NH Court: You Can Choose Any School So Long as It’s Secular

Earlier today, a New Hampshire district court upheld the "Live Free or Die" state's nascent scholarship tax credit (STC) program, but limited the use of scholarships to non-religious private schools.

Earlier this year, the ACLU and Americans United for the Separation of Church and State filed a lawsuit claiming that New Hampshire's school choice law was unconstitutional under the state's Blaine Amendment, which prohibits the public funding of religious schools. The law grants tax credits to corporations in return for contributions to non-profit scholarship organizations that fund low-and-middle-income students attending the schools of their choice.

The decision hinged on whether or not tax credits constitute "public money." Previously, the U.S. Supreme Court held that they do not, noting that when "taxpayers choose to contribute to [scholarship organizaions], they spend their own money, not money the State has collected from respondents or from other taxpayers."

Likewise, the Arizona state supreme court upheld the constitutionality of Arizona’s STC program, forcefully rejecting 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.”

While neither the Arizona supreme court nor U.S. Supreme Court serve as binding precedent for how a New Hampshire court may interpret the New Hampshire state constitution, their reasoning should have carried great weight as the question before the court was the same. Nevertheless, the NH trial court rejected this traditional understanding of "public money" in favor of the plaintiff's "all your money are belong to us" argument. In the words of the trial court judge:

This Court concludes that the program uses "public funds," or "money raised by taxation" ... Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.

This is precisely the understanding of "public money" that the U.S. Supreme Court rejected: 

Respondents’ 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. Private bank accounts cannot be equated with the ... State Treasury.

divThe U.S. Supreme Court held, in essence, that your money is your own whether or not it qualifies for a tax deduction of some kind. A taxpayer's money only becomes "public money" once the government actually collects it in the form of taxes. The NH trial court judge, by contrast, holds that any taxpayer's income on which the government might have a claim is instantly "public money," even before collection, and it remains so even if the existence of a tax credit or deduction means that government will never collect it.

Unfortunately, the legal theater of the absurd doesn't end there. Charlie Arlinghaus, President of the Josiah Bartlett Center, which advised legislators on crafting the law, noted that the trial court's logic leads to another absurd conclusion:

This ruling is particularly odd. The entire program is fine unless a parent by their own choice chooses a religious school. By this logic a program is illegal if neutral and only legal if actively hostile to religion. 

The Institute for Justice, which intervened on behalf of the Network for Education, the state's first scholarship organization, will be appealing the decision to the state supreme court. IJ Senior Attorney Richard D. Komer stated:

The court’s ruling inflicts again the blatant discrimination that motivated New Hampshire’s bigoted Blaine Amendment in the first place.  We will immediately seek a stay of the court’s decision so that parents receiving scholarships can choose the educational options that best suit their child’s unique educational needs, regardless of whether that is a religious or secular school.

The trial court’s order halting the program is wrong on both the facts and the law. As a factual matter, the program is funded with private, not public dollars.  As a legal matter, the federal Constitution prohibits states from preferring non-religious schools over religious schools, which is precisely what the court’s ruling does.

We can only hope that the Granite State's supreme court will exercise better judgment.