School Choice

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

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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.

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  1. I like the result, but I don’t see how this is a good thing. I like the result because I think the law is Constitutional. But I fail to see how courts saying citizens don’t have the right to challenge unconstitutional laws in court is a good thing.

    Think about where this goes. This is exactly the same thing that is happening with Obama and refusing enforce Obamacare. Hey, since no one can show any monetary harm, they can’t sue to make the courts ensure he abides by the law. And that sucks. This sucks too.

    I think the plaintiffs in this case were dead wrong about the law. But they are citizens and they have every right to expect their government to live by the Constitution and they deserved their day in court.

    This is not a victory. There is more to life than getting your fucking Pony.

    1. I agree on this one.

    2. I agree with this, and it was my first thought reading the article. We all bemoan when courts rule this way when it isn’t in our favor. Just because the end is right here, people cheer the decision.

      The reasoning of this article is no different than what team red and team blue use when they win.

      1. Wait a minute…a court rules that because you aren’t hurt, you have no standing to sue, and you’re complaining about that state of affairs? Sheesh, isn’t that the essence of what we’re about: no harm, no foul?

        Nobody loses anything that’s rightly theirs by someone else’s getting to keep their own money. Damn good ruling!

        1. I think the suit is stupid, but I rather the NH SC rule that it didn’t violate equal protection or anything else. Not that the plaintiffs had no ground to sue. There have been several suits over real violations of rights that have been thrown out because the court says there is no standing.

          Think of how long Heller V. DC took because it was nearly impossible to find a plaintiff that had standing because “no harm no foul”

    3. they have every right to expect their government to live by the Constitution

      Well, I suppose people can *expect* almost anything.

      Seriously, John, good point.

    4. But I fail to see how courts saying citizens don’t have the right to challenge unconstitutional laws in court is a good thing.

      No, they aren’t saying that. They are saying that citizens who haven’t suffered an injury by the law don’t have standing. Any person who can show an injury will have standing.

      A bad policy that hasn’t injured you can be remedied at the ballot box. A executive officer who fails to discharge his duties can be voted out of office, or impeached.

      Standing is one of the chief safeguards against frivolous litigation, and just because a bad guy hides behind it is no excuse to hack away at it.

      1. … and furthermore, this wasn’t a case where the “good guys” won through bad means.

        The lack of an injury was critical; the plaintifs arguments as to how they were harmed was precisely the “not giving = taking” argument we decry.

        Their argument as to why it was unconstitutional was based on the same premise: by failing to tax people who gave money to religious schools, they argued, the government was in effect giving money to religious organizations.

        The plaintiffs sought to reframe an arguemnt that is a policy argument (how much tax the state should levy) conducted in the legislature into a constitutional one argued before the courts. And it is the standing issue that prevents a flood of similar lawsuits.

        1. “by failing to tax people who gave money to religious schools, they argued, the government was in effect giving money to religious organizations.”

          Which is a silly argument, really, at least given that religious organizations are tax-exempt generally speaking. Why not go after that?

      2. So if tomorrow, the President waived the tax liability of just black people, by your logic who could go to court to stop him? Black are getting a benefit not a harm. Everyone else just has to pay what they would have anyway. Where is the injury?

        That is where this logic leads.

        1. I know that is rectum absurdo but it probably would help solve the black unemployment problem, and if everyone else’s taxes don’t go up it wouldn’t bother me.

        2. But being taxed is harm. It gains no traction because the government denies it (really, FYTW, but that’s a different argument).

          If the President starts handing out tax holidays, is he not admitting taxation causes harm? Hell, we are already treading on this road with the IRS/Tea Party thing.

          So sue on the basis that you are harmed by being taxed at all. Either the President is right, and you have standing, or else the President is wrong, and he has no authority to waive peoples’ taxes.

          1. That argument gains no traction…

        3. Seems Congress could get a writ of mandamus to get him to enforce the law. That’s rather different from standing to sue over what the law of the land is.

        4. So if tomorrow, the President waived the tax liability of just black people, by your logic who could go to court to stop him?

          I believe the Congress can.

          They can also impeach him over it, although I do take your arguments as to impeachment being so draconian the it is ineffective, like nobody getting treatments for warts if the only available treatment is high amputation.

      3. Havent all tax payers suffered injury?

      4. “They are saying that citizens who haven’t suffered an injury by the law don’t have standing. Any person who can show an injury will have standing.”

        Jefferson: But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.

        This does pick the NH citizen’s pocket, no?

        1. No more than the public school.

          1. Sure, but having your pocket picked to go to a sect you don’t care for was a pretty big injury in our Founder’s eyes, bigger than taxation in general. It’s like the difference between a taking for public use and taking to give to a private party.

            1. So it should be unconstitutional for a welfare recipient to buy Wednesday night dinner at a church, or by rosary beads with the state money?

