Decision in New Hampshire school choice case: the good and the bad


Today the New Hampshire Superior Court issued a whopping 45-page order in the state’s education tax credit program case.  Judge John M. Lewis ruled that the program is constitutional as long as the scholarships are not used to cover educational expenses of “schools or institutions of any religious sect or denomination.”  In other words, now the program only applies to non-religious private schools, other public schools, and homeschooling.  The decision is better than complete invalidation, but it’s far from ideal.  The program was meant to give families the opportunity to choose the best schools for their children — removing an entire category of options infringes on that essential choice.

Readers may recall that PLF filed a brief on behalf of state legislators that passed the bill.    Anti-school choice groups argued that the bill was passed with intent to benefit religious institutions.  That is false.  The program was established to help low-income families afford to send their children to good schools — not to help religious schools.

Our brief succeeded.  On page 28, the order cites to our brief for the proposition that legislators passed the program with legitimate secular purposes:

“The purposes of the program are unambiguously state in the challenged legislation itself: To maximize parental choice in education; to promote the expansion of education opportunities for New Hampshire students; and to improve the overall quality of primary and secondary education in New Hampshire.  Laws 2012, 287:1.  These are secular purposes.  While the program’s purposes contemplate a significant role for “religious” schools in receiving scholarship monies and providing education, the Court concludes that the program was enacted with legitimate secular purposes.  See in this regard, Brief of Amicus Pacific Legal Foundation, et al 4-10.”

We will update our readers as the case develops.  The battle for school choice in New Hampshire isn’t over yet.