By Shalimar Encarnacion

I am a mother of three (now adults) from Manchester, a former co-chair of the Manchester NAACP Education Committee, and a supporter of school choice. Let me tell you why.

As a Hispanic leader of color in my community, I’ve seen firsthand how many of our communities don’t have equal access to educational resources.  Today, people talk a lot about diversity, equity and inclusion. Those need to be goals in our educational system as well. Too often, the system falls short.

School choice would offer a huge step forward. It would help achieve our diversity, equity, and inclusion goals by removing barriers so our kids can reach their potential.

It would help students to succeed by letting parents put educational resources to use in the way that would best meet their child’s individual learning needs.

My path for parent advocacy in this area started when my children were having difficulty in school. Though all three of my children had childhood illnesses, such as multiple sclerosis and cancer, I want to talk about my youngest, Angel, who incidentally just so happens to also have a dark skin complexion.

Angel was always struggling. He’s very high functioning on the autism spectrum, which went undiagnosed until he was nine. He has ADHD as well and is prone to severe migraines. He started with an Individualized Education Plan (IEP) in third grade, and was later downgraded to a 504 plan in high school.

In sixth grade, he was having lots of difficulty at our local public school. When he started at the middle school, we told them about the situation and asked if they could accommodate him. They said no to our requests, and they repeatedly refused many ideas that would align with his IEP.

He would always end up having problems with the teachers and the environment. The stress would trigger his migraines and cause him a lot of anxiety, which would have him acting out of his normal behaviors. The school’s repeated response to this was to give him in-school suspensions.

His father and I pulled him from that school. With help from the Children’s Scholarship Fund, we were able to put him in St. Casimir’s. He was there in eighth grade and he did amazingly well.  It was a night-and-day difference for him.

He begged us to never send him back to public school.

But after his father took on a new job with a higher income, we no longer qualified for the amount of scholarship that made it possible for us to move him to the private high school.

Had education freedom accounts been around then, we would have been able to use our state per-pupil education money to bridge the gap between what we could afford and what we needed to send him to a high school that would meet his needs.

But those accounts don’t exist. So today, Angel is back in the public school, where he is repeating his senior year. He is struggling.

I like saying that these things don’t have to be looked at as either/or propositions. We should look to these solutions from a both/and perspective.

Public schools don’t work for everyone, the same way private schools don’t work for everyone. Everywhere you turn, there are so many choices. Yet k-12 public education doesn’t offer all students the choices that work best for them.

We should make it possible for parents to choose what works best for their child.

I’ve spoken with multiple families who say that a choice program such as education freedom accounts would help them a lot. I know families that are struggling to pay for private school out of pocket because they don’t qualify for scholarships.

A school choice option such as an education freedom account would let parents put that money toward tuition, tutoring, tech training, special education services, college-level courses, online education, or even tuition at another public school. It would give families the ability to choose the education that works best for their children and not be stuck with whatever service their district school offers, regardless of whether it works for their child.

School choice is for the children. It is the only way to provide the best option for each individual child. It is about equity and inclusion for all, especially for students from communities of color. It’s important that you can see it through that lens. The system is full of forgotten children. We can’t keep denying them options.

Shalimar Encarnacion is a mother of three from Manchester.

(Editor’s note: In the original post, some charts pulled school district spending data from a different data set that covered a shorter time span than the staff and enrollment data. The spending increases therefore appeared smaller than they actually were. The charts have been corrected so that all data cover 1995-2018.)

 

“I think that eventually school choice is going to be part of education.”

Those were the words of Democratic state Rep. Barbara Shaw of Manchester, as she voted in the House Education Committee on Thursday to retain House Speaker Sherm Packard’s Education Freedom Accounts bill. 

Problems with a redrafted version of the bill caused the chairman to recommend retention rather than trying to move forward with a flawed bill.

Shaw is a bellwether representative on the issue of school choice. A career public school educator with a master’s degree in education administration, Shaw has decades of experience in public schools in New Hampshire. In 2018, she voted on first reading to pass SB 193, the initial Education Freedom Savings Accounts bill. 

She supports giving families more educational choices, a change she believes is inevitable. But as she said on Thursday, getting the details right is the key to creating a choice program for New Hampshire.

Shaw’s prediction is noteworthy in part because it comes from her, and in part because it reflects a growing recognition that educational choice has reached a saturation point in the broader culture. 

In 2018, UNH polled Granite Staters about the Education Freedom Accounts bill. It found that 55% of voters supported Education Freedom Accounts, and 60% of registered independents did. Even 44% of Democrats supported it.

