State attorneys this week filed arguments with the Idaho Supreme Court defending the state’s authority to subsidize private education through a new tax credit.
In September, a coalition — which includes the Idaho Education Association (IEA), the Moscow School District and two advocacy groups — filed a lawsuit asking the court to declare the Parental Choice Tax Credit unconstitutional. Enacted in February through House Bill 93, the tax credit subsidizes private-school and home-school expenses, including tuition.
On Monday, Idaho Attorney General Raúl Labrador’s office and private attorneys hired by the Legislature filed arguments defending the tax credit. Labrador’s office is representing the Idaho State Tax Commission, the agency charged with administering the state’s first private school choice program.
The case’s arguments hinge on two questions:
- Whether the tax credit violates Article IX Section 1 of the Idaho Constitution. The provision says that the Legislature has a duty “to establish and maintain a general, uniform and thorough system of public, free common schools,” and
- Whether the tax credit violates the “public purpose doctrine.” This legal principle — often wielded to justify the government’s use of eminent domain — requires that the state spend taxpayer dollars in the public interest, not in private interests.
Read the coalition’s arguments here.
The coalition’s attorneys — from the Boise firm Hawley Troxell — insisted that the tax credit violates both. It funds a separate education system that’s private, tuition-based and not open to all students. Meanwhile, nonpublic schools — private interests — will be the “primary beneficiaries,” attorneys for the coalition argued in their September petition.
Labrador’s office Monday countered that the constitutional provision doesn’t say the state cannot fund education options outside the public system. And the Legislature has “plenary power” to enact any law it wants, except when “some limitation” exists in the state or federal constitution.
“The clear text of the provision — which contains no limiting language whatsoever — shows that it is a floor, not a ceiling, on the Legislature’s power to promote education,” wrote Solicitor General Alan Hurst and three other attorneys in Labrador’s office.
Read the attorney general’s arguments, on behalf of the Idaho State Tax Commission, here.
The attorney general’s office also argued that the plaintiffs don’t have standing to sue over the tax credit.
Attorneys for Givens Pursley — the Boise firm hired by the Legislature, which intervened to defend the program — made similar arguments. The Idaho Constitution “doesn’t foreclose the Legislature from doing more” than establishing a “uniform” public school system, they wrote.
The attorneys also pointed to rulings in other states, such as North Carolina, that upheld private school choice programs against claims that they violated constitutional provisions similar to Idaho’s.
And they held that the coalition’s “public purpose doctrine” argument — that state tax revenue will be used primarily on private interests — fails as a facial challenge, because the doctrine doesn’t always apply to the tax credit. In some cases, the tax credit will “simply reduce” a taxpayer’s tax liability, which should not be considered an activity funded by state tax revenue.
Read the Legislature’s arguments here.
Even if the doctrine did apply to the tax credit, it would pass the public interest standard “with flying colors,” the Legislature’s attorneys wrote. “That education may be furthered through nonpublic means does not lessen the public purpose of education.”
The Legislature’s brief was co-authored by Jeremy Chou, a partner at Givens Pursley, who lobbied state lawmakers in recent years on behalf of the American Federation for Children. The Dallas, Texas-based group has lobbied for private school choice across the country, and it supported HB 93.
HB 93 set aside $50 million in tax credits that will reimburse nonpublic school families for private school tuition and home-schooling expenses like curriculum. Each student can claim up to $5,000, or $7,500 if they have special needs.
The coalition asked the Idaho Supreme Court to block the program before it takes effect Jan. 15.
On Tuesday, the coalition released a statement calling the state’s arguments “strained.”
“We’re confident the astute justices of the Idaho Supreme Court will see through the emotional and illogical conclusions made by the defenders of this law and will seek out the solid bedrock of our state’s foundation — the Idaho Constitution,” the emailed statement read. “We look forward to our day before the court.”
It’s unclear when that day will come. Also on Tuesday, the coalition’s attorneys asked the court for a deadline extension to file their response to the state’s arguments. If approved, the deadline would move from Nov. 17 to Nov. 25.
