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The Portsmouth Herald coverage of yesterday’s hearing is complete and accurate, picking out just the right quotes and giving as sense of both sides of the argument and how the judge saw it.
By Joey Cresta
April 27, 2013 2:00 AM
DOVER — The debate over the constitutionality of the state’s scholarship tax credit law is now in the hands of a Superior Court justice.
Judge John Lewis heard the arguments of attorneys on all sides of the issue during a hearing Friday that stretched over four hours in Strafford Superior Court. Three civil liberties groups filed a lawsuit in the county Superior Court in January to block a new law that would give businesses a tax credit for donating to scholarship organizations to send students to private, public or home schools.
The hearing cut through many of the politically charged arguments made both before and after the state Legislature voted to override former Gov. John Lynch’s veto of the so-called “school choice bill” last year. Some have contended the law would take money away from public schools and have compared it to voucher systems, which have already been proven unconstitutional.
Gretyl Macalaster crystallized the debate in her Union Leader report on the hearing:
“This program uses the tax system to deliver funding for the program. If there was no business profits tax, this program could not exist. The only way we can run this program is if a business owes the tax and chooses to divert some of the tax to this program,” Alex Luchenitser, associate legal director of Americans United For Separation of Church and State, argued for the plaintiffs.
Richard Head, with the state Attorney General’s Office, argued for the state that because the tax is retained by the business and never paid to the state, it should not be considered public money.
“What we have in the law before you is a private business making a decision it is going to donate money to a scholarship organization. There is no governmental involvement, except we will give you a tax credit for that decision,” Head said.
He did concede upon further questioning from Lewis that if the businesses chose not to make the contribution, the money would go to the state.
Read the whole report here: Judge hears debate over education tax credits
This piece in the Monitor captures key elements of the arguments presented yesterday in court:
By BEN LEUBSDORF
Saturday, April 27, 2013
A judge heard arguments yesterday about whether New Hampshire’s new education tax credit sends public money to religious schools – and, if it does, whether the whole law should be thrown out or if parts of it should be salvaged.
“It would have made my life easier if they hadn’t involved the government in all of this,” Judge John Lewis said to chuckles toward the end of the three-hour hearing in Strafford County Superior Court in Dover.
Lewis didn’t issue an immediate ruling on the lawsuit filed against the state in January by eight residents, led by former Executive Council candidate Bill Duncan. They’re challenging the tax credit law passed last year by the then-Republican-controlled Legislature, over a veto from then-Gov. John Lynch, a Democrat.
NHPR picked a key exchange from yesterday’s court hearing:
Oral arguments were heard Friday in a lawsuit which will determine if the state’s new education tax credit is constitutional. The state argues that for the tax credit to be considered unconstitutional, the judge has to consider first if directing money through a tax credit is the same as spending money in the budget. Next the judge will have to determine if because some parents use that money to send their kids to religious schools, does that violate the state’s constitution?
Much of the argument from both sides rests on how the judge considers a 1969 opinion in which the State Supreme Court decided a very similar program could not be allowed.
Here Judge John Lewis interrupts as Richard Head from the Attorney General’s office argues that the 1969 precedent isn’t as strong as the laws opponents think.
“Time didn’t stop in 1969,” said Head, before Lewis cut in “Is that for me to decide? If I rule against you and it gets appealed, or I rule against them and it gets appealed it’s still a matter that will be decided by the New Hampshire Supreme Court.”
There’s no expected date for the judge’s ruling, but both sides believe that ultimately it will be the State Supreme Court that sorts this out.
Here’s the coverage of yesterday’s Concord press conference by the Union Leader’s Gary Rayno, including the inevitable quote from Charlie Arnlinhaus, always available at the back of the room. You’ll notice Kate Baker peddling the narrative that forming a scholarship organization was her idea, as a local free and reduced lunch kid (highlight added). Possibly. But the Network for Educational Opportunity (nee, The Alliance for the Separation of Church and State) came to New Hampshire from California to help write and lobby for the bill, with the intention of qualifying as a scholarship organization – Ms. Baker is the local staff they hired to do it.
CONCORD – State taxpayers do not support using their money to pay for religious and parochial schools, said supporters of a bill repealing the state’s new education tax credit program.
Speaking at a press conference, a state lawmaker, the head of the state’s largest teachers’ union and a public education activist said they would do all they can to convince a majority of senators to pass House Bill 370, which repeals the tax credit program.
They said the education business tax credit program will rob public education of millions of dollars over the next decade at a time when essentially state services such as education need all the money possible.
They called it a voucher program administered by an out-of-state group that wants to end public education.
