The ACLU Fights the 'Live Free or Die' State on Education

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Is a tax credit that benefits "scholarship organizations" really a threat to religious liberty?

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On too many occasions to count, the ACLU has played an indispensable role in safeguarding civil liberties, something I've personally appreciated most in the post-9/11 era, and especially during the Obama years, when so many other left-leaning entities ceased their vigilance. But I've just come across a lawsuit on an unrelated subject that I wish they hadn't filed.

"Thirty million. That's the amount of tax dollars that could be diverted annually from New Hampshire's coffers to private schools by the year 2022 if the state is allowed to implement its new Education Tax Credit Program," Heather L. Weaver writes on the ACLU's blog. "Under the tax credit program, in exchange for donations to 'scholarship organizations,' New Hampshire businesses will receive tax credits equal to 85 percent of the amount they donate. The scholarship organizations, in turn, will use the funds to award scholarships to private school students, including those attending religious schools. In short, rather than paying their taxes to the state, businesses will instead be able to direct money owed to the state toward religious education."

That is a debatable characterization of tax credits. If I give a charitable donation to the ACLU, as they encourage, have I directed to them money that I "owe to the state?" By law, what I give the ACLU is tax deductible. According to the tax code, if I give it to the ACLU, I don't in fact owe it to the state, though that's where it would have gone absent the charitable contribution. My donation is tax deductible even though lots of Americans disagree deeply with the ACLU. Some of those critics even earnestly believe that the ACLU is enabling terrorists with its actions.

Those critics, in turn, are able to direct their money to nonprofit organizations that manifest their notion of the good. The effect is to decentralize decisions about some portion of what society spends "for the betterment," giving people a chance to allocate where part but not all of their share goes. That enhances pluralism and individual liberty -- no less so when religious organizations are the recipients of some voluntary donations. Permitting individuals or businesses to deduct voluntary donations to religious organizations in the same way that they'd deduct donations to secular organizations does not, in my view, violate the civil liberties of any American, and should not therefore be of concern to the American Civil Liberties Union, whether or not it violates the New Hampshire Constitution (I take no position on the legal merits). I do not think the New Hampshire tax credit would violate the U.S. Constitution.

Says the Associated Press, "Students attending private schools, public schools outside the student's home district and students schooled at home would qualify for scholarships. Income limits are set on who qualifies .... Districts losing state aid above a certain threshold would receive additional money to partially offset the loss of funding when students leave their schools." It sure sounds like this program would give poor kids and their parents more education choices, with a continuing "public option." I'd like to see those parents and the plaintiffs in the ACLU case sit down face to face and argue about which outcome is more liberty enhancing.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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