Can Idaho's State Board of Education be split into two separate councils, one for higher education and one for public schools, the way House Bill 345 set up?

Plain-English summary

The Superintendent of Public Instruction asked whether House Bill 345 (1993) could be implemented constitutionally. The bill rewrote Idaho Code § 33-101 to divide the State Board of Education into two councils: one for higher education (also serving as the Board of Regents of the University of Idaho), and one for public schools. The Board would convene as a whole only on overlap matters and "other matters where required by law."

The constitutional anchor is article 9, section 2, of the Idaho Constitution: "The general supervision of the state educational institutions and public school system of the state of Idaho, shall be vested in a state board of education." The constitution speaks in the singular ("a state board") and covers everything in one breath ("state educational institutions and public school system"). The plain language requires unified governance.

The history reinforces that reading. As originally drafted in 1890, the constitution split education between a Board of Education (responsible for public schools) and a separate Board of Regents (responsible for the University of Idaho). That arrangement broke down within two decades. Public schools ended up effectively run by the State Superintendent alone, because the other ex officio members (Secretary of State, Attorney General) had no time for it. Different state institutions saw each other as competitors. By 1911, Governor Hawley flagged the problem to the legislature, and the legislature responded with House Joint Resolution No. 30, which proposed the constitutional amendment that became the present art. 9, sec. 2. Voters adopted it in November 1912, and the Twelfth Legislative Session implemented it in 1913.

Contemporaneous statements from the people who built the new system (Governor Haines, the first Commissioner of Education Edward O. Sisson, the Superintendent of Public Instruction Bernice McCoy) all describe a single board with comprehensive control over the entire educational system. McCoy's master's thesis (1923), particularly enlightening because she lived through the transition, describes the change as creating "one board of control" over what had been multiple uncoordinated educational movements.

The AG's office had previously told the legislature that the original House Bill 345, with three autonomous boards, was unconstitutional. The legislature amended the bill to add subsection (3): the State Board of Education must regularly convene as a whole to address overlap matters and "other matters where required by law." That phrase is what saves the bill. Read against the constitutional backdrop, the only way to give it meaning is that the two councils function as advisory bodies. The Board itself must retain final authority over all matters within the scope of art. 9, sec. 2.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho Constitution, art. 9, sec. 2 (as amended in 1912) provides: "The general supervision of the state educational institutions and public school system of the state of Idaho, shall be vested in a state board of education, the membership, powers and duties of which shall be prescribed by law. The state superintendent of public instruction shall be ex officio member of said board."

The interpretive rule for constitutional provisions is the plain-language rule, supplemented by the framers' intent. Powell v. Spackman, 7 Idaho 692 (1901), and Sweeney v. Otter, 119 Idaho 135 (1990), are the lead Idaho Supreme Court authorities on plain-language interpretation. Haile v. Foote, 90 Idaho 261 (1965), establishes that determining the framers' intent is also a fundamental objective.

The historical record the AG draws on is substantial. The pre-1912 system put public schools under a Board of Education comprising the Superintendent, Secretary of State, and Attorney General; higher education was governed separately by a Board of Regents. The system did not work. By 1911, the educational situation had deteriorated to the point that radical change was favored. House Joint Resolution No. 12 (proposing a state commissioner of education and a separate board of regents) was rejected by the Senate; House Joint Resolution No. 30 (proposing a single State Board of Education) replaced it and was adopted.

Statements from the implementation era leave little doubt about the meaning. Governor Haines, in his 1913 message to the Twelfth Legislature, described the constitutional amendment as providing for a state board with general supervision over "all our state educational institutions." Edward O. Sisson, the first Commissioner of Education, described the system in his 1914 report as "a single State Board of Education to direct all the educational affairs of the State." Sisson's biennial report for 1913-14 said the legislation following the constitutional amendment created a State Board "to have control of all schools, public and State." McCoy's 1923 thesis described the result as "control of the entire educational system of the State . . . under one board of control."

The interpretive rule for statutes that may be unconstitutional is to favor a constitutional reading. Scandrett v. Shoshone County, 63 Idaho 46 (1941), and State v. Gibbs, 94 Idaho 908 (1972), are the cited authorities. The AG applied that rule by reading subsection (3) of the amended House Bill 345 as making the two councils advisory rather than autonomous, even though the bill could have been drafted with more clarity.

Common questions

Why couldn't the legislature just create three autonomous boards?
Because that's exactly what art. 9, sec. 2 says cannot happen. The constitution requires "a state board of education" with general supervision over both state educational institutions and the public school system. Three autonomous boards is structurally inconsistent with that requirement.

What does "advisory council" mean in practice?
The AG offered guidance: each council can specialize in its area, find facts, and make recommendations to the Board. The Board itself must make the final decisions. The councils cannot bind the Board on matters within the constitutional scope of art. 9, sec. 2. The exact division of labor is for the Board to set in its implementation guidelines.

Could the legislature amend the constitution to allow autonomous boards?
Yes, but it would require a constitutional amendment, not a statute. Art. 9, sec. 2 was itself adopted by amendment in 1912; the legislature could propose another amendment to undo or restructure it.

Why did the original House Bill 345 get amended at all if the legislature could have just adopted the unconstitutional version?
The AG's office had told the legislature, before passage, that the original was unconstitutional. The amendment was a deliberate effort to make the bill workable. The AG's role here is to identify how to read the amendment as constitutional, not to second-guess the legislative compromise.

Does this opinion apply to the Board of Regents specifically?
The University of Idaho's Board of Regents has historically had its own constitutional and statutory role. House Bill 345 made the Council for Higher Education and Board of Regents the same body. The opinion does not separately analyze the Regents' independent constitutional status; it treats the issue as part of the unified-governance question under art. 9, sec. 2.

Citations

Idaho Constitution: art. 9, sec. 2 (general supervision of state educational institutions and public school system vested in a state board of education).

Idaho Code: § 33-101 (creation of the State Board of Education and the structure introduced by House Bill 345).

Idaho cases: Haile v. Foote, 90 Idaho 261, 409 P.2d 409 (1965) (Idaho Supreme Court; framers' intent in constitutional construction); Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901) (Idaho Supreme Court; plain-language rule); Scandrett v. Shoshone County, 63 Idaho 46, 116 P.2d 225 (1941) (Idaho Supreme Court; presumption of constitutionality); State v. Gibbs, 94 Idaho 908, 500 P.2d 209 (1972); Sweeney v. Otter, 119 Idaho 135, 804 P.2d 308 (1990) (Idaho Supreme Court).

Other authorities: Farley, An Unpublished History of Idaho Education (1974); McCoy, Educational Progress in Idaho is Shown by the Development of the Public School System 1863 through 1923, University of Idaho, Master's Thesis (1923); Message of Governor Haines to the Twelfth Legislature of the State of Idaho (1913) (Archives of the State Historical Library); Sisson, Biennial Report of the State Superintendent of Public Instruction, 1913-14; Sisson, Report of the Commissioner of Education (1914).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-06.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 93-6
To:

Honorable Jerry Evans
Superintendent of Public Instruction
Len B. Jordan Building
STATEHOUSE MAIL
Boise, ID 83720-1000

Per Request for Attorney General's Opinion
QUESTION PRESENTED
May the Board of Education be divided into two councils, one for higher
education and one for public schools as required by House Bill 345, without violating the
provisions of article 9, section 2, of the Idaho Constitution?
CONCLUSION
No. Creating two autonomous councils, one with final authority over matters
relating to higher education and the other with final authority over matters relating to
public schools would violate article 9, section 2, of the Idaho Constitution, which
requires that a single board of education govern all educational institutions in the state of
Idaho. However, if the Board of Education implements House Bill 345 by developing
guidelines which require that decisions of the two councils be reviewed and ratified by
the Board of Education, the requirements of article 9, section 2, of the Idaho Constitution
will be satisfied.
ANALYSIS
The First Regular Session of the 52nd Legislature passed House Bill 345
providing for a State Board of Education comprised of two councils, one representing the
interests of higher education and the other representing public schools. House Bill 345
provides in pertinent part as follows:

