Citing Dissent to Stop School Choice

A state judge in New Hampshire has ruled against a recently enacted program that would have provided tax credits to businesses that contributed to scholarship organizations similar to those in the Arizona program upheld by the U.S. Supreme Court in 2011.

There are a few things about the opinion worth noting. First, New Hampshire’s laws regarding taxpayer standing to sue are much more generous than those available to federal taxpayers, where suits have been quite narrowly limited by the Supreme Court in Hein . Had this case been filed in a federal court, it would likely have failed simply on the ground of taxpayer standing. I don’t know what laws are like in other states, but it strikes me that few are likely to be as willing to entertain these kinds of suits as is New Hampshire.

Second, Judge John M. Lewis cites a string of state Supreme Court advisory opinions that rely upon U.S. Supreme Court decisions but antedate the important Zelman decision, which upheld an Ohio voucher program. In other words, relying upon old New Hampshire church-state jurisprudence permits him to avoid the import of what the Supreme Court has said lately, which is that when state dollars follow the genuinely private choices of parents (as they do in this case, assuming that we’re in fact talking about state dollars), there is no violation of the Establishment Clause. (I realize that this has no necessary bearing on the interpretation of the New Hampshire Constitution, but state courts typically—as in earlier instances in New Hampshire—align their church-state jurisprudence with that of the Supreme Court.) And when Judge Lewis cites the Zelman decision, he discounts it because of the narrowness of the 5-4 majority holding. Since when does the precedential force of a decision depend upon how many votes it got?

Third, Judge Lewis also sides with the dissenters in the Arizona case in insisting that a private donation eligible for a tax credit is for all intents and purposes state money. The alternative understanding, adopted by the majority in that case, is that when the state forgoes taking my money, it’s my money.

So what we have here is a decision that rests on the foundation of the liberal dissents in two landmark Supreme Court school choice cases. A federal judge could not have gotten away with this. It remains to be seen whether this state judge’s opinion will survive the inevitable appeals.