A Croydon couple on Wednesday filed a civil rights lawsuit against the state, challenging a law that forbids local school districts from paying tuition to religious schools.

In 2017, New Hampshire passed a law that allows school districts that don’t offer education at certain grade levels to send students to private schools for those grades. So if a district doesn’t have a middle school, it can tuition students to private middle schools. Except, the law specifically excludes religious schools.  

Dennis and Catherine Griffin raise their 12-year-old grandson, Clayton, in Croydon, which does not have a middle school. Clayton attends Mount Royal Academy, a Catholic school. If Clayton attended any of the private, non-religious middle schools in the area, his tuition would be paid by the school district. But because his family chose a Catholic school, the district cannot pay his tuition. 

The Griffins’ lawsuit says this prohibition is unconstitutional religious discrimination. 

The exclusion “is unconstitutional on its face,” the complaint says, because it amounts to “denying tuition payments to tuition-eligible students and their families on the sole basis that an otherwise eligible private school is sectarian.”

The U.S. Supreme Court ruled in June in Espinoza vs. Montana Department of Revenue that states cannot exclude religious schools from public education programs just because the schools are religious.  

“In light of Espinoza, states like New Hampshire cannot deny tuition to families who live in choice towns and who choose to send their children to religious schools,” said Tim Keller, senior at the Institute for Justice, which is representing the Griffins. “The Supreme Court could not have been clearer when it said that while ‘[a] State need not subsidize private education[, ] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”

The Griffins hope the courts will recognize the state law as unconstitutional under Espinoza and allow the district to pay Clayton’s tuition. 

“We’ve chosen what we believe is the best school for our grandson,” Dennis Griffin said in a statement released by the Institute for Justice. “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. We hope that New Hampshire courts will follow the direction of the U.S. Supreme Court.”

Gov. Maggie Hassan vetoed a similar tuition bill in 2016, saying it was “unconstitutional” because it didn’t prohibit money from going to religious schools. In Espinoza, the Supreme Court reached precisely the opposite conclusion.

New Hampshire’s tax credit scholarship program, which lets businesses and individuals take business tax credits for donations made to certain approved scholarship programs, includes religious schools. 

The language prohibiting tuition money from going to “sectarian schools” was taken from a provision in New Hampshire’s constitution that prohibits tax money from going to such schools. That 1877 constitutional amendment, known as a Blaine amendment, was one of many passed nationwide in a wave of anti-Catholic fear after the Civil War. 

In Espinoza, the Supreme Court effectively nullified these amendments, holding that they amounted to unconstitutional religious discrimination. 

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