April 5, 2013

PLF supports school choice in New Hampshire

By Joshua P. Thompson Senior Attorney

We have previously reported on New Hampshire’s Tax Credit Program — New Hampshire’s recently adopted school choice bill that gives less affluent families the opportunity to send their children to schools of their choice.  The New Hampshire Program is very similar to the Arizona plan that the United States Supreme Court held constitutional in Arizona Christian School Tuition Organization v. Winn.   Here’s how the New Hampshire plan works: Businesses that donate money to tuition organizations are permitted to claim a tax credit in the amount of their donation. Tuition organizations then provide scholarships to less affluent families to help defray the costs of private school.  So, there is choice on both ends.  On the one hand, businesses can choose whether or not they want to donate money to a tuition organization (they are certainly free not to).  On the other hand, parents can choose whether they want to take advantage of the scholarships to attend a private school of their choice (they are certainly free to allow their child to remain in the public schools). The double-choice nature of the program is what insulates it from constitutional attack.  Or so we thought.  Anti-choice activist groups — spearheaded by the ACLU — have nevertheless sued arguing that New Hampshire’s Tax Credit Program is unconstitutional.

Of course, Arizona Christian School precludes a challenge under the United States Constitution, so the anti-choice groups have brought a slew of challenges under the New Hampshire Constitution.  One of the most ridiculous of those claims is that the New Hampshire legislature adopted the program with an illegal intent to benefit only religious institutions.  The claim is patently absurd, and PLF decided to prove it.  Today, PLF filed this brief with the court in New Hampshire demonstrating that the anti-choice plaintiffs’ claim that the Tax Credit Program was adopted with illegal intent has no merit whatsoever.

Seven current and former New Hampshire legislators signed on to PLF’s brief.  These legislators were the prime sponsors, drafters, supporters, and debaters of the Tax Credit Bill as it moved through the New Hampshire legislature. In addition to getting these legislators to sign on to our brief, PLF demonstrated to the Court that the legislative record contains absolutely no support for the argument that the Tax Credit Bill was adopted with illegal intent.  To the contrary, time and time again, the legislative record makes clear that the Tax Credit Program was adopted to provide more (and better) educational opportunities for New Hampshire’s less affluent students.

And if that wasn’t enough, PLF’s brief demonstrates that the plaintiffs’ claims have no merit as a matter of law.  Imagine if perceived legislative intent could actually doom a validly enacted bill.  The courtrooms would be filled with disgruntled plaintiffs who — because they didn’t like the content of the law — would be saying that some legislator had the wrong thoughts in his head when he voted to approve the bill.  There would be no stopping the litigation.  Fortunately — as we make clear in our brief — courts across the country have rejected these types of claims.  As the Seventh Circuit said, “Just as we would never uphold a law with unconstitutional effect because its enactors were benignly motivated, an illicit intent behind an otherwise valid government action indicates nothing more than a failed attempt to violate the Constitution.”

Last week we won an important battle when the Indiana Supreme Court upheld that state’s statewide voucher program in a 5-0 opinion. Earlier today, PLF filed a letter brief with the California Supreme Court in support of charter schools.  The movement against government-only education is in full swing, and this New Hampshire case is the next important battlegound in the fight for true educational choice.  PLF will be helping to lead the charge.

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