EdChoice polled New Hampshire recently and found that when Granite Staters are told what Education Freedom Accounts are, 70% support them. 

Then there is parental experience with schooling during the pandemic. This school year has given middle-and upper-income families whose children generally do well in school a taste of what it’s like for families whose children struggle in a traditional school environment.

Local public schools serve many students very well. But there are always students who don’t fit into the system. Those from higher-income families have always had the option to move to another district or choose another type of school. But for many families, particularly those at the lower ends of the income distribution, options are very limited. Many wind up stuck in a school that doesn’t work well for them. 

Average Americans who may never have thought about school choice before now think the system needs to change. 

A national poll conducted monthly for the National Parents Union since the start of this school year reflects the change. A majority of parents say schools should not return to normal after the pandemic, but “should be focused on rethinking how we educate students….”

It’s easy to understand why the pandemic pushed this shift in thinking. In addition to the frustrations of dealing with whatever option the local school district has offered, parents are taxpayers too,. They can see that in many cases they’ve paid more every year without getting corresponding increases in services. 

Nashua, where parents have initiated a recall of school board members over remote instruction, is a good example.

From 1995-2018 real, inflation-adjusted spending per-pupil in the Nashua School District rose by 68% while student enrollment declined by 10%.

Moreover, Nashua continued to hire more staff while educating fewer students. Total staff increased by 25%. Teaching staff increased by 17% and non-teaching staff increased by 35%.

 

It’s a similar story in Manchester, where the superintendent has recommended closing one school and the city might close more because of declining enrollment. 

In the Queen City, enrollment declined by 13% from 1995-2018 while real per-pupil spending increased by 68%. Total staff increased by 25%. Teaching staff increased by 16% and non-teaching staff increased by 41%.

Parents are at a breaking point. As our culture has shifted to on-demand, a-la-carte service for almost everything, education continues to behave like a regulated monopoly, charging higher prices every year without offering much in the way of additional options tailored to fit individual needs. 

Parents have grown increasingly frustrated with a system that has been slow to adapt to changing needs. Now those needs are urgent for a much larger percentage of children than usual.

Parents aren’t willing to wait any longer. And the broader public agrees that children should not have to keep waiting.

School choice programs already operate in 29 states, the District of Columbia, and Puerto Rico. Polls show they have majority support. They are not fringe or extreme. They’re what Americans — and Granite Staters — want. 

Rep. Shaw was right. Choice is coming. It’s just a matter of when and how. 

There will soon be a lot of talk about Education Freedom Accounts (also known as Education Savings Accounts) in New Hampshire. 

Here’s a brief explainer of what they are and how they work. We’ll use the general term Education Savings Account, or ESA, for clarity.

Education Savings Accounts empower families with the freedom and flexibility to purchase a wide variety of educational products and services such as private school tuition and fees, tutoring, special education services, online education, and community college or other higher education expenses. Most states ensure that ESA funds are spent only on approved purchases via restricted-use bank accounts or online portals like ClassWallet.

Five states — Arizona, Florida, Mississippi, North Carolina, and Tennessee — use Education Savings Accounts as one method of purchasing educational services for students.

It’s important to understand that Education Savings Accounts do not give parents access to all of the money that otherwise would be spent to educate their child in a traditional public school. They use only a portion of that money, leaving the rest in the traditional public school system. 

Education Savings Account spending is severely restricted. It typically is limited to purchases such as private school tuition and fees, tutoring, special education services, online education, and community college or other higher education expenses.

This year, House Speaker Sherm Packard has introduced House Bill 20, the Education Freedom Account Act, to enable the creation of Educational Savings Accounts in New Hampshire.

HB 20 would change state law in a few important ways. 

Currently, the state sets aside $3,708 a year for every student who chooses a publicly funded education. The state offers additional money for low-income and special-needs children, so the average per-pupil state expenditure is higher than the base amount (closer to $4,600).

Under state law, parents have little say over where that money is spent. If they want to use it, their child must attend the local public school to which he or she was assigned, or a chartered public school. 

Though the purpose of that money is to educate each child, the state forbids parents from using it on any form of education that is offered outside the state-controlled system. 

As a result, if the local district school is not a good match for a child, families have only two options. They may enroll their child in a charter school if they can find one nearby that is a better fit. Or they can move to another school district, if they can afford to. 

An Education Savings Account allows parents to spend their education dollars on a broader menu of educational options, while still maintaining state oversight. 

