The New Hampshire Union Leader reports that the American Civil Liberties Union (ACLU), the New Hampshire chapter of the ACLU (ACLU-NH), and Americans United for Separation of Church and State have filed suit against New Hampshire’s Education Tax Credit system, the Republican-backed plan that issues tax credits to businesses that donate to scholarship funds used to pay tuition for students to attend private and religious schools.
The lawsuit was filed in Strafford County Superior Court and names the state of New Hampshire as the defendant. The complaint says the system violates two provisions of the New Hampshire Constitution – one that forbids the use of tax money for religious schools, the other that no person shall be compelled to pay for the support of any religious school.
“A robust respect for the separation of church and state is vital to protecting the religious freedom of all New Hampshire citizens,” said Barbara R. Keshen, staff attorney for the ACLU-NH. “That’s why our state constitution contains several provisions intended to prevent this type of program.”
The program, passed by the New Hampshire Legislature last year, took effect Jan. 1. It allows up to $3.4 million in tax credits to be claimed in the first year, and $5.1 million during its second year. Keshen said she understands that some families have applied for funding.
The New Hampshire Attorney General is responsible for defending all lawsuits against the state. Mary Ann Dempsey, head of the Attorney General Civil Bureau, said it is too early to comment on the substance of the complaint. “Statutes are presumed to be constitutional,” she said. “Certainly, we will be defending the case and defending the statute.”
Source: New Hampshire Union Leader, 1/9/13, By Mark Hayward
[Editor's Note: This challenge to New Hampshire's tuition tax credit program is yet another in a growing list of state programs being challenged in the courts. In October 2012, NSBA submitted an amicus brief in Niehaus v. Huppenthal to the Arizona Court of Appeals in a case involving similar facts, addressing whether Arizona's tuition-tax credit program violates the state constitutional provisions mandating separation of church and state and prohibiting the use of public funds to aid religious institutions, such as schools.
In its press release about the complaint filed in Duncan v. State of New Hampshire, the ACLU states that New Hampshire's tuition tax credit program "allows businesses to reduce their tax liability by receiving an 85 percent tax credit in exchange for donations made to K-12 scholarship organizations, which will pay for tuition at religious and other private schools. Since there is no state oversight of the schools receiving funds, religious schools will be able to use the donations for religious instruction, indoctrination and religiously based discrimination." "This is just a backdoor voucher scheme," said the Rev. Barry W. Lynn, Executive Director of Americans United. "Whether it's through a traditional voucher or a tax credit, the result is the same: Taxpayers are subsidizing religious instruction."
The civil rights groups' complaint filed in the New Hampshire case identifies the two constitutional violations alleged by the groups, and requests a declaratory judgment that the program is unconstitutional, and a preliminary injunction and permanent injunction to block implementation of the program.]