Educational freedom and religious schools: Supreme Court hears school tax credit challenge

By Lynne Tuohy

Associated Press

Published: Wednesday, April 16 2014 10:43 p.m. MDT

The U.S. Supreme Court in Washington is seen on June 27, 2012. Supporters of an education tax credit program that offers scholarships to private and religious schools in New Hampshire packed the Supreme Court chambers for arguments on the constitutionality of the law.

Alex Brandon, Associated Press

Enlarge photo»

CONCORD, N.H. — Supporters of an education tax credit program that offers scholarships to private and religious schools in New Hampshire packed the Supreme Court chambers for arguments on the constitutionality of the law.

The case pits those who view it as crusade for educational freedom and choice for low income families against those who see the program as an unconstitutional violation of New Hampshire's "no aid" to religious schools doctrine and the principal of separation of church and state.

Opponents say the tax credit program diverts tax dollars away from public schools to benefit religious schools. A trial court judge last summer agreed, ruling unconstitutional that portion of the complex law that makes religious school students eligible for scholarships.

Senior Assistant Attorney General Richard Head argued that businesses donate to an independent scholarship organization and that no state funds are being given to religious schools. In return, businesses get a credit on their business profits and enterprise taxes amounting to 85 percent of their donations.

But Head acknowledged, during questioning by the justices, that absent the tax credit program, the business profits and business enterprise taxes in full would go to state coffers.

"This program is clearly an assault on public schools," argued Attorney Alex Luchenitser, for Americans United for Separation of Church and State and a dozen other opponents of the tax credit program.

Although the trial court struck down only that portion of the program that benefits religious schools, the Supreme Court could invalidate the entire law and end the scholarship awards to secular schools and parents who home-school.

Esther Fleurant was among those listening intently to the arguments and sees the outcome as vital to her children's education.

When she could no longer afford tuition at the Christian schools her children attended, she decided to home school four of her children, ranging in age from kindergarten to middle school. She says she was floundering trying to gather the textbooks and other materials she needed when she got nearly $1,000 in assistance from the tax credit program.

"I was glad to get the scholarships I got," Fleurant said. "In the beginning, I couldn't afford their curriculum."

Kate Baker runs the Network for Educational Opportunity, the only nonprofit channeling business donations into scholarship awards. She said 91 percent of the 103 scholarships awarded last year went to children who qualify for free and reduced lunch programs. None of the $128,000 in scholarships was given to students attending religious schools because of the lower court ruling, she said.

"It really is a low income program," Baker said.

Baker said her organization had to return about $122,000 in unspent donations because the court's ruling removed many students from the eligibility list.

The tax credit program was passed in 2012 by Republican lawmakers who overrode a veto by then-Gov. John Lynch, a Democrat. Gov. Maggie Hassan, also a Democrat, has made repeal of the law a priority. Republicans last year managed to block repeal efforts.

Hassan urged the court to uphold the lower court ruling, saying the tax credit amounts to a government subsidy of religious schools.

"It's a student assistance program, not a school assistance program," said Attorney Richard Komer, representing the Institute for Justice and other supporters of the tax credit program. "It's a means for low income families to access private education."

He said the business education tax credit program is no different than the state's practice of exempting churches and religious schools from property taxes.

The justices did not indicate when they will rule.

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