AGO 1992-G-0207.

Case DateFebruary 07, 1992
CourtIdaho
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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