New Hampshire legislators are working to end a legal battle between a small town and state education bureaucrats over the town’s school choice program.

The town of Croydon (2010 population: 764) has fewer than 100 elementary-and-secondary-school-aged students. Unsurprisingly, the town found it was not cost effective to run its own K‑12 school system. Instead, the town runs a very small K‑4 district school and had a longstanding, exclusive agreement with a neighboring district to educate 5th through 12th graders. However, when their contract was nearing expiration, town leaders decided to allow students to take the funds assigned to them to a school of choice.

Sadly, the New Hampshire Department of Education wasn’t about to let a town empower parents to escape the district school system so easily. After a series of meetings and threats to withhold state funds, the department ordered Croydon to end their school choice program, which it claimed violated state law. However, former NH Supreme Court Justice Charles G. Douglas, III, the attorney for Croydon, that the department was misreading state law:

The letter from Douglas and [then-Croydon School Board Chairman Jody] Underwood argues against the state laws [NH Commissioner of Education Virginia] Barry used to support her order to stop school choice in Croydon:

“You cite RSA 193:1 and purport that it says that districts may only assign students to public schools. This is inaccurate. RSA 193:1 defines the duties of parents to ensure school attendance, and neither describes the duties districts have nor restricts the assignment ability of districts. In addition to your inaccurate interpretation, you cite to the portion of that statute that states: ‘A parent of any child at least 6 years of age … shall cause such a child to attend the public school to which the child is assigned.’ You fail to cite section (a) of the statute which clearly states that private school attendance is an exception to attending public school.”

The dispute is now being litigated.

Recently, some NH legislators sought to clarify any ambiguities in the law by explicitly authorizing local authorities to allow local education funding follow children to private schools of choice. As the New Hampshire Union Leader editorialized, this is a step in the right direction. However, the legislation does contain one serious flaw: it limits parental choices to non-religious schools, thereby discriminating against schools based solely on their religious affiliation.

It’s understandable why the bill’s sponsors excluded religious schools. The state’s historically anti-Catholic “Blaine Amendment” states that “no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.” Some have interpreted this to mean that no state dollars can flow to religious schools, but former Justice Douglas disagrees. In an analysis he coauthored with Richard Komer of the Institute for Justice for the Josiah Bartlett Center (my former employer), Douglas explained:

A school choice program that is purposely designed to be neutral with respect to religion, and which provides only incidental and indirect benefits to a religious sect or religion in general, benefits that are purely the result of the choices of individual citizens receiving state funds, does not violate the religion/​state separation provisions of either the United States or New Hampshire Constitutions. [emphasis in the original]

If legislators make religious schools eligible, they will likely invite litigation from the same anti-school choice groups that sued the state of New Hampshire over its scholarship tax credit law in 2013–a case the state supreme court eventually rejected. However, excluding religious schools is also likely to invite litigation. Just this week, the Institute for Justice announced that it was filing suit against Douglas County, Colorado for excluding religious schools from its voucher program after a plurality of the state supreme court interpreted Colorado’s Blaine Amendment to prohibit granting vouchers to students who wanted to attend religious schools. Attorneys with the Institute for Justice argue that such discrimination violates several provisions of the U.S. Constitution:

The exclusion of religious options from the program violates the Free Exercise, Establishment, Equal Protection, and Free Speech Clauses of the United States Constitution, as well as the Due Process Clause, which guarantees the fundamental right of parents to control and direct the education and upbringing of their children.

New Hampshire legislators are wise to expand parental choice in education. As the consensus of high-quality research shows, expanding educational choice benefits both participating students and those who remain in their assigned district schools. However, legislators should avoid writing discrimination into state law. The state constitution does not demand it and, even if did, the U.S. Constitution requires the government to be neutral toward religious options in public programs, forbidding states from either favoring or discriminating against religious groups or institutions. 

To learn more about school choice in New Hampshire, watch the Cato Institute’s short documentary on the Granite State’s scholarship tax credit law: