A coalition of Leftist activists, including the Idaho Education Association, the Moscow School District, and Rep. Stephanie Mickelsen (R), has filed a challenge to block the implementation of Idaho’s parental choice tax credit. However, petitioners’ frivolous claims lack any basis in either our state constitution or Idaho Supreme Court precedent. Idaho’s school choice program is emphatically constitutional.
Does Idaho’s School Choice Program Fund Private Schools?
Before delving into the legal issues at hand, it is worth noting that the petitioners’ factual claims are incorrect. At the core of petitioners’ argument is the inaccurate statement that Idaho’s school choice program is a “transfer of public funds to private schools.”1 Technically speaking, Idaho’s school choice scheme is a refundable tax credit, meaning that funds are granted to individual parents, not schools. This is an important distinction because lawsuits over similar programs in other states have been dismissed on this basis. In Alabama, opponents of school choice attempted to argue that the state’s refundable tax credit program violated the state constitution’s clause that “no appropriation shall be made to any charitable or educational institution not under the absolute control of the state.” In Magee v. Boyd, the Alabama Supreme Court reasoned that because “the tax credit is paid to the parents of a child” and not “directly to the educational institution,” it did not violate this prohibition.2
Applying the logic of Magee, petitioners' claim that the Legislature has effectively created “a separate system of nonpublic education” is factually incorrect.3 H93 explicitly states that a “nonpublic school that enrolls a student whose parent directs a refundable tax credit to the school…is not an agent of the state or federal government.” It also clarifies “the provisions of this section shall not be construed to permit any government agency to exercise control or supervision over any nonpublic school or give the state authority to regulate the education of nonpublic school students.”4 The parental choice tax credit merely reimburses parents for a fraction of their education costs. The Legislature’s authority to establish such an incentive is derived from its unquestioned authority over the state’s tax policy and is effectively no different from the current lawful practice of allowing parents to use their tax-deductible 529 savings plans to pay for private K-12 education. But even if petitioners were granted the argument that the state has established “a separate system of nonpublic education,” their legal claims remain meritless.
Is the Legislature obliged to only fund a singular education system?
The petitioners argue “the plain language of Article IX, section 1 prohibits the legislature from establishing and maintaining a parallel system of private education.”5 The petitioners commit a common legal fallacy by distorting the intent of the Constitution through the introduction of language that is not found in the text. The first step of sound constitutional interpretation is to look at the plain meaning of the text. Notably, Article IX does not stipulate the Legislature can only “establish and maintain a single system of public schools.” Rather, it says “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.”6 Contrary to petitioners’ colorful interpretation of the text, Article IX does not impose an explicit limitation on the state’s discretionary power to establish other educational institutions; it merely establishes a minimal obligation to provide for at least a “system of public, free common schools.” This conclusion is consistent with the Idaho Supreme Court’s statement in Rich v. Williams that “...the Legislature has plenary powers in all matters, except those prohibited by the Constitution.”7
Petitioners appeal to the legal principle of expressio unius est exclusio alterius to show the Legislature can only fund a single system of public education. This rule of construction stipulates that when the constitution or a statute specifies certain things, the designation of those things necessarily presumes the exclusion of others. Petitioners are correct that the Idaho Supreme Court has long endorsed this maxim as a valid rule of construction, but the Court has also qualified that it is not applicable to every circumstance. As the Court explained in Idaho Press Club v. State Legislature, “the rule of construction expressio unius est exclusio alterius applies to provisions of the Idaho Constitution that expressly limit power…but it does not apply to provisions that merely enumerate powers.”8
Black’s Law Dictionary defines an enumerated power as “a political power specifically delegated to a governmental branch by a constitution.”9 Therefore, whether a constitutional provision is an enumerated power or a limitation of power depends on whether it grants a specific authority, in which case it is an enumeration, or explicitly restricts legislative action, in which case it is a limitation. As explained by the Idaho Supreme Court in Idaho Schools for Equal Educational Opportunity v. State, Article IX, section 1, is a “constitutional mandate” that imposes an affirmative “obligation” on the Legislature to establish a public school system10. Article IX, section 1, is thus an enumeration of power, meaning expressio unius does not apply.
Idaho’s “system of public, free common schools” carries on a legacy of constitutionally mandated public education that can be traced back to the Northwest Ordinance of 1787. Therefore, we may reliably look to the case law of other states to help inform our interpretation of Article IX, section 1. In Idaho Schools for Equal Education v. Evans, the Idaho Supreme Court cited Robinson v. Cahill as an authority for understanding the implications of a similarly worded mandate in the New Jersey Constitution from 1875.11 The New Jersey Supreme Court observed the mandate’s purpose was to:
"impose on the legislature a duty of providing for a thorough and efficient system of free schools…But, beyond this constitutional obligation, there still exists the power of the legislature to provide, either directly or indirectly, in its discretion, for the further instruction of youth in such branches of learning as, though not essential, are yet conducive to the public service. On this power…rest the laws under which special opportunities for education at public expense are enjoyed."12
More recently, the Supreme Court of West Virginia in State v. Beaver addressed a similar challenge to a school choice program to the one at hand. Just as petitioners in Idaho, opponents of school choice in West Virginia argued that the state constitution permitted the Legislature only to fund its public education system. Rebuking this interpretation, the Court observed that “the word only does not appear” in the state constitution, just as the word “single” does not appear in Article IX, section 1, of the Idaho Constitution. Lacking any direct prohibition, the Court affirmed that the state constitution allows the Legislature “to do both” public education and school choice.13
Beaver and Robinson vindicate the Legislature’s discretion to establish “special opportunities for education” outside of the constitutionally mandated public education system. The only stipulation is that the state must fulfill its "constitutional obligation” prior to “tendering peculiar advantages to any.” Idaho has sufficiently fulfilled its constitutional obligation to “establish and maintain a general, uniform and thorough system of public, free common schools.” State funding for Idaho’s K-12 system is at an all-time high of $2.7 billion, accounting for nearly a quarter of the state’s total budget. In fact, Idaho’s funding for K-12 education could be significantly reduced, and the state would still fulfill its constitutional obligation to the public school system. Notably, petitioners concede that Idaho is “meeting its mandate…in funding public education.”14
If there is any lingering doubt regarding the Legislature’s authority to devise various means of promoting education, Article X, section 1 all but settles the matter, which states that “Educational, reformatory, and penal institutions, and those for the benefit of the insane, blind, deaf and dumb, and such other institutions as the public good may require, shall be established and supported by the state in such manner as may be prescribed by law (emphasis my own).”15 Article X unequivocally grants the Legislature a separate authority from Article IX to establish whatever educational institutions the “public good may require,” disproving petitioners claim they are limited to establishing and maintaining “a single system of public schools.”
