The Idaho Supreme Court’s decision upholding the voucher tax credit law to fund tuition at religious schools eviscerates the Idaho Constitution’s mandate to support our state’s public schools. It will be an opinion that this Court or future Supreme Courts will deeply regret when the negative impact on our public schools becomes a reality.
Sitting in the hearing last month it became apparent to me by the questions and comments the justices made that they either did not understand the voucher issue, had not researched the damage vouchers have done to other states, or had already made up their minds.
This case was arguably one of the most important to ever come before the Idaho Supreme Court because it will affect generations of Idaho public-school students. A decision that should have taken 30 to 60 thoughtful days was decided in just nine days.
I even wondered whether they had studied Article IX of the Idaho Constitution and specifically Section 5 which clearly prohibits lawmakers from spending any money to support religious schools.
And, if they did study Section 5, I wondered if they swallowed the voucher proponents’ propaganda that the U.S. Supreme Court had struck down Idaho’s prohibition against funding religious schools. Did they bother to read Chief Justice John Robert’s opinion in the Espinoza v. Montana Department of Revenue in which he made it clear that the Court was not striking down the so-called Blaine Amendments in 37 state constitutions, including Idaho’s.
Chief Justice 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.” In other words, by passing the voucher tax credit the Legislature was essentially amending the Constitution by statute and clearly violating the mandate of Idaho’s founding fathers not to fund religious schools.
In finding House Bill 93 constitutional, the Supreme Court used an abstract theory that Article IX, Section 1 of the Constitution set a “floor, not a ceiling” on the creation of a separate education system in Idaho. “When a constitutional provision mandates the legislature do something that it has authority to do, it is not reasonable to read that mandate as restricting the legislature’s broader power to do something more,” Chief Justice G. Richard Bevan wrote in his majority opinion.
In short, the Court used this flimsy legal theory to base its decision on when it could have used a solid prohibition, written into our Constitution with plain and unmistakable English by our founding fathers, to find House Bill 93 unconstitutional: “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; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose . . . “
If the Bevan Court is right, it’s also reasonable to believe that the “floor, not a ceiling” argument could apply to other sections of the Idaho Constitution. For example, Article 5 of the Idaho Constitution creates the Supreme Court and a system of district courts – just as Article IX creates a system of public schools. Using the “floor, not a ceiling” argument the Legislature could create a separate court system if it doesn’t like the decisions of our current courts, including the Supreme Court.
Outlandish, you might say. The Legislature would never do that, you might say. But a decade ago it would have been equally “outlandish” to think the Idaho Legislature – supported by the Supreme Court – would create funding for a separate education system, especially a religious one clearly banned by the Constitution.
The justices also argued in the hearing that the tax credit dollars can be used for other things besides tuition. That is true. But if they had done a minimum of research, they would have known that the lion’s share of voucher money goes to pay tuition, mainly at religious schools. For example, in Wisconsin the Catholic and Lutheran schools are heavily dependent on taxpayer money to stay in business.
During the hearing, the justices also made the argument that the tax credit would not actually create a new “system” of schools. Again, they didn’t do their homework. If they had, they would have learned that 62 percent of Idaho’s 104 private schools are operated by churches, according to the Private School Review. The Catholic Diocese of Boise alone operates 16 schools. It hired lobbyists to get the voucher tax credit approved, knowing it would benefit greatly. That looks like a “system” of schools to me.
Then the justices questioned whether any of the plaintiffs had standing with the Court. They apparently did not think that a mother whose daughter had been rejected by a Christian school because the family was “not Christian enough” would have qualified as a credible plaintiff. Or perhaps the justices think it is okay for religious schools to discriminate against students based on their parents’ religion. Or, perhaps, they don’t think the 14th Amendment’s “equal protection” clause applies to religious schools.
One wonders what this Court would do if a gay, transgender, or special needs student is rejected by a religious school, something that happens routinely in other voucher states and will eventually happen in Idaho. Would the 14th Amendment count then? Or will this Court look the other way again?
