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Opponents of New Hampshire’s popular Education Freedom Accounts (EFAs) suffered yet another setback when union chief Deb Howes’ lawsuit was tossed out of court by a Merrimack Superior Court judge.

Judge Amy L. Ignatius’s order dismissing the lawsuit was a rebuke to the arguments put forward by the plaintiff, Deb Howes, president of the New Hampshire chapter of the American Federation of Teachers. 

Parents like Amy Shaw were thrilled by the ruling.

“The EFA program helps my daughters attend a school that meets their unique needs and in which they are thriving,” said Shaw, one of the parents who intervened in the lawsuit. “It is a great relief that the program will continue to support educational options that work for my kids and for so many other families across the state.”

EFAs allow parents to use the state’s share of per-pupil funding for their children to choose educational alternatives, including a different public school, private school, or home school.

Howes called the dismissal disappointing but not surprising. She blames the EFA program for taking money away from public schools despite the state increasing public education spending.

“Vouchers have exacerbated an already disparate burden placed on local property taxpayers to fund the basic right to a quality public education,” Howes said.

In fact, because EFAs only use the state portion of a student’s funding — usually around one-third of the total — school systems that lose students through EFAs increase their per-pupil funding.

The key allegation in Howes’ lawsuit was that the EFA program was unconstitutional.

Jason Bedrick, a Research Fellow in the Center for Education Policy at The Heritage Foundation, said the judge’s ruling ended that debate.

“We knew from the outset that this legal complaint lacked any merit. The court agreed,” Bedrick said. “The judge decisively rejected every single one of the plaintiff’s frivolous claims. This is a massive win for Granite State families whose children benefit tremendously from the Education Freedom Accounts.”

Senate Education Committee Chair Ruth Ward (R-Stoddard), who helped craft the EFA program, said Howes and the teachers unions don’t want parents to be able to choose the best education for their children.

“Currently, 4,200 New Hampshire students are using Education Freedom Accounts to build a better education. The teachers’ union sued because it wanted every student to take the same path. I’m glad that Judge Ignatius sided with parents,” Ward said.

Senate President Jeb Bradley (R-Wolfeboro) called the decision a victory for Granite State families.

New Hampshire’s Department of Education Commissioner Frank Edelblut said EFAs are making a positive difference for families and children throughout the state.

“The court’s decision underscores the legality of the EFA program previously approved by legislators, but more importantly allows New Hampshire students and families to find the best educational pathway available for their unique needs,” Edelblut said. “The value of this program continues to be far-reaching, with numerous success stories emphasizing just how impactful EFAs have been statewide.”

Ignatius wrote in her order Howes completely failed to show any of her complaints about the program had any legal merit.

First, Howes tried arguing that EFAs are unconstitutional since the state uses money from the Education Trust Fund to award the EFA grants to parents. Howes claimed since the Education Trust Fund includes lottery revenue, any payout from the fund to the EFA program violates the state constitution.

New Hampshire’s constitution restricts lottery revenue to fund only public schools. But, Howes failed to show any proof any lottery money is going towards EFAs.

“Howes does not meet this burden, even with the allegations in her complaint taken as true and viewing all reasonable inferences in her favor,” Ignatius wrote.

The Education Trust Fund took in more than $1.1 billion in 2022. Of that, lottery revenue was $125 million. The EFA program was budgeted to take $9 million from the Education Trust Fund in 2022. Howes bears the burden to show lottery money is being unconstitutionally used for EFAs, Ignatius wrote, and she didn’t come close to doing that.

Next, Howes claimed EFAs allow the state to avoid its constitutional obligation to provide an adequate education by delegating the job to parents. The Supreme Court’s Claremont decisions from the 1990s found the state must provide an “adequate” public education to all New Hampshire children.

But Ignatius flatly stated Howes was wrong again. The Claremont obligation is limited to public schools, not private education. Further, EFAs don’t keep students out of public school. Families in the EFA program can leave and enroll their child into a public school at any point or use the EFA funding to attend a different public school.

“(T)he Court finds that the State did not delegate its duty to provide an adequate education because it has no duty to students not enrolled in public school and RSA 194- F (the EFA law) does not prevent students from attending public school,” Ignatius wrote.

Finally, Howes argued that the EFA program unconstitutionally allows parents to buy educational materials without government oversight. However, the organization administering New Hampshire’s EFA program, the Children’s Scholarship Fund, is delegated to make sure all spending adheres to the law. Ignatius wrote Howes failed to show proof of any improper EFA spending and failed again to show any legal problem.

“The legislature delegated the authority to approve expenses extraneous to the specific items listed to the scholarship organization but required those expenses be ‘educational,’ and Howes has not identified any expenditures that are not educational,” Ignatius wrote.

Now that she has lost in court, Howes wants lawmakers to spend more on public education instead of EFAs.

“The legislature should be focusing far more time and resources on the needs of the 160,000 Granite State public school students who deserve a robust curriculum and fully staffed schools, not on the 4,000 students whose families choose to take state-funded vouchers,” Howes said in a statement.

In a battle between educational content and political rhetoric, it appears content may have won the day at the State Board of Education Thursday.

