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The Governor’s Appointment is Inappropriate

Charlie Arlinghaus

May 7, 2014

As originally published in the New Hampshire Union Leader

Governor Hassan made a mistake by nominating someone engaged in an ongoing lawsuit against the state to regulate the area over which he’s still suing. The mistake is not one of policy but one of propriety. The nomination can and should be withdrawn before tomorrow’s vote of the Executive Council.

Bill Duncan and I don’t agree at all on education policy but that does not and should not have any bearing on the propriety of his nomination to the State Board of Education. What’s inappropriate is that he’s currently engaged in suing the state in this very area – the area he’s being tapped to oversee.

After the state’s school choice scholarship law passed in 2012, opponents of that filed a lawsuit to overturn it. That lawsuit, known as Duncan v. New Hampshire, is ongoing. A recent headline missed this when it said that “State Board of Education nominee had sued state over education funding.” The tense of that headline is wrong and that distinction makes all the difference.

As the article makes clear, the lawsuit is ongoing. So the governor has nominated someone to the State Board of Education who is currently suing the state over education policy. He didn’t once upon a time sue the state. He hasn’t expressed concerns. He is currently engaged in lawsuit – a lawsuit named after him – and is going to oversee that area – the area of his ONGOING lawsuit. Does the governor not see that this is a trifle odd?

As a matter of policy, we should not appoint plaintiffs of ongoing lawsuits to oversee the area of state policy over which they are suing. Ever. The governor could find plenty of liberals she could appoint to the State Board who don’t happen to be currently suing the state of New Hampshire over education policy.

This problem can occur when you seek out activists for appointment to oversight positions. Previous governor have rarely sought activists for these oversight positions. Craig Benson, for example, selected a respected local businessman Fred Bramante to chair the board. John Lynch also avoided activists and those who had been lobbying the legislature for his appointments. His selected chairman was another respected local businessman, Tom Raffio, who remains in that position.

Something Benson and Lynch – and their predecessors – agreed on: not one of them ever appointed someone suing the state over education to oversee education policy. Nor did they appoint anyone else enmeshed in an ongoing lawsuit to oversee the subject of that lawsuit. Tax lawyers suing the state weren’t appointed to run Revenue Administration. Prison activists engaged in an ongoing lawsuit didn’t take charge of corrections.

No sensible person, looking at this outside of a political lens could argue the merits of appointing ongoing plaintiffs.

Adding another wrinkle to this is one unique role of the State Board. The State Board of Education charters, authorizes, and regulates almost every charter school in the state. Mr. Duncan, aside from suing over other issues is regarded by the charter school community as leader of their opposition. He’s on the other side from them in every debate. He has said “charter schools are a political statement not an educational improvement.” He’s referred to them as “dismantling public education” and called them a “distraction.” Despite that he says he supports charter schools. You can see, however, why the charter schools of the state might be skeptical.

These views of his – and by extension the governor who nominated him – are a policy choice. They are free to make that policy choice (with which I obviously disagree). But should someone with such demonstrated hostility to charter schools be placed on their oversight and authorizing board?

That’s a policy choice the governor is free to make. His hostility to such schools makes his selection slightly disingenuous on the part of a governor who claims to be supportive of charters but it is not structurally disqualifying. I expect that a fully qualified nominee she picks with have equally doctrinaire liberal views on the matter.

I don’t want to lose sight of what is disqualifying. I said this before but is worth repeating: As a matter of policy, we should not appoint plaintiffs of ongoing lawsuits to oversee the area of state policy over which they are suing. Ever.

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Why Lynch is wrong and The Washington Post right

 

 Charlie Arlinghaus

June 27, 2012

As originally published in the New Hampshire Union Leader

In what can only be a sign of the coming of the apocalypse, the single best piece written on school choice over the last year was a Thursday editorial in the normally quite liberal Washington Post. On Veto Day in New Hampshire, legislators ought to ignore the hand-wringing of our current governor and instead read the Post’s article extolling the importance of the D.C. Opportunity Scholarship Program.

The importance of educational opportunity was summed up by the reliably liberal Post: “the opportunity to send their children to better schools — a choice taken for granted by many Americans, including some who are in Congress and the White House — is something beyond measure.”

This one sentence explains why a liberal newspaper would wax poetic about school choice and why many of us in New Hampshire are pushing for a School Choice Scholarship Program. In New Hampshire, rich people have choices, poor people do not. The Post points out that the privileged in Washington — the children of most senators in both parties for example — have a variety of options and rarely are sent to the school assigned by their zip code.

