#

Call it the “Don’t Let the Door Hit You” Defense.

During oral arguments in a lawsuit over its policy of keeping parents in the dark about their children’s behavior, the Manchester School District’s attorney told the state Supreme Court that parents shouldn’t be able to challenge the district’s policy. Instead, they should pull their kids out of public school and go somewhere else.

“If the parents want to make a different choice, they can homeschool, or they can send their child to a private school; those are options available to them,” said attorney Meghan Glynn.

The district is being sued over its policy of keeping students’ behavior related to sex and gender secret from their parents.

Richard Lehmann, the attorney for the Manchester mother going by Jane Doe, who filed the lawsuit, said parents have the right to know if their children are being socially transitioned in schools with the aid of school staff.

Manchester School District lawyer Meghan Glynn told Supreme Court justices that parents who don’t like the district’s policies can send their kids to private school.

“The real issue is not a school reporting on what a student is doing in school, but for the school to report what the school itself is doing in school,” Lehmann said.

Lehmann rejected the argument that Doe’s lawsuit was an attempt to force the district to out LGBT students to their parents. He argued that it is about a government entity usurping parental powers and making decisions in place of a parent.

“This is the government substituting its own judgment over a parent’s judgment when it comes to gender identity,” Lehmann said. 

Jane Doe stated in her original complaint that she found out in the fall of 2021 that her child was using a different pronoun and gender identity at school. The school’s name was withheld in court documents to protect the child’s identity.

The mother spoke with school staff, including the student’s guidance counselor. According to the lawsuit, the mother made it clear she wanted her child to be called by the name and pronouns the child had at birth while in school.

Even though the staff she spoke to initially agreed, the mother received an email from the school principal stating that the mother’s instructions were being overridden due to the district’s policy. According to the lawsuit, the principal stated that the district’s policy requires school staff to keep such matters secret from parents if the child so chooses. Even if staffers agree to use the child’s true gender identity when speaking with the mother, they would be obligated to not tell the mother if the child wished to be identified as something else.

The policy states teachers and staff are not to tell anyone about a child’s gender identity without the express consent of the child. School employees are also directed to use the child’s biological pronouns and given name when talking about the child to people who do not know about the nonconforming gender identity.

Last September, Hillsborough Superior Court Judge Amy Messer ruled in favor of the school district, declaring parents ultimately do not have the right to direct how their children are to be educated in public schools.

“(T)he right to make decisions about the care, custody, and control of one’s child is not absolute,” Messer wrote.

Because Justice Anna Barbara Hantz Marconi has recused herself from the case without giving a reason, the court may issue a 2-2 tie decision. If they do, Messer’s original ruling will stand.

On Friday, Glynn maintained the Manchester school staff, and officials did not lie to Doe about her child’s gender identity. They simply followed policy.

“If the issue, in this case, is truly that the district has a constitutional duty to report what the school is doing, the school has met that burden,” Glynn said.

Glynn said that parents have the right to have their voice heard when the district crafts policies, and they have the right to vote out school board representatives who pursue policies they do not support. A comment from Justice James Bassett seemingly rebuked this line of reasoning.

“Constitutional rights are not up for a vote,” Bassett said.  

In fact, parents’ rights are coming up for a vote in the New Hampshire House. Last week, the House Education Committee cast a 10-10 party-line vote on SB272, the Parents Bill of Rights. The full Hous is expected to vote on the legislation, which is supported by Gov. Chris Sununu, later this month.

Glynn cautioned the justices that if they decide in favor of Doe and parents’ rights in this case, more lawsuits will likely come.

“The next case up is going to be the case of a student,” she said.

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.

On Tuesday, House Democrats came within a single vote of approving a bill undermining the state’s Education Freedom Accounts, a sign of their commitment to waging war on the popular school choice program.

Hours earlier, Gov. Chris Sununu released his budget proposal for the biennium, proposing a doubling of EFA funding and expanding the number of eligible families. With polls showing overwhelming support for parental control of education, it’s an issue Republicans are likely to continue to advance.