At issue is a video course on financial literacy offered by PragerU that the board is considering adding to the curriculum of the state’s Learn Everywhere program. Board chairman Drew Cline said the content “has a lot of value” and is suitable for the flexible, self-directed education that is part of the non-traditional Learn Everywhere model.

Critics, like Deb Howes, president of the New Hampshire chapter of the American Federation of Teachers, had not watched the videos and were not familiar enough with the content to discuss it. Instead, they objected to the source of the content — PragerU, a politically-conservative nonprofit founded by media personality Dennis Prager.

Asked by Cline if the 15-video course met the appropriate educational standards, Howes, the head of the second largest teachers union in the state, declined to answer and appeared not to have viewed any of the content.

“I cannot speak to whether it goes into depth enough; I am not a financial literacy teacher,” Howes said.

State Rep. David Luneau (D-Hopkinton) bashed the board’s handling of the application and called PragerU a “racist propaganda mill.”

“I find it outrageous and unacceptable that this board would take a controversial subject and slip it into a meeting on Aug. 10 when hopefully nobody’s watching,” Luneau said.

However, when asked about the specific content, Luneau also appeared to be unfamiliar with it and pointedly refused to say if he watched any of the videos under consideration about the board.

Some critics, however, had taken the time to review the materials. Mark MacLean, executive director of the New Hampshire School Administrators Association, watched all 15 videos in the “Cash Course” series and said there is plenty of good material in the class.

“I don’t think there is anything wrong with the videos I watched,” MacLean said.

But MacLean did express concerns about the depth of the content and whether or not it is sufficient to be an accredited high school class. PragerU’s proposal sought to have students who took the class earn a half credit.

“The content is good; I just don’t think as a standalone it’s enough to provide students with a comprehensive financial literacy unit,” MacLean said.

But elected Democrats and progressive activists who attacked the board’s consideration of the content weren’t interested in the course but rather the source. They denounced PragerU and expressed concerns that curious students might become intrigued and begin exploring other content from the conservative nonprofit.

“Students and parents who view the first video in PragerU’s financial literacy course are one mouse-click away from a ‘Parent Action Guide’ that urges scrutiny of any public official who parents suspect is involved in topics related to diversity, equity, and inclusion,” the left-leaning Boston Globe warned.

Both Democrats running for governor in 2024, Manchester Mayor Joyce Craig and Executive Councilor Cinde Warmington, have announced their opposition.

Via social media, Warmington urged the board to reject what she called “radical & unaccredited PragerU into New Hampshire schools,” though she has also not indicated what part of the proposed course is objectionable.

And House Democratic Caucus Leader Matt Wilhelm (D-Manchester) claimed PragerU has content “that suggests slavery was ‘no big deal,’” and “peddle anti-LGBTQ+ hate.” Despite repeated requests, Wilhelm declined to provide any examples to bolster his claims.

Ultimately, it appeared the solution may be technology, not politics.

Brandon Ewing, with PragerU, told the board Thursday that the organization planned to create a separate website for the New Hampshire Cash Course class, one that was not linked to the wider PragerU site. It was a detail the board had not been made aware of.

“We’re working through the format details on the technical end,” Ewing said.

Cline said removing the Cash Course class from the PragerU main website would allow families to view it without concerns over the rest of PragerU’s content.

“We heard a lot of testimony that the content is strong, but a lot of concerns about the context. Having it as a standalone entity could change the whole conversation,” Cline said. Cline also asked Ewing to show the board more of the materials that will be used to access student progress in the course.

Ultimately, the board voted unanimously to table the application until next month, when it can see the proposed website and review additional materials.

“This is good financial literacy content, and we need to make sure that all of our young people have that skill going forward in life,” said Education Commissioner Frank Edelblut told WMUR after the board meeting. “I think that it got overly politicized, and I think there was some interest in doing that, and I’m disappointed that this is where we ended up.”

Math class is hard. Just ask Deb Howes.

The head of New Hampshire’s American Federation Teachers chapter, Howes garnered attention last month when she filed a lawsuit against Education Commissioner Frank Edelblut claiming he was breaking the law by using lottery revenue to fund the Education Freedom Accounts.

But the New Hampshire Attorney General’s Office Howes’ arithmetic is all wrong. According to the state’s motion to dismiss the lawsuit, Howes didn’t come close to proving any actual violation of the law or the New Hampshire Constitution, largely because her numbers don’t add up.

“The Court should dismiss the plaintiff’s complaint in its entirety because the plaintiff fails to state a claim for either a constitutional or statutory violation,” the state says in its motion to dismiss.

The state is funding the Education Freedom Accounts with the Education Trust Fund. Howes based her lawsuit on the fact the fund takes in lottery revenue, and uses lottery money for anything other than public schools violates the law.

The problem is Howes never cited any evidence showing that money going to the EFA program is lottery money. The reality of the funding makes it unlikely she could, according to the state.

“The burden is not on the state to prove that lottery money is not used for EFAs; rather, the burden is on the plaintiff to allege and prove that lottery funds are used for EFAs,” the state’s motion says.

