Legislative alert regarding religious school subsidies

Guest Article from The Committee to Protect and Preserve the Idaho Constitution

This alert is to advise legislators of the legal strategy the Committee is expecting to employ against any legislation that may be enacted in the 2025 session to authorize the use of public funds for private and religious schooling. It is important that legislators are fully advised of the potential legal pitfalls ahead of time so that they cannot plead ignorance of the legal consequences after the fact. That is essential to the Committee’s litigation strategy. The alert will likely be offered in evidence in any ensuing legal action. This legislative alert is not intended to constitute legal advice. Legislators are encouraged to seek their own legal advice regarding the matters contained herein.

Idaho’s Constitution prohibits using public funds for religious education Article IX, section 5 of the Idaho Constitution clearly states:

“SECTARIAN APPROPRIATIONS PROHIBITED. 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 or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose”

This provision is often referred to as the Blaine Amendment. Some people, who simply don’t know what they are talking about, falsely claim the Blaine Amendment is a “dead letter” or that it has been overruled by the United States Supreme Court. They argue that the Amendment should be removed from the Idaho Constitution because it is just meaningless verbiage. That is patently false. The Supreme Court has decided two cases dealing with the Blaine Amendment in recent years and neither case has overruled it. 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 words may seem familiar because the Chief Justice previously stated them to be the law of the land in a 2020 Montana case.

Roberts’ words are a warning regarding the religious consequences of using public money to subsidize private education. The Court was saying that if, and only if, a state provides taxpayer money for private schooling, it must also provide money for religious schooling. Some are trying, for the first time in Idaho history, to require Idaho taxpayers to foot the bill for private schooling, which would then open the back door to making taxpayers pay for religious schooling. 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.

Some contend that a tax credit should be treated differently than a direct payment from the state treasury. The Court would not buy such an argument. Both a tax credit and a direct payment reduce the amount of money available to meet government obligations.

In any litigation filed to challenge a subsidy law, the Committee would show the Court that legislators were fully advised beforehand of the unconstitutionality of the scheme and that they knowingly and deliberately chose to violate the constitutional prohibition.

The Legislature can continue to follow the strict prohibition against using public money to subsidize any form of private education by simply voting down subsidy legislation.

Idaho’s Constitution does not provide for private school funding

The framers of the Idaho Constitution undoubtedly thought they had definitively dealt with the school choice issue. They placed a high priority on providing a foundational education for every Idaho child. Article IX, section 1 of the Constitution states:

“The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.”

The framers gave nary a hint that public monies could ever be used to pay for private education. They intended to fund a “system” of free public schools that would be fully financed by the Legislature.

The framers provided in Article IX, section 9, that the “legislature may require by law that every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law.” The Legislature did enact a compulsory attendance law, but gave parents the choice of educating their kids by other approved means without the benefit of public money. There was obviously no intent to finance the “other means" and certainly not any alternate “system” of education. So, Idaho parents have always had a school choice–they could either send their kids to taxpayer-funded public schools, or they could pay out-of-pocket for any authorized form of private schooling. Idahoans have firmly believed and followed this basic understanding of the law for over 130 years. Well, until out-of-state, dark-money interests began their recent efforts to open up Idaho’s treasury to subsidize all kinds of private/religious schooling.

A Court would have good reason to agree that the Constitution does not countenance public funds being used for any schooling besides that provided in the public school system, which has been in operation since before statehood. Idaho’s major political party has adopted the rationale that state funds should not be used for any purpose not authorized by the Idaho Constitution. Article I, section 1F of the Idaho Republican Party’s 2024 Platform says:

We believe the state legislature should appropriate funds only for purposes and to the extent required to meet government's constitutional obligations. Any current programs, functions, or activities of government that are not required by the constitution should be repealed, defunded, and left to the private sector.

Of course, since the Constitution makes no provision whatsoever for contributing public money to finance private education of any sort, subsidy proponents are out of luck. We might well call the GOP chairman as a witness to support this aspect of the lawsuit.

A subsidy law would substantially reduce funding for public education

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 the constitutional mandate to maintain a “thorough system” of education, primarily funded out of the state treasury. They would be profoundly amazed and saddened to learn that legislators have seriously and consistently violated this sacred duty.

Thanks to the school funding lawsuit filed against the state in 1990, it is well known that Idaho legislators have failed to adequately fund the instructional side of public education during the last three decades. Because of pressure brought to bear by the Reclaim Idaho school funding initiative, the state significantly upped the ante of public funding in the special legislative session in 2022, but there is still an enormous shortfall. Idaho has long been at the bottom of the national per-student spending ladder. 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 per-student spending of $15,323 and Wyoming was ranked 14th with $22,032. Local school districts have been left with the choice of doing without adequate resources or saddling local property taxpayers with indebtedness.

