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.