AGO 1992-G-0207.
Case Date | February 07, 1992 |
Court | Idaho |
Idaho Attorney General Opinions
1992.
AGO 1992-G-0207.
February 7, 1992OPINION NO. 1992-G-0207Honorable Myron Jones Idaho House of Representatives
STATEHOUSE MAIL
THIS CORRESPONDENCE IS A LEGAL GUIDELINE OF THE ATTORNEY
GENERAL SUBMITTED FOR YOUR GUIDANCE
Re: Proposed Amendment to the Idaho Constitution,
art. 9, sec. 5
Dear Representative Jones:
This letter addresses your inquiry concerning whether legislation
authorizing vouchers or tax credits to parents whose children attend private
schools violates the Idaho Constitution. It is my opinion that the Idaho
Constitution, art. 9, sec. 5, as written, prohibits such legislation. Your
proposed amendment to art. 9, sec. 5 appears to overcome this prohibition, at
least as to vouchers. There may be additional concerns under art. 9, sec. 6.
Moreover, the analysis does not end here. Legislation authorizing tax credits
or vouchers to parents whose children attend private schools also raises
questions under the first amendment of the United States Constitution. Each of
these issues will be discussed.
AID TO CHURCH-AFFILIATED SCHOOLS
The first issue to be addressed is whether a statutory voucher or
tax credit system for parents of schoolchildren attending private schools would
violate the Idaho Constitution. The clearest constitutional prohibition against
such a statutory system is art. 9, sec. 5, which states:
§ 5. Sectarian appropriations
prohibited.---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; provided, however, that a health facilities authority, as
specifically authorized and empowered by law, may finance or refinance any
private, not for profit, health facilities owned or operated by any church or
sectarian religious society, through loans, leases, or other transactions.
The Idaho Supreme Court reads this provision to require a
stricter separation between church and state than does the United States
Constitution. Epeldi v. Engelking, 94 Idaho 390, 395,
488 P.2d 860, 865 (1971), cert. denied 406 U.S. 957 (1972).
The Idaho Supreme Court has determined that the provision absolutely prohibits
legislative appropriations which help "support or sustain" any church
affiliated school. Id.
In determining whether a statutory tax credit or voucher system
violates this standard, a threshold issue is whether it is significant that the
system is available to parents of "private" schoolchildren as opposed to
"parochial" schoolchildren. Under Epeldi, if the vouchers or
tax credits are, in practice, given to parents of parochial school students,
they violate art. 9, sec. 5. In Epeldi, the supreme
court addressed a statute which authorized the board of trustees of each
district to provide transportation for "public" and "private" school pupils.
The supreme court held that providing such transportation services to parochial
schools violated the state constitution. Thus, a statute which, on its face,
provides vouchers or tax credits to parents of private schoolchildren will be
deemed unconstitutional if those vouchers or tax credits are available to...
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