Andrew Wimer
Andrew Wimer · September 3, 2020

Concord, N.H.—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 are not eligible for that assistance, because the school they selected for their grandson is “sectarian” and the state prohibits so-called “tuitioning towns” from paying tuition to religious schools. Now, the Griffins are teaming up with the Institute for Justice (IJ) to sue in state court, claiming that the ban on religious options in the school choice program violates a recent U.S. Supreme Court decision.

“Earlier this summer, the U.S. Supreme Court made it clear that states cannot exclude religious schools from school choice programs—that includes New Hampshire’s town tuitioning program,” said IJ Senior Attorney Tim Keller. “The school the Griffins have chosen for their grandson is qualified to receive funds in every way except that it is religious. Under the recent precedent, that is a clear violation of the First Amendment.”

In June, the U.S. Supreme Court handed down a decision in Espinoza v. Montana Department of Revenue, a case which IJ litigated on behalf of a Montana mother. In the opinion, Chief Justice John Roberts wrote that, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” This lawsuit is the first educational choice case launched by IJ since that decision.

“We’ve chosen what we believe is the best school for our grandson,” said Dennis Griffin. “It’s not fair that we can’t receive the same support that other families in the town receive just because his school is religious. We hope that New Hampshire courts will follow the direction of the U.S. Supreme Court.”

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.

Croydon operates a public school for children from kindergarten to fourth grade, after which time families can choose to use tuitioning dollars at area public and private schools.

In Espinoza v. Montana Department of Revenue 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.

“States have to follow the U.S. Supreme Court’s lead and strike down the restrictions on the tuitioning program,” said IJ Attorney Kirby West. “New Hampshire is not the only state to exclude religious options and the Institute for Justice will ensure that the Constitution is followed in every state that has established a school choice program.”

IJ, the nation’s leading legal advocate for educational choice, is currently defending choice programs in Nevada and Tennessee and is challenging the exclusion of religious schools from Maine’s town tuitioning program. Before Espinoza, IJ also won twice at the U.S. Supreme Court for school choice on behalf of parents in defense of Cleveland, Ohio’s and Arizona’s school choice programs.