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

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.