The expanded EFA funding was part of an education budget proposal to add “an additional $200 million over the next two years — and an additional $1 billion over the next ten years – all with a priority towards school districts that need this aid the most,” Sununu said Tuesday. “These investments, which flow directly to local schools, will help cities and towns lower their property taxes.”

Participation in the EFA program has outstripped original estimates, with more than 3,000 students in the program in just its second year. Democrats say this is a sign the program was poorly designed, and they complain that most parents accessing the funding were already sending their children to private schools.

Their solution — in HB430 and SB141 — is to force parents who want to use EFA funding to send their children to private, parochial or home school must first force them to spend a year at their locally-assigned public school. Even if the student is already thriving in the school chosen by their parents.

As progressive state Sen. Debra Altschiller (D-Stratham) told the state Senate Education Committee last month, while there are some students for whom their public school “may not be the best fit….We can’t know how anything fits without first trying it.”

Using EFA funds “should require families avail themselves of the educational opportunities offered to them first,” Altschiller said. “Before opting out of the public school system, take advantage of the educational opportunities in your community provided to you.”

Rep. David Luneau (D-Concord), prime sponsor of the House bill, is deputy ranking member of the House Education Committee. He echoed Altshiller’s objections.

“Rather than simply transferring state funds when students leave public school, the program is open to students already in private education, who otherwise receive no state funding,” Luneau said in a statement. “This has caused the EFA budget and tax obligation of Granite Staters to quickly skyrocket, as most vouchers awarded have gone to students already in private school.”

The EFA program is already limited to families earning less than 300 percent of the federal poverty level. This year it will cost $14 million of the total $3.5 billion New Hampshire spends on k-12 education.

Still, Democrats are determined to end it. Even if it means disrupting educational success, critics say.

“Some legislators in the House wanted to force Granite State students to return to institutions that they already have chosen to leave,” said Sarah Scott of Americans for Prosperity New Hampshire. “Besides being highly disruptive to students’ education and traumatizing to students who have encountered bullying or fled ineffective learning environments, it undermines the decisions that parents have already made for their children.”

Altschiller sent her own children to expensive private academies.

During a Senate committee hearing on the bill, parents with children already using alternative education would be pushed back into public schools that had already failed them.

“I have a 5-year-old who started home school this year — does she need to go to second grade for a year, and then come out again, so we can take advantage of the funds?” asked James Van Nest of Dorchester, N.H. “My son hasn’t finished a full year of public school. Does he now need to re-enter the school system and then can we use the funds once we take him out?”

Despite the potentially drastic impact of the bill, every Democrat in the House except one — Philip Jones of Keene — voted for it on Tuesday, and every Democrat in the state Senate is a cosponsor, a sign of the depth of their opposition. The House vote came just days after an NHJournal poll found overwhelming bipartisan support for parental rights in decisions regarding the education of their children.

The vote was so close, Speaker Sherman Packard had to take the unusual move of casting a vote from the chair to create a 185-185 tie, preventing it from being sent on to the House Finance Committee. In a subsequent vote, the Democrats’ plan was tabled 186-183.

“It is disappointing that Republicans voted to the unsustainable giveaway to current private school students today, but House Democrats will continue fighting to establish appropriate guardrails in the EFA program,” Luneau said.

“For Democrats, kids are nothing more than ‘school funding units,” responded Rep. Glenn Cordelli (R-Tuftonboro), also a member of the Education Committee. “We believe they are children who deserve the best education that meets their needs – as determined by their parents.”

Senate Republicans want to help New Hampshire families succeed and stay healthy with a range of proposals as part of their newly unveiled 2023 legislative agenda. It covers taxes, school choice, access to healthcare, and the state’s First-In-The-Nation status. 

 “This year, we are making it our mission to focus on helping our struggling families who are facing rising costs across the board,” Senate President Jeb Bradley (R-Wolfeboro) said Wednesday at a State House press conference.” After enduring more than two years of hardships wrought by federal financial mismanagement, it is critical we continue to help our New Hampshire families.”

