The fight for school choice in New Hampshire goes to the Supreme Court

November 12, 2013 | By JONATHAN WILLIAMS

Today, we submitted this brief to the New Hampshire Supreme Court in support of the state’s recently enacted school choice law. Last year, the New Hampshire legislature overwhelmingly adopted a tax credit program – even overriding the governor’s veto to bring educational choice to New Hampshire students. This New Hampshire tax credit program provides tax breaks to businesses that donate to organizations that provide scholarships to students to attend private schools. Homeschool students can also receive some scholarship money – for books or other supplies – through the program. By providing scholarships to less affluent parents, the program gives those families choice as to which school their child will attend. Unfortunately, anti-choice groups, led by the ACLU, challenged the constitutionality of the program in state court. Despite overwhelming evidence to the contrary, they allege that the legislators enacted the program in order to advance sectarian causes.

In order to combat this absurd argument, PLF filed a brief in the trial court on behalf of seven current and former New Hampshire state legislators who helped enact the program. Our brief notes that the legislative record clearly demonstrates a strong desire to improve educational opportunities for New Hampshire children. The trial court agreed. In an opinion that directly quoted our brief, the court concluded that the purpose of the program was to improve education and expand opportunity.

Unfortunately for New Hampshire families, the trial court struck down the program on other grounds. It ruled that the state’s Blaine Amendment prevented the scholarship program, because those business donations would otherwise have been tax dollars spent at government schools. Instead, the scholarship money may – after a number of independent choices – end up at a religious school. In other words, the New Hampshire trial court thinks the government owns your money even before it ends up in the hands of the tax collector. If this argument sounds ridiculous to you, then you agree with the United States Supreme Court. Two years ago, in Arizona Tuition Scholarship Organization v. Winn, the Supreme Court held that the, “contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.”

The school choice program is not dead yet, however. Today, New Hampshire families filed their opening brief in the New Hampshire Supreme Court. And PLF supports them. In the brief filed today, we urge the New Hampshire Supreme Court to affirm that the bill’s purpose was to improve educational opportunities for New Hampshire families. We also encourage the court to uphold this program because it provides schools with, “the healthy, natural incentives for better performance that most other types of service institutions take for granted.” As studies throughout the country demonstrate, choice not only benefits students who leave public schools, it benefits those who choose to stay.

Despite the national popularity and success of school choice programs, they remain under attack throughout the country. Special interest groups, such as teachers unions and the ACLU, continue to bring lawsuits to block parent and community empowerment. In the face of these challenges, PLF will remain at the forefront, demanding that courts protect educational opportunities for all.