The New Hampshire Senate passed a bill sponsored by school choice advocates that would create a tax credit for businesses that donate to scholarship organizations.
Many public school educators oppose the measure saying that it would sap schools of already scarce resources, but opponents in the senate tried to block the bill by calling into question its constitutionality.
Under the proposed program, businesses that donate to scholarship organizations for high school students would get a tax break. Its backers say the state would make the lost tax dollars back because it would save money for every student who left public schools for private ones.
The bill has the support of the entire Republican leadership, and there is little doubt that it will make it through the legislature.
But even so, opponents gave lively debate on the floor of the senate.
Manchester Democrat Lou D’Allesandro argued that public schools already don’t have enough money, and this bill would squeeze them further.
"If we defray contributions by creating tax deductions," D'Allesandro argues, "Every school meeting will deny schools for the appropriations. It happened in my district, this year!"
But that line is unlikely to convince the supporters of the bill, who say that the competitive effect would actually make public schools better.
Senator Jim Luther says that New Hampshire needs to look at new approaches to improve education, saying, "Our results of students’ performance versus other nations is lagging, we’re not even in the top 10 any more, we’re almost below twentieth."
So democrats are also questioning the bill’s constitutionality.
The bill’s prime sponsor, Strafford Senator Jim Forsythe, says there is case law in other states that shows a constitutional review is unnecessary.
"If we start to question whether or not a tax credit is government money, all the sudden we’re looking at donations to charities, donations to church would be subject to that kind of scrutiny and I don’t think anybody agrees with that," Forsythe says.
But New Hampshire’s constitution is unique.
Marcus Hurn, a law professor at UNH, thinks that Forsythe’s bill is on shaky ground. That’s because the NH constitution forbids sending tax dollars to religious schools.
Hurn says, "We also have over a hundred years of cases that say that when you’re giving a credit or an exemption that it has to be something that you could write a check for if you chose to do it that way."
He says it would illegal for the state to write a check to a religious school, and so it can’t direct tax break funded scholarships that way either.
And Hurn thinks all of the case law the bill’s sponsor cited is "absolutely useless."
"The New Hampshire constitution on taxes is unique," Hurn says.
Of course that’s just one lawyers opinion, and it would be up to the New Hampshire Supreme Court to make that decision. Democratic Senator Molly Kelly thinks in light of these unanswered questions, asking the court for an opinion is simply a good idea.
"I think just think it’s reasonable, I think it’s appropriate, I think it’s smart," she says, "Otherwise we just set ourselves up for additional cost."
Kelly is worried about costs because if lawmakers create a credit, and a year later it’s found unconstitutional, the state would have to somehow get all of its tax dollars back.
While Senator Kelly may not mind waiting for a court opinion, the bill’s sponsor is anxious to get it out the door. Forsythe was asked what the harm would be to get the court’s opinion.
"I think it sets a dangerous precedent if we start asking for supreme court rulings on anything that any one person has an objection to, mainly, probably because they disagree with the policy," he responds.
But also both houses are running up against their deadlines to act on new bills, and Forsythe has announced that he won’t be running for office again next year.
The bill passed in the senate 15 to 9, without requiring constitutional review.