Ignore the noise: Idaho's new ed choice law is completely constitutional

They couldn't convince legislators. They couldn't scare the public. They couldn't pressure the governor.

Three strikes, and you're out.

In the weeks since Idaho Governor Brad Little signed House Bill 93 - an education choice program that provides a simple tax credit for needy families - opponents have only ramped up the criticism. They now claim to have new momentum from a dubious and already-appealed lower court ruling in Utah regarding the Beehive State's education choice program.

To keep up the baseball analogies, they're guilty of a balk.

Idaho's new ed choice program is not a voucher. It's not an Education Savings Account or a program that takes money away from public schools. In fact, the state's K-12 education budget isn't touched.

It's a simple tax credit, and it goes directly to families. In reality, it is no different than any other tax credit provided by the state. Setting tax policy is the prerogative of the legislative branch. It would be absurd to suggest that policymakers couldn't adopt a higher grocery tax credit, for example, simply because families may buy their groceries at one store or another.

A ruling against the education choice tax credit would be folly, calling into question the constitutional authority of the legislature to set tax policy.

As we previously highlighted in our study "Answering the legal questions on expanding education choice," every state constitution has an education provision, with some containing language that calls for a “uniform system of free public education,” or something similar. Education choice opponents have argued that such language not only requires the government to establish traditional public schools, but also prevents the government from doing anything else.

Uniformity Clauses, however, were never intended to be a ceiling or limitation on creativity. Instead, they were simply meant to ensure there was a floor.

For example, Idaho’s constitution says:

“The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.”

Nothing in House Bill 93 changes or takes away from that requirement. In fact, the legislature has once again increased the amount of money going to the state's "uniform and thorough system."

Throughout the nation, many state cases have determined the constitutionality of education choice expansion.

In March 2021, West Virginia launched its Hope Scholarship program, offering Education Savings Accounts to students. Predictably, public school advocates sued to block implementation. But in Beaver, et al. v. Moore et al., the West Virginia Supreme Court ruled in favor of the ESA’s and said there was no conflict:

“We find that the West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools. The Constitution allows the Legislature to do both of these things.”

It is important to note West Virginia’s Hope Scholarship is funded by a separate, annual appropriation by the legislature.

The Georgia Supreme Court has also dismissed a case challenging the state’s popular tax credit scholarship program. In Gaddy v. Georgia Department of Revenue, plaintiffs took aim at the program that provided scholarships for children to attend private schools, funded by voluntary donations from individuals and corporations. The court ruled those who brought the case had no standing because neither they, nor the state, were hurt by the tax credit.

Justices wrote:

“A tax credit that funds a program that encourages attendance at private schools might, in fact, create a tax savings by relieving public schools of the burden of educating the students who chose to attend private school.”

Numerous other cases are instructive:

Kotterman v. Killian, Arizona

The Arizona Supreme Court determined that tuition tax credits are in line with both the U.S. Constitution and the Arizona Constitution. The court said the credits form part of a government program that remains neutral with regard to religion and is accessible to a wide range of citizens. The primary effect of the program was not deemed to either advance or inhibit religion. The Court emphasized that the scholarships primarily benefit children rather than schools.

Oliver v. Hofmeister, Oklahoma

The Oklahoma Supreme Court held that the Lindsey Nicole Henry Scholarships program did not violate the Blaine Amendment of the Oklahoma Constitution because the program is neutral with respect to religion. Because the parent—not the government—decides where the child goes to school and receives the aid in consideration for their not attending the public schools, the aid is for the student, not for the sectarian school.

Magee v. Boyd, Alabama

The Alabama Supreme Court upheld the state's two tax credit programs, rejecting several claims made by the plaintiffs under the Alabama Constitution. The court ruled that the tax credit programs do not violate Alabama's Blaine Amendments, as the credits are given to parents or taxpayers, not religious institutions, and do not constitute government appropriations. Additionally, the court found the programs to be neutral toward religion, with any benefits to religious institutions resulting from individual choices, not government action.

The overwhelming consensus of cases at the federal and state level shows education choice programs are constitutional.

Idaho lawmakers were very careful to design a program that is constitutional. It puts tax credit funds in the hands of students and families, not any religious institution or private school. In fact, the legislation makes clear that families can use the dollars for a variety of educational purposes.

To further cement its constitutionality, lawmakers chose to make an appropriation to fund the program outside of the state's K-12 budget. Opponents claim that the cash should have been spent on public schools. That may be a valid debate for the legislative branch as part of its budget-setting process. It, in no way, calls into question the constitutionality of the credit.

As Governor Brad Little said in his signing statement, "Idaho can have it all - strong public schools AND education freedom."

Citizens, lawmakers and the media must understand and expect any new program to face legal challenges, especially when it is perceived to threaten special interest groups including unions.

In this case, we would all be wise to ignore the noise.