Editor’s note: Alex J. Luchenitser is associate legal director of Americans United for Separation of Church and State, and lead counsel for the plaintiffs challenging New Hampshire’s tuition tax-credit program.
In a June 24 blog entry, Charles Glenn attacks a recent New Hampshire state-court decision declaring the state’s tuition tax-credit program to be unconstitutional to the extent that it funds religious schools. Dr. Glenn argues that this ruling amounts to “religious discrimination” that should be struck down by the U.S. Supreme Court. His arguments, however, reflect a misreading of history, and they have already – and rightly – been rejected by the Supreme Court.
The New Hampshire Constitution strictly prohibits the diversion of tax funds to religious education. Well aware of this, the New Hampshire legislature passed the tax-credit program in an effort to circumvent the constitutional prohibition. The state court saw through this scheme, correctly concluding that there is no practical difference between using direct appropriations to fund private-school scholarships and using tax credits to do so.
Dr. Glenn contends the 1877 constitutional provision on which the state court relied was motivated by anti-Catholic animus. But the historical record belies this claim. The same constitutional convention that approved the constitutional provision in question also approved the removal from the state constitution of two clauses that had discriminated in favor of Protestants and against Catholics.
Regardless of what may have happened a century and a quarter ago, the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect. The state constitution was amended in 1968 to make clear that discrimination among religious groups is prohibited. And only 15 percent of scholarship applicants under New Hampshire’s tax-credit program wanted to use their scholarships at Catholic schools.
Dr. Glenn attempts to bootstrap his unsuccessful allegation of anti-Catholicism to support a significantly different argument – that allowing public funding of secular but not religious education “discriminates” against religion. This argument has been soundly and repeatedly rejected by the U.S. Supreme Court, however. In a 2004 decision, Locke v. Davey, a quite conservative Supreme Court ruled by a 7–2 vote that a state can constitutionally prohibit the use of university scholarships for theological study, while allowing them to be used for secular education. The high court issued four similar rulings between 1972 and 1974.
What Dr. Glenn seeks is nothing other than a complete reversal of one of our most fundamental constitutional traditions.
From the time of the founding of our republic, one of our basic constitutional principles has been that no taxpayer should be forced to contribute to the support of a religious faith to which he or she does not subscribe. Far from “discriminating” against religion, this principle protects religious freedom by ensuring that religion does not become dependent upon or compromised by the government.
To be sure, U.S. Supreme Court decisions have weakened this tradition in recent decades, first giving government bodies more leeway to fund religiously affiliated universities than religious primary and secondary schools, and then upholding school voucher programs. At the same time, free to interpret their own state constitutions differently from the U.S. Constitution, many state courts – such as New Hampshire’s – have continued to strictly prohibit tax aid to religious education.
Displeased with these states’ commitment to America’s tradition of church-state separation, Dr. Glenn apparently seeks to force states to fund religious schools. He points out that a good number of other countries do so. But many of these countries have a history of established churches, and a concomitant history of religious strife. As Justice Sandra Day O’Connor once wrote, “Why would we trade a system that has served us so well for one that has served others so poorly?”
Indeed, widespread public funding of religious education could ultimately have the effect of harming educational freedom. In New Hampshire, as in the rest of the country, most private schools are religious; religious schools are much cheaper than secular private schools; and scholarship amounts are limited – meaning that the scholarships can help poorer parents afford religious but not secular private schools. Moreover, New Hampshire’s program, like many similar plans, would obtain state funding for private schools by taking it away from public schools, harming the quality of public education. As a result of such programs, in order to obtain a quality education, poorer parents may have no reasonable choice but to subject their children to religious indoctrination in a faith different from their own.
In the end, the goals of school-choice advocates may be undermined in another way if the U.S. Supreme Court ever takes up Dr. Glenn’s argument again. The Court is deeply respectful of states’ rights, and therefore it is very unlikely the Court will strike down the dozens of state constitutional provisions that prohibit public funding of religious schools. Rather, if the Court holds that funding secular but not religious private schools poses a federal constitutional problem, the result may be that states whose constitutions ban tax funding of religious schools will be barred from funding secular private schools too.
