CONCORD, N.H. (AP) -- A judge on Monday declared New Hampshire's new scholarship program unconstitutional but allowed it to continue as long as none of the money goes to religious schools.
Under the program created last summer, businesses get tax credits for donating to a private organization that awards scholarships to students attending either private or public schools. The program's supporters argue it would provide educational choice to low-income parents, while opponents have cast it as a back-door voucher system that diverts taxpayer money to religious schools.
The program was enacted by Republican lawmakers who overrode a veto by then-Gov. John Lynch, a Democrat. It survived a repeal attempt earlier this year, but was significantly altered by Monday's court ruling.
In his ruling, Strafford County Superior Court Judge John Lewis sided with the New Hampshire Civil Liberties Union and Americans United for Separation of Church and State, which challenged the program on behalf of a group of taxpayers.
"New Hampshire students, and their parents, certainly have the right to choose a religious education. However the government is under no obligation to fund 'religious' education," Lewis wrote. "Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution."
The state and organization administering the program argued that the money should not be considered "public funds" because it stems from private donations and then passes through the hands of the scholarship organizations. But the judge rejected that argument, saying that the program diverts money that would otherwise be flowing to the government.
"We're not surprised at the outcome because the law is so clear that taxpayer money cannot be used for religious education," said attorney Barbara Keshen of the New Hampshire Civil Liberties Union. "On some level, it's unfortunate that the state was put the expense of defending this law, which was obviously unconstitutional."
Kate Baker, executive director of the Network for Educational Opportunity, said her group would appeal Monday's ruling to the state Supreme Court.
"It's disappointing, because clearly it limits the choices parents can make, and my entire purpose has been to create options for families," she said. "This says to them, they can't make a choice. Parents know best, right? They should be able to choose the education they think is best for their children. This ruling is almost discrimination."
Baker said businesses have committed to $250,000 in donations, and more than 1,000 families have applied for scholarships. The plan is to award them by the end of July, but depending on what happens in court, recipients may not have all the options they envisioned.
"The intent of the law was to empower parents, and create choices so they can choose the best option — home schooling, or a public school, or any private school. That makes sense, because then you're opening all those doors," she said. "This is closing one of those doors."
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