The Idaho Supreme Court has recognized, “In the American concept, there is no greater right to the supervision of the education of the child than that of the parent. In no other hands could it be safer.” But apart from the new and limited “Empowering Parents Program,” Idaho currently facilitates such supervision solely within the restrictive confines of the state-created system. While education freedom advocates have tried to help legislators pursue the benefits of an arrangement that gives parents direct control and oversight of their children’s education, they have faced heavy opposition from those who benefit under the current system.
“Education choice” simply means allowing some of a state’s education money to follow the student to the education method or school of their choice, rather than allotting all funds to the school district where the student resides. Opponents of education choice have scared legislators into believing that education choice would violate Idaho’s Constitution. They rely upon Idaho’s so-called Uniformity Clause, which creates a duty to “establish and maintain a general, uniform and thorough system of public, free common schools.” Many states with similar clauses have effective school choice programs because their state supreme courts have recognized that the provision creates a baseline duty for the state, not a prohibition for promoting education through means outside of the public system.
In addition to Idaho’s Uniformity Clause, constitutional questions surrounding the state’s Blaine Amendment, which expressly prohibits government financial aid to religious organizations, have stalled attempts to advance education choice. The way the argument goes, if the state were to set up a voucher program, where private schools are paid directly for student enrollment, some of those vouchers would go to religious schools, which would violate the Blaine Amendment. If Idaho’s Constitution were the only factor at play, that might be the end of it.
However, two recent U.S. Supreme Court cases have curtailed Blaine Amendment restrictions: Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022). The Espinoza decision held that government attempts to exclude religious schools from public scholarship or tax credits are subject to strict scrutiny, meaning lawmakers must prove they have a “compelling interest” in restricting the free exercise of religion of scholarship or tax credit recipients. The Carson majority held that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
In other words, states cannot fall back on their Blaine Amendments to justify prohibitions on public funding of schools solely due to their religion. In addition, a state cannot discriminate against religious beneficiaries of public scholarships or tax credits by forbidding them from using those benefits at religious schools.
Neither of these decisions compel states to subsidize private education, but once they do, they cannot disqualify a school solely for religious reasons. The Legislature is free to extend a voucher, tax credit, or education savings account benefit to all Idaho families, and doing so would be consistent with Idaho statute, which recognizes that parents “have the fundamental right and duty to make decisions concerning their [children’s] education.”
Even setting aside the Espinoza and Carson rulings, Idaho’s Constitution and caselaw would support a system that awards education benefits to parents (rather than to religious schools directly). In 1971, Idaho’s Supreme Court established the Epeldi test to determine the validity of a statute relative to the state’s Blaine Amendment. If the legislation is “in aid of any church” or “to help, support or sustain” any church affiliated school, then it would run afoul of the Blaine Amendment. Nonetheless, a 1997 State Attorney General opinion clarified that an individual grant or tax credit would likely not violate the Epeldi test because the benefits flow to the taxpayer or parent and not to the religious school directly.
Both the U.S. Supreme Court and the Idaho Supreme Court have recognized that children do not belong to the state, and the purpose of education is to prepare them for life, not to homogenize them. Nothing prohibits the Idaho Legislature from exercising its broad authority to structure tax law and education policy to benefit families directly.
Now that the Constitution can no longer be used by education choice opponents as a kill switch, a rigorous policy debate can occur on a level playing field. Maintaining that the Idaho Constitution prohibits education choice is simply a strawman to avoid the policy argument.
Legislators can and should change the underlying incentives within Idaho’s education system to shift decision-making power to those closest to the student (parents) who are best able to assess that student’s unique education needs.
It is time to move beyond Idaho’s 20th century, fossilized, one-size-fits-all education model and ask, “Can we improve outcomes for students and families by offering more education options?”
Education choice opponents are free to make the policy argument that parents should not have the right to decide what is best for their own children. We’ll wait.
