Three appeals have been filed asking the New Hampshire Supreme Court to reverse the Strafford Superior Court decision that the New Hampshire voucher program is unconstitutional to the extent that it funds religious schools. The State and the Network for Educational Opportunity, a scholarship organization, have each appealed the decision. In addition, the Concord Christian Academy and its scholarship organization, the Giving Going Alliance, not parties to the case up to now, have requested to “intervene” in the case in order to make their own appeal.
There is a fourth appeal, ours, seeking to expand the Superior Court decision and strike down the law entirely.
The appeal documents themselves are linked below. At this point, the documents consist primarily of forms submitted to the Supreme Court stating the questions the parties are requesting the court to decide. The arguments themselves will be made a some future point.
The State has submitted a pro-forma appeal, listing 3 questions for the Court: whether all of the plaintiffs have the standing to challenge the law; whether the tax credit is actually “public funds” or “money raised by taxation;” and, whether the the voucher program is unconstitutional. In other words, the State does not indicate what arguments it will make in support of these generic questions. However, based on the arguments the State has made to date, the State’s arguments will rely heavily on the federal Constitution and decisions in other states, like Arizona and Indiana (starting on page 9)
NEO’s attorneys are more specific:
Standing: They seem to acknowledge that we, the plaintiffs, have standing under RSA 491 :22, which was amended by the last Legislature to give standing to “any taxpayer,” but they want to make the case that we do not have standing because the law itself is now unconstitutional.
Discriminates against Catholics: They will ask the New Hampshire Supreme Court to rule that the 1877 amendment that prevents funding of religious schools violates the First (free speech) Amendment and the Fourteenth (equal protection) Amendment of the federal Constitution because they feel it was intended to discriminate against Catholics.
Not public money: Alongside the State, they are appealing the central issue of the case, the Superior Court’s ruling that the tax credit is essentially “money raised by taxation.”
The “many hands” argument: They ask the Supreme Court to overturn the Superior Court decision because, even if the tax credit would enable parents to pay tuitions, it’s the parents who are paying, not the State because the money has passed through so many hands that, technically, no State money is going to religious schools. (The State also made this argument, starting on page 17, based mainly on decisions in Arizona and Indiana.)
Discriminates against religious schools: They say that operating a tax credit program that would fund non-religious schools but not religious schools would violate many provisions of the federal Constitution because the program would discriminate against religious schools.
If the Concord Christian Academy and its Giving Going Alliance are granted intervenor status (Here is their request and our objection. The other parties to the case have objected as well.), they want the New Hampshire Supreme Court to respond to four issues, all based on the federal, not the New Hampshire, Constitution. They feel the Superior Court decision is wrong because:
It violates the First Amendment protections of free speech and the practice of religion.
It violates the Fourteenth Amendment by excluding students who wish to attend religious schools.
It violates the First Amendment because it requires the State to make “intrusive inquiries into and judgments concerning the “religious” content of instruction at private schools?”
And it asks the Supreme Court to decide whether the Superior Court decision creates an “unnecessary conflict with the First and Fourteenth Amendments to the United States Constitution?”
Our “cross-appeal,” as it is called, asks three key questions:
Severability: Can the funding of religious schools really be “severed” while the rest of the law is left in tact?
A person cannot be required to pay for religious education; and every person must have equal protection: Does the voucher law also violate Part I, Article 6, of the New Hampshire Constitution which says that “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination” and 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”? (The superior court did not rule on this.)
Taxation must be uniform and there is no legitimate public purpose: Does the Education Tax Credit Program also violate the provisions of the New Hampshire Constitution that require “uniform, equal, proportional, and non-discriminatory” taxation and prohibit tax exemptions that do not serve a public purpose? (The superior court also did not rule on this.)
No dates are yet set in the schedule for the Supreme Court to hear and decide the case.