With the House of Representatives essentially tied between the two parties, the state Senate is likely to play an even larger role than usual in legislating. Bradley, who took over the top spot after the retirement of Chuck Morse, is seen by members of both parties as a savvy political operator who can navigate partisan political waters.

Bradley makes no secret of the fact he is focused on fiscal issues. He touted continued business tax cuts and pledged his party would “never, ever implement income, sales or capital gains tax.” He also said any budget surplus should go to property tax relief and the state’s Rainy Day fund.

While Republicans celebrated the additional cuts in Business Profits Taxes and Business Enterprise Taxes that took effect January 1, Democrats denounced them.

“These tax cuts are being downshifted to towns and WILL come back to hardworking New Hampshire families in the form of sweeping property tax increases across the board,” said New Hampshire Democratic Party communications director Colin Booth on Twitter. “But don’t expect the @NHGOP to take any credit when that happens.”

But state revenue has increased since the business tax cuts have begun phasing in, as has state revenue to cities and towns. In the last budget, the state provided $100 million to local governments to take pressure off property taxes.

Asked for data showing fewer state dollars going to cities and towns as a result of the business tax cuts, Booth declined to respond.

Senate Majority Leader Sharon Carson (R-Londonderry) focused on education in her remarks. “We will defend academic opportunities for our students by continuing to support our state’s Education Freedom Account Program and empower parents by providing transparency into their children’s learning environment.”

Carson also touted plans to “reform the state’s bail system,” which will likely undo previous changes that critics say have kept dangerous people on the streets.

“Our comprehensive agenda brings Granite Staters to the forefront. Exactly where they should be,” Carson said.

Senate Democratic Leader Donna Soucy (D-Manchester) said her conference will announce its agenda next week but previewed its goals of working on issues like property tax relief, access to affordable housing, and, of course, access to abortion up to birth.

“Protecting the civil rights of women should be one of the top priorities of the legislature and the Senate Democrats will never back down from supporting women making their own reproductive healthcare decisions,” Soucy said in a statement.

Democrats in Concord spent Wednesday trying and failing to allow for proxy voting and attendance via online video services like Zoom. Democratic House members have been suing the state for the last two years to allow members to attend sessions and vote remotely. They have yet to prevail in court, and their most recent appeal was rejected by the U.S. Supreme Court.

The other Democratic priority on Wednesday was trying to get the rule allowing members to carry concealed weapons in the State House changed. Democrats failed there as well, meaning House members will remain armed if they choose while in session.

The GOP, as part of its agenda, is also pushing for a law to protect New Hampshire’s First-In-The-Nation status in the presidential primary process. The Democratic National Committee announced new rules late last year that would force New Hampshire out of the top spot in the nominating process. Sen. Regina Birdsell (R-Hampstead) said Wednesday she plans to spearhead the effort to fight off any challenge to New Hampshire’s position.

“Unfortunately, we found that our historic tradition has been under attack by those looking to maybe repurpose it for their political gain,” Birdsell said. “Know that we will respond aggressively to anyone that attempts, like the DNC or anyone, who attempts to take that away from us.”

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. 

A New Hampshire’s teachers’ union is going to court to stop the state’s popular Education Freedom Account (EFA) program that some families use to escape failing public schools. The move comes as data show traditional public school enrollment falling while the number of students choosing charter schools and other alternatives is rising.

The American Federation of Teachers (AFT) announced Thursday it filed a lawsuit against Education Commissioner Frank Edelblut in the Merrimack Superior Court in Concord challenging New Hampshire’s EFA program. The complaint argues the program violates the New Hampshire Constitution and state law by using state lottery dollars and money from the Education Trust Fund to fund the EFAs.

“The state specifically earmarked this money for public education. Instead, the state is stealing from public school students in plain sight to pay for its private voucher program,” said Deb Howes, president of the AFT-NH, who brought the suit “as a citizen taxpayer,” according to an AFT press release.