33-101. CREATION OF BOARD. For the general supervision,
governance and control of all state educational institutions, a state board of
education is created. The board shall comprise two (2) separate councils,
distinguished as follows:
(1)
For general supervision of all state institutions of higher
education, and such institutions as may be designated by law, to wit:
University of Idaho, Idaho State University, Boise State University, LewisClark State College, the College of Southern Idaho, North Idaho College,
and for any other state higher educational institutions which may hereafter
be founded, a council for higher education and board of regents of the
University of Idaho is hereby created.
(2)
For general supervision, government and control of the public
school system of the state, including the School for the Deaf and the Blind
and any other state educational institution not connected with higher
education which may hereafter be founded, a council for public schools is
created.
(3)
For the general supervision, governance and control of
general educational institutions and programs of common access to both
higher education and public school systems, including Eastern Idaho
Technical College, vocational education, the State Library Board, Idaho
work study program, public broadcasting system, Idaho state historical
society, and other matters where required by law, the state board of
education shall regularly convene as a whole.
....
Where the term "state board" shall hereafter appear, it shall mean the
state board of education and, notwithstanding any other provision of law to
the contrary, where appropriate, pursuant to the assignment of duties
provided in this section, where such reference is relative to post secondary
institutions and programs or associated arrangements such reference shall
mean the council for higher education and board of regents of the
University of Idaho, and, where such reference is relative solely to public
schools, elementary through secondary levels, and associated programs,
such reference shall mean the council for public schools.

(Emphasis added.)

There are two possible interpretations that can be given to the above quoted
language. The first interpretation would provide three autonomous boards to govern
education in the state of Idaho. The first board would be the Council for Higher
Education and Board of Regents at the University of Idaho, which would provide general
supervision for all state institutions of higher education. The second autonomous board
would be the Council for Public Schools providing general supervision over public
schools, the School for the Deaf and Blind and other educational institutions not
connected with higher education. The final board would be the Board of Education
which would supervise areas of general education and overlap areas, as well as
institutions specifically listed within the statute. This appears to be the intent of House
Bill 345 as it was originally drafted. With reference to the original draft, this office gave
an opinion to the legislature that the division of the Board of Education into three
autonomous governing entities was a violation of article 9, section 2, of the Idaho
Constitution. Subsequent to receiving this opinion, the legislature amended the bill. The
amendment to the bill provides a basis for the second interpretation which can be given to
the quoted language.

In an apparent effort to cure the constitutional defects of the legislation, section
33-101, subparagraph 3, was amended to require the State Board of Education to act on
all "other matters where required by law." Although this amendment could have been
drafted with more clarity, it does provide a basis for the interpretation that the board must
retain supervisory control over all areas required by the constitution and laws of the state.
This would be the interpretation favored by the standard principles of statutory
construction. A cardinal rule of statutory construction presumes that the legislature
intended to enact valid and constitutional law and, thus, the statute must be given as
liberal an interpretation as possible to avoid finding the statute unconstitutional.
Scandrett v. Shoshone County, 63 Idaho 46, 116 P.2d 225 (1941); State v. Gibbs, 94
Idaho 908, 500 P.2d 209 (1972).

We have been asked to aid the Board of Education in determining whether House
Bill 345, as amended, can be implemented without violating the provisions of article 9,
section 2, of the Idaho Constitution. Our analysis is divided into two parts. In part one
we address the constitutional requirements of article 9, section 2. This analysis is
consistent with the opinion given to the legislature prior to the enactment of House Bill
345. In part two, we provide guidance to the Board of Education in interpreting House
Bill 345 and developing guidelines for implementing a structure which would satisfy the
requirements of article 9, section 2, of the Idaho Constitution.

1.

Article 9, Section 2

Article 9, section 2, states:
Board of education. -- The general supervision of the state
educational institutions and public school system of the state of Idaho, shall
be vested in a state board of education, the membership, powers and duties
of which shall be prescribed by law. The state superintendent of public
instruction shall be ex officio member of said board.

In interpreting article 9, section 2, well-established rules of constitutional
construction should be followed. The first rule of interpretation is to apply the plain
language of the constitution. Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901);
Sweeney v. Otter, 119 Idaho 135, 804 P.2d 308 (1990).

Article 9, section 2, speaks in the singular of "a state board" having supervisory
powers over all "the state educational institutions and the public school system of the
state of Idaho." (Emphasis added.) The plain language of the constitution indicates that
the supervision of education in the state shall be governed by a single board. This
interpretation of article 9, section 2, is in accord with an historical review of the intent of
the framers of article 9, section 2. Determining the intent of the framers of a
constitutional provision is also a fundamental objective in construing that provision.
Haile v. Foote, 90 Idaho 261, 409 P.2d 409 (1965).

As originally written, article 9, section 2, of the Idaho Constitution provided that
the supervision of education was to be divided between public instruction and higher
education. Public schools were supervised by the Board of Education which comprised
the Superintendent of Public Instruction, the Secretary of State, and the Attorney General.
Higher education, consisting at that time only of the University of Idaho, was governed
by a separate Board of Regents.

