Could Idaho give parents a $500 income tax credit for not enrolling their child in public school, including parents using private religious schools, without running into the Establishment Clause or Idaho's no-aid-to-sectarian-schools provision?

Plain-English summary

Representatives Bivens and Kempton asked whether the Idaho Legislature could grant a $500 income tax credit to parents who comply with the state's compulsory education law without using the public school system. The proposal traced back to HB 342 from the 1997 session and a similar 1995 initiative. The credit would not be a school voucher (no government money flows to the school) and would not be a tuition tax credit (the credit is fixed at $500 regardless of tuition paid). It would simply be a tax benefit for parents who chose not to use public school services for their children.

The AG concluded the credit would likely survive both federal and state constitutional challenges. On the federal Establishment Clause, the controlling case was Mueller v. Allen (1983), which upheld a Minnesota deduction for tuition, school books, and school transportation expenses for both public and private school students. The U.S. Supreme Court emphasized that any aid to parochial schools flowed through the private choices of individual parents, not directly from the state, and the deduction was one of many available to Minnesota taxpayers. By contrast, in Committee for Public Education v. Nyquist (1973), the Court struck down a New York statute that granted direct maintenance and repair grants to parochial schools and tuition reimbursements specifically to private school parents.

HB 342 sat between Mueller and Nyquist in design but closer to Mueller. The credit went to parents, not to schools. The benefit was available to parents using non-sectarian schools, religious schools, or home schools, channeling any indirect benefit to religious schools through parental choice rather than state direction. There was no tuition-payment trigger, so the benefit was not "thinly disguised tuition grants" the way the Nyquist scheme was. The opinion concluded HB 342 would likely survive the Establishment Clause, even though it was not a perfect Mueller fit.

On the Idaho Constitution, art. 9, sec. 5 (the state's "Blaine Amendment") prohibits appropriations for "any 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." The text is broader than the federal Establishment Clause, and Idaho lacks a clear case interpreting it in the tax-credit context. But Idaho courts have generally applied art. 9, sec. 5 with a focus on whether public funds flow to the religious institution. A tax credit, the AG concluded, was best understood as a reduction in what the parent owes the state, not an appropriation of state funds to the school. The credit was therefore likely (though not certainly) constitutional under art. 9, sec. 5 too.

The AG also flagged the parental rights doctrine: Pierce v. Society of the Sisters held that parents have a constitutional right to direct the upbringing and education of their children, including the right to use non-public schools. The Idaho Supreme Court in Electors of Big Butte Area v. State Board of Education recognized the same right under the Idaho Constitution. The right to educate one's children is "superior to any right of the state," and a tax credit recognizing parents who exercise that right is on solid constitutional ground.

Currency note

This opinion was issued in 1997. 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.

The constitutional law of school choice has evolved substantially since 1997. The U.S. Supreme Court decided Zelman v. Simmons-Harris (2002) (school vouchers can survive Establishment Clause), Espinoza v. Montana Department of Revenue (2020) (state Blaine Amendments cannot bar otherwise-available scholarships from religious schools), and Carson v. Makin (2022). These cases substantially loosened the constitutional limits on school-choice programs. Anyone advising on a current Idaho tax-credit or scholarship program for non-public schools should consult current federal and Idaho law, not this 1997 opinion.

Common questions

Q: How is a tax credit different from a voucher?
A: A voucher gives parents a check (or a directable amount) that they can use to pay private school tuition. The state's money flows to the school. A tax credit reduces the parent's tax bill. The state's money never leaves the state's hands; the parent just owes less. Mueller and later cases have treated this distinction as legally significant for Establishment Clause purposes, though the practical effect can be similar.

Q: How is a tax credit different from a tuition tax credit?
A: A tuition tax credit ties the benefit to actual tuition paid; if you don't pay tuition, you don't get the credit. HB 342 was different: it gave the same $500 credit to any parent of a school-age child not enrolled in public school, regardless of whether the parent paid tuition. So home-schooled and unschooled students' families could claim the credit on the same terms as private school families.

Q: What is Idaho's Blaine Amendment?
A: Idaho Const. art. 9, sec. 5 prohibits the state from making any appropriation, paying from any public fund, or making any grant from public moneys to any sectarian or religious society or institution. It is part of a 19th-century wave of state constitutional provisions, often called Blaine Amendments after a failed federal proposal, that go beyond the federal Establishment Clause in restricting public aid to religious schools. Espinoza v. Montana (2020) limited how aggressively states could enforce these provisions when they would deny otherwise-available benefits to religious entities.