I participated with other supporters of public education in a series of press conferences yesterday. Here is the coverage by Suzanne Laurent for the Portsmouth Herald:
PORTSMOUTH — A coalition of state educators, taxpayers and concerned citizens are calling for the repeal of what they call the “misguided Bradley-O’Brien education voucher law.”
At a press conference Thursday morning in front of Portsmouth Public Library, the coalition asked the public to hold state senators to task to see that House Bill 370 is passed. HB 370 would repeal the education tax credit law passed last year over Gov. John Lynch’s veto. It passed Tuesday in the House and goes before the Senate on April 18.
The law allows businesses to provide scholarships for non-public schools and, in return, the businesses receive a tax credit.
Opponents, in calling it an voucher system, say it diverts taxpayer funds from public schools into an account for private and religious schools. The organization appointed by the state to administer the scholarship program is a California-based group called The Alliance for the Separation of Schools and State, known in New Hampshire as The Network for Educational Opportunity.
Today’s New York Times features the Georgia tax credit-funded voucher program in a piece called, “Backed by State Money, Georgia Scholarships Go To Schools Barring Gays.” It’s based on a report done by Steve Suitts of the Southern Education Foundation. (Steve did a very important study that the Times and we wrote about last spring identifying problems with the Georgia voucher program.)
The new report documents that voucher schools discriminating against gays:
“We are circumventing our own public policy with public money,” said State Representative Stacey Abrams, the leader of the Democratic minority in the House. “In our public schools, we do not disallow a child from attending on the basis of their sexual orientation.”
We would want New Hampshire to be in a position to take advantage of this national pre-K education opportunity if it becomes a real resource. From the Huffington Post:
the White House is considering a major step to boost early childhood education. According to sources close to the administration, Duncan and the Department of Health and Human Services are outlining a plan to create universal pre-kindergarten for 4-year-olds from low- and some middle-income families — approximately 1.85 million children. The plan, which is projected to cost as much as $10 billion to implement in full, is still under review by the White House, but sources said that last Tuesday, Linda Smith, an HHS official, discussed the proposal at a meeting of early childhood advocates.
Currently, about 800,000 3- and 4-year-olds from low-income families receive support through the federally funded Head Start program. In addition, about 100,000 families are enrolled in Early Head Start, which provides support to expectant mothers and infants. Whereas Head Start emphasizes things like health, nutrition and emotional development, the new program would integrate preschool into the existing K-12 school system and focus more on academics. It would also expand access to early childhood education beyond lower-income families to eventually include the middle class.
They are thinking expansively about early childhood development in Massachusetts. Be sure to click on the link and read the whole post.
Massachusetts Governor Deval Patrick today announced a bold proposal to provide universal access to high-quality early education for the state’s young children. It is part of his plan to invest almost $350 million in early education over four years, starting with $131 million in fiscal year 2014. In addition, Governor Patrick proposed changes to the state’s Chapter 70 school funding to encourage more school districts to offer pre-kindergarten for 4-year-olds.
Kevin Landrigan reported the suit in the Nashua Telegraph The quotes from Gene Chandler (below the fold, emphasis added) are particularly interesting. He is concerned that out-of-state lawyers are involved. First, I would point out the the suit is led by our own New Hampshire ACLU. But, it is also important to remember that this whole voucher proposal was based on a script provided by the Washington-based Cato Institute Center for Education Reform and a Connecticut group that calls itself the Alliance for the Separation of School and State. When the bill faced rough sledding, the Chicago-based Friedman Foundation joined in with a telephone campaign to pressure legislators. Gene Chandler is on pretty thin ice here.
On Rep. Chandler’s point about the cost to New Hampshire taxpayers to defend against a “frivolous” lawsuit, the Legislature had recommendations from many attorneys that this bill could be unconstitutional and that the Legislature should get a (quick and free) “Opinion of Justice” from the New Hampshire Supreme Court before proceeding. Rep. Neal Kurk (R-Weare) acknowledged as much on the House floor (1 hour and 20 minutes into this video) but it came up many other times during the debate on the bills.
The Republican legislative leadership did not respect the Court and did not want to be constrained by such an opinion so did not take the opportunity to save the State and our businesses and families from the cost and uncertainty this suit brings. It should not have been necessary. But now, if the plaintiffs win, the State will probably have to pay those legal costs as well.
CONCORD – Calling it a “backdoor voucher,” three civil liberties groups claim a new education tax credit violates the state constitution and should be struck down.
Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union filed a suit in Strafford County Superior Court on behalf of eight plaintiffs, including Joshua Segal, a retired rabbi with Congregation Betenu in Amherst.