            2. I actually agree quite strongly. However, as the above person argues, it would mean the end of all redistribution (which is fine with me).

              Tax money shouldn’t go to religious schools at all… especially the ones that preach government worship.

    5. I have a serious question: Is harm really the standard for suits? I mean, does the first part of any suit have to be proving definite or probable harm? And shouldn’t any expenditure of my tax money by the state be a qualifying harm?

      1. Is harm really the standard for suits?

        I’m pretty sure that you can’t challenge a law unless you can demonstrate harm. Simply arguing that the constitution doesn’t give the government the power to make the law isn’t enough. Enumerated rights and unlimited powers and all that.

        1. Yes, I mean, I understand between private actors how harm is a necessary condition, but I would think that the government would have a higher standard.

          1. You’ve been here long enough to know better. Government doesn’t have a higher standard to meet in these types of litigation.

            1. Is harm really the standard for suits serfs?

              Yes.

          2. The government standard is judicial deference, meaning that if the legislature passed it and the executive signed it, then it must be constitutional. Because they would never create legislation that wasn’t.

        2. Standing is a constitutional requirement, so I can’t tell if you’re for or against it. But you probably have no clue either.

      2. Except the court doesn’t consider a tax credit to be an expenditure.

  2. Rich people have always had school choice, and always will. School choice is about the rest of us.

    1. If the Republicans were not the stupid party they would be out in force in every decaying urban area in America pounding this message non-stop.

    2. I had a political conversation once with a history professor who asked me if I thought we should return to a segregated school system (because of my small gov beliefs). I retorted, “are you saying they’re not segregated now?” He didn’t have much to say about that.

      Liberal assumptions are ridiculous. In their world, everything they do gets us one step closer to utopia. In the real world they just end up trading one perceived problem for a different set of problems.

      1. I honestly don’t understand how anyone can go from small government to *should* forcibly segregate schools, let alone *will*.

        1. because they think that the states are all led by racist hillbillies and need to be kept in line by the noble, enlightened feds.

          1. I would substitute “populated” for “led”

  3. …”by the New Hampshire Civil Liberties Union”…

    You are at liberty to keep your kid in some disaster of a school whether you like it or not.

    1. And the Freedom From Religion folks. Remember atheist organizations are no just fronts for various Prog causes. No really.

      1. “atheist organizations are no just fronts for various Prog causes.”

        They’re not, generally, but I do find the “Freedom from Religion” movement aggravating. There is no freedom from religion – this phrase really means “freedom from *other people’s* religion.”

      2. Most of these people who claim to want freedom from religion are quick to push their statist religion onto everyone else.

        Just because their god’s name is Government doesn’t make statism any less of a religion than whatever it is they are protesting against.

      3. I don’t know everything that Americans United for Separation of Church & State has stood for, but Barry Lynn (former Executive Director) has made some derp-tastic comments. I remember seeing him argue once that religion was responsible for almost all the violence in world history. In addition to the legitimate suspects (wars of religion, etc.) he argued that the Nazis were a primarily a religious group and that religion was their main motive.

        If you’re going to say dumb shit like that, you have to accept a lot of people aren’t going to pay attention.

        1. Exactly – Dawkins made the same dumb-ass argument in The God Delusion. If anyone fighting a war *has* a religion, the war is *because* of religion.

          His response to Hitler, Stalin and Mao is, as far as I could interpret his obscurantism, that they were secretly fighting religious wars and only pretending to be atheist.

          1. There’s a lot of evidence to point to on both sides of the ‘were the Nazis religious or atheists’ debate, but how in the world do you get the Soviets as religious. Wow.

            1. I’m having a hard time remembering now exactly what his argument was. I seem to recall he actually avoids discussing Mao altogether.

              If I remember, and I really am just pulling this out of my ass, but I think he really does question the sincerity of Stalin’s atheism and chalks it up to doctrinaire Communism.

              I didn’t put a whole lot of effort into remembering that book though, since it was dumb.

            2. I should have been more specific, Lynn argued that Nazi-ism was Christian in nature.

              I understand who people can argue the Nazis were religious but it really doesn’t have a lot of substance. The Holocaust was primarily racial rather than religious. While some churches supported Hitler, many didn’t and paid the price. If anything, it was Nazi-ism itself that became a religion. Part of the SS oath was We believe in God, we believe in Germany which he created?and in the Fuhrer?whom he has sent us

              Lynn’s problem is that he has one cause he really cares about and tries to shoe-horn everything into it. Instead of picking and choosing, once they hear the word “religion” AUSCS see one thing and one thing only.

          2. Yes, remember that horrible, bloodless war, the Pig War of 1859? People think it was about shooting a pig, and by extension transnational property rights, but it really was animated by the deep animus British Anglicans and American Congregationalists held for each other.

