In January, the New Hampshire House is expected to vote on Senate Bill 193. The bill provides that an “eligible student” can receive a grant from the State equal to 95 percent of the per-pupil funding the State provides to municipalities to pay for the cost of an “adequate education” (currently $3,636.00) in order to fund an “education freedom savings account.” The account must be opened through an approved scholarship organization and the funding can be used to pay only for “qualifying educational expenses.” Here is the version passed by the House Education Committee.
The bill only very narrowly passed the House Education Committee, and only after amendments to narrow its scope from the version passed by the Senate and only because one Democrat (Barbara Shaw of Manchester) offset the opposition of two Republicans-in-Name-Only (James Grenier of Lempster and Robert Elliott of Salem).
Predictably, Senate Bill 193 has been roundly criticized by the Democrats. Among the criticisms is the claim that the bill violates the Blaine Amendment of the New Hampshire Constitution.
For example, from the Union Leader:
Opponents of the bill said it would drain resources from public schools and would face an inevitable court challenge on the issue of tax dollars going to religious schools, even if those dollars are channeled through an independent and nonsectarian scholarship organization as the bill intends.
I am going to focus here only on the claim that SB 193 violates the New Hampshire Constitution’s Blaine Amendment because the bill provides that tuition at religious schools is a qualifying expense.
In a nutshell, because of a recent United States Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Pauley, there is no longer any question that the State Constitution’s Blaine Amendment cannot be used to exclude tuition at religious schools from Senate Bill 193’s qualifying educational expenses. Indeed, what would be unconstitutional (under the federal constitution) would be to exclude religious schools from Senate Bill 193. A more detailed discussion follows.
Here is the Blaine Amendment to the New Hampshire Constitution:
[Art.] 83. [Encouragement of Literature, etc.; Control of Corporations, Monopolies, etc.] … 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. …
Blaine Amendments were a response to Catholic immigration in the latter half of the 19th century. Public schools, at that time, were teaching generic Protestantism and Catholic and Catholic immigrants wanted the government either to cease that practice or to provide funding to Catholic schools. Blaine was a Congressman who proposed an amendment to the United States Constitution in 1875 that would have prevented States from providing financial aid to religious schools.
While the amendment failed to pass the United States Senate a majority of States, including New Hampshire, subsequently adopted versions of the Blaine Amendment. New Hampshire adopted its Blaine Amendment in 1877.
Trinity Lutheran Church of Columbia, Inc. v. Pauley involved whether the State of Missouri’s use of its Blaine Amendment to deny State funding to the Trinity Lutheran Church violated the United States Constitution. More particularly, as described by Professor Volokh:
If you have kids, you’ve probably seen playgrounds where the ground is covered — for safety — with a springy rubbery surface, instead of soil or gravel. A Missouri program gives grants to organizations that want to resurface playgrounds with this material, which is often made from recycled tires. There aren’t enough grants to go around to all the applicants, so the program relies on pretty objective evaluation criteria.
Trinity Lutheran Church’s application was, according to the U.S. Court of Appeals for the 8th Circuit, “ranked fifth out of forty four applications in 2012, and . . . fourteen projects were funded.” But Trinity’s application was rejected; in the words of the Missouri Department of Natural Resources,
The department is unable to provide this financial assistance directly to the church as contemplated by the grant application. Please note that Article I, Section 7 of the Missouri Constitution specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”
On June 26th of this year, the United States Supreme Court ruled in favor of Trinity Lutheran. From Ed Whalen at National Review’s Bench Memos:
In Trinity Lutheran Church v. Comer, the Supreme Court ruled today that the state of Missouri violated the Free Exercise rights of a church when it excluded religious organizations from taking part in a program of grants for playground resurfacing. As Chief Justice Roberts summed things up near the end of his majority opinion for six justices, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”
Contradicting early predictions of a ruling sharply divided on ideological grounds, Justice Kagan joined the Chief’s opinion in full, and Justice Breyer wrote an opinion concurring in the judgment. Breyer “agree[s] with much of what the Court says” but (consistent with his general approach) is reluctant to sign on to any broad principle.
The Trinity Lutheran decision means that the Blaine Amendment of the New Hampshire Constitution cannot be used to discriminate against religious schools in Senate Bill 193.
The proponents of Senate Bill 193 seem to be unaware of the Trinity Lutheran decision and are arguing that the bill does not run afoul of the State’s Blaine Amendment because the funding flows to parents not to religious schools. For example:It is not necessary to make this argument any longer. The holding in Trinity Lutheran means that the funding could go directly to any religious school so long as it meets the requirements under Senate Bill 193 for a qualifying expense.