School Voucher Opponents Bring Lawsuits in Three States

Published November 6, 2014

Opponents of school choice are bringing lawsuits in multiple states claiming school vouchers provide public money to private, religious institutions. Some of these lawsuits, however, posit a confused notion of what their state’s laws actually are.

The Supreme Court of New Hampshire recently upheld the state’s tax credit scholarship program as constitutional, because the money comes from private donors rather than taxpayers. Under the law, corporations receive a tax credit worth 85 percent of what they donate to nonprofit organizations that offer private-school scholarships to low-income families. The court found the program does not violate the state’s Blaine Amendment, which forbids public funds from being sent to religious-based schools, because the funds being used are not public money.

The New Hampshire court’s ruling mirrors the 2011 U.S. Supreme Court finding that money voluntarily contributed to scholarship organizations is not the same as money collected by the state. Justice Anthony Kennedy wrote, “Like contributions that lead to charitable tax deductions, contributions yielding tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations.”

Kate Baker, executive director of New Hampshire’s Network for Educational Opportunity, praised the decision. “We are thrilled that the New Hampshire Supreme Court has shown unanimously that empowering parents to make educational decisions for their children does not violate any provision of our state constitution,” Baker said. “We are eager to get to work awarding scholarships to low-income families without having to discriminate based on what sort of private school the parents want their children to attend.”

Florida Program Challenged

Scholarship proponents are mounting a similar defense in Florida, where tax credit scholarships are also receiving scrutiny. The state teachers union and school boards association recently filed suit arguing the program is unconstitutional. Although a county judge has already shot down the suit, it will likely move on to a higher court through appeal.

Bill Mottox, a resident fellow at the Florida-based James Madison Institute, says acceptance of the constitutionality of tax credit scholarships should not depend on whether one agrees with them as public policy. Most of the opposition to Florida’s law is based on a fundamental misconception, he says.

“We think the Florida courts should uphold the constitutionality of our tax credit scholarship program for the same reason the New Hampshire courts did—because these monies come from private businesses,” Mattox said. “Certainly, we hope they’ll do the right thing, especially since there’s considerable evidence that our state’s students are benefiting greatly from education choice. Thanks to education choice and other recent reforms, our special-needs students now outperform those in every other state, according to NAEP.”

Oklahoma Program Struck Down

Some other states might not be able to make the same defense. A District Court in Oklahoma has ruled part of the state’s voucher law unconstitutional, ruling it does subsidize religious institutions with taxpayer dollars. Unlike New Hampshire’s and Florida’s programs, Oklahoma’s private school scholarships are publicly financed.

Matt Frendewey, national communications director of the Oklahoma Federation for Children, is not convinced that church-state separation is truly the motivating factor behind these suits.

“Make no mistake, these lawsuits are not about aid to religious schools” Frendewey said, “Nearly every program is designed to ensure tax dollars are only spent on educational services. Ultimately, these lawsuits are about trying to deny parents the right to choose the best educational environment for their child.”

A recent election suggested many voters agree the voucher program should remain in place, as school choice advocate Chuck Strohm defeated District 69 school board member Melissa Abdo, who had supported the lawsuit challenging public vouchers, in a runoff election for a vacant House seat.

Frendewey says the lawsuit in Oklahoma is “part of a shameful national effort by the status quo and teachers’ unions who support the antiquated top-down model of education. We’re hopeful that this suit will be found meritless and will be tossed out like a previous attempt to upend Oklahoma’s school choice program for special needs children.”

Chris Neal ([email protected]) writes from New York, New York.

Image by Ronny Richert.