High Court to Hear Ed Tax Case

A case that pushes the state's "education tax credit" program into constitutional jeopardy will be argued before the New Hampshire Supreme Court on April 16.

Supporters of the law – enacted in 2012 over the veto of then Gov. John Lynch – maintain that a Strafford County Superior Court judge got it wrong in his June 2013 ruling that the law does violate the New Hampshire Constitution, specifically its "no-aid clause."

After claiming a victory in trial court, critics of the law were anticipating oral argument before the state's high court at some point. That day has arrived.

The plaintiffs argue the tax credit program is a clear violation of Part I, Article 6, in that "no person shall ever be compelled to pay towards the support of any sector or denomination ..." The program is a school voucher by another name, said Bill Duncan, of Defending New Hampshire Public Education, and a lead plaintiff in the case.

Defendants, including the Attorney General's office arguing on behalf of a state statute, had argued before the trial court that the constitutional provisions were meant to only bar direct aid, and that the program does not involve "public funds" or money raised by taxation – a view rejected by Superior Court Judge John Lewis.

The law, RSA 77-G, establishes a tax credit against the business profits tax or the business enterprise tax for businesses that contribute to scholarship organizations.

Debate on the issue reached a partisan fever pitch last June. Gov. Maggie Hassan called Lewis' ruling a victory for public education. "The voucher tax credit  would divert millions of dollars in taxpayer money to religious schools with no accountability or oversight," the governor said at the time.

Jennifer Horn, chair of the Republican State Committee, panned the ruling, saying the "school choice bill" leveled the playing field for parents seeking educational opportunities for their children.

Ashley Pratte, then director of the conservative policy group Cornerstone Action, touched upon the "public funds" question in her reaction to the Lewis ruling. The program is solely run by donations from businesses, she said. "It is not derived from taxpayer funds and is, in fact, a charitable program working to the benefit of our most vulnerable families in the Granite State," Pratte said.

The case of Bill Duncan et al. v. State of New Hampshire et al, the non-profit Network for Educational Opportunity et al, is scheduled to be heard by the court on Wednesday at 9:30 a.m.

Hassan, American Federation of Teachers, and NEA-NH submitted amicus briefs aligned with the plaintiffs, while amici curiae for the NEO side of the argument includes Alliance Defending Freedom, Concord Christian Academy, and the Becket Fund for Religious Liberty.

Duncan says the arguments are the same as last year. "It was inevitable that this argument would be had at the Supreme Court level," he said.

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