In recent years West Virginia has gone from being a school choice laggard to one of the nation’s leading states for providing families and parents with maximum choice and opportunities for how and where students learn. This transformation has benefited from West Virginia never having passed a Blaine Amendment, which Idaho and other states have used over the decades to discriminate against religion. West Virginia now leads the country in school choice, while states like Idaho fall farther behind in creating new and better opportunities for students.

A Blaine Amendment privileges secularism over religion in the area of schooling. Idaho’s constitution totally bans public entities from ever paying for anything that would “help support or sustain any school … controlled by any church, sectarian or religious denomination whatsoever.” This position is now unconstitutional.

The First Amendment requires neutrality regarding religion. In particular, the state may not prevent religious schools from having equal access to a government program. Unfortunately, Idaho’s constitution violates the U.S. constitution by doing just this.

Recent U.S. Supreme Court cases have made this point clear. In Missouri, a religious school was denied funds from a program that would have let it resurface a playground. The Supreme Court let the school proceed. Then in Montana, a tax credit program for scholarships banned participation if the money went to a religious school. The Supreme Court also ruled in that case that Montana’s Blaine Amendment was unconstitutional.

In coming weeks, the Supreme Court will decide another such case from Maine. Maine gives rural students money to attend a secular private school, but not a religious one. Look for another blow to Blaine this year.

West Virginia has never had such restrictions. As a result, it was able to enact virtually universal education savings accounts (ESAs) last year. A student who would be better served outside the public school system can leave for a better fit in a school of choice that can include parochial and other religious schools. Almost all state-level funding follows the student to his or her school option—more than $4,000, which goes a long way in a state with such a low cost of living.

In West Virginia, it does not matter whether the student gets educated at a secular school, a religious school, a microschool of either type, or at home, where the family can teach whatever values and religious beliefs it thinks best. The ESA applies equally to all learning opportunities and choices.

Blaine Amendments are holding back states like Idaho. Too many legislators fear that doing the right thing by students and families will invite a lawsuit. But legislators must follow both the federal and state constitutions, and the U.S. Constitution is on the side of families.

The Idaho constitution, sad to say, is on the side of discrimination and the notion of one-size-fits-all education.

Whether or not Idaho removes its outdated Blaine Amendment, the Supreme Court is likely to invalidate Idaho’s discriminatory language. Legislators need not wait. They can follow the U.S. Constitution without fear and enact any of a variety of options for education freedom.

A lawsuit may well ensue, but nondiscrimination in the law would prevail. In the meantime, Idaho would be years ahead rather than falling even farther behind other states in providing education choices that better fit all families. And the law’s opponents would once again be branded as favoring discrimination.

School choice has been said to be the civil rights issue of our time. That’s true not just for equal treatment of secular and religious education. It’s also true for students who are trapped in schools that are not the best for them. With more education freedom in Idaho, more families can put their kids in the educational environments that serve them best.

Terry Ryan is CEO of the Boise-based education nonprofit Bluum
Adam Kissel is Senior Fellow at the Cardinal Institute for West Virginia Policy