School Choice

N.H. Private School Scholarship Program Saved by a Technicality (But an Important One)


IJ clients in the case. Show to those in your life who argue school choice is about rich white people.
Institute for Justice

New Hampshire's Supreme Court today preserved the state's tax credit program that allows businesses to fund scholarships to private (and religious) schools.

The court ruled unanimously to overturn a previous lower court decision striking the program down, declaring the funding program unconstitutional for helping send students to religious schools. The state's Supreme Court did not actually rule on whether this program was constitutional. Rather, the court ruled that opponents of the program did not have legal standing to challenge the case in court. From the Associated Press:

In January 2013, nine New Hampshire parents, taxpayers and a business challenged the program. Their case was waged by the New Hampshire Civil Liberties Union, Americans United for Separation of Church and State and a dozen other opponents of the tax credit program. In June 2013, a Strafford County Superior Court judge deemed unconstitutional the portion of the law that makes religious school students eligible for the scholarships.

The justices Thursday vacated the lower court ruling, saying the challengers had suffered no injury and therefore had no right to sue. They declared unconstitutional a 2012 amendment to state law that permits taxpayers to sue even if they can't show their rights were violated.

The outcome is similar to how California's Proposition 8 was finally struck down. There, the Supreme Court did not rule whether gay marriage recognition was a constitutionally protected right. Rather, the Supreme Court ruled that the proponent of a ballot initiative didn't necessarily have federal standing to defend it if the proponent could not prove any injury. So they bounced the case back to California, where judges had already struck the ban down.

The decision is yet another win for the Institute for Justice, who represented some parents using the program. The Institute for Justice is having a really good year.

Read the court ruling here (pdf). Last year Reason's Ed Krayewski explored the details of New Hampshire's tax credit program, explaining how it helps students in difficult situations and how claims that it "subsidizes" religious schools are exaggerations.