Dennis and Cathy Griffin live in the small town of Croydon, New Hampshire and are raising their grandson Clayton, who is entering the seventh grade. Because Croydon is so small, it does not operate a middle school and instead pays students’ tuition at nearby private or public schools. But the Griffins aren’t eligible for that assistance, because the school they’ve selected for their grandson is “sectarian” and the state prohibits tuitioning towns from paying tuition to sectarian—meaning religious—schools. However, a recent U.S. Supreme Court decision could change that.

New Hampshire’s law unconstitutionally discriminates against families based on religion, offering tuition support to families that choose secular private schools for their children, but not to families choosing religious private schools. The school they chose for their grandson, Mount Royal Academy, meets all requirements to be eligible as a school tuitioning program except one—the school is a Catholic school. Such discrimination is both unfair and unconstitutional.

The U.S. Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue makes it clear that excluding religious schools from educational choice programs, as New Hampshire does, violates the Free Exercise Clause of the First Amendment to the U.S. Constitution. The Griffins joined forces with the Institute for Justice (IJ) to ask the New Hampshire courts to acknowledge this important precedent and strike down the unconstitutional exclusion of religious schools from the state’s tuitioning program. Recognizing that its limits on the program were likely unconstitutional, the New Hampshire Legislature passed a bill that eliminated the restriction. After the bill was signed into law by the governor, the Griffins and IJ ended the lawsuit.

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Town Tuitioning in New Hampshire

In New Hampshire, towns that lack public schools for any grade level are permitted by statute to pay students’ tuition at public or private schools of the parents’ choice. However, a state law prohibits those towns from paying tuition on behalf of families who choose otherwise qualified religious schools.

Many rural New Hampshire towns are too small to maintain public elementary or high schools, which is why state law authorizes school boards in these towns to pay tuition to other public schools or to private schools “approved as school tuition program[s].”[1] In order to be “approved as a school tuition program” by a school board, a private school must:

  1. Comply with statutes and regulations relating to agency approvals such as health, fire safety, and sanitation;
  2. Be a non-sectarian school;
  3. Be incorporated under the laws of New Hampshire or the United States; and
  4. Administer an annual assessment in reading and language arts, mathematics, and science . . .

There are about 50 New Hampshire towns that lack public schools for at least some grade levels. Most of these towns choose to contract with only one or two schools for all students. The town of Croydon, however, takes full advantage of the tuitioning law to offer families a broad range of educational choice.

Croydon: A Leader in Educational Choice in the Granite State

Croydon is a small town in the western part of New Hampshire. Though tiny, the town has had an outsized influence on educational choice in the state. Prior to 2017, New Hampshire law did not expressly authorize towns lacking public schools to pay tuition for students choosing to attend private, rather than public, schools. Seeking to broaden the educational options available to families, Croydon’s school board did so anyway. With no public school for students beyond fourth grade, Croydon’s school board paid to send students to either a neighboring public school or a nearby private Montessori school.

The New Hampshire Department of Education ordered Croydon to stop tuitioning students to private schools, and Croydon lost the ensuing legal battle. In response, New Hampshire’s legislature enacted the current town tuitioning law to ensure that towns could send kids to public or private schools—though still only secular private schools. The governor signed the bill, known as the Croydon Bill, in a ceremony in the town’s one-room schoolhouse—fondly referred to as “Little Red”—which houses all Croydon public elementary school students, kindergarten through fourth grade.

Today, after fourth grade, Croydon students attend a nearby school chosen by their families. The school district’s tuition payments are capped at a certain dollar amount, but families may choose to pay the difference for a more expensive school—as long as the school meets the statutory criteria. Today, the approximately 60 students from Croydon benefitting from the tuitioning program attend six different schools—four public and two private. Due to the restrictions of the state tuitioning statute, however, families who send their children to religious schools are not eligible to receive the tuition benefit that their neighbors receive.

Historic Supreme Court Ruling Rejects Anti-Religious Discrimination

In June, IJ secured a landmark victory for educational choice before the United States Supreme Court in Espinoza v. Montana Department of Revenue. There, the Court overruled the Montana Supreme Court’s decision striking down a tax-credit scholarship program. The state high court had ruled that the program—which enabled low-income families to send their children to private schools, including religious schools—violated the state constitution’s prohibition on directing state funds to “sectarian” schools. The U.S. Supreme Court found this state constitutional provision violated the First Amendment’s Free Exercise Clause because it impermissibly discriminated against religious schools.

Espinoza makes clear that when a state creates an educational choice program that includes private schools, that program must be equally available to families choosing secular and religious schools. As Chief Justice John Roberts said, writing for a majority of the Court, while a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” New Hampshire’s tuitioning statute expressly excludes religious schools from participation in the program. As such, under Espinoza, it violates the U.S. Constitution’s guarantee of the free exercise of religion and must be struck down.

The Plaintiffs

Dennis and Cathy Griffin are residents of Croydon, New Hampshire, where they are raising their grandson, Clayton. Clayton, who is entering the seventh grade, has attended Mount Royal Academy since first grade. The Griffins chose Mount Royal Academy because the school’s worldview aligns with their values and religious beliefs, and because the school was the best academic and social fit for Clayton. Because Mount Royal Academy is a Catholic school, however, Croydon’s school board is prohibited from paying for Clayton’s tuition, even though Croydon pays tuition on behalf of its other residents who select non-religious private schools for their children.

Litigation Team

The lead attorneys in this case are IJ Senior Attorney Tim Keller, who oversees the work of IJ’s educational choice team and who litigates school choice cases nationwide, and IJ Attorney Kirby Thomas West. Joining IJ as local counsel is Jared Bedrick of Douglas, Leonard & Garvey, P.C.

The Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty and one of the nation’s leading advocates for educational choice. IJ litigates in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty and educational choice. IJ has successfully defended educational choice programs across the country and three times at the U.S. Supreme Court. Most recently, IJ secured a historic ruling for educational choice at the United States Supreme Court in Espinoza v. Montana Department of Revenue.

[1] N.H. Rev. Stat. Ann. § 193:3

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