In 2022, the state sent $125 million in lottery revenue to the Education Trust Fund. That same year, the EFA program used $9 million of trust fund grants for parents who want to send their children to a private school or homeschool program.

The problem for Howes is the fact that the Education Trust Fund was budgeted at more than $1.2 billion in 2022 with revenues that come from a variety of sources.

The state’s Education Trust Fund got $128 million from the business profits tax; $265 million from the business enterprise tax $10.3 million from the rooms and meals tax, another $108.9 million from the tobacco tax; $65.3 million from the real estate transfer tax; $38.2 million from the tobacco settlement fund; and $40.6 million from the utility property tax.

The statewide property tax generates another $363 million for education, though that money does not go into the trust fund.

“Lottery money is one source that makes up a small portion of the education trust fund,” the state wrote.

Nearly all the money raised for education through the trust fund goes back to local public schools, according to the state. In 2022, that amount was $1,084,530,891, just shy of the $1.1 billion total fund.

Without a direct link between EFA funding and lottery revenue, Howes was unable to demonstrate Edelblut broke any law, according to the state.

“The plaintiff advances no allegations capable of showing that this $9 million comprised any letter dollars rather than being paid entirely from business profit tax or enterprise tax dollars or another education trust fund revenue source,” the state’s motion said.

Teachers unions and their Democratic allies have been working to kill the popular school choice program since Gov. Chris Sununu first signed it into law. They have repeatedly claimed the program takes money from local schools, a factual error that has been repeatedly pointed out. In fact, the EFA program gives local schools more money per pupil when a student chooses a different education option.

In their latest move, Democrats in the state House used a temporary majority last week to pass a bill mandating EFA recipients who are not entering school for the first time must have spent at least one year in their assigned public school if they want to access EFA funding.

That bill is unlikely to make it through the GOP-controlled Senate.

The state’s new Senate president has a message to the teachers union activists hoping the courts will shut down the state’s popular Education Freedom Accounts.

Good luck with that.

The lawsuit claiming the EFA program is unconstitutional was filed last week by the president of the New Hampshire American Federation of Teachers (AFT) Deb Howes, “as a citizen taxpayer,” according to an AFT press release, not by the union itself. Senate President Jeb Bradley (R-Wolfeboro) told NH Journal podcast he’s not too worried.

“Good luck with the lawsuit. I don’t think it’s going very far. I don’t expect that the AFT is going to win,” Bradley said on the NHJournal podcast.

The premise of Howes’ lawsuit is that lottery revenue must go to public schools and, she argues, cannot be used to fund EFAs, which allows the state’s share of education funding to follow the student to any school they choose: Public, private, or homeschool. But Bradley dismissed that argument

“I think (the EFA program) is carefully designed to meet the constitutional test,” Bradley said.

Bradley is not alone in his view of the lawsuit, as the conservative nonprofit Institute for Justice has announced it plans to fight Howes in court.

“Halfway through the school year, opponents of Education Freedom Accounts are trying to take away parents’ educational options,” said IJ Educational Choice attorney David Hodges. “The New Hampshire legislature’s mechanism for funding the accounts is constitutional and the Institute for Justice is ready to defend it.”

The Institute for Justice has been part of the fight for school choice nationwide. Hodges said the organization has successfully argued for school choice before the U.S. Supreme Court.

The Institute for Justice will represent real New Hampshire families in court who are currently using the EFA program to send their children to private schools. Karl and Ellen Jackson of Pembroke are already set to be part of the fight in court.

“Without the Education Freedom Account our children would be forced to leave the schools they attend right now,” said Karl Jackson. “We are eager to defend our children’s access to a good education and also stand up for other families.”

More than 3,000 New Hampshire students are taking advantage of the EFA program. It awards need-based grants that families can use toward tuition or homeschool supplies. Bradley, who sent one of his four children to a private school, said the program is needed because not every child succeeds in a public school environment. Before the EFA program, only families with the financial means to send their children to private schools had any real choice, he said.

“Now the AFT is targeting lower-income students and their parents to try and end the opportunity and choices their parents feel are important for them.”

Of the 3,025 students who enrolled in the EFA program this year, more than 1,500 come from low-income households eligible for free or reduced lunch. And 187 of the participants are special education students, according to Commissioner of Education Frank Edelblut.

“Half of the children enrolled are living below the poverty level. These families are seeking a nontraditional instructional model for their children who may not have found educational success,” said Edelblut.

The AFT is not a direct party to the lawsuit, as Howes filed it as an individual under New Hampshire’s law that allows citizens to sue the government. However, her legal fight has the backing of AFT’s national president Randi Weingarten.

“Any scheme to divert public funds into a voucher program without fully funding public schools first is an insult to the students, teachers, and families of New Hampshire, not to mention a violation of the law,” Weingarten said. Her suggestion that EFAs are undermining public school funding is a common complaint among its opponents. 

And according to Bradley, it is completely false.

“In the last two budgets we’ve increased funding on public education by over a quarter billion dollars,” Bradley said. And the increased spending comes as enrollment in public schools dropped by about 10,000 students.