Who’s Afraid of SB 8?

The following is a guest article by Dr. Jody Underwood. She is the Vice Chair of the Croydon School Board and an Education Fellow for the Granite Institute. In her day job, she does research and development of digital learning and assessment environments.


This week the House Education Committee will amend and vote on SB 8, a bill that clarifies town tuitioning practice in New Hampshire.

The first thing to know about SB 8 is that it affects only a small number of New Hampshire residents: those who live in school districts that don’t offer all grades from K through 12.  There are currently 48 towns that fall into this category, with a total population of 111,070, which is about 8% of NH’s total population. If you live in a district that offers all grades in K-12, enacting this bill might provide more competition for your district’s schools.

In the affected districts, this bill will undo a change that made the laws inconsistent, and return New Hampshire to the traditional town tuitioning system that it used for over a century, and that is still used today by Vermont and Maine.

The second thing to know is that it’s not a ‘school choice’ bill as that term is usually used.  That is, it makes clear that school districts can make contracts with private schools, in addition to public schools in other districts, which they already can do. Parents can then, from the set of contracts the school district makes, choose which schools would be best for their children.  Again, this is only allowed for districts who do not provide those grades themselves.

The exact wording of the bill is still in flux, as legislators seek to attach amendments to address some of the issues that will be discussed below. But the central goal is to undo some inconsistencies that were introduced into the law back in the 1950’s, through poor drafting.

In particular, RSA 194:22 says:
“Contracts With Schools. – Any school district may make a contract with an academy, high school or other literary institution located in this or, when distance or transportation facilities make it necessary, in another state, and raise and appropriate money to carry the contract into effect. If the contract is approved by the state board the school with which it is made shall be deemed a high school maintained by the district.”

This RSA allows school districts to make contracts with private schools in neighboring states. This practice did not stop in the 1950s, continuing even today. It is only NH private schools that were removed from the set of possibilities, even though this RSA clearly says “other literary institutions.”

Unfortunately, RSA 194:22 was included in a section covering only high schools, inadvertently creating a difficulty for districts that do not offer grades below high school.  SB 8 is intended to clarify, so that even bureaucrats and judges can understand, that (1) a school board is not prohibited from contracting with private schools, and (2) this applies to all grades, not just grades 9-12.

Ideally, the legislature could just pass a one-line bill, saying that 194:22 applies to all grades, not just high schools, and noting that ‘other literary institutions’ includes private schools.  But reopening the conversation has encouraged some legislators to try to head off some fears and concerns by adding extra language to the bill.

The ways in which SB 8 would benefit small school districts, and the taxpayers who live in them, are obvious.  A central element of traditional town tuitioning is that the town places a cap on what it will pay, so the cost per student cannot increase taxes.  If sending a student to an alternative school (whether public or private) costs less than the default, the taxpayers save the difference.  If sending that student to a more appropriate school costs the same as the default, the taxpayers get more for their money. And if it costs more, the parents pay the difference.

In the long term, this also helps towns whose enrollments are declining by giving them more options when they can no longer afford to fund particular grades.

What are the objections?  One is that this might lead to sending public money to religious schools.  However, this is already prohibited by the state constitution.  That doesn’t seem sufficient to some people, so the bill’s amendment contains language to specify that public funds can only be used for non-sectarian private schools.

Another objection is that private schools will not have to meet the same standards as public schools, and so public money might be used to fund inferior schools.  There are two problems with this objection.  The first is that many public schools aren’t meeting those standards, which is why many parents are looking for other choices for their children!  The second is that while private schools already have to meet significant requirements in order to be approved for attendance, they also have to meet a higher standard, which is satisfying students and parents. If a private school is doing a bad job, parents can pull their kids out and send them somewhere else, and the private school doesn’t have the option of taxing property owners to bail itself out.  So really, this bill is asking public schools to live up to THIS standard, which is based on the outcomes that a school achieves, rather than on the bureaucratic hoops that it jumps through.

A related objection is that because private schools don’t have to take the same standardized assessments as public schools, we can’t know if the students in those schools are learning.  This ignores the obvious fact that private schools have at least as great an interest as the state does in knowing how they’re doing, and so they do use standardized assessments.  However, these tend to be assessments like the Iowa Basic Skills Test, which have been around for generations, rather than using whatever unvalidated flavor-of-the-month assessment the legislature or the Department of Education decides to mandate for public schools.

Another related objection is that private schools do not have to be accredited in the same way that public schools are.  But not being accredited is an opportunity, not a problem.  Requiring accreditation that can only be obtained by state-approved organizations is potentially the same as simply disallowing assignment to private schools, since the state would have the option of only accrediting schools that do exactly what public schools do, in exactly the same way. And then, what would be the point?

A final objection is that assigning students to private schools will drain money from the public school system.  This has considerable emotional appeal, but much of that appeal evaporates when we raise the same objection from a different perspective: We should force students to remain in the public school system, even if it is failing them, because the schools need the money. When you put it that way, it’s not very compelling at all, is it?

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