N.H. Supreme Court Reinstates Education Tax Credit Program

Aug 28, 2014

Supporters of the education tax credit gathered on the steps of the State Supreme Court when arguments were heard this spring.
Credit NHPR Staff

A unanimous New Hampshire Supreme Court ruling out today says a controversial school choice program will once again be able to give tax-credit-funded scholarships to religious schools, but today’s ruling is far from the final word.

Under the Education Tax Credit, companies can give donations for scholarships, and claim 85 percent off their business taxes. Scholarship organizations use those donations to give money to students who want to change to private school, a different public school, or homeschool.

Last year a Superior Court judge ruled that the law would violate the constitution by sending public tax dollars to religious schools. The decision hobbled the program in a big way.

But with today’s ruling, that is out the window, though it didn’t get to the meat of the question: is the law constitutional.

“No one should treat this decision as a ruling that this program is actually legal or constitutional,” says Alex Luchenitser the lead attorney arguing against the tax credit program with Americans United for the Separation for Church and State.

He and his clients used a brand new state law to file their suit. It says any taxpayer can bring a complaint against the state, even if the taxpayer can’t prove they were harmed. That is the law is what the Supreme Court says is unconstitutional.

“I think it shows that the New Hampshire Supreme Court is completely out of control,” says Seth Cohn, who was the primary sponsor of the new statute when it was still just a bill. He’s an internet developer with a strong libertarian streak, who didn’t run for reelection last time around.

To be clear, Cohn is a supporter of school choice. He just doesn’t like that his law wound up on the chopping block in today’s decision, and that the court still didn’t rule on the merits of the tax-credit itself.

“As far as I’m concerned they not only made the wrong decision, but they basically abrogated their responsibility to decide a serious issue which is the state of tax credits for education here,” says Cohn.

Otherwise reactions fell predictably along the political spectrum. Republicans and school choice advocates cheered, saying New Hampshire families and students are the real winners. Democrats and Governor Hassan disparaged the ruling, saying it could dismantle the state’s public schools.

The law’s opponents are already looking for a work-around.

Bill Duncan, the newest member of the state Board of Education and lead plaintiff, says someone can still bring a new challenge to the tax credit, but they would have to demonstrate that it harms them. He says he thinks a school district that has lost a large number of students could carry the flag.

“The program right now is so small and might be small for quite a number of years to come. And so if [demonstrating harm] is the criteria, that could be challenging,” says Duncan, adding that if the program stays small, a legal challenge might not be worth pursuing.

But in the mean-time, the laws opponents say they will look to the November elections, in hopes that a new set of politicians more amenable to repealing the law will be swept in for the next legislative session.

On the other side of the issue is the first scholarship organization in the state that took advantage of the 2012 law, the Network for Educational Opportunity.

“So I’m excited that these chains are now off,” says Kate Baker, who runs the NEO.

She says her organization has been hamstrung by the lower court’s decision to restrict the scholarships to only non-religious schools. “That lower court’s ruling did severely impact both our fundraising, and the number of applicants we can help in addition to the number of applicants who have applied,” she says.

Last year the NEO raised $250,000 dollars for scholarships, and only $50,000 this year, thanks to the shadow of the court-case. That means there’s still $5 million in business tax credits still up for grabs

Now cleared of its legal case, school choice advocates will be able to see how big this program can get.