Earlier this year, I read an article about the Town of Croydon “discovering” that existing State law allows it to offer school choice to students interested in attending private schools:
State law allows towns to pursue these agreements, sending taxpayer education dollars to any accredited school, public, charter, or private, even in neighboring states, with the exception of religious schools. The local board, at the behest of voters, negotiates contracts and approves taxpayer-funded tuition payments to those schools.
When I hear that a new legal right has been “discovered,” I think of Roe v. Wade (right to an abortion) or the Claremont decisions (right to an adequate education), and become dubious.
The article did not identify the statute or statutes where this new right to school choice had been discovered. But from the description of the statute –“even in neighboring states,” “contracts”– I assumed that the article was referring to RSA 194:22:
194:22 Contracts With Schools. – Any school district may make a contract with an academy, high school or other literary institution located in this or, when distance or transportation facilities make it necessary, in another state, and raise and appropriate money to carry the contract into effect. If the contract is approved by the state board the school with which it is made shall be deemed a high school maintained by the district.
This statute, however, is obviously inapplicable to the school choice program maintained by Croydon because it applies to high schools, while Croydon is offering school choice to private schools for students in grades five through eight. From a previous post:
Croydon is a small town northwest of Concord (that would be Sullivan County, James Pindell) with a population of about 760. The dispute began when Croydon ended an arrangement under which its public school students attended Newport schools after graduating from the Croydon Village School, which is kindergarten through fourth grade.
Most students from Croydon (sixty) continue to attend Newport schools. Five students are the issue. One attends a public school in Sunapee. One attends Kimball Union Academy, a private school in Meriden. Three students attend Newport Montessori.
RSA 194:22 is in a section titled “High Schools.” While the statute refers to contracting with “academies” and “other literary institutions,” as well as high schools, the context makes clear that these terms refer to contracts for high school students – “If the contract is approved by the state board the school with which it is made shall be deemed a high school maintained by the district.” (This designation relieves a school district without its own high school from the obligation of paying for tuition of its students attending high school in another school district. (RSA 194:27). That is, a student in Derry (which contracts under RSA 194:22 with Pinkerton Academy) cannot attend school someplace other than Pinkerton Academy and bill the Derry School District on the ground that he or she has to attend high school and Derry does not offer public high school).
Because Croydon does not maintain any public school past fourth grade, RSA 193.4 would apply:
193:4 District Liability for Elementary or Junior High School Tuition. – Any district shall pay for the tuition of any pupil who, as a resident of the district, has been assigned to attend a public elementary or junior high school or school of corresponding grade in another district and any district not maintaining an elementary or junior high school or school of corresponding grade shall pay for the tuition of any pupil who, as a resident of the district, after full investigation by the state board of education is determined to be entitled to have such tuition paid by the district where the pupil resides, and who attends an approved public elementary or junior high school or public school of corresponding grade in another district. Except under contract the liability of any school district under this section for the tuition of any pupil shall be the current expenses of operation of the receiving district for its elementary or junior high school or public school of corresponding grade, as estimated by the state board of education for the preceding school year. This current expense of operation shall include all costs except costs of transportation of pupils.
There is no mention of private schools in RSA 193:4. Students in a school district that does not maintain an elementary or junior high school, such as Croydon, have a statutory right to attend approved pubic schools elsewhere at their home school district’s expense. But there is no right to attend private schools.
While one could argue that RSA 193:4 does not prohibit tuition payments to private schools, it doesn’t follow from the lack of such a prohibition that school districts in Croydon’s shoes have the authority to make such payments. School districts are creations of statute and only have the powers given to them by statute. The lack of a prohibition on tuition payments to private schools does not imply authorization. The only authorization that can be inferred form the statute is from the responsibility of school districts such as Croydon to pay tuition to public schools.
Moreover, if the Legislature’s intent had been to allow school districts to offer school choice, it makes no sense that the Legislature wouldn’t have said so expressly. (Nor that the Legislature would have limited the program to districts not maintaining an elementary or junior high school.)
In sum, I have been unable to “discover” the right to school choice claimed by Croydon in the statutes governing public education.
I am a strong proponent of school choice, and I think that school choice should encompass private schools. But let’s do it the right way, by changing the law to allow for school choice that encompasses private schools, not by bringing a lawsuit asking a judge to “discover” such a right to school choice in a statutory scheme that cannot be reasonably read to authorize it.
Moreover, after 20 years of judicial appointments by Democrat Governors, a right to school choice is hardly the type of right that would be well received by the bench in New Hampshire. Frankly, Croydon is wasting $20,000.00.
The Croydon school board is not being a good steward of taxpayer dollars pursuing this lawsuit. And individuals who have made donations to support the lawsuit could have better spent their money by contributing to the campaigns of candidates for State office who support school choice.