Then the justices argued that the voucher tax-credit does not take money away from the public schools. Yet the Legislature has already made room in its budget for $50 million in tax credits which, ironically, is the same amount of money Superintendent Debbie Critchfield wanted from the Legislature to help close a $100 million funding gap in special education. Critchfield backed away from that request because the Legislature is out of money, partly, you guessed it, because they created a new education system to fund.
The justices also ignored the fact that the Supreme Court itself ruled in 2005 that the Idaho Legislature is already in violation of Article IX, Section 1 of the Idaho Constitution’s mandate to fund a uniform and thorough public-school system because it does not adequately fund the construction and maintenance of public-school buildings. The voucher program will only make it more difficult to meet that constitutional mandate. Also, the Legislature already spends less money per student than any state in the nation, hardly a commitment to Article IX, Section 1. This has also created a funding inequity across the state, especially in rural schools.
If the justices had done their homework, they would know that voucher programs across the country are breaking the bank of state governments. Thanks to their ruling, it is more than likely that the Idaho Legislature will pass an education savings account bill which is a taxpayer supported credit card that parents can use to pay tuition at private and religious schools. An ESA will eventually cost Idaho taxpayers hundreds of millions of dollars.
If the justices had done their homework, they would have realized that voucher programs don’t just hurt funding for public education but also drain money for other state operations such as colleges and universities, roads and bridges, water projects, and, yes, funding for the courts.
Ironically, Chief Justice Bevan appeared before the Legislature three weeks ago lamenting that Idaho’s judges are overworked and underpaid. “Most judges in the states surrounding Idaho are paid 10-to-40% higher and civil private practice is the field with the highest pay disparity between judges and experienced attorneys,” Bevan said.
Thanks to the opinion Chief Justice Bevan wrote it will be virtually impossible in the future for the Legislature to adequately fund our courts and pay our judges – including Supreme Court justices – a competitive wage or reduce their workload.
The Mountain States Policy Center, which is an affiliate of an out-of-state group funded by pro-voucher billionaires, crowed after the decision, calling it a “complete victory’ for those who want to support private and religious schools. “The Court adopted—often nearly verbatim—the core framework MSPC advanced from the beginning: Article IX is a floor, not a ceiling, education serves a public purpose even when parents make private choices, and the Constitution does not impose a government-run monopoly on learning.”
It is curious to me that the Court adopted the Mountain States Policy Center’s “floor, not a ceiling” argument “nearly verbatim” when it was not party to the suit.
Those who wrote Idaho’s Constitution would have been shocked by the Supreme Court’s hastily arrived at decision, with little or no thought to the broader consequences of their action. The authors of our Constitution could not have been clearer that the Legislature’s mandate was to support public schools – not religious schools.
And it’s an old saw propagated by the pro-privatization crowd that the founders did it because they were prejudice against Catholics. The constitutional concept of separation of church and state was well accepted at the time of our state’s founding. And it goes back to James Madison, the father of the U.S. Constitution, who got into politics in the first place to kill a proposal in the Virginia Legislature that would require taxpayers to support churches.
“The subject that most animated James Madison was the freedom of religion and the question of its official establishment.,” wrote Noah Feldman, a law professor at Vanderbilt University and author of “The Three Lives of James Madison: Genius, Partisan, President.”
Feldman added, “He (Madison) developed an academic interest in the topic at Princeton under the Rev. John Witherspoon, who filled him with ideas of religious liberty inspired by the Scottish Enlightenment. He made sure that freedom from and for religion was written into our Constitution.”
Given the acceptance of Madison’s constitutional vision, the founders of our state probably never thought that a later Legislature or court would use the “floor, not a ceiling” argument to provide taxpayer dollars to religious schools. They probably never imagined that a future Legislature or Supreme Court would totally ignore their education mandate and fund separate education systems, especially religious ones.
Yet the Idaho Supreme Court, either by ideology, lack of understanding, or lack of research did exactly that, essentially erasing the words, intent, and mandates our founding fathers enshrined in the Idaho Constitution.
