A family in Croydon is suing the New Hampshire Department of Education, alleging that restricting the use of public tuition funds for non-religious schools violates their constitutional rights.
Like many districts in New Hampshire, Croydon doesn't have a middle or high school. Since the passage of the so-called 'Croydon Bill' in 2017, Croydon and other towns without a public option in the district have been allowed to use tax money to send students to public or private schools. Religious schools, however, are excluded.
Dennis and Catherine Griffin, the plaintiffs in the lawsuit, say they should be able to use this money for their grandchild's tuition at Mount Royal Academy, a Catholic school in nearby Sunapee.
The suit cites a recent U.S. Supreme Court ruling in the case of Espinoza vs. Montana Department of Revenue, which prohibits discrimination against religious schools in school choice programs.
“We’ve chosen what we believe is the best school for our grandson,” said Dennis Griffin, in a press release Thursday. “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.”
The Griffin family is being represented by the Institute for Justice, a public interest libertarian law firm based in Virginia.
Tim Keller, an attorney with the Institute for Justice, said the lawsuit could lead to a major expansion of school choice and clear the path for allowing taxpayer dollars to go to religious schools in New Hampshire.
"The implications would be that any town that doesn't operate their own public schools and tuitions their students will have the opportunity to tuition into private religious schools," he said. "If citizens want to petition to become a choice town, those parents would then have that option to find the right educational options for their students," including at a religious school.
Keller said his organization has been looking for plaintiffs since the Espinoza case, which renders the exclusion of religious schools from town tuition programs illegal.
Keller said he connected this summer with prominent figures in New Hampshire's school choice movement, including the Children's Scholarship Fund NH and Drew Cline, president of the Josiah Bartlett Center for Public Policy, a free market think thank. Cline also serves as chairman of the State Board of Education.
Keller said he doesn’t remember who put him in touch with the Griffins, but Mount Royal Academy headmaster Derek Tremblay said it was a "fluid movement" that involved a few different school choice advocates, including Jody Underwood, a Croydon school board member and member of the Free State Project.
Cline told NHPR he did not know anything about the Griffins, nor the lawsuit, before Thursday's announcement.
"We didn't help them in any way with this lawsuit. Literally we had no involvement whatsoever," he said. "The extent of our involvement was to mention in a webinar that he [Keller] thought it would be ripe for a lawsuit."
That webinar, "After Espinoza: Religion and School Choice," was moderated by Cline and featured Kate Baker of the Children’s Scholarship Fund NH and Tim Keller. In it, Cline relays a question from a viewer about whether the Croydon tuitioning program would be affected by the Espinoza ruling and proposes the New Hampshire Legislature take up the issue next session.
In an interview with NHPR Friday, Kate Baker said the lawsuit came as no surprise, because the state's current restrictions on tuitioning programs is a form of religious discrimination.
"When you're running something and you're telling someone they can't choose something because of something they believe or do, you know it's discrimination," she said. "That's not right."
State Education Commissioner Frank Edleblut said in a written statement that he could not comment on ongoing litigation but that given recent Supreme Court decisions, "I have asked the Attorney General’s Office to review our programs to ensure they comply with the law, and treat all nonpublic schools equally regardless of religious affiliation.”
The Institute for Justice has already filed a similar lawsuit against religious restrictions in the school choice program in Maine. Keller says it will file a lawsuit in Vermont within "a matter of weeks."