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The New Hampshire Supreme Court has decided nothing about the voucher tax credit program. Why not use that money for a real public purpose?

Here’s my opinion piece on the voucher program as it has appeared in the Concord Monitor, the Portsmouth Herald, the Union Leader and (upcoming) the New Hampshire Business Review.

Before the misunderstanding spreads too far, it is important to point out what the recent New Hampshire Supreme Court decision actually said about the constitutionality of the voucher tax credit law:

Nothing.   (more…)

Commentary on the Supreme Court’s voucher ruling runs negative

The New Hampshire Supreme Court ruled unanimously that the plaintiffs did not have the standing to sue, so did not address the underlying constitutional issue of state funding to religious education.  Editorial opinion so far does not support the court:

From Gary Rayno in the Union Leader:

But the real impact was not lost on the New Hampshire Civil Liberties Union. Its attorney said it would have far greater effects than whether state money can flow to religious schools via tax credits.

“Today’s decision will have a significant impact on government accountability,” said Atty. Gilles Bissonnette.

“In striking down New Hampshire’s taxpayer standing statute, the (court) has made it far more difficult for the people of this state to constrain the actions of New Hampshire government bodies when those actions violate sacred constitutional rights.”

If personal injury or impairment of rights has to occur, then a law or decision has to be in place before a legal challenge can occur.

Does that mean a landowner cannot challenge a Site Evaluation Committee decision on the Northern Pass project until it is built and the value of his home plummets; or challenge a planning board decision to allow a mall in a field behind his house before it is built?

Likewise, no citizen could challenge a buffer zone around an abortion clinic until it is put in place, or state money going to religious schools, or changes to voter registration or gun permits.

The education business tax credit program has not been widely successful and Judge Lewis’ decision made it even less so.

The Supreme Court did not address the issue at the heart of the challenge and may never have to.

But it does set up what could be a fierce battle between the court and the Legislature and who has the greater reach. In the future, this decision may have as lasting an effect as Claremont.

From the Nashua Telegraph:

The court ruling wronged taxpayers in two regards. First, in an omission that smacks of an abdication of duty, it failed to render a decision on the merits of the scholarship program itself. That’s unfortunate, not least because it puts the program under a cloud.


The second area where the court failed the people of New Hampshire is in selecting the wrong standard to apply in deciding whether someone can sue the state. Thursday’s ruling allows courts to turn away taxpayers who may want to sue based on principle alone, rather than self-interest, and that’s a shame.

“This ruling closes the courthouse door on taxpayers who are having to subsidize religious education and on parents and children whose public schools are losing funding to this program,” said lead plaintiff attorney Alex J. Luchenitser.

The narrowing of the courthouse door is the most troubling aspect of the ruling, though it does appear to meet another kind of self-interest standard: a government entity handing down a ruling that makes it harder for taxpayers to sue their government.

Statement on the New Hampshire Supreme Court decision on the voucher tax credit progam

We, the plaintiffs, want to thank our attorneys, the New Hampshire Civil Liberties Union and Americans United for Separation of Church and State for their committed work on this very important case to settle the question of whether New Hampshire’s recently passed voucher tax credit program conformed with the requirements of the New Hampshire Constitution.

While we challenged several provisions of the law, the central question was whether our constitutional prohibition against using state funds for religious instruction, even if that funding was provided indirectly in the form of tax credits to businesses who contributed to the program.

Bill Duncan said, “I am deeply disappointed by the decision, especially the fact that it was not decided on the merits.  This decision on standing disenfranchises taxpayers, parents and students throughout the state.  There may be other ways to challenge the voucher tax credit program in the future.  School districts harmed by the program could bring suit or a future legislature could repeal it. “

New Hampshire Supreme Court decision on the constitutionality of the voucher tax credit program to be handed down Aug. 28 at 9:00AM

The decision will appear here on the Supreme Court decision page.

Gilles Bissonnette, NHCLU, straightens Bobby Jindal out about the consitutionality of private school vouchers in NH

Bobby Jindal thinks New Hampshire presidential primary voters should know what he thinks about whether private school vouchers are constitutional in New Hampshire. (more…)

NH Supreme Court hears the voucher tax credit case

The New Hampshire Supreme Court heard the voucher tax credit case yesterday.  Both sides stated their cases clearly and concisely.  The justices had many pointed questions and Chief Justice Linda Dalianis complimented the legal teams for the quality of their briefs on this legally complex case.  Here is the video of the hearing.


Oral arguments set for April 16 in the voucher tax credit case

The New Hampshire Supreme Court has set 9:30, April 16 as the date for oral arguments in the voucher tax credit case.  The hearing will take place at One Charles Doe Drive, Concord, NH 03301.

Each side will have 15 minutes to argue its case.

