Tim Keller, an attorney for the libertarian group Institute of Justice, wrote in the Union Leader that SB 193, which creates a statewide voucher system in the form of education freedom savings accounts, would be legal under New Hampshire’s Constitution (read the latest information on the bill here). He also argues that using those taxpayer-funded accounts for religious schooling would be constitutional:
As the aforementioned report demonstrates, it is constitutional to give parents the freedom to choose how and where their children are educated, including religious education services providers. Another Institute report outlines the benefits of savings accounts and other educational choice programs.
ESAs satisfy the federal and state constitutions’ two defining characteristics of a constitutional educational choice program: religious neutrality and parental choice.
ESA funds can be used for educational services provided by religious schools, but the critical constitutional point is that the state is not directly funding sectarian religious instruction. Opponents say that all religious schools must be excluded. But excluding religious options would violate the religious neutrality commanded by both federal and state precedent.
Just this past term, the U.S. Supreme Court held in the case of Trinity Lutheran v. Comer that Missouri’s reliance on a state constitutional provision — which is very similar to the New Hampshire constitutional provision most often cited as a bar to ESAs — to exclude a church-run preschool from a public benefit program solely because it was church-run was odious to the U.S. Constitution and could not stand. Similarly, the New Hampshire Supreme Court held over a century ago, in Warde v. Manchester, that Catholic institutions could not be denied the same benefits as other religious institutions.
