The Idaho Constitution says no taxpayer money for private schooling

From the time the Gem State came into being, the Idaho Constitution has strictly prohibited the use of public funds for any form of religious education. Article IX, Section 5, sometimes called the “Blaine Amendment,” states, in part:

Section 5. 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…

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 and neither 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 Roberts previously stated them to be the law of the land in a case from Montana in 2020.

What the Court was saying is that if, and only if, a state establishes a program to provide taxpayer money for private schooling, it must also provide program money for religious schooling. Some politicians are trying, for the first time in Idaho history, to force Idaho taxpayers to pay for private schooling, which would then open the back door to require taxpayers pay for religious schooling. So-called “school choice” legislation is a workaround to evade and subvert Article IX, Section 5. Whether the use of public funds for private schooling is by means of a tax credit or school voucher or some other form, it is still a raid on the public treasury in subversion of the Blaine Amendment.

If the Legislature were to provide public money for private and religious education at a time it is failing to adequately fund public schools, it would invite a lawsuit for violation and subversion of the Blaine Amendment. Quite frankly, the public school system has been chronically underfunded for well over a decade. That is just on the instructional side. In 2005, an Idaho Supreme Court decision held that the Legislature was violating its constitutional mandate to provide for the construction and maintenance of public

school buildings. The Legislature has done very little since then to own up to this responsibility. If the Legislature were to carry out its duty to use state funds to build and maintain school buildings, it would lift a heavy burden from local property taxpayers.

The State is vulnerable to a school funding lawsuit, even in the unlikely event that the voters were to decide to repeal the Blaine Amendment. A poll commissioned by the Idaho Statesman in 2022 disclosed that 63% of respondents opposed using taxpayer money to help residents pay for private schools. Try to find a rural school patron who thinks it would be a good idea to divert public funds from public schools to pay for the education of city kids in private and religious schools.

House Joint Resolution 1, a proposal to repeal the Blaine Amendment, has just been presented in the Legislature. It is a recognition that the use of taxpayer money to support religious schooling would presently violate the Idaho Constitution. If the resolution is approved, the voters would decide in the November election whether to repeal the Amendment. Perhaps it is time to let Idaho voters show their strong opposition to using their tax money to subsidize private and religious schooling. Until that time, all types of school choice proposals should be placed on hold.

Jim Jones

Jim Jones

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as Justice of the Idaho Supreme Court (2005-2017).

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