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Editorial: Donations In Name Only; N.H. Court Isn’t Fooled by Tax Credit

Supporters of New Hampshire’s new education tax credit law claim to be shocked and appalled that it has been found unconstitutional by Superior Court Judge John M. Lewis and promise to appeal. We’re inclined to think they should have seen it coming.

The law, passed last year when no conservative crusade was too quixotic to pass muster in the then-Republican-dominated Legislature, allows businesses to claim tax credits equal to 85 percent of amounts they donate to state-designated “scholarship organizations.” These, in turn, are permitted to award scholarships up to $2,500 to low-income students to attend private schools, as well as public schools outside their home district, or for home schooling.

The program caps total tax credits at $3.4 million in the first year and up to $5.1 million in the second, with the amount increasing in subsequent years, according to the New Hampshire Union Leader.

The law was challenged by the New Hampshire Civil Liberties Union, the American Civil Liberties Union and Americans United for Separation of Church and State on the grounds that it impermissibly diverts state revenue to religious organizations, which may then use it to provide religious instruction.

Not so, argued Associate Attorney General Richard Head: Because the money never reaches the state in the form of tax revenue, it cannot be considered public money.

The law’s supporters apparently believed that this fig leaf would be sufficient to deflect judicial attention, but Lewis had no trouble focusing on the issue at hand.

Article 83 of the New Hampshire Constitution forbids the use of money raised by taxation to be used for religious schools, and the judge noted that under the law, “Money that would otherwise be flowing to the government is diverted for the very specific purpose” of providing the scholarships.

Ashley Pratte, executive director of Cornerstone Policy Research, which signed on to a brief defending the law, pronounced herself “appalled” by the court’s ruling. “The education tax credit was carefully established to work within New Hampshire law. In fact, it is run solely on donations from businesses. 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.”

To the contrary, the law appears to have been carefully crafted to try to evade constitutional prohibitions against public funding of religious education. Head, assigned to defend the indefensible, argued that, “What we have in the law before you is a private business making a decision it is going to donate money to a scholarship organization. There is no government involvement, except we will give you a tax credit for that decision.”

If, in fact, this is merely a charitable enterprise not derived from taxpayer funds, there is an easy way to demonstrate it: Remove the tax credits, and encourage businesses to support the scholarship program without realizing a tax benefit from it. That is, if no taxpayer money is involved, the program should be able to succeed without the provision that the court finds objectionable.