IJ Knocks Down Challenge to New Hampshire Choice Program

David Hodges
David Hodges  ·  February 1, 2024

As 2023 drew to a close, IJ’s educational choice team received welcome news: A lawsuit challenging New Hampshire’s Education Freedom Accounts (EFA) program would be coming to an end.

The EFA program has its origins in 2021, when IJ attorneys worked with state legislators to enact a broad, constitutionally sound educational choice program. Because IJ had ensured that the program was bulletproof, its challenger—the head of the state teachers’ union—had to concoct a truly unique legal theory. 

Essentially, the union argued that because the New Hampshire Constitution requires that lottery funds go only to public schools, when those same funds were placed in a bigger pool of money, the bigger pool became subject to the same restriction. It did not matter, say, that the lottery funds totaled $100 million, and it was indisputable that $100 million went to public schools (in fact, more than $1 billion went to public schools). To opponents of choice, what mattered was that this money, unlike any other kind of money, had some sort of magical property that not only made it nonfungible but also gave it the power to transform other money that it touched.

Fortunately, the trial court roundly rejected this convoluted theory—and the union declined to appeal. The result? Thousands of New Hampshire parents can continue to provide an individualized education to their children. Or as IJ client Amy Shaw put it: “The EFA Program has been a help to my daughters, giving them the opportunity to attend a school that provides for their unique needs. I’m so happy that this [lawsuit] has finally come to an end and the program will be allowed to continue to support educational options that work for my kids and for so many other families across the state.”

IJ’s victory in New Hampshire came as we marked a turning point. Readers will recall from our previous issue that IJ will eventually transition from defending educational choice programs against narrow state constitutional and statutory attacks to dismantling government regulations that stifle educational freedom. While programs like the one in New Hampshire will be ably defended, we are excited to bring new cases that further expand educational opportunity in the years to come. We can’t wait to share them with you!

David Hodges is an IJ attorney.

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