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Your primer on Duncan vs. New Hampshire, the court challenge to the voucher tax credit program

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The one-day hearing for our court case will be held on April 26 at 11:00 AM  in the Strafford County courthouse before Judge John Lewis.  A ruling could come any time in the following months and is sure to be appealed to the New Hampshire Supreme Court.  Here is background and links to the important documents available so far.  I will expand on this in further posts. so you can follow the case or come to the hearing knowing what to listen for.

The constitutionality of funding private school vouchers with tax credits has been upheld in two other states, Arizona and Illinois.  The relevant constitutional provisions here in New Hampshire are somewhat different from those, as are our constitutional history and supreme court precedents.  So, in spite of other decisions, we have a legitimate opportunity here in New Hampshire to see the voucher tax credit program declared unconstitutional on church/state or other grounds.

Our suit asserts that the voucher program violates many articles of the New Hampshire Constitution.  The most familiar is Part I, Article 6, which says that, “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination.”  The article goes on to say that, “every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established.”

But we also say that the program violates Part II, Article 83, which says that “no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

We make the case that the legislature passed the program primarily to benefit religious schools and that that is what it actually does.  We also assert that the tax credit diverts tax funds to religious schools, doesn’t limit how they use the money and helps religious schools that discriminate.

We go on to say that the program violates four other constitutional provisions requiring “uniformity, equality, proportionality, and non-discrimination in taxation” because businesses that contribute to scholarship organizations will get a tax reduction while others will not and that there is no legitimate public purpose for the program.

Our case for all this is laid out in our complaint.  We petition the court for a preliminary injunction, explain our reasoning in a memorandum of law and provide a supplementary brief on that last uniformity/equality argument here.  The first group of 40 exhibits is listed here.  The exhibits themselves are in two volumes.  Volume 1 has Exhibits 1-36.  Volume 2 has the rest, supporting information about individual religious schools.

Over time, we added more exhibits.  Prof. David Berliner provides an analysis of our assertion that most of the tax credit funded vouchers will go to religious schools.  Prof. Peter D. Enrich provides an opinion on whether the tax credit is functionally equivalent to a direct legislative appropriation for private-school scholarships.  And Prof. Charles E. Clark provides an analysis of New Hampshire constitutional history that shows that the church/state provision was not motivated by anti-Catholic animus but by a desire to protect the public education system.

We asked the State and the Network for Educational Opportunity for certain information and have added their responses to our documents as Exhibits 48-59.  Of particular interest are Exhibit 53, in which NEO lists the scholarship applications, and Exhibit 54, a tabulation of those applications by the schools they wish to attend.  (Interestingly, Intervenor-Defendant’s Exhibit 3, in this document, is an updated version of the list of scholarship applicants in Exhibit 53, but there are many inconsistencies that NEO will have to explain. )

And, finally, Exhibits 60-62 provide information about religiously affiliated home school associations, religious text book publishers and a Seventh Day Adventist school.  (Here is some additional information, not part of the legal case, about the publishers.)

Our opponents are the New Hampshire Attorney General, representing the State of New Hampshire, and the Institute for Justice, representing a scholarship organization, Network for Educational Opportunity.  Here is the Attorney General’s pretrial memorandum (and the exhibits) responding to the arguments we make.  And here is the pretrial brief  from the Virginia-based Institute for Justice, with Exhibit 1, a resume of the professor who wrote Exhibit 2, a 73 page argument that the church/state provisions of the New Hampshire constitution are anti-Catholic and additional exhibits about the percentages of private schools in various states.

I will post the response to these briefs from our legal team when it becomes available.

There are also several amicus briefs supporting the State’s case.  One brief is from the Concord Christian Academy, Grace Christian School, Roman Catholic Bishop of Manchester, Association of Christian Schools International and the National Association of Evangelicals, all of whom lobbied for the voucher bill last year and have provided many exhibits (here, here and here).  The Concord Christian Academy has also set up The Giving Going Alliance recently approved as a second scholarship organization.

Another amicus brief is from the Friedman Foundation, another from the Pacific Legal Fund (former House speaker Bill O’Brien) and another from the Home School Legal Defense Association.  Another was submitted by the Alliance Defending Freedom, Cornerstone Policy Research and Liberty Institute,

Here is our legal team.

Ayesha N. Khan, Alex J. Luchenitser, Lead counsel, Randall Maas, Americans United for Separation of Church and State
1301 K St. NW, Suite 850E
Washington, DC 20005
Phone: (202) 466-3234 ext. 207
Fax: (202) 898-0955
khan@au. org
luchenitser@au. org
maas@au. org

Barbara R. Keshen, New Hampshire Civil Liberties Union
18 Low Avenue
Concord, NH 03301
Phone: (603) 224-5591
Daniel Mach, Heather L. Weaver, ACLU Foundation Program on Freedom of Religion and Belief
915 15th Street, NW, Suite 600
Washington, DC 20005
Phone: (202) 675-2330
Fax: (202) 546-0738

Here is theirs.

Richard W. Head, Associate Attorney General, Patrick J. Queenan, Attorney – Civil Bureau
Office of the New Hampshire Attorney General

Eugene VanLoan III, Michael L. Tierney,
95 Market Street
Manchester, NH 03101
Tel.: (603) 669-4140
Fax: (603) 669-6018

Richard D. Komer
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Tel: (703) 682-9320
Fax: (703) 682-9321
Timothy D. Keller
398 South Mill Avenue, Suite 301
Tempe, AZ 85281
Tel: (703) 557-8300
Fax: (703) 557-8305


  1. Mary Ellen Paradis Boudman says:

    Dear Bill, Hang in there! Sincerely, MaryEllen Boudman (retired from Newfound Reg HS ’08) 18 Lyford St Laconia

    On Apr 11, 2013, at 7:06 AM, Advancing New Hampshire Public Education wrote:

    > >

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