A number of education bills are being heard in committee this week. Of the four I’ll discuss below (CACR3, HB282, HB455, and HB388), two are good bills, one is a bad bill, and one is an ugly bill.
Perhaps the most important is CACR3, which seeks to remove the so-called ‘Blaine Amendment’ from the state constitution, by striking the words ‘provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of schools of institutions of any religious sect or denomination’ from Article 83.
The US Supreme Court recently ruled (in Espinoza v. Montana) that if a school choice program includes private schools, it can’t exclude religious private schools. So on the one hand, it might seem safe to just leave the now non-functional text in place and ignore it.
But on the other hand, keep in mind that the heart and soul of legal argument as it’s practiced in this country is to look for ways to distinguish a new case from previous precedents. So as long as the text remains, it will be a temptation to both plaintiffs and judges to look for some way to say: ‘Yes, we know what the Supreme Court said about Montana’s program, but this is different.’
Also, on a deeper level, we already encourage judges to ignore the plain language of constitutions, as when they rule that ‘no law abridging the freedom of speech’ doesn’t include laws restricting what you can say during an election; or that ‘the right of the people to keep and bear arms shall not be infringed’ doesn’t mean that guns can’t be taxed, restricted, and sometimes banned, or that some people can’t be prohibited from bearing some arms in some places.
The Blaine Amendment is dead. Let’s not leave it lying around for judges to make it undead. CACR3 is a good bill.
The second bill is HB282, which removes the term ‘non-sectarian’ from several RSAs (including 193:1, 193:3, 193:4, 198:4, and 194:27), where it was added when the so-called Croydon Bill was passed.
The term was added in order to avoid a fight over whether towns could tuition students to religious private schools, knowing that the Blaine Amendment would be used as an excuse to challenge that in court.
If the Blaine Amendment is removed from the state constitution, that excuse will disappear. But as long as sectarian schools are excluded by statute, an opening will remain for challenging any school district that tries to (1) save its taxpayers money while (2) providing some of its students with a better education and (3) respecting the experience and expertise of parents regarding their own children.
HB282 is just a natural consequence of CACR3. It’s a good bill.
The third bill is HB455, which would allow any student to attend any public school in NH (or in another state if an interstate compact is in place for that school).
This is a great example of what economist Thomas Sowell calls ‘stage one thinking’. It assumes that one thing will change, and everything else will stay the same. (It’s kind of like Elizabeth Warren’s idea that if we slap rich people with an exorbitant tax, they’ll just pay it, and otherwise keep doing what they’re doing — instead of finding ways to move or recategorize their assets.)
The antidote to stage one thinking is to ask ‘And then what would happen?’ and keep asking it.
To do this, let’s take a concrete example, like the Sunapee School District, which operates some of the least-worst schools in the state. The people of that district allow themselves to be taxed through the nose in order to provide very small (some might say ridiculously small) class sizes for their students.
Would they be happy if those classes suddenly expanded — especially if the new students were coming from districts that don’t have to pay for the kids they’re sending? I think we can safely say that they would not.
Would they be forced to take the new students anyway? The bill says that out-of-district students can be turned away if there is a ‘lack of space or capacity’ in the receiving school.
So, does Sunapee have ‘space or capacity’ for more students? Parents from other districts who would like to send their kids to Sunapee schools might say yes. But the Sunapee district would be inclined to say no. And it gets to make the decision.
So we would expect the least-worst districts to swat away students from other districts like flies.
Loophole? This is more like a railroad tunnel.
Let’s imagine an alternative bill — called the Voluntary Property Value Dilution Bill (VPVDB) — which would allow a school district to offer to let students from other districts dilute the time and attention offered to its own students free of charge. The two bills would be identical in their effects — which is to say, they would have no effect at all.
Okay, that was an overstatement. There is one important difference between the two bills.
Currently, a district like Croydon can send some of its students to Sunapee schools by paying tuition for those students, and Sunapee can turn away kids that it doesn’t think would be a good match. The VPVDB wouldn’t alter this at all.
But HB455, by forcing Sunapee to declare itself ‘at full capacity’, would take away the tuitioning option. (How can you tuition a kid to a school that has no room for him?) The VPVDB would harm no one. HB455 would harm students who are now able to be tuitioned to some of our least-worst public schools.
However, apart from being badly conceived and written, what is fundamentally wrong with HB455 is that it’s incompatible with the idea that school districts should pay for their own schools. It’s like saying: Hey, chlorine bleach cleans pretty well, and so does ammonia. If we mix them together, they’ll work even better.
To be fair, local funding of schools is a pretty outmoded idea, one better suited to the kind of society we used to have, where most kids never moved very far away from where they were born.
But as long as we have that system, HB455 is a bad bill.
The fourth bill is HB388, which would change the options for reassigning a student as a result of ‘manifest educational hardship’. It seeks to do this by adding the phrase ‘or other approved school not in the district’ to RSA 193:3.
But there’s really no way to know what the bill would mean once it’s amended in this way. To take just one example: Does ‘in the district’ refer only to public schools? Newport Montessori is physically located within the geographical boundaries of the Newport School District, but would anyone consider it to be ‘in the district’?
Also, what is meant by ‘approved’? The state Department of Education recognizes two levels of approval: approval for curriculum, and approval for attendance. (There needs to be a third, approval for achievement, but so far it hasn’t been adopted.) Does ‘approved’ refer to both, or only one?
Would this change include more private schools, exclude them entirely, or have some intermediate effect?
The only way to answer questions like that is to ask a judge. And as anyone who followed the judicial circus that led to passage of the Croydon Bill knows, that’s an invitation to disaster. For example, one of the judges in that case declared that the phrase including but not limited to actually meant limited to, in order to rationalize the result he wanted — which turned out to be forbidding school districts to tuition kids to private schools.
If common, completely unambiguous English words and phrases can be twisted this way in court, what chance do ambiguities like ‘not in the district’ and ‘approved’ have of being interpreted to mean what they were intended to mean?
HB388 practically guarantees more court cases, and therefore more ludicrous judicial decisions. It’s an ugly bill.