This year’s voucher tax credit program will be even smaller than last year’s

There was an interesting story in the Union Leader this morning.  The headline said, “Half of scholarship cash from business tax credit donations returned,” as if this information that was announced two months ago were news today.  And here’s the first paragraph (emphasis added):

Half the money donated by New Hampshire businesses to a scholarship fund for schoolchildren last year went unused and had to be returned because of a state court decision barring scholarships for families who choose to send children to church-related schools.

Notice the cute framing?  This could have come right out of the voucher advocates’ brief.  The ruling, of course, did not say that parents could not choose religious schools, just that they could not ask the State to subsidize that choice with public

The Union Leader goes on:

Kate Baker, executive director of Network for Educational Opportunity (NEO), one of the groups in the state authorized to raise and spend money under the program, said of $250,000 her group raised by last June’s deadline for the current school year, $125,000 had to be given back.

The legislation says 70 percent of the dollars need to go to children going from public to private schools or for home schooling,” Baker said.

This quote is a puzzling restatement of last year’s practices that were in clear violation of the law.  Last December, the New Hampshire Department of Revenue Administration slapped Ms. Baker’s hand, saying in a “technical information” memo that,

“The Department would like to make clear that compliance with RSA 77-G:2, I(b) is measured by the number of scholarships awarded to eligible students, not the total dollar value of scholarships awarded to eligible students.”

Ms. Baker had pleaded ignorance so the DRA did not put NEO out of business, but it looks as if Ms. Baker’s confusion might be chronic.

Ms. Baker goes on to say in the Union Leader:

 “One-half to three-quarters of private schools in New Hampshire have some religious affiliation, so based on the metrics in the legislation, we could only use $125,000 of what we had.”

It is hard to fathom this fundamentally erroneous statement.  There are no “metrics” in the law having to do with the proportion of religious schools.  The reason NEO had to give back half of the small amount they raised was that they had too few public school students interested in using the available vouchers.

More from the UL:

While waiting for the state constitutional issues to be resolved, NEO is preparing for its second year of awarding scholarships, with a goal of doubling its donations — to $500 million. [she probably said $500,000, right?]

“It will be easier to raise the funds this year,” Baker said. “We have shown that people want to invest in education and help children where they need it most.”

This is an odd position to take.  NEO cannot fund religious schools unless they win in the New Hampshire Supreme Court and it is virtually certain that there will be no Supreme Court decision before June, the deadline for raising donations for next year.  So the group will be operating under the Superior Court injunction until then, at least.

If NEO had complied with the voucher law last year, the group would have been able to fund no more than 21 vouchers, spending a total of $52,000.  (One friend pointed out that there are more lawyers for the voucher advocates than there are voucher students.)

If there is the same level of public school interest this year,  the program will be tiny again this year.

It is not clear why businesses that contributed very little last year – and had half of it returned – would double their contributions this year while the Supreme Court is still deciding the case and the program will probably fund only a few students.

That’s probably why no business contributions have yet been pledged.

Education tax credit program should be repealed – Concord Monitor

The Concord Monitor gets it right on the voucher tax credit law:

It’s not every day that the attorney general and the governor find themselves publicly at odds over important state policy, but it happened this week – and thank goodness.

At issue is a 2012 law that set up a tax credit program for businesses, essentially rewarding them for donating money to a fund that provides “scholarships” to help some children attend religious or other private schools, receive home-schooling or attend a public school outside their home district. Controversial from the get-go, the program was approved by the Legislature over the veto of then-Gov. John Lynch.

A superior court judge ruled last summer that the program could not be used to support religious school education. And this week Gov. Maggie Hassan weighed in, filing a brief encouraging the state Supreme Court to uphold the lower court ruling – in opposition to the attorney general’s office, which is defending the law.

“The governor treasures the diversity of private schools in our state, and fully appreciates their contributions to tolerance and learning. But the decision to contribute to a private religious school is a personal decision. It should not be supported by the state’s tax structure, and it should not have the effect of diverting scarce taxpayer dollars from crucial public needs,” Hassan said in her brief.

She’s right. The Supreme Court should do as the governor suggests. And, beyond that, the Legislature should pull the plug on the entire program.


read the rest here:Editorial: Education tax credit program should be repealed | Concord Monitor.

The State’s media: Gov. Hassan urges high court affirm strike down tax credits for religious schools

Here’s Kevin Landrigan in the Nashua Telegraph on the Governor’s amicus brief asking the NH Supreme Court to strike down the voucher bill.  The brief itself is here, along with the many other briefs opposing the law.

CONCORD – Gov. Maggie Hassan urged the state’s highest court Monday to strike down a state law that gives business owners tax credits to support religious school scholarships.

In a brief filed by her lawyers, Hassan said Strafford County Judge John Lewis rightly decided tax credits supporting religious schools violated separation of church and state.

“The education voucher tax credit program is a misguided policy that undermines New Hampshire’s public education system and violates our state’s constitutional separation of church and state,” Hassan said in a statement.