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Legislative Memo: In Opposition to Amending the Tax Law in Relation to Creating the Primary or Secondary Education Expense Deduction

June 16, 2015  

Subject: A.8233 (Nolan)

(AN ACT to amend the tax law, in relation to creating the primary or secondary education expense deduction).

Position: OPPOSED

This legislation represents yet another effort to provide public financial support to private primary and secondary schools, including schools that provide religious education.

The bill would give taxpayers a deduction of $3,000 per student, with a maximum deduction of $12,000, for tuition as well as other expenses related to a child’s attendance at parochial and other private schools. These related expenses include “books, supplies, supplementary tutoring, computer equipment, and other equipment, or supplementary material used … in teaching, supplementing or enriching those subjects and curricula legally and commonly taught … and related activities.”

The proposed education expense deduction is based upon the same flawed policies used to provide the rationale for an education tax credit: a tax benefit that subsidizes attendance at parochial schools and other private schools (provided a taxpayer has enough money to pay for private school); and that involves the state in the endorsement of religious belief and practice.

And as this latest scheme to provide financial support for private education is introduced, the state remains hundreds of millions of dollars in arrears regarding its legal obligation to fund the state’s public schools, as ordered by the Court of Appeals almost a decade ago.

The value of the proposed “education expense deduction” is modest as compared with the tax credit that Governor Cuomo has proposed.1 Nevertheless, this bill compromises important principles: 1) equity and fairness regarding support for public education; 2) the state’s commitment to protect the right of all students to a sound public education; and 3) the constitutional principle that bars the state from endorsing religion by providing financial support, directly or indirectly, to schools that provide religious education.

It can be argued that to the extent this bill undermines these principles, the harm is not great. However, this rationalization fails to take into account the manner in which erosion of principle becomes a precedent that justifies (even anticipates) the abandonment of principle.

To be fair, the bill has been introduced as a compromise in a highly politicized contest. The sponsor’s intent here is to mitigate the negative consequences of providing a high-value tuition tax credit to those who pay for education at private schools. But once a principle has been conceded, it becomes easier, as a political matter, to compromise further.

For example, it can be anticipated, should this bill become law, that future legislative negotiations will proposed increasing the education expense deduction, from $12,000 to, perhaps, $20,000; and then in a subsequent budget, law makers will seek to make the deduction available to individuals making up to $175,000 thousand annually. And once the state makes a commitment to subsidize attendance at private and religious schools, the argument against providing a tax credit becomes less persuasive.

State endorsement of religion

The proposed education expense deduction would not only subsidize private education; the bill also involves the state in the support of religious education.

The New York State Constitution prohibits the use of state money to support, directly or indirectly, religious education.2 However, by creating tax benefits that accrue, ultimately, to religious schools, the state becomes involved in the endorsement of religion. This is not a matter of abstract constitutional theory. Through its tax code the state has great influence in shaping education policy – including what is taught and how curricula are designed.

Consider that the financial benefits of an education expense deduction (or a tuition tax credit) would be realized by religious schools that may fire, or refuse to hire, a teacher of the wrong faith; or that instruct students that a lesbian or gay “lifestyle” is a violation of religious or moral values. Through such tax schemes, New York taxpayers would support educational institutions that discriminate based upon religious belief and sexual orientation.

Misguided education policy

As with many important and controversial legislative issues, this one will be negotiated in the absence of open, transparent, participatory public process.

Lost in the rush of business at the end of the legislative session will be an opportunity to consider the following issues related to the proposed education expense deduction (as well as the tuition tax credit):

  • the implicit, but wrongheaded, assumption that the state has an obligation to fund private education;
  • the economically regressive nature of the proposed education tax deduction, which provides a financial tax benefit that is of the least value to families with the greatest economic need;
  • abandonment of the least privileged and most vulnerable students through state support for private schools (including charter schools and parochial schools), which can reject applicants who do not test well; who have developmental disabilities; who speak English as a second language; who may be disadvantaged by the many challenges presented in a society whose defining characteristics include poverty and inequality.


Legislation that proposes increased state support for private schools and religious schools should be withdrawn; any further consideration of education funding should include ample opportunity for a transparent, inclusive, and public debate about the future of public education in New York State.


1 See Governor’s Program bill #2, Parental Choice in Education Act, 2015.

2 NY Constitution, Art. XI, §3

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