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State Judge Strikes Down N.H. Tax Credit for Private Tuition Aid

A New Hampshire judge has struck down the state's year-old program of tax credits for businesses that contribute money to organizations offering tuition scholarships at private schools.

Presiding Justice John M. Lewis of Stratford County Superior Court held that the program violates the state constitution because it diverts state tax payments to religious schools.

"New Hampshire students, and their parents, certainly have the right to choose a religious education," the judge said in his June 17 ruling in Duncan v. New Hampshire. "However, the government is under no obligation to fund 'religious' education. Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution."

The program was adopted by the Republican-led New Hampshire legislature over the veto of Gov. John Lynch, a Democrat, as covered in Education Week's Charters & Choice blog here. Various forms of tax-credit programs for private school tuition have become popular among the states in recent years as an alternative to outright private school vouchers.

In 2011, in Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court said taxpayers who opposed a similar tax-credit program could not challenge it in federal court because any financial benefit to religion under the program was not the result of government spending choices.

Three groups--Americans United for Separation of Church and State, the American Civil Liberties Union, and the New Hampshire Civil Liberties Union--challenged the New Hampshire program. They argued it violates the "no aid" clause of the state constitution, which says that "no money raised by taxation shall ever be granted or applied for the use of schools or institutions of any religious sect or denomination."

Judge Lewis took note of the Supreme Court's Winn decision but noted that the New Hampshire suit was brought under the state constitution. He concluded that the tax-credit program uses "public funds" or "money raised by taxation" as defined in state law and ultimately violates the no-aid clause of the state constitution.

"The program has been shown to have money raised by taxation inevitably go toward educational expenses at nonpublic religious schools without restriction regarding how the money may be used," Judge Lewis said. "The benefit to religious schools will be inevitably and obviously more than incidental or de minimis."

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