CROYDON — Dennis and Kathy Griffin’s grandson Clayton, a seventh grader at Mount Royal Academy in Sunapee, has been attending the Catholic pre-K-12 school for the past seven years. But this is the first year that tax dollars will be contributing to his tuition.
After the approval of New Hampshire’s Education Freedom Account program in late June and an update to the 2017 Croydon Bill in early July, New Hampshire religious schools are allowed to receive state money, in certain circumstances.
For decades, states have pointed to the establishment clause of the First Amendment to the U.S. Constitution to say that public funding shouldn’t go to religious schools due to the separation of church and state. However, a lawsuit by the Griffin family and two recent U.S. Supreme Court decisions have changed the landscape around state funding going to religious schools in New Hampshire.
The Griffins live in Croydon, which has no public middle or high school, and have consistently argued the Catholic school was the best fit for Clayton.
“We’ve chosen what we believe is the best school for our grandson,” Dennis Griffin said when the family’s lawsuit suit was filed in 2020. “It’s not fair that we can’t receive the same support that other families in the town receive just because his school is religious.”
When the “Croydon bill,” was signed in 2017, it allowed towns with no public school districts to pay tuition to send students to private schools, but not religious ones. The legislation stemmed from a legal dispute that emerged between the town of Croydon and the state of New Hampshire over whether the town, which has no middle or high school, should be allowed to pay tuition to send students to the private pre-K-8 Newport Montessori School the next town over.
Though the first draft of the Croydon bill did not address religious schools, the language was changed to specify that only “nonsectarian private schools,” could receive funding after representatives from New Hampshire School Administrator’s Association, the New Hampshire School Board Association and the ACLU argued at a Senate education committee hearing that it would violate New Hampshire’s Constitution and the separation of church and state. The “Blaine Amendment” in New Hampshire’s constitution states that no tax dollars should go to religious schools.
In years following, the New Hampshire Attorney General’s office weighed in on the argument during debates over a school voucher bill, with Associate Attorney General Anne Edwards telling a House Education committee that public money going to religious schools would be unconstitutional.
“We have to change our Constitution if we want to have money — state, public money — going to religious schools,” Edwards told the House Education Committee in April 2017, although she later told the House Chief of Staff that the bill passed constitutional muster. The New Hampshire Attorney General’s office declined to comment for this story.
But the basis for arguments changed following a 2020 U.S. Supreme Court decision in Espinoza v. Montana Dept. of Revenue, which said a state that subsidizes private education can’t disqualify religious schools from the program solely because they are religious. The case extended a 2017 Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer, which said the exclusion of churches from an otherwise secular aid program violates the First Amendment’s guarantee of free exercise of religion.
After these court cases, the writers of New Hampshire’s Education Freedom Account bill were able to include religious schools in the bill without fearing a constitutional violation. The school voucher bill, which allows families to take public funding with them when they transfer to a private, religious or home school, was tacked on as an amendment to the state budget and signed into law June 25. On Thursday, the State Board of Education officially passed the rules that will govern the program.
The Croydon Bill, still on the books, still excluded non-religious schools until Dennis and Cathy Griffin’s lawsuit, claiming that Croydon School Board should be allowed to pay public money toward Clayton’s tuition. Under the law as it stood, they were not eligible for tuition assistance. In the lawsuit, they argued that Espinoza v. Montana Dept. of Revenue had set a new precedent, and New Hampshire couldn’t discriminate against religious schools.
House Bill 282 was passed July 2, amending the previous wording to remove the “nonsectarian,” rule and allow religious schools to receive town tuition payments as well.
According to education commissioner Frank Edelblut, both the Croydon Bill and the Education Freedom Account program continue to serve separate purposes on the books in New Hampshire. While the Croydon Bill allows families in towns without a public school to use town dollars to pick a public or private school of their choosing, the education freedom accounts allow students in qualifying income brackets from any town to use public dollars to take their education elsewhere, including to a private school.
The Griffins, who were represented by the Washington, D.C.-based libertarian law firm Institute for Justice, said they are pleased by the New Hampshire Legislature’s decision to amend the bill.
“We are happy the Legislature did the right thing in removing politics from school funding by allowing individual choice on how our tax dollars are applied to our children’s education,” Dennis Griffin said in a statement. “Cathy and I feel Mount Royal Academy is the best choice for our grandson’s education and the government should not be restricting the use of our tax dollars from funding our choice.”