A.G.’s office: Scholarships to religious colleges may violate Constitution

Idaho’s state-funded scholarships may provide unconstitutional aid to church-owned colleges, Attorney General Lawrence Wasden’s office said in a recent opinion.

That opinion seems to support a main argument for House Joint Resolution 1. The proposed constitutional amendment would allow state-funded “grants, scholarships, loans or other assistance” to go to students who attend religious schools.

Rep. Ronald Nate, R-Rexburg, has said HJR 1 would protect students and parents who use the state’s Opportunity Scholarship at church-owned colleges. (Nate teaches at Rexburg’s BYU-Idaho, owned by the Mormon Church.

Wasden’s office weighed in on the scholarship question in a March 3 opinion. As structured — with money going from the state treasury to a church-owned school — the scholarships constitute a “direct payment” prohibited by the Constitution.

“Scholarship dollars pay tuition and fees which, in turn, fund the operations of schools,” assistant chief deputy Brian Kane wrote. “Thus scholarships for attendance at parochial schools would constitute a payment from the state in support of a school controlled by a church.”

At the heart of this matter is the state’s Constitution’s strict definition of “support” — found in Article IX, Section 5 of the Constitution, the so-called “Blaine Amendment.” Public money cannot be spent 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.”

It is important to note that Kane’s opinion does not address HJR 1 directly — or at least whether the proposed amendment is itself constitutional.

To be sure, there is more to the HJR 1 debate than the college scholarship issue — as Nate himself illustrated on Thursday. During a presentation to the House and Senate education committees, Nate only mentioned college scholarships in passing. Instead, he spoke of the need to relax the state Constitution to pave the way for a menu of school choice options, such as vouchers and education savings accounts.

The issue is moot for now, since HJR 1 is mired in committee and is unlikely to go anywhere this legislative session.

While Kane’s opinion appears to support the case for HJR 1, a separate opinion questions the constitutionality of another proposal that is headed to the House floor. That bill advocates the use of the Bible in public schools as a reference work.

In a Feb. 9 opinion, Kane said the Bible-in-schools bill “may raise a religious preference issue” and is unconstitutional. At issue, in this case, is Article IX, Section 6 of the state Constitution. That section reads, in part, “No sectarian or religious tenets or doctrines shall ever be taught in the public schools.”

Kane’s opinion came up Thursday as the House Education Committee debated the Bible-in-schools bill. Despite constitutional questions, the committee sent the Senate-passed bill to the House floor for a final vote.