HB 20 states that to receive an Education Freedom Account, a parent “shall agree” to use the funds only for certain qualifying expenses listed in the law. 

Those include private school tuition and fees, online learning programs, tutoring, educational services offered by a public or chartered public school, textbooks and other instructional materials, computer hardware, internet connectivity or other tech services used to meet a child’s educational needs, educational software, school uniforms, test and exam fees, special education services, career or technical school expenses, summer school expenses, higher education expenses, and travel to and from an education service provider.

The state would designate a scholarship organization to oversee the accounts. A parent who wanted an EFA would apply. If approved, the state would deposit the student’s per-pupil allotment into the account. The parent could then withdraw it for use on the qualifying expenses listed above. 

In this way, the state still exerts control over how the money is spent, but the parent can decide which service best suits the child. 

This funding mechanism broadens the number and type of educational services available to families who choose a publicly funded education. Instead of being limited to their assigned school or a charter school, families could choose from many more educational services — including public schools outside their home district. 

Under the current system, some families struggle to find an education that is the right match for their child. With an ESA, families would be able to shop for a better fit — with the state still maintaining oversight of the money.

“Our default position should be to try to keep the schools open and get children who are not in school back in school as best as we possibly can.”

— Dr. Anthony Fauci, Dec. 9, 2020

With the 2020-21 school year half over, tensions regarding school reopenings have reached new heights.

In Nashua, frustrated and angry parents are trying to recall school board members who oppose reopening the city’s public schools. 

The New Hampshire Education Association has demanded that teachers be classified with “high-risk first responders” and given priority access to limited supplies of COVID-19 vaccines.

News coverage, as usual, focuses on the politics rather than the data.

Stepping back from the drama and looking at the research, it is clear that reopening schools can be done safely, with little risk to students, teachers, staff, or the general public. 

In fact, that has been clear since the summer, when researchers at Johns Hopkins University pushed for schools to reopen. Anita Cicero, deputy director of the Johns Hopkins Center for Health Security, said that reopening schools “should be a national priority, and it’s much more important—immeasurably more important—than opening bars or restaurants.”

Regarding the risk to teachers and other school staff:

  • An occupational risk tool designed by the Vancouver School of Economics put Canada’s education sector in the medium risk category for COVID-19 exposure.

Regarding COVID-19 transmission in schools generally:

  • A Duke University study of North Carolina schools last fall “found extremely limited within-school secondary transmission of SARS-CoV-2” and found that “no instances of child-to- adult transmission of SARS-CoV-2 were reported within schools.”
  • A study published in Eurosurveillance, the European journal of infectious disease epidemiology, last spring found “no evidence of secondary transmission of COVID-19 from children attending school in Ireland.”

Regarding schools and community spread:

  • “The data so far are not indicating that schools are a super spreader site,” University of Michigan infectious disease expert Dr. Preeti Malani said during an Infectious Diseases Society of America briefing in October. 
  • A University of Washington Center for Education Data & Research study published in December found that school instruction models don’t affect community spread when community infection rates are not high. When community rates are high, in-person instruction with a large percentage of students in school was associated with some additional community spread. The study found that “there is no significant evidence that school systems offering hybrid instruction increases COVID spread.”

The research is increasingly clear that schools can be opened safely when standard precautions are followed. 

Importantly, this summary addresses only the risks of COVID-19 exposure, and not the numerous demonstrated negative effects of school closures on student well-being (see here, here, here, here, here, here, and here.)

Given the well-documented negative impact that school closures have had on students, and the low risks associated with reopening, it is evident that getting students back into classrooms ought to be regarded as an urgent need.  

An education funding system in which education dollars go to families rather than directly to school districts is “the ideal,” Gov. Chris Sununu said at the Josiah Bartlett Center’s first Libertas Virtual Event on Thursday.

New Hampshire should focus on student outcomes, not how much funding the system gets, the governor said. 

“You can sum all this up with: It’s gotta be about outcomes for the kids, not outcomes for the system,” the governor said. “We have to stop worrying about the system as much as the kids.”

The governor advocated Education Savings Accounts, which are like health savings accounts, but for education. 

The state would deposit a portion of a child’s per-pupil allotment of adequate education aid into a government-approved savings account, which the parent could then use for education expenses. 

They offer a way to put students first, and the pandemic has increased demand for such a change, Sununu said.

