ESAs Create More Opportunities

Over the last several months we have continued to work on the Education Savings Account (ESA) bill, SB 193, which was retained by the House Education Committee. A subcommittee met multiple times and must present a decision to the entire committee by early November before the legislature resumes business in early 2018.

Much like health savings accounts, Education Savings Accounts are restricted-use accounts that parents can use for approved educational purposes. The accounts are funded with a portion of the state funds allocated for a particular child’s education at his or her district school. Six states currently offer some type of ESA and each one has different approved uses, eligibility qualifications, administration processes, accountability mechanisms, and funding sources. The two most established programs are in Florida and Arizona. The one in Arizona has been modified over the years to be more inclusive, called a “universal ESA,” and that is the sort NH is proposing.

Education Savings Accounts may be used for a variety of educational purposes such as private school tuition, textbooks, tutoring, online learning, special needs services, dual enrollment programs, and certain homeschooling expenses. ESAs allow families to have more opportunities for an education that fits their children’s individual needs. The organizations that administer these programs must keep records of expenses and verify that the children satisfy eligibility requirements. Reports are submitted to state agencies annually and have a review process.

One of the key questions about ESAs is its constitutionality and two programs in states with Blaine Amendments have succeeded against legal challenges.

In the Arizona case, Niehaus v Huppenthal, 233 Arizona 195, 310 P.3d 983 (Ct. App. 2013), Judge Jon Thompson said,

…the ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.

The ESA is neutral in all respects toward religion and directs aid to a broad class of individuals defined without reference to religion. The ESA is a system of private choice that does not have the effect of advancing religion.

In the Nevada case, Justice James W. Hardesty echoed these opinions.

Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead the private funds of the individual parent who established the account. The parent decides where to spend that money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools. Any decision by the parent to use the funds in his or her account to pay tuition at a religious school does not involve the use of ‘public funds.’

Earlier this fall the Josiah Bartlett Center for Public Policy co-authored a study with the Institute for Justice that shows ESAs are consistent with the US and NH Constitutions.

“There is no doubt that an ESA program in New Hampshire would comport with the U.S. Constitution, and in this paper we conclude that the program would also pass muster under the New Hampshire Constitution,” Institute for Justice Senior Attorney and report co-author Richard Komer said.

The paper, “The Constitutionality of Educational Savings Accounts in New Hampshire,” by Komer and Institute for Justice Attorney Timothy Keller, reviews court opinions that have been issued in relation two New Hampshire’s two constitutional provisions written to prohibit direct taxpayer financing of sectarian religious instruction.

“These two provisions, properly interpreted, do not preclude religiously neutral educational assistance programs that aid parents and families rather than private and religious schools per se,” the study concludes.

In a recent Union Leader editorial, Tim Keller with the Institute for Justice said, “ESAs satisfy the federal and state constitutions’ two defining characteristics of a constitutional educational choice program: religious neutrality and parental choice.”

Further, if ESAs will help more children – not just the wealthy or well-connected — access education that fits their needs, then aren’t they consistent with our democratic values for self-determination and opportunities for all?

While many families may be satisfied with their local public schools, even good schools cannot meet the needs of all children. ESAs will provide the opportunity for an education that fits their individual needs. Children have only one chance at their K-12 education. We need to put them first.

To learn more about ESAs, several articles and studies are available here.

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