Dear Friends,
After several years and several attempts, Idaho finally has a law supporting real school choice. As with most all legislation, it’s not perfect, but it’s a good start for something that plays an outsized role in our state – meeting the educational needs of our kids. Education has never been effective as a one-size-fits-all approach, and our test scores reflect that, despite almost $2.5 billion dollars of taxpayer money every year sent to public schools. HB93 – now signed into law – is a step forward. This bill even received the unexpected endorsement of President Trump who said the bill had his, “complete and total support.”
To no one’s surprise, there are those who oppose the idea of school choice, claiming that any public money spent on private education weakens a dismally under-performing system, and only by increasing the flow of money into the failing system can the outcomes be improved. Anyone watching the ever-growing education budgets overlaid with declining performance knows this argument is intellectually flawed.
The weakest argument levied against Idaho’s new school choice law is that it violates Idaho’s Constitution, which prohibits public monies from being used to support religious education. This is known as the Blaine Amendment, and you will see this cited by school choice opponents regularly. Idaho is one of 37 states to have a Blaine Amendment.
The Idaho Constitution 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 or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever…”
However, in the 2020 Supreme Court case of Espinoza v. Montana, the Supreme Court determined that applying the Blaine Amendment in cases where the state is giving funds to non-sectarian institutions while excluding religious institutions violates the Free Exercise Clause of the United States Constitution, which reserves the right of citizens to practice any religious belief of their choice without discrimination.
In Espinoza, the Montana legislature had established a program to provide tax credits for people who donated to organizations that award scholarships for private school tuition. To reconcile this statute with Montana’s Blaine Amendment, their Department of Revenue established a rule prohibiting families from using the scholarships at religious schools. Parents of students attending a private Christian school filed a lawsuit that made its way to the United States Supreme Court. The reasoning for the SCOTUS decision is that while a state may prohibit private schools from receiving public funds, religious schools can’t be excluded if public funds are made available to private, non-religious schools.
The Supreme Court said in Espinoza v. Montana:
“The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[ ].” That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.”
If Idaho’s new school choice law discriminates against children attending religious schools by refusing to provide tax credits to those families, Idaho parents could bring a lawsuit like the Espinoza case against the state. For Idaho’s Blaine Amendment to survive such a lawsuit, a federal court would have to find that application of the Idaho Blaine Amendment advanced a narrowly tailored, compelling government interest, known as “strict scrutiny.” Montana’s Blaine Amendment was not able to satisfy that requirement in Espinoza. It would likewise be very challenging for Idaho’s Blaine Amendment to pass this “strict scrutiny” hurdle.
The trend in the courts disfavors any laws that prohibit generally available funds from being used at or for religious schools. Last year, in Loffman v. California Department of Education, Orthodox Jewish schools and families sued California’s law that prohibited the state from contracting with religious schools to provide education for students with disabilities, claiming it violated their rights under the Free Exercise Clause. California’s law provided funding for special education and related services and allowed non-religious private schools to be certified to receive the funds and to provide the services needed to students. The Ninth Circuit Court of Appeals concluded that California’s requirement that a private school be non-religious failed strict scrutiny and therefore violated the Free Exercise Clause.
Idaho’s new law will probably be challenged in court by those who oppose school choice based on the misapplication of the Blaine Amendment. However, as your Attorney General, I will be there to vigorously defend our school choice law every step of the way. As the Supreme Court justices wrote, the families and children who attend religious schools are members of our community too, and their exclusion is “odious to our Constitution.”
Best regards,
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