April 16th, 2014

Parents to N.H. Supreme Court: We Know Best, Let Us Choose Our Kids' Schools
With hundreds of kids' futures hanging in the balance, N.H. Supreme Court considers innovative low-income school choice program

Concord, N.H.—Today, the New Hampshire Supreme Court will hold a hearing to determine whether the state’s Tax Credit Scholarship Program is constitutional. The program enables low-income families to apply to private scholarship organizations for their children to attend a private school, a public school in another district or,  alternatively, afford homeschooling.

The Institute for Justice (IJ), the nation’s leading law firm defending school choice programs, represents two New Hampshire families that are eligible to receive scholarships—the Encarnacions and the Boffittos—as well as, the state’s first scholarship organization—the Network for Educational Opportunity (NEO).

“We are very optimistic that the New Hampshire Supreme Court will declare the scholarship program entirely constitutional and allow the scholarships to be used at any school, including religious schools,” said IJ Senior Attorney Richard D. Komer, who will argue the case before the court. “With so many students’ futures hanging in the balance, the court has an opportunity to put to rest this unfortunate and unnecessary lawsuit.”

Under the program, private non-profit scholarship organizations collect voluntary donations from businesses, which, in turn, receive a tax credit from the state worth 85 percent of their contribution. Last June, a state trial court partially suspended the scholarship program, holding that an 1877 amendment to the New Hampshire Constitution prohibited the scholarships from being used at religious private schools. The New Hampshire Supreme Court now has the opportunity to reverse the trial court’s decision and declare the entire program constitutional.

“The argument that donations made under the program somehow constitute public funds going to religious schools is baseless,” explained Mr. Komer. “For the same reason that no one argues that business tax deductions are in violation of the state constitution, donations from private businesses to private non-profits are inherently private and completely lawful.”

The Institute for Justice and the hundreds of families awaiting scholarships have reason to be confident. The U.S. Supreme Court and state supreme courts in Arizona and Indiana have previously upheld other tax credit-funded scholarship programs against similar legal challenges. In each case, the courts allowed scholarship money to be used at religious schools.

“Giving parents—rather than the state—the ability to choose the best education for their children breaks the link between government and religion and ensures that the program’s primary benefits flow to the families and children,” said IJ attorney Erica Smith, who also represents the intervenors. “Any benefit to private educational providers is merely incidental.”

Miguel and Shalimer Encarnacion are two of the parents who applied for the scholarships and are anxiously awaiting the Supreme Court’s ruling. The Encarnacions have two children in public school: 15-year-old Angelica and 11-year old Miguel Jr. Angelica, who is a cancer survivor trying to catch up in school after undergoing months of extensive chemotherapy. Meanwhile, Miguel Jr. suffers from ADHD and serious migraines, and his school struggles to find classes that are the right fit for him.

The Encarnacions wish to send their children to a nearby private Christian school with small classes, individualized attention and experience with special-needs children. But the family cannot afford the tuition without a program scholarship.  

“We are so thankful that New Hampshire legislators created a program to help children in need get the education they deserve,” said Shalimar Encarnacion. “Now we just hope that the Court will allow my family, and other like us, to receive scholarships. My children can’t afford to wait any longer, they need a lifeline right now.”
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