“This isn’t about the traditional school choice battle. If you’re thinking about it that way, you’re way behind. Independent, non-political individuals… people that traditionally weren’t involved in this discussion are stepping up and saying, ‘wait a minute, where is my money going? Why isn’t my kid in school? Why are we stuck remote learning when we know that we can and should be having our kids in school, at least in some facet… and they’re getting involved in this discussion about where their money — not our money, their money — is being spent. That’s gonna raise the level of debate to where it needs to be.”

Letting the money follow the child is not about the quality of public schools, but about finding a model that serves every child’s needs, he said.

“We have great public schools here. But there are one, two, three, four percent of the population where it’s not ideal, and giving them that opportunity is huge.”

With so many parents angry and frustrated with the limited public schooling options presented this school year, 2021 could be the year that New Hampshire joins the six other states that have education savings accounts, Sununu said.

Republican House Speaker nominee Sherm Packard and Senate Majority Leader Jeb Bradley have introduced bills to create education savings accounts. 

In the 2017-18 legislative session, an education savings account bill passed the Senate but was narrowly defeated in the House. 

A Croydon couple on Wednesday filed a civil rights lawsuit against the state, challenging a law that forbids local school districts from paying tuition to religious schools.

In 2017, New Hampshire passed a law that allows school districts that don’t offer education at certain grade levels to send students to private schools for those grades. So if a district doesn’t have a middle school, it can tuition students to private middle schools. Except, the law specifically excludes religious schools.  

Dennis and Catherine Griffin raise their 12-year-old grandson, Clayton, in Croydon, which does not have a middle school. Clayton attends Mount Royal Academy, a Catholic school. If Clayton attended any of the private, non-religious middle schools in the area, his tuition would be paid by the school district. But because his family chose a Catholic school, the district cannot pay his tuition. 

The Griffins’ lawsuit says this prohibition is unconstitutional religious discrimination. 

The exclusion “is unconstitutional on its face,” the complaint says, because it amounts to “denying tuition payments to tuition-eligible students and their families on the sole basis that an otherwise eligible private school is sectarian.”

The U.S. Supreme Court ruled in June in Espinoza vs. Montana Department of Revenue that states cannot exclude religious schools from public education programs just because the schools are religious.  

“In light of Espinoza, states like New Hampshire cannot deny tuition to families who live in choice towns and who choose to send their children to religious schools,” said Tim Keller, senior at the Institute for Justice, which is representing the Griffins. “The Supreme Court could not have been clearer when it said that while ‘[a] State need not subsidize private education[, ] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”

The Griffins hope the courts will recognize the state law as unconstitutional under Espinoza and allow the district to pay Clayton’s tuition. 

“We’ve chosen what we believe is the best school for our grandson,” Dennis Griffin said in a statement released by the Institute for Justice. “It’s not fair that we can’t receive the same support that other families in the town receive just because his school is religious. We hope that New Hampshire courts will follow the direction of the U.S. Supreme Court.”

Gov. Maggie Hassan vetoed a similar tuition bill in 2016, saying it was “unconstitutional” because it didn’t prohibit money from going to religious schools. In Espinoza, the Supreme Court reached precisely the opposite conclusion.

New Hampshire’s tax credit scholarship program, which lets businesses and individuals take business tax credits for donations made to certain approved scholarship programs, includes religious schools. 

The language prohibiting tuition money from going to “sectarian schools” was taken from a provision in New Hampshire’s constitution that prohibits tax money from going to such schools. That 1877 constitutional amendment, known as a Blaine amendment, was one of many passed nationwide in a wave of anti-Catholic fear after the Civil War. 

In Espinoza, the Supreme Court effectively nullified these amendments, holding that they amounted to unconstitutional religious discrimination. 

Charter schools increase the average quality of traditional public school teachers by providing high-quality, unlicensed teachers an easier pathway into the field, a new paper published by the National Bureau of Economic Research concludes. 

“Because the fixed costs to participating in the charter sector are low, teachers are able to explore their taste for teaching before committing to fixed costs (licenses). This in turn generates positive selection on the quality of teachers entering public school careers,” conclude economists Jesse Bruhn of Brown University, Marcus Winters of Boston University and Scott A. Imberman of Michigan State University. 

Looking at Massachusetts public charter schools, the economists discovered that charter schools exhibited a U-shaped teacher attrition pattern, with high-performing teachers and low-performing teachers both tending to leave at high rates. But the destinations of the high-quality and low-quality teachers were polar opposites. 

Unlike in traditional public schools, low-performing charter school teachers tended to leave teaching for other fields. By contrast, high-performing charter school teachers tended to pursue licensure and transfer to a traditional public school. 