I appreciate Alex Luchenitser willingness to write and submit this post. Too many of us today only read commentary that reinforces our existing positions, which is why at redefinED we are constantly trying to find thoughtful people willing to submit posts that may be contrary to the views of the school choice community. Unfortunately, so much of our civic discourse has devolved into yelling and name calling that many serious thinkers aren’t willing to submit contrary views. Fortunately, Mr. Luchenitser is an exception to this trend, and for that we are grateful.
I second Doug Tuthill’s praise for Luchenitser for being willing to engage on this issue. That said, his argument fails for several reasons.
First, he distorts the judicial history in New Hampshire. While there is no binding precedent in NH, there are several non-binding opinions of the court and the record is mixed. In 1955, the state supreme court held that a voucher program for nurses would be constitutional even if the public funds went to religious schools because it was indirect and incidental. While a later opinion of the court ruled against a $50 property tax credit, the logic of the decision contrasted sharply with the earlier opinion. Moreover, its logic was never fully implemented, otherwise religious schools would not be able to participate in NH’s longstanding tax exemption for nonprofits.
https://www.cato.org/blog/new-hampshire-courts-school-choice-decision-was-flawed-unprecedented
Second, his argument falsely assumes that money that the government has never collected and will never collect is nevertheless “public money.” The U.S. Supreme Court vigorously rejected this flawed logic in the ACSTO v. Winn decision in 2011.
https://www.cato.org/blog/nh-court-you-can-choose-school-so-long-its-secular
Third, his assertion that more educational freedom will somehow harm educational freedom is absurd. He argues that if more parents choose to attend low-cost religious schools, somehow the high-cost secular schools will be harmed. He doesn’t explain how they would be harmed, exactly, but if families are only choosing private schools based on cost, no one would be attending the high-cost schools at present!
What’s more likely is that families that can only afford to attend the “free” public schools will now be able to afford private schools. Moreover, some families who can now only afford low-cost religious schools will be able to afford mid-range religious and secular schools.
Mr. Luchenitser thinks it’s a bad thing that low-income families should have more choices because if they choose a school they think is better, it will deprive the public school of the funding associated with that child. Yet despite private school choice programs operating in two-dozen states, Mr. Luchenitser has absolutely no data showing harm to the public schools’ performance. Indeed, there is even evidence that school choice programs, by introducing competition, help to *improve* the performance of public schools!
Alex, based on the empirical evidence from Florida, I would drop the argument that tax credit scholarship programs for low-income children harm district schools. For several years now Dr. David Figlio, a highly respected researcher at Northwestern University and the National Bureau for Economic Research, has studied the Florida program through a contract with the Florida Department of Education. Dr. Figlio’s conclusions over the last several years have been very consistent. He summarized these conclusions in his most recent August 2012 study: “there exists compelling causal evidence indicating that the FTC Scholarship Program has led to modest and statistically significant improvements in public school performance across the state. Therefore, a cautious read of the weight of the available evidence suggests that the FTC Scholarship Program has boosted student performance in public schools statewide, that the program draws disproportionately low-income, poorly-performing students from the public schools into the private schools, and that the students who moved perform as well or better once they move to the private schools.”
I can elaborate on why Dr. Figlio is finding these results if you’re interested. Dr. Figlio’s full report can be found at: https://www.floridaschoolchoice.org/pdf/FTC_Research_2010-11_report.pdf.
Doug
parochial schools especially in the mid atlantic and NE states used to school as many students as public schools, but rising school tax burden has eroded the parents ability to send their children to the schools and forcing them into public schools while wealthy can afford private schools as does many teachers and politicians while middle class students get the worst of the deal meanwhile the public schools get dumbed down to the lowest denominator while gov throwes money at bad programs.
at the least a parent should have a tax rebate ,reduction or credit if they can use a non public school
I am a parent that currently has a student in a parochial school. My son is on a McKay scholarship. The same school is discriminating against my daughter by refusing her readmission due to her epilepsy… She has been seizure free for 2.5 years and received straight A’s with no disciplinary issues. The only recourse we had as parents was to file a claim with the USDOE civil rights office. There is no due process available as the are a “parochial” school exempt from ADA. Interestingly, they receive McKay & School Readiness (federal) funding. Sure they LOVE receiving the funds, but don’t want the responsibility. This is a true life story playing out in our lives… Parochial schools who receive funding need more oversight in order to insure they are not discriminating.