Q: What's the parental rights point in Pierce v. Society of Sisters?
A: Pierce struck down an Oregon law requiring all school-age children to attend public school. The Court held that "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." Parents have a constitutional right to choose private or home schooling. A tax credit for parents who exercise that right is consistent with the Pierce framework.

Background and statutory framework

Idaho Const. art. 9 governs public education. Section 1 imposes the duty on the Legislature to maintain a system of free common schools. Section 2 places general supervision in the State Board of Education. Section 5 is the Blaine Amendment limiting public appropriations to sectarian schools.

The federal Establishment Clause framework as of 1997 was shaped by Lemon v. Kurtzman, Nyquist, and Mueller. The current framework (Zelman, Espinoza, Carson) is much more permissive of school-choice programs.

Idaho's compulsory education law requires that children of school age be educated, but it allows public school, private school, or home schooling as means of compliance.

Citations and references

Constitutional provisions: U.S. Const. amend. I (Establishment Clause); Idaho Const. art. 9, §§ 1, 2, 5.

U.S. Supreme Court cases: Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571 (1925); Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955 (1973); Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062 (1983); Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269 (1981).

Idaho cases: Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225 (1957).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP97-02.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 97-2
TO:

The Honorable Dave Bivens
Idaho House of Representatives
2354 Star Lane
Meridian, ID 83642
The Honorable Jim D. Kempton
Idaho House of Representatives
HC 36, Box 28
Albion, ID 83311

Per Request for Attorney General’s Opinion
QUESTIONS PRESENTED
1.

May the Idaho Legislature grant an income tax credit to a parent or legal guardian
who complies with the state’s compulsory education law by means other than the
public school system?

2.

If parents comply with the state’s compulsory education law by enrolling their
children in private sectarian schools, does the granting of a tax credit to the parents
violate article 9, section 5 of the Idaho Constitution or First Amendment of the
U.S. Constitution?
CONCLUSION

1.

There appear to be no state or federal constitutional impediments which would
prohibit the legislature from granting a tax credit to a parent or guardian who
complies with the state’s compulsory education law by means other than the
public school system and without using public school resources. Whether the
requirements of the state’s compulsory education law are met by enrolling the
child in a private non-sectarian school, a private sectarian school or through home
schooling does not affect this conclusion.

2.

Current U.S. Supreme Court interpretations of the First Amendment to the U.S.
Constitution make it likely that a tax credit for nonuse of public schools would be
deemed constitutional.

3.

While the lack of case law makes it more difficult to predict how a court would
rule on the constitutionality of such a proposal under article 9, section 5 of the

Idaho Constitution, it is probable that the contemplated tax credit would be
upheld.
ANALYSIS
This question was raised after the 1997 Idaho Legislature considered HB 342,
which would have granted a $500 tax credit to parents or guardians of school-aged
children who did not enroll those children in a public school, yet were in compliance with
Idaho’s compulsory education law. HB 342 is similar to a 1995 initiative proposal for
which the Office of the Attorney General provided a Certificate of Review.
As a matter of definition, the income tax credit provided by HB 342 should not be
confused with a “school voucher” or a “tuition tax credit.” A school voucher program
provides government funds, in the form of a voucher, to parents who may then use that
voucher to purchase education services for their children in any qualified public or
private school. Under a voucher system, the government, in effect, provides direct
payment to the private school for all or part of the child’s tuition. Similarly, a tuition tax
credit is granted only to those parents who pay tuition at a private or other school and is
usually limited to the amount of tuition actually paid by the parent. The tuition tax credit
differs from the voucher in that the credit goes to the individual to offset, in whole or in
part, the payment of tuition. Courts differ on whether a tax credit is a transfer of
government funds to the individual. HB 342, unlike the tuition tax credit concept, allows
the full amount of the contemplated tax credit to each qualifying parent, as long as the
child for whom the credit is claimed is not enrolled in a publicly supported school. It is
not dependent upon the payment of tuition.
As a practical matter, there are only three educational settings in which a child
could enroll which would qualify the parent to be eligible for the HB 342 tax credit: a
private non-sectarian school, a private religious or sectarian school, or a home school.
Because of the church-state concerns surrounding the First Amendment to the U.S.
Constitution and the prohibition against sectarian appropriations found in article 9,
section 5 of the Idaho Constitution, the analysis of HB 342 under both constitutions must
be differentiated by the type of school in which the eligible student is educated.
I.
PRIVATE NON-SECTARIAN AND HOME SCHOOLS
The United States Constitution guarantees the right of parents to educate their
children in non-public schools. Indeed, the Supreme Court recognized the duty, as well
as the right, of parents to educate their children. In Pierce v. Society of the Sisters of the
Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571 (1925), the Court

