IJ Seeks to Defend New Hampshire School Choice Program

John Kramer
John Kramer · January 29, 2013

Arlington, Va.—The Institute for Justice today marked National School Choice Week by filing legal papers to intervene on behalf of parents and New Hampshire’s only approved Scholarship Organization, the Network for Educational Opportunity (“NEO”). IJ seeks to defend New Hampshire’s Education Tax Credit Program against a state court legal challenge filed on January 9, 2013, by New Hampshire taxpayers represented by Americans United for Separation of Church and State, and the American Civil Liberties Union and its state affiliate.

New Hampshire’s Education Tax Credit Program offers local businesses a partial tax credit (85 percent) for voluntary donations made to private, nonprofit scholarship organizations that fund education scholarships to low-income families. Qualifying parents may choose to send their children to tuition-charging public schools in neighboring school districts, or to home school their children, or to pay for tuition at any of the state’s private or religious schools. The lawsuit claims that the tax credit program violates two of the New Hampshire Constitution’s religion clauses by allegedly using money raised by taxation to compel taxpayers to support religious schools.

“Education Tax Credit Programs like New Hampshire’s do not violate state constitutional provisions that prohibit state funds from directly aiding religious schools because tax credit programs rely entirely on private funds, private organizations, and private decision makers,” said Senior Attorney Dick Komer, the Institute’s lead attorney in this case. “Private individuals set up scholarship organizations. Private businesses donate to scholarship organizations. And parents decide whether to apply for a scholarship and which schools to enroll their children into best meet their unique educational needs.”

“This program offers parents with limited financial means a desperately needed lifeline,” said Kate Baker, NEO’s executive director. “As I’ve traveled across the state to meet with families, explain the program to parents and encourage businesses to donate to NEO, I’ve heard one message loud and clear: parents desperately want—and need—additional education choices that will set their children on the path to academic success, high school graduation, college, and a good job.”

One of the parents that IJ represents, Shalimar Encarnacion, exemplifies such need. She has applied to NEO on behalf of her two children, 14-year-old Angelica and 10-year-old Miguel. Angelica is a cancer survivor whose cognitive abilities are still adversely affected by the extensive chemotherapy she underwent. Miguel has ADHD and is often isolated by his current public school teacher as a means of discipline rather than redirected and given positive reinforcement. Both of Shalimar’s children need smaller class sizes and more individual attention—something that Shalimar believes she has found in a nearby Christian school. Unfortunately, Shalimar and her husband cannot afford the tuition absent financial assistance of the sort that NEO plans to provide to families like the Encarnacions.

Despite the clear constitutionality of the privately run and privately funded choice program, the plaintiffs also are asking a Strafford County Superior Court Judge to immediately halt the program by putting in place an injunction to prevent the Program’s implementation.

“New Hampshire’s Education Tax Credit Program not only passes constitutional muster, but NEO, the state’s only scholarship organization, is still months away from issuing its first scholarship,” explained Komer. “That means there is no reason for the court to halt the program right now. There is plenty of time for the court to give this case the measured consideration it deserves before any funds donated to NEO are awarded to parents. The plaintiffs’ request for an immediate injunction should be swiftly denied.”

The Institute for Justice is the nation’s leading legal advocate for educational choice and has represented parents and children in defense of school choice programs nationwide for more than 20 years. Significantly, the Institute successfully defended tax-credit-funded scholarship programs that are similar to New Hampshire’s in Arizona and Illinois.

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