Families earning less than 300 percent of the federal poverty level can use the EFA program to take their share of state per pupil funding – about $5,000 a year — and use it for alternatives to public school, like private school, homeschooling or tutoring. The public school they leave behind keeps its portion of local per-pupil funding, which can range from $10,000 to $20,000 or more.

EFA expenses must be approved by the Children’s Scholarship Fund (CSF), a private scholarship organization that oversees the program. In September CSF reported that families of more than 3,000 New Hampshire children completed EFA applications, up from more than 2,000 children who used EFAs in 2021-22.

“It underscores a growing demand from Granite State parents for educational alternatives,” CSF reports.

The national AFT’s controversial union president Randi Weingarten weighed in Thursday on behalf of the lawsuit. “New Hampshire can’t fund its voucher program by illegally putting its hand in the taxpayer cookie jar that’s intended for public school students,” Weingarten said. “It’s as simple as this: No matter what program the state wants to fund, it has to do it legally.”

The complaint is based on the premise that EFAs are illegal because the state constitution says “all moneys received from a state-run lottery [shall] be appropriated and used exclusively for the school districts of the state… and shall not be transferred or diverted to any other purpose.”

But supporters respond that EFA spending has been authorized by the legislature and that revenue from sources other than the lottery go to funding k-12 education. Since money is fungible, there’s plenty of revenue to pay for the EFA program without using lottery dollars.

“This lawsuit appears to be without merit,” said  Jason Bedrick, Research Fellow at the Center for Education Policy at the Heritage Foundation. “The Education Trust Fund has long been used for purposes beyond school districts, such as to place students with special needs in private schools. The state’s constitutional duty to cherish the interest of education is best fulfilled when all children have access to a wide variety of learning environments. Education Freedom Accounts further that interest.”

Howes claims the EFA program is denying public schools millions in money from the Education Trust Fund.

“Public school students are losing out on millions of dollars that are needed to fix leaky old buildings, purchase and maintain modern computer equipment, buy books and materials published at least in the last decade to support student learning, and provide more social and emotional assistance and other needs that will help students excel,” Howes said.

Representatives for New Hampshire’s Department of Education declined to speak about the lawsuit and instead issued a brief statement.

“The New Hampshire Department of Education is aware of the complaint filed today by Deborah Howes at Merrimack County Superior Court. At this time, the department is not commenting on the pending litigation,” a DOE representative said on behalf of the department.

Kate Baker Demers, the executive director for the Children’s Scholarship Fund NH, which administers the EFA program for the state, said the program gives parents the freedom to make their own educational choices, and is totally in line with the state constitution.

“Empowering parents to make educational decisions for their children does not violate any state law or our New Hampshire constitution,” Baker Demers said.

And, supporters note, parents are free to use the funding to transfer their child to a different public school as well.

“This is a desperate attempt by the union to block families from being able to access a wide variety of education options,” said Bedrick. “Thousands of New Hampshire families are using Education Freedom Accounts to give their children the education that best meets their individual needs. It’s sad to see the union putting their politics ahead of kids’ learning needs.”

State Sen. Tom Sherman is running for governor as a self-declared champion of public schools and opponent of school choice. He opposes allowing low-income families to use public money to choose a private school education for their children.

Perhaps the same private school Sherman chooses for his son.

While Sherman says he is a proponent of public school education, he sent his son to the Governor’s Academy in Newbury, Mass., a private school with tuition approaching $70,000 per year, GOP activist Patrick Hynes reported in his Union-Leader column on Sunday.

“The Shermans are a family of considerable financial means and are free to send their kids to whatever schools they want. EFA supporters are merely asking for low- and middle-income families who aren’t as wealthy as the Shermans to be able to do the same,” Hynes wrote.

Sherman doesn’t agree. He voted against the Education Freedom Account law passed by the legislature and signed by Gov. Chris Sununu. It allows low and middle-income families to use their child’s share of state funding  — not local money–  to choose an alternative to their local public school. That could be a private school, a parochial school, homeschooling, or a public school outside their district.