The authors conclude that the low barrier to entry for becoming a charter school teacher attracts people who are interested in teaching but who are not ready to commit to getting a four-year teaching degree and a state license. 

By offering a quick on-ramp into the teaching profession, instead of a wall that takes years to climb over, charter schools are able to attract talented teachers who otherwise would never enter the field. Once they decide to stick with teaching, they then pursue licensure and move to traditional public schools, which typically offer higher pay and more generous benefits. 

In short, charter schools perform a valuable public education service by weeding out poor-performing teachers and channeling high-performing ones into traditional public schools. 

Bruhn, Winters and Imberman write that “charter schools tend to hire unlicensed teachers who are ineligible to teach in the public sector and then there emerges a mobility pattern such that the least effective charter school teachers are more likely to exit teaching while effective teachers are more likely to obtain a license and move into the traditional public school sector. This pattern of results suggests that charter schools create a positive externality for local public schools by increasing the average quality of the labor available to them.”

Charter schools are public schools that are operated under a contract, or “charter,” with the state or a local school district. They are not subject to district-negotiated teacher union contracts or many state regulations that dictate how public schools are to operate. That gives them the flexibility to pursue alternative management practices. 

The authors note that rigid employment restrictions at traditional public schools likely make traditional public schools less, not more, effective.

“Employment restrictions embedded in collective bargaining agreements, administrative policies, and legislation may inhibit public school effectiveness by limiting their ability to retain effective teachers and remove ineffective teachers (Goldhaber & Hansen, 2010; Staiger & Rockoff, 2010; Cowen & Winters, 2013),” they write.

By contrast, charter schools that aren’t subject to rigid employment restrictions have found ways to recruit very high-performing teachers into the profession while pushing low-performing teachers out. 

To help lower-income students at risk of falling further behind in the 2020-21 school year, Gov. Chris Sununu allocated $1.5 million out of $1.25 billion in federal coronavirus relief aid to scholarships students whose families earn no more than 300% of the federal poverty level. Much of the coverage and commentary about this modest effort to help these students has been inaccurate or misleading.

This is hardly surprising, as attacks on these scholarship programs have always consisted largely of misinformation. Here we explain some of the misleading claims being made in attacks on the governor for offering aid to lower-income students.

 

Claim: This is a taxpayer giveaway to private schools.

Fact: This aid goes to low-income families via two non-profit scholarship organizations that administer New Hampshire’s tax credit scholarships. Those organizations give scholarships directly to families, not to private schools. By law, families may use these scholarships at any private or parochial school, at any public school outside their home district, or to home school their children. The money is not direct aid to private schools. It is aid to families, who are free to choose public schools if they wish. They tend not to choose public schools, which are more expensive than most of the private or home-schooling options.

 

Claim: The scholarship organizations are sitting on $1.7 million in unspent funds from the last school year.

Fact: The $1.7 million listed as unspent in the scholarship organizations’ 2018-19 annual reports was used for scholarships awarded in 2019-20. It is not cash sitting in reserve. The effort to paint these funds as cash-rich is deliberately misleading. (The way the groups collect and spend money has been explained to legislators and education activists repeatedly.) The scholarship organizations collect money in one academic year for distribution the following academic year.

 

Claim: Money slotted for the education of children must go to public schools only.

Fact: New Hampshire has never reserved education spending exclusively for public schools. In the 19th century, municipalities would sometimes pay private schools to educate students.  State law allows public education funds to pay for tuition at private schools in some circumstances. The goal of public education is to pay for students to become educated, not to fund one particular institution exclusively, particularly if that institution offers some students an inadequate education. On average, minority and lower-income students significantly underperform white and more affluent students in public schools. There is evidence that this gap has widened during the hastily improvised remote instruction period in 2020 (see here and here). The $1.5 million is not being set aside to fund private schools, but to shrink that achievement gap by giving lower-income families the ability to access an education that will work better for their children.

 

Claim: The scholarships will equal roughly $1,875 per pupil, much higher than the few hundred dollars per pupil that public schools are receiving.

Fact: Breaking down the coronavirus education aid this way creates the misleading impression that taxpayers are being cheated. The opposite is true; they are realizing an amazing bargain. New Hampshire public schools spend an average of $19,806 per pupil, including capital and transportation spending. Of that $19,806, more than $12,000 of local taxpayer money will remain in the local public school after a scholarship student leaves. On average, the state’s portion is more than $5,000 to educate each of these students (depending on how much additional state aid they get for special educational needs and socio-economic status). With these scholarships, the state would spend a paltry $1.5 million to educate approximately 800 students ($1,875 per student), instead of more than $4 million to educate them in a traditional public school.

