Utah voucher law found unconstitutional. Idaho’s law is also vulnerable.

Guest Editorial by Jim Jones

A district judge in Utah issued a marvelous decision on April 18, finding Utah’s school voucher law to be unconstitutional. The 60-page decision was based on a variety of constitutional flaws that the Utah law shares with Idaho’s recently-enacted education tax credit law. The Utah law was enacted in 2023 with $42.5 million in state funds. State funding increased by $40 million in each of the next two years.

The Utah judge said the Utah Constitution gives “a direct command to the legislature to perform a single duty: establish and maintain the state’s education systems.’” The judge continued, “This clear expression of one duty–coupled with the absence of any general duty to provide for the education or intellectual improvement of Utahns — impliedly restricts the legislature from creating a publicly funded school or education program outside of the public school system.” In other words, Utah’s legislature is restricted from using public funds to support any form of private education.

Of interest is the fact that every member of the Idaho Legislature was sent a “Legislative Alert” on the first day of the 2025 legislative session, warning that any scheme to use taxpayer money for private education would be violative of the Idaho Constitution in a number of respects. The Alert was provided by The Committee to Protect and Preserve the Idaho Constitution, a group that participated in the successful lawsuit to overturn the restrictive initiative law enacted in 2021.

The Alert identified the same constitutional flaw focused upon by the Utah judge–that Idaho’s Constitution prohibits the funding of private and parochial education. That has been the law of Idaho ever since statehood in 1890.

The Alert spelled out several other constitutional infirmities that any voucher scheme would entail, including a deliberate transgression of Idaho’s strong prohibition against state support for religious education, discrimination against rural kids and Idaho religions that don’t operate parochial schools, lack of accountability for taxpayer money expended on private schooling, and diminution of state money necessary to support Idaho’s public school system, which has been chronically underfunded for decades.

The Utah judge’s decision mentioned a number of other infirmities in the Utah law--private schools often exclude students with special needs, or condition admission upon adherence to certain religious beliefs, or fail to provide “free” schooling as constitutionally required for taxpayer-supported education. These flaws are also inherent in House Bill 93, the subsidy bill approved by the Legislature this year.

The Idaho Legislature was clearly warned of the serious constitutional problems with HB 93, which will subsidize private and parochial education to the tune of $50 million in just the first year. Yet, because of massive funding from out-of-state groups that are seeking to weaken public schools across the nation, a majority of our legislators cast aside the Constitution and passed the subsidy bill. The Governor lacked the courage to veto the legislation, despite overwhelming public outcry against it. Now, as with the similar travesty in Utah, concerned Idahoans will have to resort to the courts in order to protect the wishes of Idaho’s constitutional drafters. Please stay tuned.

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About the Author

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.