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The governor, the superintendents, the school boards, the unions and the ADL file amicus briefs opposing vouchers in the NH Supreme Court

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Here are the briefs filed in support of the plaintiff’s anti-voucher position in the New Hampshire Supreme Court.  I’ll post more about what’s in them when time permits but they are easy to read, so don’t hesitate.

The plaintiff’s brief

Here is our brief.  And here are a couple of excerpts:

Questions Presented by the Plaintiffs’ Cross-Appeal

1. Did the superior court err by holding that RSA Ch. 77-G is severable and that the Program may continue to be implemented insofar as the Program funds scholarships that are not used at religious schools? See Plaintiffs’ Appendix (“PA”) at 2060–64, 2078, 2082; OP40–42.

2. Does the Program also violate Part I, Article 6 of the New Hampshire Constitution, which provides 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”? See JA23; PA2049–59, 2074–76, 2081.

3. Does the Program additionally violate Articles 10 and 12 of Part I and Articles 5 and 6 of Part II of the New Hampshire Constitution, which, together, require that taxation be uniform, equal, proportional, and non-discriminatory and prohibit tax exemptions and benefits that do not serve a public purpose? See JA24; PA2065–69, 2077–78, 2081–82.



For the foregoing reasons, this Court should reject the legislature’s naked attempt to circumvent the text, purpose, and spirit of the New Hampshire Constitution by using intermediaries to funnel tax funds to religious schools. The Court should affirm the superior court’s ruling that the Tax Credit Program violates Article 83 of Part II. Additionally or alternatively, the Court should hold that the Program violates (i) Article 6 of Part I, and (ii) Articles 10 and 12 of Part I and Articles 5 and 6 of Part II. The Court should also reverse the superior court’s ruling that the Tax Credit Statute is severable and should strike down the entire Program. Finally, the plaintiffs respectfully ask the Court to clarify whether they should initially seek appellate attorney’s fees from it or from the superior court.

The Governor’s amicus brief

Here is Governor Hassan’s amicus brief.  And here is the press release:

CONCORD – Governor Maggie Hassan today submitted an amicus brief urging the New Hampshire Supreme Court to uphold a lower court’s decision that diverting taxpayer dollars from public schools to religious schools violates the state constitution.

“The education voucher tax credit program is a misguided policy that undermines New Hampshire’s public education system and violates our state’s constitutional separation of church and state,” Governor Hassan said. “The New Hampshire Constitution explicitly prohibits the use of public funds for the benefit of schools or institutions of any religious sect or denomination. Diverting millions in already limited education funds from public to religious schools violates this important constitutional protection while making it more difficult for the state to meet its obligation to provide an adequate public education to all of New Hampshire’s young people.”

Governor Hassan filed her brief in the case of Duncan v. State of New Hampshire.

The Governor’s brief, submitted by counsel, makes three key points: 1) New Hampshire’s Constitution is clearer than the federal constitution in prohibiting tax dollars from being used for religious institutions, both to prohibit state endorsement of a religion and to protect religious institutions from state interference; 2) New Hampshire case law has repeatedly treated tax credits as public expenditures of taxpayer dollars; and 3) The diversion of public money to religious schools through the education voucher tax credit program could undermine the finances of local communities and undermine the state’s ability to meet its responsibilities, including to provide every child with the opportunity for an adequate public education.

The amicus brief from the New Hampshire School Administrators Association and the New Hampshire School Boards Association

Here is the NHSAA and NHSBA brief.  And here and the basic argument and conclusion:

The R.S.A. 77-G tax credit program is similar to a voucher program in that it provides students with money and allows them to spend funds to pay tuition at non-public schools or to use the funds to defray the costs of home schooling. The program is not quite the same as a voucher program in that scholarships amounts are variable and capped at an average of $2500, which is generally insufficient to pay tuition at a private school for the vast majority of participants. 1 The tax credit program, nonetheless, diverts adequacy funding from schools that lose scholarship students to private educational institutions and does not sufficiently make these schools whole. See R.S.A. 77-0:8. As the private educational institutions that receive the
scholarship students are primarily religious institutions, see Order at 7-1 O; Petitioners’ Appendix (“PA”) at 127, 150, 1095-96, 1098-99, 1104, 1207-19, 1232-33, 1242, 1251, 1284, 2009, there is no evidence to support the claim that the student transfers would be the result of quality concerns. Rather, public schools are simply not permitted to engage in the religious training that private religious schools offer.

