Judge: 'Education Tax Credit' Unconstitutional

Critics of the state's "education tax credit" law, what they call an illegal voucher tax credit that could undermine public education, applauded a trial court judge's ruling Monday that it was unconstitutional.

Supporters said the ruling by Strafford County Superior Court Judge John Lewis would be overturned by the New Hampshire Supreme Court.

A bill to repeal the tax credit law stalled in the state Senate this spring.

In his ruling, Lewis finds the program violates Part II, Article 83, of the New Hampshire Constitution, the "no aid clause" that prohibits tax money to be granted or applied for schools or institutions of any religious sect or denomination. The judge ordered that, effective immediately, the state and those implementing the program are "enjoined from proceeding to allow scholarships" based on that clause to those schools.

Reaction to the court opinion

Gov. Maggie Hassan:

"Today’s ruling is a victory for New Hampshire public education. The voucher tax credit would divert millions of dollars in taxpayer money to religious schools with no accountability or oversight. That’s the wrong policy for our public education system, and it is clear from today’s ruling that it is the wrong policy for our Constitutional separation of church and state as well."

Jennifer Horn, chairwoman of the New Hampshire Republican State Committee:

"We are disappointed with today's decision and are hopeful that this ruling will be overturned by the New Hampshire Supreme Court.

Education choice is about parents being able to find the best possible educational opportunities for their children, regardless of family income. The School Choice Bill has leveled the playing field, offering even our poorest students the opportunity to access the educational environment that is best for them.

Governor Hassan has attempted to repeal this important program and demonstrated an elitist and callous disregard for the most vulnerable students in our community. Private funds, not taxpayer dollars, support Education Opportunity Tax Credit Scholarships raising more than $150,000 to support the nearly 250 students who have applied to the program. It is obvious that citizens of New Hampshire are supportive of this critical program and want to see it continued."

Harrell Kirstein, communications director for the NH Democratic Party:

"This is a victory for local schools, public education in New Hampshire, as well as Granite State students and their parents. Jeb Bradley and Senate Republicans' attemps to put their Tea Party agenda ahead of New Hampshire working families and children continue to be rebuffed and are in direct opposition to New Hampshire values and the state's Constitution." Senate Republicans should immediately join Democrats in defunding and repealing their reckelss, irresponsible, and unconstitutional diversion of local education funding to private and religious schools. As it was originally intended that funding should go towards providing a quality education for all of New Hampshire's children, not funneled through a shady out of state organization with direct ties to radical right wing social conservatives.

The court's decision raises further concerns about the voucher scheme's administering organization, the Network for Educational Opportunity, and their unethical kickback scheme. The NEO owes the voters of New Hampshire an explanation, why did they offer taxpayer funded kickbacks to religious schools? And were Republican Senate Majority Leader Jeb Bradley or any other Senate Republicans aware of the NEO's reckless kickback scheme when they irresponsibly defended the unconstitutional program on the Senate floor?"

Ashley Pratte, executive director of Cornerstone Action:

"I am appalled by this decision. The Education Tax Credit was carefully established to work within New Hampshire law. In fact, it is run solely on donations from businesses. It is not derived from taxpayer funds and is, in fact, a charitable program working to the benefit of our most vulnerable families in the Granite State. While I appreciate the value of public education for all, we must never forget that it is the parent who is responsible for the education of their child. This ruling is offensive not only to the law, but also to those low-income parents who desire to place their children in schools who graduate students with superior test scores and greater academic rigor."

Charlie Arlinghaus, president of the Josiah Bartlett Center:

"The final decision in this case was always going to come from the Supreme Court which I'm sure will uphold the law. No education tax credit has ever been struck down by a Supreme Court in any state. This ruling is particularly odd. The entire program is fine unless a parent by their own choice chooses a religious school. By this logic a program is illegal if neutral and ony legal if actively hostile to religion. That's absurd and I trust the Supreme Court will find it so. I hope the Supreme Court will act quickly so parents have some certainty for the coming school year.

The program allows businesses to receive a credit for a donation to scholarship organizations which then give scholarships to parents who may then use the scholarship at any approved New Hampshire school. The goal is to provide parents of lesser means with some of the opportunities wealthy parents have. Today, rich people have school choice. Poor people don't."

The legal challenge was brought, in party, by Bill Duncan, who has blogged regularly about what he says is clearly an unconstitutional program.

The Legislature enacted the program June 27, 2012, mustering the votes to override Gov. John Lynch's veto. Duncan, and his Advancing New Hampshire Public Education, welcomed the decision, noting the program will still be able to provide funding to students leaving the state's public schools to attend secular private schools, out-of-district public schools and home schools.

"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," Duncan said in a press release after the ruling.