By Christine Rousselle

Washington, D.C. Newsroom, Sep 4, 2020 / 08:40 am MT (CNA).- A New Hampshire family has filed suit against the state after a town tuition program refused to pay for their grandson’s Catholic school education. The suit claims that the terms of the program violate religious discrimination laws and go against a recent Supreme Court ruling.

The lawsuit, Dennis Griffin and Catherine Griffin v. New Hampshire Department of Education, was filed in the Merrimack County, New Hampshire, Superior Court on September 3.

Dennis and Cathy Griffin are raising their grandson, Clayton in the town of Croydon, New Hampshire. Clayton, an ingoing seventh-grade student, attends a Catholic school in the nearby town of Sunapee. He would be eligible to have his private school tuition paid for by the town of Croydon, except for a New Hampshire law which prohibits town tuitioning programs from paying for “sectarian” schools, which the family argue is illegal under the Supreme Court’s recent decision Espinoza v. Montana Department of Revenue, which struck down a similar exclusion on religious schools.

Croydon, a small town of fewer than 1,000 people, does not have its own public middle school or high school. Instead, the town pays the tuition for resident students to attend public or private schools in nearby towns.

There are approximately 50 towns in New Hampshire that do not have public schools for all grades, and many of these towns have a contract with a specific nearby public or private school. Croydon does not have this kind of contract and allows its school-age students to pick where to go to school. In Croydon, students in fifth grade and above are given a set dollar amount for tuition at either a public or private non-sectarian school.

In order to be eligible for a tuitioning program in New Hampshire, a private school must be “non-sectarian,” comply with various regulations regarding health and fire safety, be incorporated in New Hampshire, and administer an annual academic assessment.

Mount Royal Academy, where Clayton is a student, is a lay-run and lay-founded Catholic school, where students are educated in the classical model. The school was incorporated in New Hampshire, complies with all health and safety regulations, and administers standardized assessments. However, as Mount Royal Academy is a Catholic school, the Griffins have to pay tuition.

The school was formally recognized as a Catholic school by the Diocese of Manchester in 2006, which the school’s website describes as “giving our school community the greatest gift we could ever receive, the Eucharistic presence of Jesus Christ on campus.” It was the first lay-founded school in the diocese to receive this recognition.

The Griffins say that the state prohibition is a violation of their First Amendment rights, and are asking for the New Hampshire courts to allow religious schools to be eligible for town tuitioning programs.

In June, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that Montana’s income tax credit program unconstitutionally discriminated against religious schools and those who attend or wish to attend them. The Griffins are arguing that the New Hampshire Superior Court should consider the precedent created in Espinoza and change state law.

Kirby West, an attorney for the Institute for Justice, the law firm representing the Griffins, told CNA that while the case is similar to Espinoza, the situation is different as the prohibition on sectarian school tuition payments is state law.

“In Espinoza, the Montana Supreme Court struck the scholarship program down under their state Blaine Amendment because the program included religious schools,” West told CNA.

“Here, although New Hampshire also has a Blaine Amendment, the anti-religious language is also written directly into the tuitioning statute. So the tuitioning program excludes religious schools on its face,” she said.

In Espinoza, the Supreme Court ruled that as school choice programs are not mandated, religious schools cannot be left out of the program on the basis of religion–something that is happening in New Hampshire.

“The principle at issue, however, is exactly the same,” West said. “Once it decides to create an educational choice program, a state cannot exclude religious schools solely because they are religious.”

“The Griffins qualify for New Hampshire’s tuitioning program in all respects except for the fact that they chose a religious school for their grandson. As the Supreme Court made clear in Espinoza, this discrimination violates the First Amendment,” she said.