Shortly after statehood, problems arose in the system established in the
constitution for governing education within the state. For all practical purposes, the
Board of Education was the Superintendent, and the Superintendent's ability to supervise
and direct public schools was hampered by the lack of support from the Secretary of State
and the Attorney General who had little time or inclination to assume that task. The
disjointed system of education had little unity or coordination. Various educational
institutions of the state and of local governments viewed one another with distrust and as
competitors for limited state money. See, Farley, An Unpublished History of Idaho
Education (1974) at page 20; McCoy, Educational Progress in Idaho is Shown by the
Development of the Public School System 1863 through 1923, University of Idaho,
Master's Thesis at 52 (1923).

By 1911, conditions in the educational system of the state had deteriorated to the
point that radical change to the structure of state education was favored.

Governor Hawley, in his address to the legislature on January 3, 1911, recognized
the problems with the state's educational system. Hawley spoke of the need for fixing an
appropriation and creating a tax specifically to support the state's educational institutions.
Although the Governor did not call for a constitutional amendment creating a single
Board of Education, the legislature followed that course of action. House Joint
Resolution No. 12 proposed to amend article 9, section 2, by creating a state
commissioner of education and a board of regents. This resolution was rejected by the
Senate. House Joint Resolution No. 30, substituted in its place, called for the amendment
of article 9, section 2, by creating the State Board of Education. It is House Joint
Resolution No. 30 which placed the constitutional amendment on the ballot and resulted
in the amendment of article 9, section 2, to its present form.

The problems which occurred in education prior to 1911 are evidence that the
legislature and the public intended the constitutional amendment to article 9, section 2, to
create a single board governing all the educational affairs of the state. Comments made
by superintendents, historians and governors following the adoption of the amendment
are further evidence that the intent was for a single board to be created.

Governor Haines, in his address to the legislature, stated:

At the last general election there was also adopted a proposed
amendment to the constitution of our state, which provides for the general
supervision of state educational institutions and the public school system of
the state of Idaho by a state board of education, the membership, powers
and duties of which shall be prescribed by law. It is entirely clear to my
mind that the legislative enactment which is necessary to give this
constitutional amendment force and effect should be promptly considered
by you.
....
The duties of this board should include the general management and
control of all our state educational institutions.

Message of Governor Haines to the Twelfth Legislature of the State of Idaho at 26-27
(1913) (Archives of the State Historical Library).

Similarly, the first Commissioner of Education, Edward O. Sisson, in reporting to
the legislature, stated:

The plan of a single State Board of Education to direct all the
educational affairs of the State was ordered by a constitutional amendment,
proposed by the Eleventh Session of the State Legislature in 1911, and
approved by popular vote in November, 1912. The Twelfth Session of the
Legislature in 1913 enacted a law to put the amendment into effect.
....
The characteristic feature of the new system is that the six state
institutions and the public schools are all to be considered in relation to
each other, and with a view to the welfare of the State. The State Board of
Education has only the welfare of the children and young people as its aim
and purpose.
....
The essence of the plan is that we should get together in the interests
of our schools and our children; that we should think educationally for the
whole State, and not for any one institution or any one community or any
one section. This means more attention to education, and constant
vigilance.

Sisson, Report of the Commissioner of Education at 1 (1914) (emphasis added).

The interpretation of the constitutional amendment as requiring a single board to
govern all the educational affairs of the state is further strengthened by the report of the
State Superintendent of Public Instruction contained in the Biennial Report of 1913-14.

The State Legislature in 1911 passed a resolution calling for a
Constitutional Amendment providing for a State Board of Education to
have control of all schools, public and State, whose membership, duties and
powers should be prescribed by law. . . . The law made many striking
changes in the educational system of the State, yet it is one of the wisest
and best laws ever placed on our statutes.

Sisson, Biennial Report of the State Superintendent of Public Instruction, 1913-14 at 191
(emphasis added).

Bernice McCoy was Assistant State Superintendent for the years immediately
preceding 1914. In 1914, she was elected Superintendent of Public Instruction. For this
reason, her master's thesis is particularly enlightening as to this period in history.
Regarding the changes to the educational system of the state as a result of the amendment
to the constitution in 1912, McCoy writes:

As has already been indicated, this period is separated from the first
period in Education under Statehood by the change in the system of
administration of the public school system of the State, through the
establishment by legislative enactment of "The State Board of Education
and Board of Regents of the University of Idaho," thus placing the control
of the entire educational system of the State, consisting of the various
parallel movements described in a previous section of this thesis, under one
board of control.