“My first choice would be to stop the program,” Sherman said of the EFA system at a recent debate with Republican Sununu. Sherman has also proposed an annual means test so that if a family’s income one year exceeds the current limit (300 percent of the poverty level), even temporarily, their children would be kicked out of the program.

“Tom Sherman is a school choice hypocrite,” says Corey DeAngelis with the Educational Freedom Institute. “He sent his kid to a private school yet opposes school choice for others. I’m glad his family had that opportunity, but he shouldn’t fight to trap low-income kids in failing government schools.

“Marie Antoinette would be proud of Sen. Sherman, because these school choice hypocrites are essentially saying, ‘Let them eat cake!'” DeAngelis added.

Asked about the allegation of hypocrisy, Sherman declined to respond.

When it comes to opposing EFAs while opting out of public schools, Sherman is hardly alone.

Progressive Rep. Debra Altschiller (D-Stratham) who is currently running for Sherman’s seat in the state Senate, is a staunch opponent of the EFA program, supporting complete repeal.

“Implemented by Republican free staters–and millions of dollars over budget–the school voucher program drains public school funding and threatens an increase in local property taxes,” Altschiller states on her campaign website. But her children have attended elite Phillips Exeter Academy, with $50,000 a year tuition bills, and Berwick Academy, a more affordable $30,000 per year.

Altschiller is also factually incorrect about the EFA program’s impact on local taxes. Because EFA’s only use the state portion of a student’s funding, when students opt out of the local school, the local funding still flows to the classrooms they left behind. As a result, per capita revenue for local schools actually increases when students choose the EFA option.

Sen. Cindy Rosenwald, D-Nashua has also pledged to repeal the EFA program if possible, while sending her son to Groton School, a private boarding school in Massachusetts that currently charges close to $60,000 a year.

Rep. Mel Myler is the ranking Democrat on the House Education Committee and a vocal opponent of parental choice. But when NHJournal contacted him about sending a child to Holderness Academy (boarding tuition: $71,000) Myler declined to comment.

And there’s Rep. Marjorie Porter, D-Hillsborough, who complained this year that advocates wanted to make EFA’s more accessible to New Hampshire families.

“They try to sell them as helping poor kids have choices too, but they have brought several bills forward to raise the income cap to five hundred percent of poverty level, or to eliminate it altogether, making me wonder how a family of four earning $132,000/yr. can be considered poor,” she wrote.

But while speaking out against EFA’s this year, Porter admitted she sent her child to a private school because the public schools weren’t working for her family when he son experienced difficulties.

“I certainly understand the need for families to find an alternative to public schools to meet the needs of their children,” Porter testified. “My own two children attended the same public school where I taught. My daughter was fine with it, but not so my son. He was experiencing difficulties, so we sent him to a local private school until he was middle school age.

“It was good that we had that option,” Porter said.

Not all Democrats believe their position is problematic. “I opposed the EFA vouchers too & I myself actually went to a private school,” Rep. Timothy Horrigan (D-Durham) tweeted, unprompted.

Meanwhile, New Hampshire families are flocking to the program with 3,025 participating this year, up from 1,572 last year. According to NH Bulletin’s Ethan DeWitt, ​​1,504 out of the 3,025 are eligible for free and reduced-price lunch, meaning 49.7 percent come from households making below 185 percent of the federal poverty level. 

“You’d think the party preaching about equity would be in favor of expanding educational opportunities for all students,” DeAngelis said. “The problem is opposition to parental rights in education is about politics and power, not morality or logic. That’s why 99.99 percent of Randi Weingarten’s teachers union’s campaign contributions have gone to Democrats in 2022.

“But now there’s a new special interest group in town – parents – and they aren’t going away any time soon.”

The U.S. Supreme Court is catching up to New Hampshire’s parental-rights approach to education, affirming that parents who use publicly-funded choice programs are free to choose religious schools.