Petitioners suggest that even if the Legislature has the authority to establish separate educational institutions, they must be “subject to the same standards as public schools.”16 However, these requirements are only binding on common schools established pursuant to Article IX, section 10. These requirements are not binding on education programs established pursuant to Article X, section 1. The implication of the petitioners’ reasoning on this point would have vast consequences for Idaho’s multifaceted approach to promoting education. The collateral damage would extend to Idaho’s charter schools and magnet schools, whose unique curricula and selective process would violate the requirement that schools must be “uniform” and open to all children. Other victims would include Advanced Opportunities, used primarily by public school students to pay for dual-credit courses, and the Idaho Youth ChalleNGe Academy, a state-run, quasi-military residential academy under the authority of the Idaho Military Division designed for at-risk high school dropouts. If the Idaho Parental Choice Tax Credit is found unconstitutional, “uniformity” demands all these programs be found unconstitutional as well. Fortunately, our Constitution clearly establishes this is not the case.
Does School Choice Serve a Public Purpose?
The petitioners’ other main argument is that the parental choice tax credit violates the “public purpose” doctrine. This doctrine, articulated in Idaho Water Res. Bd v. Kramer, stipulates that “it is a fundamental limitation upon the powers of government that activities engaged in by the state, funded by tax revenues, must have primarily a public rather than a private purpose.”17 The Idaho Supreme Court clarified that a "public purpose is an activity that serves to benefit the community as a whole and which is directly related to the function of government."18 Petitioners argue that because the tax credit benefits private schools, it fails this test. However, as observed by the Court in Engelking v. Investment Board, and subsequently reaffirmed in a 1995 Attorney General opinion, “[I]f a proposed appropriation or expenditure meets the ‘public purpose’ test, it is immaterial that, incidentally, private ends may also be advanced.”19
Article IX explains that the public purpose behind the constitutional mandate to establish a “system of public, free common schools” is that the “stability of republican form of government” depends upon “the intelligence of the people.”20 Petitioners have evidently forgotten this fundamental purpose and treat public education as an end within itself when it is merely a means for promoting our republic’s vested interest in preserving the “sound morals and intelligence of the people.”21 In the words of our Founding Fathers, “[t]he more extensive the means of education, the more confidently may we rely upon the preservation of our public liberties.” In recognition of this fact, Article X of the Idaho Constitution observes that the “public good” may require the establishment of other educational institutions beyond common schools. Encouraging the development of a vibrant ecosystem of private education directly contributes to the “intelligence of the people” and is thus both a “benefit to the community” and “directly related to the functions of government.”
Notably, Idaho’s Constitution already acknowledges the role of private education in ensuring the formation of an informed citizenry. Article IX, section 9 of the Idaho Constitution empowers the Legislature to ensure “every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law (emphasis my own).”22 This provision recognizes there are nonpublic educational institutions that are equivalent, if not superior, alternatives to the public school system for the purpose of producing educated citizens. The Legislature is thereby empowered to identify sufficient alternatives to public education at its discretion. In the case of H93, the Legislature has stipulated that eligible academic instruction must include, “at a minimum, English language arts, mathematics, science, and social studies.” Moreover, the legislation also requires such instruction to be “provided by an accredited school” or for the institution/parent to maintain a “portfolio of evidence or learning record that indicates the student's growth.” 23
The petitioners argue that “even if private schools’ provisions of education were considered to theoretically be a public benefit, the program is so lacking in standards or accountability incumbent on public education” that it still violates Idaho’s public purpose doctrine.24 Though petitioners may decry H93’s supposed lack of “standards or accountability,” the question of whether a policy is wise or foolish is outside the purview of the courts. It is a basic principle of our constitutional system of government that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment” regarding whether an act is unlawful25. As the Idaho Supreme Court affirmed in Planned Parenthood Great Northwest v. Idaho, “[T]he questions of whether a law passes constitutional muster—and whether a law is good policy—are distinct…we can only judge these laws—as demanded by the constitutional principle of separation of powers—based on their constitutionality, not on whether they are wise policy.”26
From the foregoing observations, it is clear that Idaho’s Constitution does not restrict the Legislature to only establishing and maintaining a single system of public schools. Nor does the parental choice tax credit fail the “public purpose” test. We expect the Idaho Supreme Court to uphold the constitutionality of the parental choice tax credit.
