School Choice Ruling in New Hampshire May Be Bellwether

In a unanimous ruling out of New Hampshire Supreme Court, low-income students will be able to use tax credits to attend any school their parents choose.

Opponents to the law claimed it violated the separation of church and state and will negatively affect public schools, while supporters claim it promotes educational freedom and provides a choice for low-income families.

 “[T]he petitioners fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, [and so] they have failed to establish that they have standing to bring their constitutional claim,” the court declares in its decision.

The 2012 amendment to the state law allowing taxpayers to sue even when they cannot provide proof that their rights had been violated was deemed unconstitutional in the ruling.

The ruling also reversed a previous decision by a lower court which had ruled the tax credits to be in violation of an amendment of the state constitution prohibiting the use of tax money to fund religious schools.

“This was a hard-fought battle and we are gratified that the parents have finally prevailed. The plaintiffs’ case and the Superior Court’s decision were based on a relic of anti-Catholic bigotry enshrined in the New Hampshire Constitution in 1877, which they extended beyond its intended scope. This is a victory for all who would live free in New Hampshire,” said Tim Keller, an attorney with the Institute for Justice.

The program was originally put in place in 2012 by Republican lawmakers.  Businesses donate to the independent scholarship organization, the Network for Educational Opportunity, in return for a tax credit totaling 85% of their donation to K-12 “scholarship organizations.”  The program allowed for $3.4 million in tax credits in the first year and an additional $5.1 million in the second year.  Additional increases are provided for in coming years.

Kate Baker, who runs the NEO, stated that 91% of the 103 scholarships given out last year went to children who qualify for the free or reduced-price lunch program.  None of the $128,000 in scholarships was awarded to a student who attends religious schools due to the court ruling.

The decision may be used to evaluate voucher systems in place in other states as well.  Activists in Florida recently filed a lawsuit claiming the voucher system in the state provides funding to religious schools.  Judges may use the New Hampshire case as precedent when deciding on their ruling.

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