            1. I heard the conflict between the Crips and Bloods in the 80s was over a difference of interpretation regarding Isaiah 34:2.

              1. The Crips always struck me as KJV-Onlyers at heart.

                1. I think that’s the issue – the Bloods were really attached to the Vulgate, which is probably a losing position, considering the state of Latin in the public education system.

                  How we misunderstand the roots of anger!

                2. LoL – how about getting with the times, Crips!

                  Bloods be like “NIV, byotch!”

          3. Much better was the argument made by arch-fundamentalist Christian Jack Chick.

            He argued that the Communist Party was created by the Vatican to help it take over the world. However, the communists betrayed the Vatican so the pope created the Nazi Party to help the church destroy the communists AND take over the world.

            1. Oh Jack Chick, so amusing.

              Hey, at least he was able to correctly identify that communism and Nazism have a common ancestry, even if he is batshit crazy about everything else.

    2. I imagine the ACLU’s problem was what it saw as an Establishment Clause problem.

  4. Well, why shouldn’t a business be able to write off contributions to private schools when they can to public schools? Just because proggies love those public schools so much?

    1. It’s not a write-off though. It’s a tax credit, meaning that it’s private entities choosing where to spend tax money instead of government. For me, that’s only OK if I’m the private entity.

  5. Gov. Maggie Hassan, also a Democrat, made repeal of the law a priority, but Republicans blocked repeal efforts. She expressed her disappointment in Thursday’s ruling.

    “The voucher tax credit is bad public policy for public education in New Hampshire and our taxpayers, diverting millions of dollars in taxpayer money with no accountability or oversight to religious and private schools.”

    Fuck you, Maggie. Your husband is the headmaster of Phillips Fucking Exeter, and you have the nerve to squeal about the “perfidy” of private schools (that don’t cater to the elite of 3rd world dictatorships, that is).

    Eat shit and die, you hypocritical cunt.

    1. Good catch.

      declaring the funding program unconstitutional for helping send students to religious schools

      Do these legal types simply ignore the precedent of the GI Bill? My Dad went to a Catholic college (despite not being Catholic) that way.

      1. I believe they were referring Art 6. of the state constitution.

        “…But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination. And every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established.”

        As an aside, people should really read their state constitutions (at least of the original 13) to really get a mindset of the Founders. Here are some highlights of Sec I. of the NH State Constitution

        [Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

        Art.] 7. [State Sovereignty.] The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

        1. And my favorite

          [Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

          1. I could go on and on…it’s like someone in 1784 gazed into a crystal ball and saw the Progressive platform and attempted to enshrine the antidote as the highest law in the state.

        2. NH was actually a pretty interesting place during the founding period. When the state held its convention to vote on ratifying the US constitution, the town delegates were sent with specific instructions on how to vote. The majority were instructed to vote no. One of the key debates centered around the issue of slavery. A significant number of NH people believed it to be wrong and that to join a union with slaveholders would subject them to the judgment of God.

          However, during the convention debates, a majority of delegates came to believe that being in the union gave them the chance to end slavery. BUT, rather than voting contrary to their instructions, they voted to adjourn the convention. They then returned home to meet with townspeople in order to persuade them to issue new instructions. Enough of them did so that the state ratified the constitution.

          Whatever you think of the constitution and slavery, I love the idea of instructions and mutual accountability.

          1. That’s interesting. I didn’t know that. It helps me understand Gilman’s quote better: “the best that could meet the unanimous concurrence of the States in Convention; it was done by bargain and Compromise, yet, notwithstanding its imperfections, on the adoption of it depends (in my feeble judgment) whether we shall become a respectable nation, or a people torn to pieces … and rendered contemptible for ages.”

        3. But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination

          I think it’s arguable that vouchers even do that. It’s like saying that “no person shall ever be compelled to pay towards the support of retailers of any sect or denomination” and then claiming food stamps can’t be used at a Jewish deli. The support is so indirect, and under the control of the individual, that the argument seems absurd to me.

          By that argument, the state could prohibit welfare recipients from contributing to a church.

          1. Has anyone ever tried to challenge entitlements on those grounds?

    2. diverting millions of dollars

      Has there ever been a voucher system (including NH’s) that gives out as much money as public schools get per pupil?

      If you have $100M and educate 5,000 students, you have $20k per pupil. If 1,000 of those students get $10k vouchers, then you have $90M to educate 4,000 students, or $22.5k per pupil.

      Oh, but that’s right, public schools are employment programs for teachers and bureaucrats, not teaching programs for students. I forgot.

      1. Yeah. In Sweden.

    3. diverting millions of dollars in taxpayer money with no accountability or oversight to religious and private schools

      Sooo, pretty much the same as the public schools then?

