School Choice in New Hampshire

April 1, 2013

Recent events in New Hampshire prove yet again that no good school choice program goes unchallenged in the courts by those seeking to preserve the educational status quo.

One year ago, New Hampshire enacted a business tax credit program that encourages donations to nonprofit organizations offering scholarships to low-income families for homeschooling expenses, tuition for public schools outside the district of residence and tuition for private schools. Shortly after the program became effective on January 1, 2013, seven taxpayers represented by the ACLU, its New Hampshire affiliate and Americans United for Separation of Church and State filed suit in Strafford County Superior Court to stop the program. They allege that it violates the state constitution’s “no compelled support for religion” and Blaine Amendment provisions, as well as several others regarding taxation.

IJ quickly mobilized to represent parents who have applied for scholarships for their children and filed a motion to intervene in the case on their behalf, as well as on behalf of the only scholarship-granting organization so far approved by the state to award scholarships. Despite the ACLU’s opposition to IJ’s involvement, the trial judge granted our motion to intervene. The victory in this initial skirmish means that IJ’s school choice team is now actively defending five lawsuits challenging the constitutionality of school choice programs across the nation. The New Hampshire litigation is unique in being the only current challenge to a tax credit scholarship program.

Because of his extensive experience defending Arizona’s tax credit programs, Tim Keller from IJ-AZ has joined me in New Hampshire, where we have already braved repeated snowstorms to prepare our case. So far, in addition to signing up the Network for Educational Opportunity (“NEO”), we are representing Shalimar Encarnacion, who applied to NEO for scholarships for her two children with disabilities, whom she wants to transfer to a private school, as well as Heidi and Geoff Boffito, who need a scholarship to keep their oldest son in his private school.

Our allies in the school choice movement have rallied to the cause magnificently, offering to help with amicus briefs at both the trial and appellate levels, and organizing support for the program and its defense. Charlie Arlinghaus of the Josiah Bartlett Institute has proved invaluable in introducing us around and helping us to find terrific local counsel. Kate Baker, executive director of NEO, has provided indispensable assistance in locating potential parent clients, all while getting her new organization up and running.

As we have done with other successful defenses of tax credit programs in states like Illinois and Arizona, our primary objective is to remove as quickly as possible the legal cloud that this lawsuit has placed over the program so that the families and others like them can begin reaping the benefits of increased educational opportunities. We face our first big showdown in April when the trial judge will hold a hearing with his decision to follow shortly. Then it will be on to the New Hampshire Supreme Court for the final battle.

Dick Komer is an IJ senior attorney.

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