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Hassan files brief encouraging prohibition of scholarships for religious schools

Gov. Maggie Hassan waded into the education tax credit fight yesterday by filing a legal brief encouraging the state Supreme Court to uphold a lower court ruling that prohibits the scholarships from going to religious schools. This puts Hassan, a Democrat, at odds with the attorney general’s office, which has been defending the law.

“The governor treasures the diversity of private schools in our state, and fully appreciates their contributions to tolerance and learning. But the decision to contribute to a private religious school is a personal decision. It should not be supported by the state’s tax structure, and it should not have the effect of diverting scarce taxpayer dollars from crucial public needs,” the brief reads.

The law, passed in 2012 over a veto by then-Gov. John Lynch, gives businesses tax credits if they contribute to scholarship organizations that help students attend private or religious schools. Last summer, a superior court judge ruled the funds are taxpayer money and sending them to religious schools is therefore unconstitutional.

Both sides are now waiting for the high court to take up an appeal in which the attorney general’s office will argue the funds aren’t taxpayer money and the law is constitutional as written, while the plaintiffs, led by education advocate Bill Duncan, will argue the entire law should be struck down.

The Network for Educational Opportunity, the only recognized scholarship organization so far, handed out roughly $128,000 in scholarships for this school year. Many of the initial applicants were shut out as a result of the superior court ruling, because they wanted to attend religious schools. Most of the scholarships ended up going to home-schooled students or students already attending private schools.

Hassan opposes the entire law, her spokesman Marc Goldberg said, but her filing, called an amicus brief, deals specifically with giving scholarships for religious schools. Her opposition to the law is well-documented, as she spoke against it during her campaign for governor in 2012 and released a statement cheering the lower court ruling last summer.

“She feels like she’s protecting the (state) Constitution in line with her responsibilities,” Goldberg said.

Hassan’s brief argues the law goes against parts of the New Hampshire Constitution that say no tax money can go to religious schools and no one shall be compelled to pay toward the support of a religious school. The superior court judge was right in deeming the donations “public money” even though it never touches state hands, her brief says.

Finally, the brief argues, the law could put a greater burden on local taxpayers because the state will have less money to spend and public schools will lose adequacy money when students transfer to private religious schools. The law “would result in multi-million-dollar losses to local school districts,” the brief says.

Governors have opposed laws the attorney general’s office defends in the past, although it is not common, said Assistant Attorney General Richard Head. The attorney general’s office has argued the law is constitutional because the money is not public and that the purpose of the law is secular. After the lower court ruling, Head also said it made sense for the Supreme Court to weigh in, as it’s never ruled on the constitutionality of this type of credit, something other states and the U.S. Supreme Court have done.

The law is “school neutral” because the businesses making the donations have no say over where the money is going. Instead, the money goes to scholarship organizations, which then hand out awards to applicants based on need rather than choice of school.

The Supreme Court will likely take up the case sometime in the winter or early spring. The plaintiffs filed briefs yesterday and the attorney general’s office must file briefs by Feb. 12. After that, a hearing date can be set.

Jennifer Horn, chairwoman of the New Hampshire Republican Party, issued a statement yesterday criticizing Hassan’s view on the law. School choice, made possible for some by this law, levels the playing field by offering poorer students access to an education that is best for them, she said.

“Gov. Hassan’s attempt to destroy this worthy program displays an elitist and callous disregard for the most vulnerable students in our community,” she said.

(Kathleen Ronayne can be reached at 369-3390 or kronayne@cmonitor.com or on Twitter @kronayne.)

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