In a 6-3 ruling released Tuesday, the court found Carson v. Makin that First Amendment protections for religious expression prohibit the government from discriminating against religious schools when states offer a school choice program to parents.

Maine has many rural communities — encompassing almost half of all the state’s 260 school districts — that cannot afford to support a middle school or high school. The state has long offered families tuition assistance so they can access education services for their children. But in 1981, Maine passed a law preventing parents from choosing a religious school.

The Supreme Court found that prohibition was unconstitutional.

While Tuesday’s ruling is a big change for some 18 states with similar bans, New Hampshire is at the forefront of school choice religious freedom. New Hampshire’s tuition assistance programs, and Education Freedom Accounts (EFAs) can be used for any school, including religious schools.

“New Hampshire has no religious test for tuition aid or EFAs, so the ruling confirms New Hampshire’s position as correct,” said Drew Cline, chair of the state Board of Education.

According to Andrew Wimer with the Institute for Justice, New Hampshire changed its laws on tuition assistance last summer. Wimer said the ruling strengthens New Hampshire’s religious freedom against any future attack.

“Today’s ruling does not change anything in New Hampshire, but does ensure that if a future legislature were to put the same restrictions back in place it would likely be found unconstitutional,” he said.

The law change came after the Institute for Justice filed a lawsuit on behalf of a Croydon couple Dennis and Cathy Griffin who wanted to send their grandson to a private Catholic school, Mount Royal Academy.

“We are happy the legislature did the right thing in removing politics from school funding by allowing individual choice on how our tax dollars are applied to our children’s education,” said Dennis Griffin said last year. “Cathy and I feel Mount Royal Academy is the best choice for our grandson’s education and the government should not be restricting the use of our tax dollars from funding our choice.”

Croydon, a town of about 700 people, does not operate a middle school, instead giving families tuition money they can use to send their child to a school in another district. But Croydon’s School Board refused to give the family the money because Mount Royal is Catholic, and New Hampshire at the time still had an anti-Catholic law on the books

Most of the laws prohibiting states from using public money for private religious schools come from a anti-Catholic movement started in the 1870s by U.S. Rep. James Blaine, a powerful Republican from Maine. Blaine’s response to the immigration of Catholic and Jewish families from Europe was to endorse a nativist movement to make sure the immigrant schools would not get any funding.

At the time, many public schools taught a form of Protestant Christianity.

New Hampshire’s Education Commissioner Frank Edelblut applauded the ruling, saying it affirms New Hampshire in its commitment to religious freedom.

“Schools of all kinds – public, non-public, religious or non-religious – have the distinct duty and ultimate responsibility to provide the best education possible for their students. This Supreme Court ruling clarifies what has always been so — that we do not discriminate against anyone, period. This ruling will ensure that school choice remains an opportunity for every student throughout the nation, and that there will be equality available among all educational institutions. There is no place for discrimination here in New Hampshire.”

New Hampshire Democrats were largely silent on the decision, with no member of the state’s federal delegation making any mention of it. They also declined to respond to requests for comment.

Granite State Democrats have long opposed school choice, especially the funding for parents who want to send their children to religious schools. During the debate over EFAs last year, state Sen. Tom Sherman (D-Rye) complained, “There’s just no accountability to property taxpayers whose money is being used for private, religious and home school.” 

Sherman is now the Democratic nominee for governor.

Senate Minority Leader Donna Soucy (D-Manchester) specifically cited the anti-Catholic “Blaine Amendment” language in the state constitution in her opposition to the EFA program.

“The New Hampshire Constitution prohibits taxpayer dollars from being directed to private or religious schools. Now more than ever, when legislators on both sides of the aisle have identified property taxpayer relief as a priority, it is difficult to understand why we would remove safeguards for the use of taxpayer dollars and ask hardworking Granite Staters to pay for the private education of other children and families.”

And former state Rep. Tamara Meyer Le (D-North Hampton) was removed from the House Education Committee in 2019 after a profanity-laced social media rant against private and religious education. “F*** private and religious schools,” Le wrote.

