New Hampshire

New Hampshire

While publicly funded educational choice programs have never been constitutionally tested in New Hampshire, a nonbinding advisory opinion from the state’s Supreme Court in 1992 suggested that they would run afoul of the state’s Blaine Amendment if they permitted families to choose religious schools. IJ has long believed that opinion was erroneous and would not have been persuasive if it had ever been tested in an actual case. After Espinoza, however, New Hampshire’s Blaine Amendment—which discriminates on its face against religious educational options like the Montana provision struck down in Espinoza—is no longer a concern. Espinoza stands for the principle that a state constitutional provision cannot block an educational choice program just because it permits families to choose religious educational options for their children alongside nonreligious options. New Hampshire policymakers are free to enact any type of educational choice program they believe will best serve families, in addition to the state’s existing tax credit program.

Constitutional Provisions
Compelled Support Clause
“But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination ….” New Hampshire Const. Pt. FIRST, Art. 6.

Blaine Amendment
“Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.” New Hampshire Const. Pt. SECOND, Art. 83.

Other Relevant Provisions
“Every member of the community … is therefore bound to contribute his share in the expense of such protection .…” New Hampshire Const. Pt. FIRST, Art. 12.

“[A]nd to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the said state .…” New Hampshire Const. Pt. SECOND, Art. 5.

Relevant Case Law
Duncan v. State, 102 A.3d 913 (N.H. 2014)
The Supreme Court of New Hampshire ruled that the taxpayer-plaintiffs did not have standing to sue the school choice tax credit program because they lacked any personal injury.

Opinion of the Justices, 258 A.2d 343 (N.H. 1969)
The New Hampshire Supreme Court opined that a tax deduction for parents of private school children would be unconstitutional.

Trustees of Phillips Exeter Academy v. Exeter, 27 A.2d 569 (N.H. 1940)
The New Hampshire Supreme Court held that aiding educational institutions by exempting them from taxation is a proper exercise of the legislative power.

Opinion of the Justices, 616 A.2d 478 (N.H. 1992)
The justices of the New Hampshire Supreme Court opined that a proposed voucher program violated the New Hampshire Constitution because it contained no safeguard to prevent use of public funds for religious purposes.

Opinion of the Justices, 233 A.2d 832 (N.H. 1967)
The justices of the New Hampshire Supreme Court opined that appropriating money from a sweepstakes fund directly to parochial institutions violates the Establishment Clause of the First Amendment.

Opinion of the Justices, 113 A.2d 114 (N.H. 1955)
The justices of the New Hampshire Supreme Court opined that nursing education scholarships do not violate the New Hampshire Constitution because they were religiously neutral and intended to further the teaching of the science of nursing.

Existing Private School Choice Programs
School Choice Scholarship Program
New Hampshire Revised Statutes Sections 77-G:1 to -G:10

Education Freedom Account Program
N.H. Rev. Stat. §§ 194-F:1 through F:12

What You've Heard About Blaine Amendments

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: 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.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

What You Need to Know After Espinoza

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: 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.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

Select Your State

Program Status
All Educational Choice Programs
Only Tax Credit and ESA Programs
Educational Choice Programs Unavailable

For More Information

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