Viewed from one standpoint this law was the most unique piece of
school legislation ever enacted by any State legislature; viewed from
another standpoint it was the most natural and logical step for a legislature
to take, the establishment of a system of administration which would unify
and coordinate the various public educational movements had long been the
dream of intelligent educators and laymen, and considered from the
standpoint of the Idaho situation the wisdom of the step was doubly true. It
grew quite naturally out of the experiences and problems which had arisen
in the educational work of the State. Problems and situations not unlike
those which had arisen in other States; but which were more acute in Idaho
because of the topography, its sparse population, its pioneer conditions, its
magnificent distances, together with its lack of transportation facilities and
other mediums of communication, all of which made unity and
coordination in the State educational work impossible even in a slight
degree.

McCoy, Educational Progress in Idaho as Shown by the Development of the Public
School System 1863-1923, University of Idaho, Master's Thesis at 44 (1923) (emphasis
added).

In conclusion, the historical overview of the enactment of article 9, section 2, of
the Idaho Constitution, as well as the plain language of that constitutional provision,
requires that the educational affairs of the state be governed by a single board of
education. Therefore, the first interpretation of House Bill 345 providing for three
autonomous governing boards to supervise the educational affairs of the state is
unconstitutional.

Since the legislature is presumed to enact valid and constitutional law and, further,
since the legislature was aware prior to enactment of House Bill 345 that dividing the
board into three autonomous governing boards would be unconstitutional, it must be
presumed that the intent of the legislature in amending House Bill 345 was to correct the
constitutional deficiencies of the legislation.

To correct the constitutional deficiencies of the original legislation, the legislation
must be amenable to an interpretation that the councils are merely advisory in nature. As
previously noted, section 33-101(3) requires the State Board of Education to act on all
"other matters where required by law." Although this language could have been more
clearly and artfully drafted, it does appear to require the Board of Education to act as
required by the constitution and statutes of the state. Since the constitution requires the
Board of Education to govern all of the educational affairs of the state, the appropriate
interpretation of House Bill 345 is that the legislature intended to create two advisory
councils to the Board of Education, with the board retaining its constitutionally required
control over the educational system of the state.

2.

Guidance to the Board of Education in Interpreting House Bill 345 and
Developing Guidelines for Implementing a Structure Which Would Satisfy
the Requirements of Article 9, Section 2, of the Idaho Constitution.

In implementing the provisions of House Bill 345 to comply with the
constitutional requirements of article 9, section 2, of the Idaho Constitution, the Board of
Education may create guidelines dividing the board into two advisory councils, one for
higher education and the other for public education. The general supervision and control
of education in Idaho must be retained by the board. Duties of the councils should be
structured by the board with this requirement in mind.

Each council can provide oversight in its particular areas of specialization. The
councils can be fact finders for the Board of Education and they can provide their
findings along with recommendations to the Board of Education. However, the board
must retain the power to make final determinations governing state educational
institutions and the public school systems in the state of Idaho.

AUTHORITIES CONSIDERED
1.

Idaho Constitution:
Article 9, section 2.

2.

Idaho Code:
§ 33-101.

3.

Idaho Cases:
Haile v. Foote, 90 Idaho 261, 409 P.2d 409 (1965).
Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901).
Scandrett v. Shoshone County, 63 Idaho 46, 116 P.2d 225 (1941).
State v. Gibbs, 94 Idaho 908, 500 P.2d 209 (1972).
Sweeney v. Otter, 119 Idaho 135, 804 P.2d 308 (1990).

4.

Other Authorities:
Farley, An Unpublished History of Idaho Education (1974).
McCoy, Educational Progress in Idaho is Shown by the Development of the
Public School System 1863 through 1923, University of Idaho, Master's Thesis (1923).
Message of Governor Haines to the Twelfth Legislature of the State of Idaho
(1913) (Archives of the State Historical Library).
Sisson, Biennial Report of the State Superintendent of Public Instruction, 1913-14.
Sisson, Report of the Commissioner of Education (1914).

DATED this 14th day of April, 1993.
LARRY ECHOHAWK
Attorney General

Analysis by:
TERRY B. ANDERSON
Chief, Business Regulation
and State Finance Division
WILLIAM A. VON TAGEN
Deputy Attorney General