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Idaho House Education committee again blocks more education choice

Updated: Jul 21, 2023

If additional education choice is going to come to the Gem State, it won't be originating in the Idaho House Education Committee.

Today, the committee voted 9-7 to kill a bill that would have created very limited Education Savings Accounts (ESA's) in the state of Idaho. HB 289 would have allowed students from families with a gross income of less than $70,000 the opportunity to sign up for an ESA, which could be used on education expenses including tutoring, private school tuition, special needs services and more.

Rep. Lance Clow wrote the legislation with tremendous safeguards and limitations. It even called for a separate allocation of funds to ensure it wouldn't be perceived as taking money away from public schools.

At that time, legislators continually called the bill an "ESA voucher," even though there is no such thing.

Today, the bill was heard and public testimony was allowed. Here's what I told the committee.

Still, lawmakers voted against advancing the bill to the floor. One representative said it didn't comply with the state's constitutional requirements.

There are two relevant provisions of Idaho’s constitution that have been used to cast doubt upon the legality of any kind of individual credit or grant to Idaho families for education purposes. Article 9, §1 creates a duty to “establish and maintain a general, uniform and thorough system of public, free common schools.” Many states have similar so-called “uniformity clauses,” which establish a public system of schools, but do not make that system mandatory for the state’s students—something we now take for granted. A century ago, Oregon tried to expand its public education system by making it compulsory for virtually all students.

The U.S. Supreme Court roundly rejected the attempt, stating:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

In other words, children do not belong to the state, and the purpose of education is to prepare them for life, not to homogenize them. A public system is one avenue for educating and preparing children, but it is not the only avenue. Parents have a duty and a right to educate their children. Article 9, §1 creates a baseline duty for the state of Idaho, but it does not prohibit the state from promoting education through means outside of the public system.

The public interest law firm Institute for Justice argues, “Uniformity Clauses were never intended to impose a limit on educational innovation and creativity in the way legislators fulfill their obligation to provide children with a basic education. Rather, they were simply intended to ensure that the public school system has certain minimal characteristics.”

One could make a policy argument about why it would be preferable for the state to subsidize a public system only, but a legal argument based on Idaho’s Uniformity Clause is not likely to be successful before Idaho’s Supreme Court based on Idaho caselaw and legal precedent in other states.

A similar debate just played out in West Virginia, where the constitution requires a “thorough and efficient” education system. West Virginia recently passed an education freedom law called the “Hope Scholarship.” But opponents pointed to the state constitution’s “thorough and efficient” language and said it wasn’t permitted. The West Virginia Supreme Court disagreed. From the majority’s ruling:

“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.”
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