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April 21. 2014 11:21PM

Another View -- Gilles Bissonnette: Why we sued to overturn NH's education tax credit

THE NEW HAMPSHIRE Supreme Court last week heard arguments challenging New Hampshire’s education tax credit program, which uses taxpayer dollars to fund religious schools in violation of the New Hampshire Constitution. Outside politicians have taken an interest in this case, including Louisiana Gov. Bobby Jindal, who wrote a column in last Wednesday’s Union Leader attacking the lawsuit and the ACLU for bringing it. Unfortunately, Gov. Jindal’s piece ignores the New Hampshire Constitution and our state’s traditions.

One of the clearest principles of our state constitution is that taxpayer dollars cannot be used to fund religious education. Part II, Article 83 and Part I, Article 6 plainly affirm that “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” and that “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination.”

These provisions aren’t just words — they memorialize New Hampshire’s “Live free or die” commitment to ensuring the freedom of all citizens to live in a state where the government isn’t providing public resources to religion. New Hampshire isn’t Louisiana or Arizona. Reflecting our independence, our state constitution is different and even provides freedoms exceeding those that exist under the U.S. Constitution.

Unfortunately, the education tax credit program undermines these sacred constitutional principles. Under this complex government-subsidy program, businesses receive an 85 percent tax credit for donations made to K-12 “scholarship organizations,” which pay for tuition at religious and other private schools. In short, rather than paying their taxes to the state, businesses will instead be able to direct money owed to the state toward religious education.

In January 2013, nine New Hampshire parents and taxpayers — represented by the New Hampshire Civil Liberties Union (NHCLU), the ACLU, and Americans United for Separation of Church and State — challenged the program in court. And in June 2013, the Strafford County Superior Court struck down part of the program, ruling that the state is “expressly forbidden” from funding religious education under our state constitution.

Ignoring the text of our constitution, Gov. Jindal instead resorts to political rhetoric, claiming that the ACLU and those who support the lawsuit don’t “want to allow parents to make their own choices about the best place to educate their children.” This is both hyperbolic and factually wrong. Of course, parents have the right to choose to send their children to private, religious schools. In fact, the ACLU has zealously protected parents’ right to exercise their religious liberty to educate their children as they see fit.

But this case isn’t about school choice. It’s about whether the state may use taxpayer dollars to subsidize religious education. Under the New Hampshire Constitution, this is prohibited.

Gov. Jindal gets it wrong again when he claims that “(T)he ACLU doesn’t want businesses giving money to organizations other than government schools.” Of course, even if the program is struck down, businesses would still have every right to use their own money to support private schools. But they still aren’t entitled to support religious schools using public funds.

Gov. Jindal also doesn’t appear to be acquainted with New Hampshire law that has made clear for decades that tax benefits are equivalent to public funds. In fact, our Supreme Court has struck down a similar property tax credit program that supported religious schools. After all, absent the program, these funds would go to the state rather than religious schools.

It also doesn’t matter that scholarship organizations and businesses, rather than the state, control which religious schools receive these taxpayer dollars. Just like a voucher program, taxpayer funds are still being used to support religion. As our Supreme Court has made clear, the government cannot circumvent the state constitution by “do[ing] indirectly that which it cannot do directly.”

If the program’s violation of the state constitution isn’t enough, here are a few more problems:

The program allows funding of religious schools that discriminate based on creed or sexual orientation in admissions and employment. Some religious schools also use materials produced by religious publishers that present students with teachings, such as creationism, that don’t comport with basic educational standards.

The program would drain state funds. If the state is allowed to implement it, by 2022, up to $30 million could be diverted each year to private schools from New Hampshire’s state treasury. The Education Department also projected that the program would inflict large fiscal losses on municipalities.

As public school students receive scholarships and enroll in private schools, public school districts — which have already faced substantial budget cuts — will suffer, losing thousands of dollars of state aid awarded on a per-pupil basis.

With all due respect to Gov. Jindal, he just doesn’t seem to be familiar with the freedoms and traditions that exist in New Hampshire. We have a constitution that’s different from Louisiana’s and has been specifically crafted to preserve our freedom to live in a state where the government isn’t entangled with matters of faith — including religious education — which are properly reserved for individuals, families and religious communities.

Gilles Bissonnette is staff attorney with the New Hampshire Civil Liberties Union, the ACLU’s New Hampshire chapter.


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