NH Trial Court in School Choice Case Favors Nonreligious Schools over Religious Ones; Court Ignores That the Program’s Funds are Private Contributions, Not Government Funds

John Kramer
John Kramer · June 17, 2013

Arlington, Va.
—Today, Monday, June 17, 2013, a Strafford County Superior Court Judge partially suspended New Hampshire’s privately funded Education Scholarship Program by declaring that no scholarships may be used to attend religious schools. The court’s ruling said that allowing parents to choose a religious school for their child violates the New Hampshire Constitution’s “Blaine Amendment,” a provision that was adopted to prevent the state from funding Catholic schools during a time in the state’s history when the public schools were explicitly Protestant in nature. Under today’s ruling, families receiving scholarships may still use the financial aid to attend nonreligious private schools, to pay for homeschooling expenses, or to attend neighboring public schools that charge tuition for out-of-district children.

“The court’s ruling inflicts again the blatant discrimination that motivated New Hampshire’s bigoted Blaine Amendment in the first place,” declared Institute for Justice Senior Attorney Richard D. Komer. “We will immediately seek a stay of the court’s decision so that parents receiving scholarships can choose the educational options that best suit their child’s unique educational needs, regardless of whether that is a religious or secular school.”

The Education Scholarship Program allows businesses to donate money to nonprofit scholarship organizations that then award scholarships to financially needy families. The businesses can claim an 85 percent tax credit against certain business taxes for their donations.

The program is being challenged by local activists represented by two national groups—Americans United for Separation of Church and State and the American Civil Liberties Union. These groups oppose the program precisely because it gives parents the choice to use their scholarship money to send their children to religious schools as one of the many options available under the program. The Institute for Justice, the nation’s leading law firm defending school choice programs, represents New Hampshire parents whose children are eligible to receive scholarships as well as the state’s first scholarship organization—the Network for Educational Opportunity (NEO)—in defense of the program.

“The trial court’s order halting the program is wrong on both the facts and the law,” explained Komer. “As a factual matter, the program is funded with private, not public dollars. As a legal matter, the federal Constitution prohibits states from preferring non-religious schools over religious schools, which is precisely what the court’s ruling does.”

“The parents who have applied for scholarships are desperate to find the best educational opportunities for their children,” said Kate Baker, NEO’s Executive Director. “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.”

One example of a family in need, and who desires to send their children to a religious school, is the Encarnacions. Miguel and Shalimar Encarnacion have two children, 14-year-old Angelica and 10-year old Miguel Jr. Angelica is a cancer survivor whose cognitive abilities are still adversely affected by the extensive chemotherapy she underwent. Miguel Jr. 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 children need smaller class sizes and more individual attention—something that Encarnacions believe they have found in a nearby Christian school.

“We are so thankful that New Hampshire legislators created a program designed to help children in need get the education they deserve, but we are disappointed that a judge has said that my family can’t participate just because we want to send our kids to a religious school,” said Shalimar Encarnacion. “I sincerely hope that the court’s ruling is stayed. My children can’t afford to wait any longer, they need a lifeline right now.”

The families that have applied to NEO for scholarships have reason to be confident that the inclusion of religious options in the Education Scholarship Program will ultimately pass constitutional muster. State courts in Arizona and Illinois have previously upheld tax-credit-funded scholarship programs against nearly identical legal claims. And in 2011, the U.S. Supreme Court rejected a federal legal challenge to Arizona’s tax credit program because charitable contributions from private individuals and businesses to nonprofit organizations like NEO are private—not public—dollars, meaning that the constitutional provisions relied on by the program’s opponents, which restrict only uses of public funds, are completely inapplicable to New Hampshire’s scholarship program.

Moreover, even if the program did involve public funds, the wide range of choices afforded to parents ensures that any money that flows to private and religious schools does so only as the result of the private choices of parents. This private choice breaks the link between government and religion and ensures that the program’s primary benefits flow to the families and children, and that any aid to private educational providers is merely incidental.

“NEO remain optimistic as the litigation moves forward,” said Baker. “The law is on our side. The facts are on our side. And justice is on our side.”

“This is a regrettable decision,” concluded Komer. “But we will seek a prompt resolution to this case, so that we can dissipate any constitutional cloud over the program and let parents pick the best educational options for children this coming school year.”

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