New Hampshire parents and students crowded the State House Tuesday to testify against Democratic Sen. Jay Kahn’s bill to repeal the state’s Education Freedom Accounts.

“I implore you, do not eliminate the Education Freedom Accounts, this program helps so many students and their families,” said Emma Jackson, a sophomore at Holy Family Academy in Manchester. 

Jackson, like many students who testified, has been able to go to a private school for the first time thanks to the EFA’s. The program “funds students instead of systems,” as school choice advocate Corey DeAngelis of the American Federation for Children puts it. The state’s share of a child’s public school funding follows the student to other education options like private or home schooling.

The program, in its first year, has more than 1,600 participants.

“Currently, most of the families that are using the Education Freedom Accounts are low-income families,” said Kate Baker Demers, executive director of the Children’s Scholarship Fund of New Hampshire.

Baker Demers said low-income families have struggled for years to get their children into schools where they can learn. They have also struggled to get their children the right education materials. Now they have the freedom to make the best choices for their families, she said.

“The families that are using them are extremely grateful and think it is right and just that they have access to their education funding,” she said.

Kahn, a Keene Democrat, is concerned that the success of the program will spell trouble for taxpayers down the road. He said the program is costing more than $8 million this year and is expected to double next year. On top of that, Kahn said, the state has cut funding for public education by more than $80 million in the current two-year budget. 

“Every child deserves access to an adequate education, but this isn’t the way to do it,” Kahn said.

Meanwhile, per pupil spending on k-12 education has risen during Gov. Chris Sununu’s administration to the highest level ever.

New Hampshire’s public schools lost more than 8,000 students in the last year as more parents grew frustrated with COVID-19 imposed-remote learning, among other problems. Baker Demers said parents realized during the pandemic that there are more options than their local public schools that fit their family needs better, and those options were finally within reach.

“They didn’t have these options without the EFAs,” she said.

Some Democrats opposed to EFA’s, like Rep. Marjorie Porter (D-Hillsborough) send their own children to private schools while opposing allowing state funding to follow low-income kids to these same schools.

“I certainly understand the need for families to find an alternative to public schools to meet the needs of their children,” Porter testified. “My own two children attended the same public school where I taught. My daughter was fine with it, but not so my son. He was experiencing difficulties, so we sent him to a local private school until he was middle school age. It was good that we had that option.”

Porter has filed a bill in the House to prevent local property taxes from going to religious schools, harkening back to 1870s efforts to stop Catholic schools from receiving public funding. A 2020 U.S. Supreme Court ruling found a state cannot prevent money from going to religious schools if it offers parents grants for education. 

Rep. Rosemarie Rung (D-Merrimack) mocked families who need the grants on Twitter, calling EFA’s handouts.

“My parents sent all 4 of their kids to Catholic school on a USAF officer salary and they would never, ever expect a government handout to do so,” Rung wrote on Twitter.

Baker Demers said low-income families deserve equal opportunities when it comes to education, and EFAs provide those opportunities.

“That’s the point, to overcome those inequalities,” she said.

“These are students who struggled in their old learning environment for a variety of reasons from bullying, learning difficulties, or health concerns,” said Sarah Scott from Americans for Prosperity New Hampshire. AFP-NH was heavily involved in the passage of EFAs and the Americans for Prosperity Foundation spent last summer spreading awareness of the new program to parents.

Families, Scott says, “are ecstatic to have been given the chance to have their children learn in a setting that helps them to thrive.”

Kahn said EFA’s downshift costs for public education onto local property taxpayers, an assertion advocates deny. Sen. Denise Ricciardi (R-Bedford) said the tax money is following the child through the system, and it will not result in higher taxes.

That is true in part because, while state funding follows the student, local funding remains in the schools. As a result, every student who uses an EFA leaves behind around $10,000 or more for their former school to spend on the remaining students. More money, but fewer students.

Regardless of the math or the praise of parents, the state’s teachers unions still oppose the EFA program.

