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N.H. High Court Tosses Challenge to Tuition Tax Credits

New Hampshire's highest court has thrown out a challenge to the state's program of tax credits for businesses that contribute money to organizations offering tuition scholarships at private schools.

The New Hampshire Supreme Court held that a group of taxpayers who challenged the program lacked standing because they weren't personally injured by it. And the court struck down as a violation of the state constitution a 2012 measure that aimed to give standing to such taxpayers.

The bottom line of the 5-0 decision in Duncan v. New Hampshire is that the state high court declined to rule on the state constitutionality of the tax-credit program, but tossed the challenge before it and made it much more difficult for anyone else to bring such a challenge.

Eight taxpayers and one business, backed by Americans United for Separation of Church and State, the American Civil Liberties Union, and the New Hampshire Civil Liberties Union, challenged the New Hampshire tax-credit program. They argued it violated the "no aid" clause of the state constitution, which says that "no money raised by taxation shall ever be granted or applied for the use of schools or institutions of any religious sect or denomination."

A state trial judge ruled in their favor last year, holding that the tax credits for private school scholarships divert tax payments to private religious schools.

The state was joined in its defense of the program by a group of intervening private school parents backed by the Institute of Justice in Arlington, Va.

In the Aug. 28 decision, the state supreme court wrote that "because the [challengers] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, they have failed to establish that they have standing to bring their constitutional claim."

"Although some of the [challengers] have school-aged children or are public school teachers, at best, this establishes that those petitioners have a special interest in education," the court added. "Moreover, the purported injury asserted here—the loss of money to local school districts—is necessarily speculative. Even if the tax credits result in a decrease in the number of students attending local public schools, it is unclear whether, as the [challengers] allege, local governments will experience net fiscal losses."

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