Skip to content

Attacks on school choice program rebutted at NH Supreme Court

Brief demonstrates tax credit program to be constitutional
School Locker

CONCORD, N.H. — Alliance Defending Freedom, Cornerstone Policy Research, and Liberty Institute have filed a friend-of-the-court brief with the New Hampshire Supreme Court in defense of the state’s tax credit program for businesses that wish to help students attending private schools.

Alliance Defending Freedom attorneys participated in successfully defending a similar Arizona program two years ago in a case that the U.S. Supreme Court ultimately decided in the program’s favor.

“Parents should be able to choose what’s best for their own children,” said Senior Counsel Gregory S. Baylor. “New Hampshire’s program allows businesses to help make that a reality for many families. Nothing about that violates the state constitution, as the state’s legal history unquestionably demonstrates.”

In January, the American Civil Liberties Union and Americans United for Separation of Church and State filed suit against New Hampshire’s newly enacted Education Tax Credit Program. The program allows taxpaying businesses to donate their private funds to private scholarship organizations and then claim a tax credit for the donation. The scholarship organizations then provide the privately donated funds to families who can then use them at any private school, religious or non-religious. A trial court ruled against the program in June.

The ACLU and AU claim that the program violates provisions of the state constitution, but the Alliance Defending Freedom brief explains, “It is impossible for the Program to violate these provisions, among other reasons, given their historical meaning and interpretation…. No New Hampshire court has ever interpreted these provisions to mean that religious schools are ineligible to participate in neutral aid programs such as this one, especially one that does not directly involve taxpayer funds.”

The brief filed in Duncan v. State of New Hampshire explains that the relevant provisions of the state constitution cannot and do not prohibit the state program on several grounds. Most notably, the provisions’ legislative history shows that they do not mean what the ACLU and AU claim and that the program under attack does not even disburse any taxpayer money.

“The arguments made at the U.S. Supreme Court to eliminate school choice for hundreds of thousands of students nationwide failed, and those arguments fail here, too,” said Senior Counsel David Cortman. “The history of New Hampshire’s constitution simply does not support the attacks being made against this program. The people who will suffer the most if this lawsuit succeeds are New Hampshire’s students and their families.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


# # # | Ref. 39988