“This is a multi-million-dollar example of failed leadership that will ultimately hurt our kids,” said Meg Tuttle, president of the NEA-NH, the state’s largest teachers union. 

Tuttle did not elaborate on how families choosing what they believe are better education choices for their children “will hurt kids.”

Senate Majority Leader Jeb Bradley (R-Wolfeboro) was a  prime sponsor of the legislation creating EFA’s last year. He made it clear this week he will fight to keep the program operating.

“Our Education Freedom Accounts have proven to be more successful than anyone imagined. Currently, 1,635 students are enrolled in the EFA program, giving working families the power to choose the best educational path for them,” Bradley said. “The pandemic has shown us the need for greater educational options, especially for families who traditionally could not afford the choices wealthier families have always had.  EFA’s provide that pathway. Students of hard-working families of modest means deserve the opportunity for education choices that best suit their needs.” 

Parents of West Running Brook Middle School students in Derry are being warned that children who do not wear “properly-fitted masks” will be sent to special detention sessions, according to an email obtained by New Hampshire Journal.

Principal Justin Krieger recently wrote to parents that the need for well-fitted masks is required for all activities in the building. Students who fail to comply will be punished.

“Students who are unable to wear a properly-fitted mask despite encouragement, prompts, and support from staff will be assigned an after-school detention on Friday (2:00-2:30 p.m.) of each week,” Krieger wrote.

The purpose of the detention is not to punish the students, he explained, but instead to educate the middle schoolers on the importance of wearing masks.

“We will use this time in concert with our school nurse to provide more education for students to stress the importance of compliance,” Krieger wrote.

Krieger did not respond to a call on Monday from New Hampshire Journal. Derry Cooperative School Board Chair Erika Cohen did not answer questions on Monday about whether or not the board agreed with Krieger’s policy. 

“This was a school-based decision. The school board was not involved,” Cohen wrote in an email.

Krieger wrote in the email to parents that the special detention will be dedicated to “education.”

“Students deserve to understand the ‘why’ of mask-wearing and we intend to dedicate all this time to that end,” he wrote.

The new policy is not intended to punish students who occasionally have their masks below their noses, but it is aimed at students who “chronically” fail to wear their masks properly, he wrote.

State Rep. David Love, R-Derry, said Kieger is in the wrong with the new detention policy. As far as Love is concerned, masks don’t work.

“I think he’s stepping way out of bounds. I don’t know where this is all going to end. Masks, they don’t work. People have been wearing masks and getting vaccines and the vaccinated and masked are still getting COVID,” Love said.

Love has introduced a bill that would allow parents of students in a school that requires masks to transfer to another school at no expense to the family.

“The bottom line is the schools are going to do as they damn well please until we hit them in the pocketbook,” Love said. 

While Rockingham County is seeing high levels of COVID-19 transmission, the middle school does not appear to be overrun with cases, according to the New Hampshire Department of Health and Human Services’ COVID-19 dashboard.

As of Jan. 21, the latest reporting date available, West Running Brook had two active cases in the school community. The state dashboard does not distinguish between student cases and staff cases, so it is not clear if those infected are children or adults. The dashboard indicates there are no current outbreaks or clusters within the West Running Brook community. 

While there is no statewide mask mandate, schools, municipalities, and businesses are free to craft their own policies. Most schools in the state have been requiring the use of masks indoors since late fall, according to WMUR’s list of more than 400 school mask decisions.

The need for masks may start to change quickly, as many health experts expect the Omicron variant to peak in the coming weeks. Dr. Scott Gottlieb, former FDA commissioner, said this week on “Face the Nation ” that it is too soon to get rid of masks in schools, but that could change rapidly.

“I think it is too soon to do that because a lot of schools have built their preparations around the use of masks and whatever we want to say about the benefit that masks are providing, it’s providing some benefit,” Gottlieb said. “So, to withdraw it right at the peak of the epidemic, I think it’s imprudent. We should wait. I think within two weeks we’ll be able to make that decision.”