A New Hampshire state court on Monday struck down a recently enacted law that established an education tax credit program to help fund private schools.
The program provided a large tax credit to businesses that contributed to scholarship organizations that paid for tuition at private schools. Though the program was purportedly designed to expand educational opportunities, Justice John M. Lewis held the program violated the state’s constitution because it had the effect of diverting public funds to religious schools.
“New Hampshire students, and their parents, certainly have the right to choose a religious education,” the Stafford County Superior Court judge wrote in the ruling. “However, the government is under no obligation to fund ‘religious’ education. Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution.”
The New Hampshire Constitution’s “Blaine Amendment” prohibits the government from using public funds to support religious education.
Defenders of the program argued the state was not directly funding private religious schools — only providing a tax write-off — and therefore the program was not unconstitutional. However, Justice Lewis disagreed, writing that “[m]oney that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.”
The program was challenged by Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union.
“This program was a blatant attempt to circumvent the state constitution’s clear prohibitions against diversion of tax funds to religious schools,” Alex J. Luchenitser, associate legal director at Americans United and lead counsel, remarked in a statement. “We’re pleased that the court’s wise opinion saw through the program’s smoke and mirrors.”
The Network for Educational Opportunity, a group that intervened in the lawsuit to defend the program, plans to appeal the ruling.
“The parents who have applied for scholarships are desperate to find the best educational opportunities for their children. The state has no business taking religious schools off the table as a legitimate educational option. NEO will not rest until parents can freely choose any school of their choice, including religious schools,” Kate Baker, NEO’s Executive Director, said in a statement.
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