School Choice Survives Repeal Attempt in New Hampshire

Just moments ago, New Hampshire’s state senate rejected an attempt to repeal the state’s nascent scholarship tax credit law by a 13-11 vote*. The program grants tax credits to businesses worth 85 percent of their contributions to nonprofit scholarship organizations that fund low- and middle-income students attending private or home schools. The program took effect on January 1 of this year but scholarships will not be distributed until the new school year in the fall.

The support of Senate Education Committee Chairwoman, Senator Nancy Stiles, was decisive in saving the program. Last year, Sen. Stiles had voted against the school choice proposal, but she decided to oppose the repeal because she believed “it would be irresponsible to overturn it without seeing whether the legislation made a positive difference.” She also noted that without having had the opportunity to evaluate the program’s effectiveness, the opponents of the school choice program want to “rescind a program, not based on its effectiveness, but on philosophical differences. I cannot support or be a part of this effort.”

The legislative battle does not end here, however, since the NH House also repealed the scholarship tax credit program in the House version of the budget. Budget negotiations between New Hampshire’s Democrat-controlled House and Republican-controlled Senate are expected to continue until about mid-June.

The law is also being challenged in court by the Americans for Separation of Church and State and the ACLU, who claim that the school choice program violates the state’s historically anti-Catholic Blaine Amendment, which prohibits public funding of private schools. Their argument is based on a false premise, which is why the courts have ultimately rejected it wherever it has been tried. A citizen’s money is her own until it reaches tax collector’s hand. A private donation therefore does not constitute “public funding” even if it qualifies for a tax credit or deduction. While impossible to predict the future, it is likely that the Granite State courts will rule in line with other states’ interpretations of the Blaine Amendment and the U.S. Supreme Court’s understanding of tax credits.

*UPDATE: I originally reported that the vote was 14-10 to table the repeal bill. In fact, one state senator had mistakenly voted for the motion when he intended to vote against it and that was later corrected. The 13-11 vote was along party lines.