Yet, despite the lack of evidence of educational improvement to justify the vouchers, public schools are directly harmed by the Education Tax Credit Program because it is used to  deprive public schools of adequacy funds. These public schools are not made whole in terms of a replacement of the lost funds or a matching reduction in the public school services that must be offered. The transfer of a small number of students away from a public school does not change the cost structure of providing services to those students who do not transfer. The costs attendant to teaching a class of 19 students are only marginally less than for a class of 20 students. Further, students who transfer to the private schools are permitted to rely on their local schools for services to supplement the private school offerings. RS.A. 193:1-c (“Nonpublic or home educated pupils shall have access to curricular courses and co-curricular programs offered by the school district in which the pupil resides.”). 2 A transfer away from a local public school is also not permanent. The local public schools must be ready to re-admit students who become dissatisfied with their private school. See R.S.A. 189:1-a.

As set forth below, in addition to its constitutional failings, the Education Tax Credit Program shifts costs to local school districts and property tax payers, diverts critically needed funding from public schools without reducing expenses, and creates numerous practical and functional problems that further detract from the public school system, administration and budgeting of school districts throughout the state, and student privacy protections. These significant detriments come with little or no offsetting enhancements to the educational wellbeing of New Hampshire students.

As set out above, in addition to its constitutional failings, the Education Tax Credit Program is fatally flawed and comes at a significant cost to the public school system, New Hampshire’s school children and their families, and all New Hampshire tax payers. For all of the foregoing reasons, Amici New Hampshire School Administrators Association and New Hampshire School Boards Association respectfully request that this Honorable Court affirm the Superior Court’s ruling that R.S.A. 77-G violates Part II, Article 83 of the New Hampshire Constitution, and reverse the Superior Cami’s ruling that the unconstitutional provisions of R.S.A. 77-G are severable.

The amicus brief of NEA-NH and AFT

Here is the brief.  And an excerpt:

The national pattern among the tax credit scholarship programs demonstrates that these programs primarily benefit religious schools and those individuals that want to attend religious schools. This outcome applies with equal force to the Education Tax Credit program in New Hampshire as well. As the court below found, a “significant percentage” of New Hampshire students who attend nonpublic general-education schools attend religious schools. OP7, 9; PA 127, 1095-96, 1207-19, 1242. Just as is the case nationally, the tuition costs for religious schoolsgenerally are less than nonpublic secular schools in New Hampshire. PA59, 138, 150, 1099-1101, 1252-56; see also OP8-9. Like many of the other state tax credit scholarship programs, New Hampshire’s program is meant to benefit low-income and middle-income families. An eligible student must come from a household whose income is less than or equal to 300 percent of the federal poverty guidelines. RSA 77-G: 1-VIII(b ). Given that the average value of the scholarships may not exceed $2,500, these students will be channeled towards attending the more affordable religious schools. RSA 77-G:2(b)-I(b).; See, PAl 102. Furthermore, despite the law’s stipulation that scholarship organizations may not restrict or reserve scholarships to a single nonpublic school or for a specific person, as both the Kotterman dissent and court below noted, this does not prevent scholarship organizations from channeling funds to a certain type of religious school or grouping ofreligious schools. Kotterman v Killian, 972 P.2d, 606, 626 (1999); See also OP4; RSA 77-0:5-I(b). As is the case nationally, the New Hampshire Education Tax Credit program, like its predecessors, attempts to serve as a guise for the New Hampshire

And here is the AFT press release and an excerpt:

“Despite the attempts by the state Legislature to twist the scholarship program into a pretzel to try to make it appear constitutional, the New Hampshire Constitution prohibits public funds to religious institutions. The tax-credit law was really a subterfuge, a voucher-like effort in which public dollars eventually would find their way to private schools, most of which, in New Hampshire, are religious schools. Further, there is evidence from all over the country that these voucher-like programs don’t actually help children. If the Legislature genuinely is interested in helping, it should work with teachers on ensuring that public schools have the programs and services needed to help all students succeed, not just some.”

The amicus  brief of the Anti Defamation League

Here is the brief.  And the conclusion:

If left in place, the Tax Credit Program would allow religious and secular nonpublic institutions that discriminate in their employment, admissions, or student policies to receive public funds. Such a program is antithetical to New Hampshire’s constitutional principles  requiring that taxpayer funds be applied in a nondiscriminatory manner to further a public purpose. This Court should therefore uphold the Superior Court’s Order forbidding the Program’s operation with respect to sectarian schools, but should modify the Order to prevent its application to secular schools as well.

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