January 9, 2013 4:50PM

ACLU Attacks Educational Freedom in the “Live Free or Die” State

Earlier today, the American Civil Liberties Union filed suit against New Hampshire's School Choice Scholarship Act of 2012, which offers tax credits worth 85% of corporate donations to registered, non-profit scholarship organizations that fund low- and middle-income students attending non-public or home schools. The ACLU argues that since parents can use the scholarships at religious schools, the law violates two provisions of New Hampshire's constitution: the historically anti-Catholic "Blaine Amendment" and the "compelled support" clause. Fortunately, similar scholarship tax credit (STC) laws have withstood every legal challenge thus far, including in states with very similar constitutional provisions.

The Blaine Amendment reads: "no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination." What complicates matters for opponents of the program is that, unlike voucher programs, STC programs do not rely on "public money" or "money raised by taxation". In a decision upholding the constitutionality of Arizona's STC program, the Arizona state supreme court forcefully rejected the "public money" argument:

According to Black's Law Dictionary, "public money" is "[r]evenue received from federal, state, and local governments from taxes, fees, fines, etc." Black's Law Dictionary 1005 (6th ed.1990). As respondents note, however, no money ever enters the state's control as a result of this tax credit. Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with "public money."

(N.B. -- While the ruling of one state supreme court is not binding on another, state courts often consider how their peers have ruled concerning constitutional provisions with similar language.)

The ACLU's second contention, that the STC program violates the compelled support clause, is also weak. The clause reads: "no person shall ever be compelled to pay towards the support of the schools of any sect or denomination." Of course, no one is compelled to donate to a scholarship organization, let alone a religious school. The implication is that when tax revenues are reduced because someone donates to a religious institution, then everyone is "compelled" to support that religious institution. This convoluted line of reasoning implies that everyone in the United States is "compelled" to support religious activities because of the charitable deduction against the federal income tax. It's no wonder that the U.S. Supreme Court rejected this argument in ACSTO v. Winn (2011).

Writing in response to Winn, Andrew Coulson, Director of Cato's Center for Educational Freedom, notes that STC programs like those in New Hampshire and Arizona not only expand families' educational options, they protect taxpayers' freedom of conscience:

Unlike the funding of public schools, which is compulsory for all taxpayers, participation in Arizona's tax credit program is voluntary. If an individual chooses not to donate to an STO, his taxes are collected just as they have always been, and those dollars cannot be used for any sectarian purpose. Furthermore, if a taxpayer does choose to make a donation, he is free to select the STO most consistent with his own values. Arizona has scores of different STOs, some with a religious emphasis and some without.


The Supreme Court's Winn ruling reminds us is that there is a way to finance universal education without resorting to socially corrosive compulsion. Indeed if we wish our schools to promote mutual respect among people of different religions and world views, we must respect the right of parents to offer their children an education consistent with their values, and we must not compel taxpayers to support forms of instruction that violate their convictions. Tax credit programs such as Arizona's do both.

As of now, New Hampshire's nascent STC program has only one registered scholarship organization, the Network for Educational Opportunity, which is a secular non-profit.

In 2004, former New Hampshire Supreme Court Justice Charles Douglas argued that even a voucher program should pass constitutional muster in the Granite State:

A school choice program that is purposely designed to be neutral with respect to religion, and which provides only incidental and indirect benefits to a religious sect or religion in general, benefits that are purely the result of the choices of individual citizens receiving state funds, does not violate the religion/state separation provisions of either the United States or New Hampshire Constitutions.

New Hampshire's STC program clearly meets that criteria and has the added constitutional benefit of only utilizing private funds.

As Yogi Berra once said, it's difficult to make predictions, especially about the future. Just because something has never happened doesn't mean it can't. It's impossible to predict with certainty how the New Hampshire Supreme Court will decide. Let us hope that they remain faithful to the text of New Hampshire's constitution. The educational futures of countless children depend on it.