Tuition Tax-Credit Program Violates New Hampshire Constitution

Schools Organizations Say Tuition Tax-Credit Program Violates New Hampshire Constitution

Three civil liberties organizations filed suit today in Strafford County, N.H., Superior Court to challenge a statewide tuition tax-credit program that would subsidize private religious schools.

Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union, and the American Civil Liberties Union sued on behalf of eight plaintiffs, including clergy, public education advocates, and parents of public school children. They assert that the Education Tax Credit Program would divert taxpayer funds to religious schools in violation of the state constitution.

The 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 will be no state oversight of the schools receiving scholarship monies, religious schools will be able to use the funds for religious instruction, indoctrination and discrimination.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said, “This is just a backdoor voucher scheme. Whether it’s through a traditional voucher or a tax credit, the result is the same:  Taxpayers are subsidizing religious instruction.”

Alex J. Luchenitser, associate legal director at Americans United and lead counsel in the case, added: “This program is an attempt to circumvent the law, and it is doomed to fail. The New Hampshire Constitution plainly bars this cockamamie scheme.”

Barbara R. Keshen, staff attorney for the New Hampshire Civil Liberties Union, further explained: “A robust respect for the separation of church and state is vital to protecting the religious freedom of all New Hampshire citizens.  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 on January 1, 2013.  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.  It provides for additional increases in tax credits for subsequent years. The lawsuit asks the Court to declare the tax-credit program unlawful and block the State from implementing it.

Heather L. Weaver, staff attorney for the ACLU Program on Freedom of Religion and Belief, said, “The New Hampshire program is similar to other tax-credit programs proposed across the country.  These troubling programs cannot be allowed to stand because they erode bedrock religious liberty principles.”

The plaintiffs in Duncan, et al. v. State of New Hampshire include public education advocate Bill Duncan, United Church of Christ minister Richard Stuart, retired public school librarian Ruth Stuart, state legislator Rebecca Emerson, public school teacher Charles Rhoades, and retired Unitarian Universalist minister Homer Goddard.

In addition to Luchenitser, Keshen and Weaver, the attorneys representing the plaintiffs include Americans United Legal Director Ayesha N. Khan and Steven Gey Fellow Randall Maas (admitted in Massachusetts only, supervised by Luchenitser), as well as ACLU Program on Freedom of Religion and Belief Director Daniel Mach.