Testimony by Dr. Mark Joyce, Senate Education Committee, 1/24/12

posted Jan 25, 2012, 2:05 PM by Bill Duncan

 Testimony to: Senate Education Committee

Re: Testimony in opposition to SB 372 (and HB 1607) and suggested amendments.

Date: January 24, 2012

From: Dr. Mark V. Joyce

Good Afternoon, my name is Dr. Mark V. Joyce and I am the Executive Director of the New Hampshire School Administrators Association. I am here today to testify to our Association’s and the NH Association of Special Education Administrator’s, opposition to SB 372 (and HB 1607 with amendments as we understand them). Our Associations represent NH’s school system leaders, including school superintendents, assistants, business administrators, special education and curriculum directors. Our opposition is based on the belief that this proposed legislation is: poor public policy, that is based on misleading and inaccurate financial information that will cause the loss of resources to school districts, children and taxpayers, and it likely will cause a variety of legal and operational issues/questions.


            While we understand the intention of the proposed legislation is, in part, to seek to increase opportunities for some students, and we recognize the energy and effort of the organizers, we remain opposed to the legislation for the following reasons. Let me briefly explain our position.


Poor public policy


            For more than a century in the United States, public education has been a recognized public good that has been funded by public resources and controlled by elected representatives of the public. The bedrock basis of this unique and envied characteristic of America, is that an educated citizenry is an essential element in building our successful republic and a public good that benefits all citizens – even if they have no children of their own. It is so important a public benefit that it is funded by public money; like other areas that provide a public good (E.g. fire protection, police protection, etc.) Historically citizens have also had the personal right to choose to educate their own children in a different way as long as they assume the responsibility for that education. They have had the ability to home educate, seek religious based education, etc.


            This bill seeks to establish a state government sponsored program that will redirect public resources to clearly privately controlled entities that do not serve the public good and are not publically controlled. This violates more than a century of common practice and is clearly at odds with New Hampshire’s tradition of never allowing public funds to pass to private sectarian control.  This will create a duplicate system of meeting a governmental responsibility and waste public resources.


            Some suggest tax credits are common in NH, we would suggest that tax credits have been used as pilot investments and as strategies to stimulate a new industry. To our knowledge tax credits have not been used to replace the governmental funding of a constitutionally recognized public good and service. What will be next allowing a tax credit for private police protection? Fire protection? Ambulance services?


We believe the bills are based on misleading and inaccurate financial information that will cause the loss of resources to school districts, children and taxpayers.


            Proponents of this bill, suggest that this bill is “revenue neutral”. We strongly disagree for a variety of reasons:


1.)    It is important to remember that education is not a “unit cost” business or industry as some would suggest. The costs do not increase or decrease depending on a student moving in or out of a school or district. In fact, in a typical school district 2-5 students could move out of every grade K-12 or 65 students (13 time 5) and a district would not save any resources of significance. That’s over 6,000 students statewide with no savings of local obligation yet this bill would move significant dollars away from the school and taxpayers.

2.)    There is also an assumption that the state would save its adequacy payments over time. Yes under the current system if a resident student attended a school left, the payment would eventually readjust over time. However, this legislation alters that adjustment so that an immediate payment is moved. While this may help the argument for the cost of the bill it establishes a clear legal issue when a school does not get its extra payment when a student who is not counted for adequacy aid but taxpayers must educate them moves into the district.

3.)    There is no question that under this law, students who have always attended private or independent learning environments will apply for the scholarships even if they need to enroll in their resident public school first in order to qualify. To do less would be a clear discrimination issue. As you know, any resident may attend the local public school with out restriction. As a result, the cost impacts are clearly erroneous.

4.)    Currently NH school districts, children and taxpayers are not receiving state assistance that is currently required by law. Specifically catastrophic special education, vocational tuition and transportation aids are prorated and underfunded and a moratorium exists for building aid. How is financially prudent to voluntarily decrease revenue collection when, due to lack of revenues at the state level, you have already asked local tax payers to pay more?

This legislation will cause a variety of legal and operational questions and challenges.


            As with any sweeping and radical change in public policy, there will, without a doubt, be many operational issues and legal questions that will emerge. The following are a few that have been raised by citizens I have met with in discussing legislative initiatives.


1.)    What type of organization qualifies as an “independent school” eligible to receive these redirected public monies? Will they be private schools? Religious schools? Ideological schools? If so, than all must be eligible.

2.)    Who approves these schools and by what criteria are they approved? Is it life safety code? And/or NH Minimum standards? Who evaluates their effectiveness and financial management practices if they are not publically governed?

3.)    Who assures that public redirected resources are not used for religious indoctrination or possible illegal activities?

4.)    By receiving this money and trust are they subject to the right to know law? Are their operations open?

5.)    We assume they cannot discriminate and are subject to the full compliance of the federal and state laws and rules. E.g. 504 obligations. Do these schools understand the sweeping costs of these compliance measures?

6.)    Who pays the special education costs for students? If it is the local resident district then this could be a significant cost increase if those services need to be provided in another location.

7.)    Who monitors the operations of these “Non profit” scholarship organizations? Are they profit-making businesses using redirected public money to make more profit?

8.)    Has the NH Supreme Court been asked for an opinion of the legality of these measures? While proponents may suggest that the recent US Supreme Court Decision (ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v. WINN ET AL. (http://www.supremecourt.gov/opinions/10pdf/09-987.pdf) clears the way on this issue. It is important to remember that that case was a thresh hold “standing case” based on Arizona law. In New Hampshire our history, culture, Constitution and laws are different and there are many legal questions regarding the legality of this legislation and the equal application of all laws.


In summary, our opposition is based on the belief that this proposed legislation is poor public policy, is based on misleading and inaccurate financial information that will cause the loss of resources to school districts, children and taxpayers, and will cause a variety of legal and operational issues/questions. We encourage your opposition to this legislation and at a minimum send the bill to interim study for a more careful analysis of significant impacts it will have on public policy and local school budgets.


Respectfully Submitted,

Dr. Mark V. Joyce

Executive Director