Op-Ed: Legislators failing constitutional duty with schools

Sometimes you wonder if certain members of the Idaho Legislature have even read the Idaho Constitution. For all their pronouncements about honoring and faithfully following the U.S. and Idaho Constitutions, they pay precious little regard to them when passing legislation that fits their agenda.

Legislators have ignored their duty under the Constitution to adequately fund public education, while proposing to divert public funds to private and parochial schools. A voucher scholarship bill, House Bill 669, would provide taxpayers money for private and religious schooling in direct violation of the Idaho Constitution.

Legislators have consistently ignored their mandate under Article IX, Section 1 of the Idaho Constitution “to establish and maintain a general, uniform and thorough system of public, free common schools.” In 2005, the Idaho Supreme Court ruled that the State had violated this mandate by failing to provide adequate funding for public school facilities. Idaho officials ever since have acknowledged that the State is not in compliance with the Constitution.

Furthermore, two sections of the Idaho Constitution prohibit the use of state funds to support religious schools. Article IX, Section 5 says: “Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university … controlled by any church, sectarian or religious denomination whatsoever…”

House Bill 669 was introduced last week by the House Education Committee. It would provide taxpayer money to parents for “scholarships” to send their students to private schools. That would provide a backdoor around the prohibition in Article IX, Section 1 because of a recent decision of the U.S. Supreme Court.

The Court ruled in 2020 that if a state provides public money for private schooling, it may not deny paying for religious schooling. Chief Justice John Roberts stated: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Because of the effect of the recent U.S. Supreme Court decision, the Legislature could subvert the Idaho Constitution by simply passing House Bill 669. If that bill is approved by the Legislature and signed into law by Governor Little, the Constitution will have in effect been changed by legislation rather than by a two-thirds vote of the Legislature and a vote of the people.

If the sponsors of this voucher bill want taxpayers to pick up the tab for private and religious schools, then they should be honest and go to the people of Idaho and ask them to repeal Article IX, Section 5 of the Idaho Constitution. That’s what the founding fathers intended and that is the legal and right thing to do — not undermining the Constitution by a simple law.

It is hard to comprehend that the Legislature would even consider the idea of diverting taxpayer money to private and parochial schools when it has repeatedly failed its constitutional obligation to adequately finance our public education system. If House Bill 669 passes, it may be time to test the Legislature’s fidelity to the Idaho Constitution in the court system.

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Jim Jones is a two-term Republican Attorney General and a retired Chief Justice of the Idaho Supreme Court. Rod Gramer is president and CEO of Idaho Business for Education.