Court agrees that the voucher tax credit law passed over the governor’s veto in 2012 violated the New Hampshire Constitution
Portsmouth, NH – Advancing New Hampshire Public Education and parents throughout the State welcomed today’s Strafford County Superior Court decision striking down the provisions of education tax credit law that fund religious schools. The program will, however, still be able to provide funding to, primarily, students leaving New Hampshire public schools to attend secular private schools, out-of-district public schools and home schools.
The court decision confirmed that the law did divert tax payments to religious schools. Regarding the key contention that granting tax credits in return for donations amounted to the expenditure of public funds, the Court said:
“The phrases “public funds,” or “money raised by taxation,” focuses the Court’s inquiry not on when the government’s technical “ownership” of funds or monies arises, but on when, or at what point, the public’s interest fairly arises in how funds or monies are spent. The Court concludes that the interest of New Hampshire taxpayers in regard to challenging the legality of legislation such as the program at bar does not arise only after money is deposited in the New Hampshire treasury….
“….A taxpayer’s interest is also not dependent on the number of hands the money passes through. A taxpayer’s concern arises when a large portion of the donated funds are, as here, realized very much through a tax credit….
“This Court concludes that the program uses “public funds,” or “money raised by taxation,” and thus the program implicates Part I, Article 6, and Part II, Article 83. The New Hampshire tax code is the avenue used for producing and directing much money into the program. Contrary to the State’s assertion that “the government has not set aside revenue for a specific purpose,” see State’s Trial Mem. 17, it appears to the Court that is indeed exactly what the legislature has done. Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.”
Finally, the Court granted an injunction prohibiting the State from paying religious schools with these tax credit funded donations, saying:
“The plaintiffs’ request for injunctive relief is GRANTED to the extent that, effective immediately, the State and all those involved with the program’s realization and implementation are enjoined from proceeding to allow scholarships, as well as any associated tax credits, to be approved, granted, or applied, or in any way further carried forth or realized, in regard to, or toward, or covering educational expenses of “schools or institutions of any religious sect or denomination” within the meaning of Part II, Article 83.”
The the nine plaintiffs – including clergy, parents and one business – are represented by three civil liberties groups: Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union.
The program allows businesses to receive an 85 percent tax credit – in practice, an almost dollar for dollar reimbursement – for donations made to “scholarship organizations” that, in turn, subsidize the tuitions of low and moderate income children leaving the public schools. The law took effect on January 1, 2013. The program could have granted up to $3.4 million in tax credits in its first year, $5.1 million during its second year and increasing amounts every year thereafter. A total of $139,885.75 in tax credits has been requested to date.
Bill Duncan, of Advancing New Hampshire Public Education, and a plaintiff in the case, said,
“This wise decision is one more step in putting the voucher debate behind us. We should invest in the 45,000 low income kids in our public schools rather than using our education funding to send a few children to religious schools.”