Including all state, local and federal spending, the value is even more stunning. For a mere $1.5 million, the state is buying an education for 800 students that would cost more than ten times as much ($15.8 million) in a traditional public school.

Furthermore, if the $1.5 million in question were divided among all New Hampshire public school students, it would equal an additional $8.65 per student, producing no noticeable impact on student achievement. Using these funds to provide scholarships for students most at risk of falling behind would save taxpayers money while freeing up space in public school classrooms when space is at a premium.

 

Summary: This supposed controversy really isn’t about what’s best for the at-risk students who will be winning scholarships or about taxpayer value. It’s about whether families ought to be empowered to choose an alternative education. For some, anything that allows families to choose an alternative to their assigned public school — even another public school in a different district — must be crushed. That’s the basis of the objection, which is really a shame.   

On June 30, 2020, the U.S. Supreme Court ruled in Espinoza v. Montana Department of Revenue that states cannot exclude religious institutions from participating in school choice programs. New Hampshire has a similar scholarship program and a similar constitutional provision to the ones that were under discussion in the Espinoza case.

On July 8, the Josiah Bartlett Center for Public Policy presented an online discussion of the case and its impact on New Hampshire, featuring two experts on the question of religious liberty and alternative education.

Tim Keller, senior attorney for the Institute for Justice, was a co-counsel for the plaintiff in the case.

Kate Baker is executive director of the Children’s Scholarship Fund N.H., which administers a New Hampshire tax-credit scholarship program.

In a webinar for the Josiah Bartlett Center, they explained the Espinoza ruling and its effect on New Hampshire.

We posted the video of that discussion on our newly resurrected YouTube channel here.

 

The June 30th U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue demolishes once and for all the false claim that New Hampshire’s Education Tax Credit Program violates the New Hampshire and U.S. Constitutions. 

Further, the ruling renders inoperative New Hampshire’s anti-Catholic Blaine amendment, added to the state constitution in 1877. 

“While the plain text and history of New Hampshire’s Blaine Amendment should not have been an impediment to enacting robust school choice programs prior to the Supreme Court’s ruling in Espinoza, there is now no question that legislators and policymakers in the Live Free or Die state are free to design and enact programs that will empower parents to choose the educational environment that will best serve their children’s learning needs,” Tim Keller, senior attorney at the Institute for Justice and co-counsel in the Espinoza case, told the Bartlett Center.

The Espinoza case overturned a Montana Supreme Court decision that had blocked that state’s tax-credit-funded educational scholarship program because it allowed parents to use the scholarships at religious schools. 

In 2013, New Hampshire political activist Bill Duncan sued to have New Hampshire’s similar program overturned for the same reason. The New Hampshire Supreme Court did not address the merits of the case, ruling in 2014 that Duncan did not have legal standing to sue.  

In the Espinoza case, the U.S. Supreme Court rejected the Duncan argument. The court ruled that if a state has a scholarship program, it may not discriminate based on religious status. Such discrimination violates the First Amendment’s guarantee that individuals have the right to the “free exercise” of religion.

At issue in the case was Montana’s “Blaine amendment,” an anti-Catholic amendment to the state constitution that prohibited state appropriations from going to “sectarian schools.”  

The New Hampshire Constitution has a similar amendment, added in 1877, which states that “no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.”

These amendments are often called “no-aid” provisions.

“Montana’s no-aid provision discriminates based on religious status,” the court held.

“Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” the court determined. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”

“To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges ‘inevitably deters or discourages the exercise of First Amendment rights,’” the court concluded.

In sum, education scholarship programs cannot discriminate against schools based on the religious status of those schools. New Hampshire’s Education Tax Credit Program does not bar funds from going to religious schools, so no change needs to be made. The Espinoza ruling clarifies that this practice is constitutional and that changing the program to exclude religious schools would be unconstitutional.

In 2017, the Josiah Bartlett Center for Public Policy and the Institute for Justice published a briefing paper arguing that New Hampshire’s tax credit scholarship program does not violate the state or U.S. constitutions, for reasons similar to those laid out in the Espinoza case. 

The co-authors of that report were Richard Komer and Tim Keller of the Institute for Justice. Komer argued the Espinoza case before the U.S. Supreme Court last year, and Keller was a co-counsel on the case.