New Hampshire has better public schools than Washington has. Yet no one seriously argues that every school is the best choice for every child in its zip code. Those who have the means are able to make choices. Sometimes they choose the local school, sometimes an alternative school. Families of lesser means are left out.

In their criticism of a very modest school choice program, Gov. John Lynch and his fellow naysayers argue that this is some sort of attempt to “weaken our public school system.” The Post faced similar arguments to the D.C. scholarship program. It points out that “studies have shown its success in boosting graduation rates of its participants, and contrary to the fiction of its critics, it doesn’t drain resources from public education. Giving parents a choice and improving public schools are not mutually exclusive.”

New Hampshire’s program remains a very mild experiment from the standpoint of school budgets. No school district sees any reduction in state aid unless it has fewer students. Even then, its loss is fractional. To alleviate any concern an individual district might have, the total amount of money reduced as a result of this program is capped at a minute 1/4 of 1 percent of its budget. In a state where 5 percent swings in enrollment are commonplace, no one can be expected to believe that 99.75 percent of funding plus the increases every district sees normally is somehow catastrophic.

Opponents also disingenuously claim the scholarships won’t actually help anyone who needs one. The bills are limited to lower-income students. As the governor pointed out last week, “these bills do limit eligibility to students from families at 300 percent of the federal poverty level.” Opponents admit that aid is targeted but claim the scholarship amount — required to average $2,500 — isn’t enough to help with tuition. What they don’t tell you, although surely they know, is that virtually no one pays sticker price for tuition. Every school in New Hampshire has some kids who pay zero and some who pay a small amount. Scholarships of $2,500 will allow more kids to attend for free and more kids to attend for nominal amounts.

The Washington Post wrote that a deal on the D.C. scholarship program “will allow more D.C. families to attend better schools.” The same is true in New Hampshire. More students will have more choices in a modest step forward in educational opportunity.

As modest as the program is for the overall budget, we can’t lose sight of those for whom the program is not modest in the least: students who will have new opportunities. The Post concluded the editorial it titled “The Right Answer” with a call for budget writers to remember what’s important: “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.”

In New Hampshire, what will be a modest step for the state and localities and have a negligible impact on what they do and how they do it can have a profound impact on the lives of individual students and the opportunities they don’t currently have.

Today, legislators have a rare opportunity to make an enormous difference in the future of individual students.

 

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A Modest Step For Greater Educational Opportunity

Charlie Arlinghaus

March 28, 2012

As originally publish in the New Hampshire Union Leader

The School Choice Scholarship Act being considered in both the New Hampshire House and Senate is a modest step toward providing children of lesser means with the greater educational opportunity long afforded students from high income families.

It is a truism in education that rich people have school choice and poor people don’t. Statistically in New Hampshire, 30% of children from upper income families go to non-public school. At the lower ends of the income spectrum, only 5% do. In addition, higher-income families have greater economic mobility and are more likely to be able to pick a public school district by moving. Those families who can move more easily, who can afford more choices, have more opportunity and often better outcomes because of those choices.

New Hampshire’s public schools, in the aggregate, are among the best in the country. But one single choice assigned on the basis of zip code not educational requirements can not possibly work well for everyone even if it works well for most. Every student is better off if ha or she has more than one choice.

The goal of the school choice movement in New Hampshire is to give more choices to more people. In 2012 the focus of that effort is a means tested, education tax credit based scholarship bill.

First and foremost, the bill is a good idea because it provides scholarships, funded entirely by tax credits and private donations, to students from lower income families that can be used at any approved school, public or non-public, in New Hampshire.

The local school will be a terrific option for many children but not for every child. Now more children will have more opportunity to explore more choices. That’s a good thing.

While opponents have raised some technical concerns, opposition essentially come down to philosophy. Some opponents don’t believe greater educational opportunity should come at nonpublic schools. But I think we presume that the one assigned school isn’t always going to be the right choice, we ought not object to a different provider.

Financially, the bill benefits the state budget. The scholarship amount, and the tax credit for that scholarship, is smaller than the state per pupil aid so each child who moves saves the state budget money. Our calculation at the Josiah Bartlett Center is that the state budget would save between $1.5 and $2.5 million each year.

Local school districts would see less money in total only if they had fewer students. Just as today, if a school has fewer students, its per pupil aid declines. Under this program, a district would have fewer dollars and fewer students but more money per student because the amount lost is less than a third of New Hampshire’s $15,000 per pupil spending.

There are always constitutional questions about school choice. A study my organization did in 2004 found that even a voucher program properly constructed should be constitutional. Nonetheless, what we think a court should do and what they might do aren’t the same thing.

