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CONCORD, N.H. (AP) — Attorneys representing New Hampshire argued before state Supreme Court justices Wednesday that a state program that gives scholarships to students who attend private and religious schools is funded by businesses and that no state funds are given to the schools.
The court will decided the constitutionally of the state law that created the business education tax credit, which some opponents say violates the separation of church and state provision of New Hampshire's constitution.
Senior Assistant Attorney General Richard Head told the court that the businesses donate to an independent scholarship organization. In return, they get a credit on their business profits and enterprise taxes amounting to 85 percent of their donations.
But Head acknowledged during questioning by the justices that absent the tax credit program, the business profit and business enterprise taxes in full would go to state coffers.
"This program is clearly an assault on public schools," argued Attorney Alex Luchenitser, for Americans United for Separation of Church and State and a dozen other opponents of the tax credit program.
Supporters of the program packed the Supreme Court chambers Wednesday to listen hear the arguments. Many contend that it promotes educational freedom and choice for low income families.
A trial court last year deemed unconstitutional the portion of the law that makes religious school students eligible for the scholarships. The Supreme Court could invalidate the entire law, ending the scholarship awards to students at secular schools and parents who home-school.
Esther Fleurant of Concord was among those listening intently to the arguments. She sees the outcome as vital to her children's education.
When she could no longer afford tuition at the Christian schools her children attended, Fleurant decided to home school four of her children, ranging in age from kindergarten to middle school. She says she was floundering trying to gather the textbooks and other materials she needed when she got nearly $1,000 in assistance from the tax credit program.
"I was glad to get the scholarships I got," Fleurant said. "In the beginning, I couldn't afford their curriculum."
Kate Baker runs the Network for Educational Opportunity, the only nonprofit channeling business donations into scholarship awards. She said 91 percent of the 103 scholarships awarded last year went to children who qualify for free and reduced lunch programs. None of the $128,000 in scholarships was given to students attending religious schools because of the lower court ruling, she said.
"It really is a low income program," Baker said.
Baker said her organization had to return about $122,000 in unspent donations because the court's ruling removed many students from the eligibility list.
The tax credit program was passed in 2012 by Republican lawmakers who overrode a veto by then-Gov. John Lynch, a Democrat. Gov. Maggie Hassan, also a Democrat, has made repeal of the law a priority. Republicans last year managed to block repeal efforts.
Hassan urged the Supreme Court to uphold the lower court ruling, saying the tax credit amounts to a government subsidy of religious schools.
"It's a student assistance program, not a school assistance program," said Attorney Richard Komer, representing the Institute for Justice and other supporters of the tax credit program. "It's a means for low income families to access private education."
Komer said the business education tax credit program is no different than the state's practice of exempting churches and religious schools from property taxes.
The justices did not indicate when they will rule.
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