What an Idaho school funding lawsuit might look like

It is not inevitable that the Idaho Legislature will invite a school funding lawsuit, but legislators appear at the present time to be heading toward provoking legal action.

Three factors will play into a decision as to whether or not to sue the State for violating provisions of the Idaho Constitution:

1. Whether the Legislature continues to disregard its constitutional duty to “maintain a general, uniform and thorough system of public, free common schools,” which means adequately funding the instructional side of the public school system;
2. Whether the Legislature complies with the Idaho Supreme Court’s 2005 ruling that the State has the primary responsibility for building, equipping, and maintaining school facilities; and
3. Whether the Legislature violates Idaho’s strong prohibition against using taxpayer money to support religious schooling.

Idaho has long been at the bottom of the national per-student spending ladder. Every state bordering Idaho provides more funding per student, giving their kids a competitive advantage over Idaho students. The most recent NEA report (2020-21) ranked Idaho 51st in the country with $8,376 per-student spending, while Montana ranked 31st with per-student spending of $12,597 and Wyoming was 11th with $18,385. Even at that level, the Wyoming Education Association (WEA) is suing the state for underfunding Wyoming’s public school system. The state recently lost a motion claiming WEA did not have the ability to seek a spending increase.

As a result of Idaho’s inadequate funding of schools, we have a teacher shortage. Teachers can get better compensation and more appreciation in surrounding states. Several school districts have had to hire underqualified staffers. And, because of a chronically inequitable funding formula, rural school districts have been particularly disadvantaged. Idaho is ripe for a school funding suit, especially if the Legislature turns down Governor Little’s request for a substantial increase in funding.

Another serious funding deficiency is the Legislature’s flagrant disregard of its obligation to pay for the construction and maintenance of school buildings, forcing those costs onto local property taxpayers. In 2005, the Idaho Supreme Court ruled that the Legislature was primarily responsible for financing public school facilities, saying the “valuation of local property has no connection whatsoever to the actual education needs of the locality.” Nevertheless, the Legislature has made little effort to shoulder this obligation.

To his credit, Senator Dave Lent, Chairman of the Senate Education Committee, has stressed the importance of the school facilities issue. If he is unable to get decisive action on this important issue, it would be a strong element of an Idaho school funding lawsuit. From a strictly political standpoint, relieving local property taxpayers of the burden of paying for the construction and maintenance of school facilities should be a winning issue for lawmakers. They should go for it and avoid the necessity of a lawsuit.

The third issue that will more than likely provoke a school funding lawsuit is the current effort, being strongly supported by out-of-state money, to force Idaho taxpayers to fund private and religious education. There is ample evidence that the use of state funds to subsidize private education hurts public schools, particularly those in rural areas.

Equally important is that the drive to require Idaho taxpayers to shoulder the additional burden of financing private schooling will require the State to finance religious instruction. The Idaho Constitution strongly prohibits the use of public money for religious teaching.

Unfortunately, the US Supreme Court has opened a back door to the Idaho treasury–if states provide taxpayer money for private schooling, they must also provide it for religious schooling. The so-called school choice advocates completely ignore the words of Chief Justice Roberts, who stated: “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.” Idaho need not take on the added burden of subsidizing private education but, if the Legislature tries to do so, it can expect a lawsuit.

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill online news. He blogs at JJCommonTater.com.