However, a tax credit program is a step removed. Based on jurisprudence across the country dealing with very similar language, tax credit programs will be found constitutional although some opponents think they shouldn’t be.

At the end of the day, this is a modest attempt to provide some children with scholarships. The total size of the program amounts to less than one-quarter of one percent of the $2.7 billion spent in New Hampshire on K-12 education.

The average scholarship is small but critical to opportunity. While $2500 is not full tuition, the sticker price is not what almost any student pays. Every non-public school has some children who pay zero and some children who pay very little based on need.  This program will allow a school to educate more students.

So much of what we talk about in public policy is based on spreadsheets and politics. This program is perhaps the most important proposal the legislature will consider this year. It may not change the dynamic of education in the aggregate but it will make an enormous difference in the lives of thousands of individual students.

A School Choice Scholarship Program is a modest step for the state government to make. But modest steps can be huge leaps for individual students.

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Best Chance Ever for Education Aid Amendment

By Eugene van Loan and Martin Gross

The New Hampshire Senate recently passed and sent to the House of Representatives yet another proposed constitutional amendment designed to specify our state Legislature’s authority and responsibility regarding state aid to local education, including the ability to use “targeted” aid as the basic form of education funding.

So, is this just deja vu all over again?

No, this time things are different. The Senate-passed proposal, known as CACR 12, is truly a bipartisan, multi-branch product.

Despite years of pronouncements by politicians of all stripes about how much a constitutional amendment is needed to restore stability and common sense to education funding, the various participants in the debate have never been able to agree on specifics.

CACR 12, however, not only received overwhelming Republican support in the Senate, but it was also supported by Democratic Sen. Lou D’Allesandro, of Manchester, and has since been endorsed by Democratic Gov. John Lynch.

Further, within days of the Senate action, a number of business and community groups publicly signed on in support. Included within this group were the Business and Industry Association, New Hampshire Auto Dealers Association, the Greater Nashua Chamber of Commerce and representatives of the so-called Coalition Communities.

Even so, some say CACR 12 still faces an uncertain future in the House. This is because a three-fifths vote is required to pass any legislative proposal for a constitutional amendment and, thus, any combination of “no” votes – despite being based upon objections that could not be more different from each other – would thwart the proposed amendment from receiving the necessary supermajority vote.

We two join today to urge our fellow citizens who serve in the House not to let this happen. One of us is a Democrat, and one of us is a Republican. Both of us have dedicated much of our time and energies over the years to public service of one type or another.

Both of us are lawyers who supposedly know a thing or two about constitutional law. And both of us ardently support the notion that quality education is critical to our state’s economic success and the vitality of its civic institutions.

We join in common cause because we believe CACR 12 is just plain good public policy. We do not base our support for this proposal upon what “the framers intended” or whether the Supreme Court got it right or wrong in the Claremont cases. We just know that where we are is not where we ought to be.

Each of us would perhaps emphasize different features of CACR 12. On the one hand, Mr. Gross would emphasize its elimination of the court-dictated requirement that the state provide the same amount of aid to all school districts in the form of “adequacy payments” and, thus, he would focus upon its substitution of legislative authority and responsibility to target state aid to communities that truly need it.

He would point out that, especially in these days of scarce public resources, there is no real justification for force-feeding funds to communities that can support a high level of educational effort with their own local resources.

Mr. Van Loan, on the other hand, would emphasize that CACR 12, while not eliminating the courts from the equation, restores the responsibility for making educational policy to the democratically elected branches of government.

He would point out that, also especially in these days of scarce public resources to which Mr. Gross refers, determining how much to spend on various public policy objectives – including but not limited to education – should be the business of the Legislature, not the courts.

But these are only differences in emphasis, not points of disagreement. On the contrary, we agree on the general need for a constitutional amendment and on the language for such an amendment that is contained in CACR 12.

Accordingly, we urge members of the House not to let your own points of emphasis determine whether you will support this particular constitutional amendment. Much has been said recently about the perfect being the enemy of the good, and it certainly applies here.

Just remember: If there is no amendment at all, none of us gets the perfect; what we get is what we have right now, and that is no good at all.

Eugene Van Loan is a frequent author of articles on constitutional law and past chairman of the Josiah Bartlett Center for Public Policy. Martin Gross is a longtime Democratic activist and former mayor of Concord.

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Scholarship Tax Credit

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In recognition of School Choice Week, we are releasing the study below on Scholarship Tax Credit programs across the country and how they might work here in New Hampshire. The study is authored by Center Research Fellow Jason Bedrick.

 

Scholarship Tax Credit Programs Analysis

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