invalidated an Oregon statute which required virtually all school-age children to attend a
public school. In striking down the statute, the Court said:
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.
45 S. Ct. at 573.
The Idaho Constitution similarly recognizes the right and responsibility of parents
to educate their children. In the case of Electors of Big Butte Area v. State Board of
Education, 78 Idaho 602, 308 P. 2d 225 (1957), the Idaho Supreme Court said,
It must be conceded that under our constitution parents have a right
to participate in the supervision and control of the education of their
children. True, the constitution vests the legislature with plenary power as
well as a specific mandate to provide for the education of the children of
the state, article 9, section 1, and the board of education with general
supervision of the public school system, article 9, section 2, but it cannot
seriously be urged that in clothing the legislature and the board with such
powers the people transferred to them the rights accorded to parenthood
before the constitution was adopted. By article 1, section 21, such rights
were retained by the people.
78 Idaho at 612.
The court went on to conclude, “In the American concept, there is no greater right
to the supervision of the education of the child than that of the parent. In no other hands
could it be safer.” Id. at 613.
For those parents who choose to educate their children in a non-sectarian private
school or in a home school, the tax credit provided by HB 342 is simply a legislative
recognition of the “high duty” enunciated in Pierce, and the right of the parent to educate
his children recognized in Electors v. State Board. The legislature has broad authority to
determine the provisions of tax law and may, under the constitutions of the United States
and the State of Idaho, extend tax benefits to individuals who exercise their right to
educate their children in a manner consistent with legislative policy.

Because the right to educate one’s children is superior to any right of the state,
there can be no question about the constitutionality of HB 342 as it applies to students in
non-sectarian private schools and home schools. The issue of tax credits granted to
parents whose children use sectarian or religiously oriented private schools requires
further analysis. Arguments against the credit would center on allegations that it violates
the Establishment Clause of the First Amendment to the U.S. Constitution and article 9,
section 5 of the Idaho Constitution.
II.
SECTARIAN SCHOOLS
If enacted into law, HB 342 will undoubtedly grant tax credits to parents who send
their children to private parochial or sectarian schools. A legal challenge to the law
would most likely claim that this connection between the state and religious schools is a
violation of both the federal and state constitutions.
A.

Analysis Under the U.S. Constitution

The United States Supreme Court, in Committee for Public Education v. Nyquist,
413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973), declared certain tax benefits to
religious schools unconstitutional. In that case, taxpayers challenged a New York statute
which, among other things, granted benefits to parents of non-public school students.
The Court struck down the scheme, citing the Establishment Clause limitations that
require a state to neither advance nor inhibit religion.
The New York statute struck down by Nyquist contained three provisions, all of
which were determined by the Court to violate the First Amendment. The statute
provided for direct grants of state funds to private parochial schools for the purposes of
“maintenance and repair” of school facilities owned and operated by the religious
organization controlling the school. It also provided tuition reimbursement to low
income taxpayers, and a tax deduction for tuition paid by parents who did not qualify as
low income.
Ten years after Nyquist, in the case of Mueller v. Allen, 463 U.S. 388, 103 S. Ct.
3062, 77 L. Ed. 2d 721 (1983), the Supreme Court held that a Minnesota law providing a
tax deduction for tuition, school books, and school transportation expenses for both
public and private school students was constitutional. In comparing the Minnesota law to
the New York statute struck down in Nyquist, the Court drew several distinctions. First,
the tax deduction for tuition expenses was only one of many deductions available to
Minnesota taxpayers. The invalid statute in Nyquist was criticized by the Court as