    4. What’s up with “perfidy”?

  6. OT: put this in your pipe and smoke it reason.

    Based on these results, nominating libertarian candidates would be unlikely to improve the Republican Party’s performance among younger voters because these voters are much more likely to be liberals than libertarians and because the vast majority of those who do hold libertarian views already identify with the Republican Party and vote for Republican candidates. In order to increase their party’s appeal to younger Americans, Republicans would need to nominate candidates who are considerably more liberal on both economic and cultural issues than the party’s recent presidential nominees or the vast majority of its current congressional candidates.

    All though I already believed this so I may be blinded by my biases.

    1. Republicans would need to nominate candidates who are considerably more liberal on both economic and cultural issues than the party’s recent presidential nominees

      Does it really get any more purple than John McCain?

      1. No. He is the worst.

      2. Mitt Romney? Both Georges Bush? Hell, even Reagan was pretty purple. I doubt Bob Dole would’ve been much of a conservative firebrand, and Richard Nixon’s only real crime from the left’s perspective is being a Republican.

        1. No, his real crime was being anti-hippie. They may not have liked his having been prominently anti-communist too, but that gets confusing when he makes nice with China.

    2. As John has aptly pointed out, a 2% change in turnout can swing an election. If nominating libertarians gets more people to vote in the election, then it can pay off. Of course, nominating more libertarians might just increase turnout against them.

      The “ideal” solution is to reform the voting system so third parties can be more viable, especially at lower levels, but neither major party is willing to take that up as a cause if only for self-preservation’s sake.

    3. I don’t get that young people are turned off by the GOP’s economic positions, most people around my age do not think about economics much at all beyond 1. the job market and 2. student loans.

      1. I honestly think a lot of it comes from the Dem’s superior ability to market to our peers. They were way ahead on social media and marketing, they seem edgier and cooler than then the GOP which isn’t exactly hard.

        1. They do a better job at infiltrating pop culture as well, which is truly what drives opinion for teenagers.

          1. Yes, but I think at least part of that has to do with some of the GOP’s cultural stands. Taking what is seen as an anti-gay stance is automatically going to be a hard sell in the pop culture world, because gays have long played a role in that area. Ditto with the immigration thing which, whatever its merits, seems anti-cosmopolitan which runs counter to pop culture’s leanings.

            1. True, but it wouldn’t exactly to be hard to find anti-immigration and anti-gay(well not nearly as obvious) stances in the ranks of team blue, the GOP is just unable to message well at all but that is an across the board problem they have.

        2. The GOP has made little attempt to market to young people at all. Clinton and Obama seemed much more ‘with it’ to young people than McCain and Romney.

          1. The only possible GOP candidate who can get the interest of the younguns, is Paul. And since the Dems have already crowned Hillary as their great white hope and the GOP will nominate another Romney clone if not the actual Romulan himself, I see the kiddies staying home in 2106.

          2. I think that the picture with Romney with all those hundreds could have completely been sold as a plus to the young voters. Talk about a missed opportunity. Young Money!

    4. In order to increase their party’s appeal to younger Americans, Republicans would need to nominate candidates who are considerably more liberal on both economic and cultural issues

      So… just be Democrats? I mean, we already talk about how they are essentially the same party. But they want to just make it all but official!

      Perhaps most of these young voters are liberal, but when they they get a little older and see how much of their paycheck is being siphoned off to pay for people who keep popping out kids they can’t afford to take care of themselves and all the other money pits our government spends trillions on, these people often get more conservative. Once they start having kids and seeing their kids in failing schools and having a little less than those welfare kids, or when they start seeing the undesirable kids having a possible effect on their own kids, they start moving to the right.

      Time makes a lot of liberals into conservatives (both socon and fiscon)

      1. “Keep your hands off my Medicaid”

      2. Being liberal on cultural issues makes sense. Liberal on economics is what? Being liberal with other people’s money, that’s what. No thanks.

    5. All of these polls, regardless of outcome, can only claim to capture a snapshot of opinion as it exists right now. But a smart and energetic outreach effort can actually change minds, especially of young people that may not have years and years of team loyalty behind them.

      The problem for libertarians is that Democrats and Republicans have done a really good job of getting people (especially young people) to respond to anything with a Republican label with a strong gag reflex. And since Republicans sometimes sort of sound like libertarians on economic issues, we tend to get grouped with them. But I think only a small percentage of activists automatically go into Koch-induced delirium.

    6. “n order to increase their party’s appeal to younger Americans, Republicans would need to nominate candidates who are considerably more liberal on both economic and cultural issues than the party’s recent presidential nominees or the vast majority of its current congressional candidates.”

      And a sheep should apply meat tenderizer to it’s body parts for extra protection against wolves.

      1. Awesome baby!

        Can I use your line? Although I will not send you a residual, you will get props.

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