruits of his or her labor? How many “public funds” are in your bank account? So much for the “Live Free” part of the state motto.
The second point inspires no greater confidence than the first. As Bedrick quotes Josiah Bartlett Center president Charlie Arlinghaus about the distinction between religious and secular educational options in what parents can choose:
This ruling is particularly odd. The entire program is fine unless a parent by their own choice chooses a religious school. By this logic a program is illegal if neutral and only legal if actively hostile to religion.
For now, I think we all can accept that Judge Lewis’ ruling indeed stands out as a “particularly odd” bird in the jurisprudence of this type of private school choice. So no reason to give pause about pursuing a scholarship tax credit program for Colorado, which would help Colorado kids win. Given the peculiarity and the logical implications of yesterday’s New Hampshire decision, we have every indication the case will be appealed to (and ought to be overturned by) a higher court.