On June 17, 2013, in Duncan v. New Hampshire, a New Hampshire Superior Court
declared that the state's new Education Tax Credit program violates the state
constitution because it would send public funds to religious schools. The state
has said it will appeal. The court upheld the use of vouchers for private,
nonsectarian schools and for home schooling.
New Hampshire students and parents have the right to choose a religious education. "However,
the government is under no obligation to fund 'religious' education. Indeed,
the government is
expressly forbidden from doing so by the very language of the New Hampshire
Constitution," the court added.
Article 83 of the New Hampshire Constitution states that, "no money raised
by taxation shall ever be granted or applied for the use of the schools of
institutions of any religious sect or denomination." And Article 6 says, " ...
no person shall ever be compelled to pay towards the support of the schools
of any sect or denomination."
The American Civil Liberties Union (ACLU),
the New Hampshire Civil Liberties Union (NHCLU),
and Americans United for Separation of Church and
State served as counsel for the eight taxpayer plaintiffs who asserted that
the education tax credit program would primarily benefit religious schools and
allow those schools to use taxpayer funds for religious instruction and discrimination.
NHCLU's Barbara Keshen said: "We believe that everyone has the right to practice
according to his or her own religious beliefs, but taxpayers should not bear
the expense of educating school children about religious beliefs that they
don't share. This is a core constitutional principle that the Court has upheld
The primary argument before the court was a "public funds" dispute, that is,
whether the voucher funding is "money raised by taxation." The voucher law
gives businesses an 85% tax credit for funds sent to a new set of entities
called "scholarship organizations." These organizations are authorized to receive
these business "donations" and award "scholarships" to K-12 students to attend
non-public schools or public schools outside of their districts or for home
schooling. The law would allow this money to flow to religious institutions,
which constitute a significant portion of the non-public schools in the state.
As reported in the Concord
Monitor, the court found the program uses public funds, even if funding does
not go through the state government. Money that would have flowed to the government
is, instead, diverted.
"A taxpayer's interest is . . . not dependent on the number of hands the money
passes through. A taxpayer's concern arises when a large portion of the donated
funds are, as here, realized very much through a tax credit," the court wrote.
Thus, "the program has been shown to have 'money raised by taxation' inevitably
go toward educational expenses at nonpublic 'religious' schools without restriction
regarding how the money may be used," and so violates the Constitution, the
Moreover, as one of plaintiffs' experts reported to the court, tax credits
serve "the same functions as direct governmental spending" and have been recognized
as equivalent to direct appropriations "by public finance economists and analysts
for at least half a century."
New Hampshire supporters of vouchers for religious schools argued that the
tax credit program was designed to avoid the state constitution's restriction.
This strategy worked in Arizona, where a divided court held that the funding
was not public because it did not reach the state treasury. The New Hampshire
court distinguished that ruling and quoted the Arizona dissent, which concluded
that the voucher program "is a direct government subsidy limited to supporting
the very causes the state's constitution forbids the government to support."
Derrick Black reported on this ruling in a June 18 post on the Education
Law Prof Blog, where he covers a wide range of issues and developments in
education law. Please visit this informative blog.