OPINION: Idaho's Constitution does not permit private school subsidies
Jim Jones
Despite the fact that Article IX, section 5 of Idaho’s Constitution strictly prohibits using public funds for religious education, Idaho’s spendthrift legislators are at it again. They want to shower taxpayer money upon parents who are sending their kids to private schools, which would open the floodgates to subsidizing religious education.
Here is the grift. The U.S. Supreme Court has twice ruled that if, and only if, states enact a program to subside private education, they must also make program money available for religious schooling. In the latest case, Carson v. Makin, Chief Justice John Roberts wrote: “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.” The proponents of using public money to finance private and religious schooling totally ignore the words of the Chief Justice. Roberts’ words are a warning regarding the religious consequences of using public money to subsidize private education. So-called “school choice” legislation is a workaround to evade and subvert Article IX, section 5.
Any scheme to divert taxpayer funds to subsidize private education, whether it is called a school voucher, a tax credit, a school choice payment, a savings account or whatever else, would necessarily result in subsidization of religious schooling, in direct violation of our Constitution. Indeed, most of the public subsidy would go to religious education. There is solid evidence that about 91% of 2024 subsidy recipients across the country attend religious schools. That would likely be the case in Idaho.
Every legislator was fully advised Jan. 6 of the unconstitutionality of these subsidy schemes. If they write one into law, it will be a knowing and deliberate violation of the Idaho Constitution and an invitation to a lawsuit.
Idaho’s constitutional framers made it an overriding responsibility for the Legislature to properly fund the public school system, both for the instruction of Idaho kids and for the construction and maintenance of school buildings. They undoubtedly believed that future legislatures would honor that constitutional mandate, but our recent Legislatures have consistently failed on both counts.
Idaho consistently refuses to adequately fund the instructional side of public education.
Every state bordering Idaho provides more funding per student, giving their kids a competitive advantage over Idaho students. The most recent NEA report (2023-24) ranked Idaho 51st in the country with $9,808 per-student spending. Montana ranked 32nd with spending of $15,323 and Wyoming was ranked 14th with $22,032.
In 2005, the Idaho Supreme Court ruled that the Legislature had utterly failed to fulfill its obligation to fund the construction and maintenance of school buildings, improperly placing the lion’s share of that burden upon local property taxpayers. Unless facilities funding is dramatically increased by the Legislature this year, school districts will either have to try educating kids in substandard, sometimes hazardous buildings, or hit up local property owners with hefty school bonds.
If legislators fork over $50 million tax dollars to pay the religious school expenses of primarily wealthy parents whose kids are not presently enrolled in public schools, that money will undoubtedly reduce the public school appropriation by a comparable amount. Subsidy programs have a voracious appetite, which will cause program spending to skyrocket, which will severely impact spending for public schools, which will make the state a prime target for a new school funding lawsuit.
Rural kids would bear the brunt of school choice schemes. Twenty-seven of Idaho’s 44 counties have zero or one private school. Just three counties — Ada, Canyon and Kootenai — have over 63% of private school kids in the state. What possible benefit would public school kids in rural Idaho receive from a voucher law, particularly if it resulted in their school district receiving less funding from the state?
Several religions in Idaho operate religious schools and quite a number do not. The lion’s share of subsidy recipients attend religious schools. Subsidy payments would allow those religions to advocate principles of their faith with public money. This would place churches that do not operate schools in a disadvantageous position. For instance, the Church of Jesus Christ of Latter-day Saints has a strong and historic presence in the State of Idaho. Church members have been stalwart supporters of public education, but the church does not operate a system of religious schools. Many Mormon communities are located in rural areas around the state. Mormon public school patrons would suffer disadvantages in a subsidized system — no public funding for church members and a diminution of support for public schools that their kids attend.
Unfortunately, Governor Little has given in to the out-of-state dark money interests and in-state tax-and-spenders. What next? Giving taxpayer money to favored churches?
• • •
Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General and 12 years as a justice on the Idaho Supreme Court. He blogs at JJCommonTater.com.
Links:
Article IX, section 1:
https://legislature.idaho.gov/statutesrules/idconst/ArtIX/Sect5/
Carson v. Makin:
https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf
Every legislator was fully advised on Jan. 6:
https://jjcommontater.com/legislative-alert-regarding-religious-school-subsidies/
Program spending to skyrocket:
https://www.nea.org/nea-today/all-news-articles/no-accountability-vouchers-wreak-havoc-states
Rural kids would bear the brunt of school choice: