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Supreme Court of the United States

The Left Attacks Educational Freedom . . . Again

By Gregory S. Baylor posted on:
October 17, 2017

On January 8, 2013, plaintiffs represented by the ACLUAmericans United for Separation of Church and State, and the New Hampshire Civil Liberties Union launched an assault on educational freedom in New Hampshire.  They challenged a law that indirectly facilitates the freedom of parents to choose the educational setting most appropriate for their children:  public schools, home schooling, private secular schools, or private religious schools.  They claim that the legislature's refusal to discriminate against parents who choose private religious schools violates two church-state provisions of the New Hampshire Constitution.

The law under attack gives businesses a tax credit equal to 85% of the charitable contributions they make to "scholarship organizations."  These privately run scholarship organizations in turn award grants to families to defray expenses associated with the following educational choices:  (a) a public school other than the one in the district in which they live; (b) homeschooling; (c) a secular private school; or (d) a religious private school.

The ACLU claims that the program violates Article VI of the state constitution's bill of rights, which provides in part that "[n]o person shall ever be compelled to pay towards the support of the schools of any sect or denomination."  The premise of this argument is that the money flowing from businesses to scholarship organizations to families to religious schools is tax money belonging to the government (which taxpayers have been compelled to pay to the government).  This premise is wrong.  The funds in question never belonged to the government.  Nor did the legislature unfairly skew the system in favor of parents choosing religious schools.  Businesses are free to decide whether or not to make contributions to scholarship organizations.  Scholarship organizations are free to include or exclude applicants at religious schools.  And parents are free to choose where they want to redeem any scholarships they might receive.  In short, the legislation does not compel anyone to support a denominational school, and thus plainly does not violate Article VI of the New Hampshire bill of rights.

The ACLU also claims that the program violates a provision of the state constitution declaring 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."  Again, the resources that ultimately flow to religious schools after a series of independent private choices are simply not "money raised by taxation."

The real bottom line here is that the ACLU and its allies simply disagree with the worldview embraced by many religious schools.  They want to restrict the freedom of parents, scholarship organizations, and businesses to support educational institutions that do not necessarily share the ACLU's values.  They much prefer the public school system's virtual monopoly on K-12 education, given that system's frequent hostility towards religion.  To be sure, the ACLU and its allies try to cloak themselves with lofty-sounding rhetoric about church-state relations, but when it comes right down to it, cases like these are simply about punishing and marginalizing their cultural enemies.  The state constitution should not be interpreted to require the sort of ideological conformity that the ACLU desires.  Lets hope the New Hampshire courts agree.

Gregory S. Baylor

Gregory S. Baylor

Senior Counsel

Gregory S. Baylor serves as senior counsel with Alliance Defending Freedom, where he is the director of the Center for Religious Schools and Senior Counsel for Government Affairs.

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