Home > Essays > Betsy DeVos is Out of Office… but SCOTUS Decisions and GOP Controlled Statehouses and Legislatures are Moving Her Agenda Forward

Betsy DeVos is Out of Office… but SCOTUS Decisions and GOP Controlled Statehouses and Legislatures are Moving Her Agenda Forward

May 3, 2021

The drip…drip… drip you are hearing is the slow leak of the funding pipeline to public education and the funds that are leaving public schools are going to charters and sectarian private schools. With a majority of state legislatures and statehouses under the control of the GOP states are moving forward with an urgency mirroring that of the Biden administration, passing laws that reflect the thinking of Betsy DeVos and the neoliberal and libertarian think tanks who espouse unregulated school choice.

As recent posts indicate, my home state of NH is one of those states aggressively promoting vouchers and deregulation of school governance while simultaneously promoting the squelching of teaching on “divisive issues”, a contradictory set of principles but one that the GOP seems comfortable with. As Ethan DeWitt wrote last week in the New Hampshire Bulletin, the legislature seems likely to pass SB 130 that “…would give parents the option of using per-pupil public school funding not just for private school tuition, but for supplies and services ranging from computers to tutors.” And because of recent Supreme Court decisions, those de facto vouchers would not be limited to public charters or non-sectarian private schools: they could be used to help underwrite the costs of religious schools.

Mr. DeWitt provides an extensive analysis of why this is now possible, giving a history of the NH Constitution that forbade the use of public funds for religious schools from the get go and then augmented and (presumably) clarified that limitation with the passage of a Blaine Amendment in the late 1800s. But recent SCOTUS decisions, which Mr. DeWitt elaborates on, appear to override State constitutions and Blaine Amendments.

The article concludes with a rejoinder from the Democratic Party’s former education chair, who makes the point that should the law pass it will be legally challenged and— more importantly—  NH should not be diverting ANY funds for schools until it fulfills its Constitutional obligation to provide adequate funding for public schools. Mr. DeWitt writes:

Rep. Mel Myler, a Hopkinton Democrat and the former chairman of the House Education Committee, disagrees with the interpretation. The Trinity and Espinoza decisions were narrowly decided, Myler contends, tied to situations that are different from New Hampshire’s present voucher proposal. 

The proposed law would not survive the same legal scrutiny, Myler said. 

“When you begin to look at Senate Bill 130 … this is dealing with public monies going to religious schools,” Myler said. “It’s a different issue that has yet to really be defined.” 

That could allow the state constitutional provisions to hold their ground in a future court case, he said. 

For Myler, the school choice debate comes down to the state’s responsibilities. 

“The Legislature has failed to deal with providing enough funds for schools,” he said. “And so my position is until you begin to meet that initial obligation for the 100% of the students who are in public schools, why are you going to start diverting them?”

If the law does make it through, one thing the state can count on is a swift lawsuit, Myler said. But after the pivot on the U.S. Supreme Court in the past five years, litigation may not be the panacea for opponents of the law

MAYBE litigation might not be the panacea for opponents of the law… but a change in the composition of the House, Senate, and State House MIGHT forestall the implementation of any voucher plan.

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