In 2005, the Idaho Supreme Court ruled in the funding case 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. I participated in the decision, but wrote a separate opinion calling for a more-exacting method of proving legislative failure to comply with the constitutional mandate. I believe that the tougher method can be met under our present circumstances.

According to a 2022 legislative report, the cost of bringing existing school buildings up to just “good” condition was about $1 billion three years ago. It has continued to increase since then. That does not take into account the billions it will take to build new school buildings for public school kids as Idaho’s population continues to increase. Senator Dave Lent was able to convince the Legislature to take a step toward addressing the issue last year, but that step has fallen woefully short of adequately addressing the problem. 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 a subsidy law is passed this year, it will undoubtedly reduce the overall funding for public schools in a commensurate amount. Anyone who has observed the Legislature in recent years knows this to be the case. If legislators fork over $60 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. There is very substantial evidence that voucher schemes seriously diminish the amount of funding provided to public school systems. As the Idaho Center for Fiscal Policy points out:

School voucher…programs enacted across the country–which include tax credits, grants, and savings accounts–have consistently demonstrated that states with voucher programs tend to expand them over time. These expansions dramatically increase the amount of public funds diverted to private education while state investment in public education remains stagnant or decreases.

The Committee will show the Court how Idaho has consistently failed to meet its constitutional obligation to adequately fund both the instructional side of the public education system and the school facilities side. Competent expert testimony will demonstrate the additional damage that is bound to flow from diverting substantial amounts of educational funds from public education to private/religious education.

Additional issues under consideration for legal action

While the claims outlined above should, separately or together, result in a decision invalidating a subsidy law, the Committee is currently researching additional claims that might be brought. They include: (1) the disadvantage rural public school districts would suffer, having no private schools within reasonable driving distance; (2) the unfair treatment of religions that do not operate religious schools; and (3) the likely failure of any law to provide standards and accountability for the use of public monies. This is not a complete list. Additional issues may be identified, based on the provisions of legislative proposals that are brought forward during the session. Since legal research is ongoing, there will only be brief discussion of these three potential claims.

Rural kids would suffer the brunt of school choice schemes. Twenty-seven of Idaho’s 44 counties have zero or one private school. Just 3 counties–Ada, Canyon and Kootenai– have over 63% of private school kids in the state and almost 40% of them are in Ada County. 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? This may present an “equal benefit” issue under Article I, section 1 of the Idaho Constitution.

Several religions in Idaho operate religious schools and quite a number do not. The lion’s share of subsidy recipients attend religious schools and subsidy payments would allow those religions to advocate principles of their faith with public money. This could produce troubling results. One of the main proponents of vouchers, Representative Wendy Horman, was asked, “if taxpayers would have to support private schools that were satanic, or that didn’t allow education on the Holocaust, or that “(changed) the way we look at race issues.” Horman answered, “we would have to support that” but most families wouldn’t enroll their children at a satanic school. If parents want their children to be “taught that the Holocaust is a myth, that’s your right as a parent. But my opinion is that’s not what Idahoans are going to choose.” Concerns have also been expressed that public money would be used to subsidize Christian nationalist schools of the type that Doug Wilson of Moscow is affiliated with across the country. Such concerns have been amplified by some of Wilson’s troubling comments regarding a mainstream Idaho faith.

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 communities of the church’s faithful are located in rural areas around the state, particularly in the southern part of the state. These factors indicate that Mormon public school patrons may suffer disadvantages in a subsidized system–no public funding for church members and a diminishment of support for rural and other public schools that their kids attend. It will be interesting to see whether or how voucher proponents address these disadvantages.

One common concern raised about voucher schemes is the question of accountability. In the event that voucher proponents disregard Idaho’s constitutional prohibition against funding religious education and pass a subsidy law, there had best be specific standards for making monetary grants and for requiring accountability for the usage of funds. It would be legislative malpractice to allow public funds to be disbursed without requiring strict accountability for every category of use–private schools, religious schools and home schools. Any legislative proposal will be carefully examined in this regard.

One final observation. Both Agenda47, Donald Trump’s education plan, and the plan of Project 2025, of which the Mountain States Policy Center is a member, call for universal school choice. The plans both propose federal tax credits. School voucher advocates would be better advised to focus their efforts on obtaining federal subsidies, rather than constitutionally-infirm state subsidies.

This alert has been prepared and circulated by the Committee to Protect and Preserve the Idaho Constitution. The Committee is a nonprofit Idaho corporation dedicated to upholding the Idaho Constitution. The Committee does not solicit or accept contributions, nor does it employ lobbyists. The Committee did participate in the successful challenge to the law designed to cripple the peoples’ use of initiatives and referenda in 2021.

Jim Jones, Committee director and spokesman.