“granting thinly disguised ‘tax benefits,’ actually amounting to tuition grants, to the
parents of children attending private schools.” Mueller, 103 S. Ct. at 3066.
The tax credit proposal at hand would provide a tax credit to parents of Idaho’s
non-public school students in much the same way that the Minnesota statute authorized
an income tax deduction. In contrast, the New York statute targeted private school
tuition payers as the beneficiaries of the statute, and went so far as to determine the
specific dollar amount of tax relief each tuition deduction was worth. No such predetermination is involved in the Idaho tax credit proposal.
The Mueller Court spoke approvingly of the availability of the tax deduction to all
parents of school-aged children. The Nyquist benefits were available only to parents who
had actually paid tuition to a private school. HB 342 is not squarely analogous to the
plan approved by the Supreme Court in Mueller because its benefits may be claimed only
by parents of children who do not attend public school. It is, however, broader in its
scope than the New York plan invalidated in Nyquist, since a parent may claim its
benefits without regard to tuition payments. For example, the benefits under HB 342
would be available to parents of home-schooled children, whereas, under the statute
struck down in Nyquist, only parents with a tuition receipt could claim the tax deduction.
The Court also favored the Minnesota tax plan because it channeled any assistance
to parochial schools through individual parents, whereas under the statute struck down in
Nyquist, at least some of the tax benefits were transmitted directly to parochial schools,
and the remainder were tuition grants specifically targeted at parents who had paid tuition
to a private school. HB 342 provides a benefit directly to parents, in a manner similar to
the Minnesota plan. The Court expressed the importance of this distinction, saying,
“Where, as here, aid to parochial schools is available only as a result of decisions of
individual parents no ‘imprimatur of State approval’ can be deemed to have been
conferred on any particular religion, or on religion generally.” Mueller, 103 S. Ct. at
3069, citing Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981).
The Court went on to say, “The historic purposes of the [Establishment] clause simply do
not encompass the sort of attenuated financial benefit, ultimately controlled by the private
choices of individual parents, that eventually flows to parochial schools from the
neutrally available tax benefit at issue in this case.” Mueller, S. Ct. at 3069.
As noted, the tax credit granted by HB 342 is not identical to the tax deduction
approved by the Court in Mueller v. Allen, nor to the tax benefit plan struck down in
Nyquist. However, inasmuch as the stated purpose of the bill is to reduce the financial
burden on public schools and the tax credit will be available to any and all parents who
do not avail themselves of public school services, the proposed credit is more like the one
analyzed in Mueller. The neutral basis on which the tax credit is awarded is clear, and
although there will be an incidental benefit to religious schools, that benefit, like the one

in Mueller, is remote and under the control of parents. Therefore, one is led to the
conclusion that HB 342 will likely withstand a challenge under the U.S. Constitution.
B.

Analysis Under the Idaho Constitution
The Idaho Constitution, article 9, section 5, provides in relevant part:
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 . . . .

In interpreting this article, the Idaho Supreme Court has held that Idaho’s
constitution more positively enunciates the separation between church and state than does
the Constitution of the United States. Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860
(1971). In Epeldi, the court decided a case involving a statute that mandated school
districts to provide transportation to students attending private schools within the
district’s boundaries. This was found to be a benefit to the private schools, including
parochial schools. Accordingly, the Idaho Supreme Court found the statute in violation
of article 9, section 5 of the Idaho Constitution. The court reasoned that, since some of
the private schools benefiting from the law were religious or church-affiliated schools,
the provision of transportation for their students was a government appropriation in aid of
a sectarian institution and, thus, unconstitutional.
The Epeldi court established a simple test, drawn from the constitution itself, to
determine the validity of the statute. The court said:
The Idaho Constitution Article IX, Section 5, requires this court to
focus its attention on the legislation involved to determine whether it is in
“aid of any church” and whether it is “to help support or sustain” any
church affiliated school.
94 Idaho at 395, 488 P.2d at 493.
The Attorney General issued an opinion on the constitutionality of tuition tax
credits or vouchers in a guideline dated February 7, 1995. In that guideline, the Office of

the Attorney General opined that a tax credit for private school tuition is, like the bus
service in Epeldi, an unconstitutional appropriation in aid of a sectarian institution. In
arriving at that opinion, the Attorney General analyzed the tuition tax credit plan under
the Idaho Constitution and determined that the credit was a “grant or donation of . . .
money” to a church-affiliated school, which is specifically prohibited by article 9, section
5 of the Idaho Constitution. 1995 Idaho Att’y Gen. Ann. Rpt. 74.
The proposed legislation under review here differs from a tax credit for private
school tuition which, following the Attorney General’s previous analysis, may violate the
Idaho Constitution.
It is also clearly distinguishable from the private school
transportation statute which was struck down in Epeldi. In those cases, the state aid was
found to be a transfer of a state benefit to a religious school, or a tax credit which was
conditioned upon payment of money by the taxpayer to a private religious school. Under
the proposal found in HB 342, there is no requirement that the taxpayer pay any money
to a private or church affiliated school before being able to claim the credit. The benefit
flows to the taxpayer/parent, not to the school. HB 342 provides a benefit to parents for
the stated purpose of relieving the burden on the state’s public school system.
In Epeldi, the Idaho Supreme Court determined that transportation was a benefit to
the private school. In the case of a tuition tax credit, only those parents who pay tuition
to private schools may claim it. A tax credit for non-use of public schools does not
directly benefit parochial schools.
While the constitutionality of HB 342 remains somewhat unclear, it is the opinion
of this office that the proposed credit is probably constitutional inasmuch as any benefit
to parochial schools is remote at best. The benefit under the proposed scheme flows to
parents who choose not to educate their children within Idaho’s public school system, not
to the parochial schools. The granting of the credit is not conditioned on any payment by
the taxpayer to a religious school. Neither the purpose nor the effect of the proposed
initiative appears to violate Idaho’s proscription regarding aid to religious or sectarian
schools.
The Epeldi court emphasized the constitutional prohibition against “anything in
aid” of a religious school. The test articulated in Epeldi could be broadly construed to
forbid any government action that even remotely benefits religion. Such an interpretation
would invalidate, among other things, section 63-3029A, Idaho Code, which provides a
limited tax credit for donations made to Idaho private schools, including religious
schools. By extending the logic of the Epeldi rule to its fullest reach, Idaho cities could
not legally provide police and fire protection to churches and private schools--clearly an
absurd result and one which would probably run afoul of the free exercise clause in the
Frst Amendment to the U.S. Constitution.

