Charlie Arlinghaus

April 23, 2014

As originally published in the New Hampshire Union Leader

Bobby Jindal and the ACLU are having a fight in these opinion pages. Guess whose side I’m going to take? I agree with Gov. Jindal and we both agree with the Washington Post which said “What shouldn’t get forgotten in this seemingly endless fight are the people with the most at stake: parents who simply want what’s best for their children.” The issue which unites me and the Washington Post is the lawsuit over the state’s much admired school choice scholarship program.

The state crafted legislation in 2012 which created an education tax credit for businesses who chose to donate to a scholarship organizations which then awards scholarships to lower income students who may choose any public or private school in the state. The goal of the program, as with most school choice programs, is to give students of modest means more choices and therefore more educational opportunity.

The ACLU immediately sued the state to overturn the law. A lower court let the program proceed but ruled out any religious schools. The lower court explained in its ruling that the issue would ultimately be settled by the state Supreme Court which heard the case last week.

The Washington Post has not weighed in our own program here but is a supporter of a broader program called the “D.C. Opportunity Scholarship Program.” They point out that children of the privileged in Washington have a variety of educational options and are never limited to the one school assigned by their zip code.

In New Hampshire as in the District of Columbia, rich people have school choice. Poor people don’t. The wealthy can choose among many options to find the best educational fit for each child – quite often different schools in the same family. Poorer students don’t have those options.

Critics contended that the New Hampshire scholarship program would not help the poor but be utilized only by wealthier families. The facts are different. Former state rep. (and former Josiah Bartlett Center policy fellow) Jason Bedrick, now a researcher for the Cato Institute, found that 91% of scholarship recipients qualify for free or reduced lunch.

Bedrick’s study (for another state think tank) are posted on our website and encourage other states to consider replicating the success of New Hampshire’s program.

The ACLU has argued oddly that the program will “inflict large fiscal losses on municipalities.” Perhaps they didn’t notice the provision in the law that limits the impact to any school district to one-quarter of one percent of their prior budget. Hardly a large fiscal loss.

Opponents of the program contend that schools with any religious affiliation should be excluded. Some choices, they suggest, parents should not be permitted to make. They contend that a tax credit is the same thing as a government grant. History, experience, and the state Supreme Court have suggested the opposite.

To begin with, there has long been a distinction between tax credits or exemptions and direct grants from the state treasury. Consider that every church is granted a complete exemption from taxation, not just a credit, under state law. This is not a school or an ancillary facility but the actual house of worship. That’s okay because it isn’t an actual tax payment just an exemption or credit. It falls into an entirely different category from the collection and direct granting of money.

Because the court has never ruled directly on school choice, we undertook an examination of the existing “opinions of the justices,” advisory opinions without the same standing as ruling because they are not the result of both sides making an argument and marshaling their cases.

It is likely the court ruling would agree with the 1955 court that allowed a nursing education program at religious institutions because “members of the public are not prohibited from receiving public benefits because of their religious beliefs or because they happen to be attending a parochial school.” In short, it is important not that programs discriminate but that they don’t discriminate.

In contrast, opponents are in the position of saying the scholarship organization must actively discriminate against schools that happen to also teach religion. The law, in their opinion, must under no circumstance be neutral.

The better choice is to try and do what’s best for children. As Bobby Jindal said “parents are the first and best educators and should be allowed to make the best decisions for their children. Every child learns differently; that is why choice and competition are so important in education.”

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