Rather than focusing on any attenuated benefit to religion, the U.S. Constitution
requires that no public fund or moneys be paid for anything in aid of any church or
church-related school. Therefore, in order to be declared unconstitutional, the payment
must first come out of a public fund and, second, it must be paid to a church or other
religious enterprise. The tax credit in question arguably does not come out of any public
fund and it certainly does not go to the aid of a church or another religiously controlled
institution. The tax credit will only be available to parents, some of whom admittedly
send their children to religious schools, but some of whom also school their children at
home or in a non-sectarian private school. HB 342 meets the constitutional requirement
that no appropriation be made to sectarian institutions. The tax credit provided by the bill
may only be claimed by parents, and may be claimed without regard to the type of school
their children attend.
As noted, Idaho Code § 63-3029A offers an income tax credit for charitable
contributions to Idaho’s public or private non-profit institutions of elementary, secondary
or higher education. The credit is granted for contributions to sectarian schools. The
benefit to private schools is far more direct under Idaho Code § 63-3029A, inasmuch as
the granting of the credit is conditioned on the taxpayer giving money or something of
value to the educational institution. In addition to Idaho Code § 63-3029A, Idaho tax
statutes have long provided for a deduction for contributions to churches and other
religious institutions, including schools. This deduction, against income, is not limited
by dollar amount. Both the credit under Idaho Code § 63-3029A as well as the unlimited
deduction under Idaho Code § 63-3022(l)(2) provide for more direct and substantial
benefits to churches, religious institutions and schools than does the proposed tax credit
for non-use of public schools. The long-standing and unquestioned acceptance of the
credit found in Idaho Code § 63-3029A and the deduction found in Idaho Code § 633022(l)(2) lends support to the conclusion that the proposed credit is likewise
constitutional.
Given the foregoing analysis, it is clear that there can be no question of the
constitutionality of HB 342 as it applies to students in home schools and private nonsectarian schools. Given the clear intent of the bill to reduce the financial burden on
public schools, it is virtually inconceivable that a court could uphold the tax credit for
parents who educate their children in a home school or a non-sectarian private school,
while invalidating the tax credit for parents who send their children to a parochial school.
In fact, such a distinction is probably violative of the U.S. Constitution’s First
Amendment guarantee of the free exercise of religion.
While the constitutionality of HB 342 with respect to granting credits to parents
whose children attend religious schools remains yet to be resolved by the Idaho courts, it
is probable that the bill would be upheld as constitutional. The credit is not dependent

upon payment of money to a sectarian school, and any benefits to parochial schools are
tenuous at best.
CONCLUSION
For the foregoing reasons, I conclude that HB 342 will likely be held to be
constitutional under both the state and federal constitutions.
AUTHORITIES CONSIDERED
1.

Idaho Code:
§ 63-3022(l)(2).
§ 63-3029A.

2.

Cases:
Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955, 37 L.
Ed. 2d 948 (1973).
Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P. 2d
225 (1957).
Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971).
Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983).
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S.
510, 45 S. Ct. 571 (1925).

3.

Other Authorities:
U.S. Const. amend. I.
Idaho Const. art. 9, § 5.
DATED this 22nd day of August, 1997.
ALAN G. LANCE
Attorney General

Analysis by:

KIRBY NELSON
Deputy Attorney General
State Board of Education
WILLIAM A. VON TAGEN
Deputy Attorney General
Chief, Intergovernmental and Fiscal Law Division