Tuition Tax Credit Gets Lance’s Approval Attorney General Says Proposal Would Not Violate Constitution

Attorney General Alan Lance said it likely would be constitutional to grant a state income tax credit to parents of children who comply with Idaho’s compulsory education law without using public schools.

In an eight-page opinion issued Friday, Lance said there appeared to be no constitutional prohibition against such a tax credit, which was considered by the Legislature last winter and is expected to emerge again in 1998.

Critics of the proposal contend that such a tax credit, since it could help parents send their children to parochial schools, would violate the Idaho Constitution’s prohibition against using state money “for any sectarian or religious purpose.”

But Lance said unlike a tax credit for private school tuition, which might be unconstitutional, claiming the proposed credit would not require payment of money to a private or church-affiliated school.

“The benefit flows to the taxpayer/ parent, not to the school,” he wrote in the opinion requested by Republican state Reps. Dave Bivens of Meridian and Jim Kempton of Albion. “In the case of a tuition tax credit, only those parents who pay tuition to private schools may claim it. A tax credit for nonuse of public schools does not directly benefit parochial schools.”

In fact, Lance said, the proposal “provides a benefit to parents for the stated purpose of relieving the burden on the state’s public school system.”

The 1997 Legislature ran out of time before it could take final action on a bill that would have given parents an income tax credit of $500 per child for not using public schools, with a maximum of $2,500 per family per year. An original version of the bill called for a $1,000-per-child credit.

Besides his contention that any benefit to parochial schools from such a credit would be “remote at best,” Lance said Idaho already offers an income tax credit for charitable contributions to public or private nonprofit schools, colleges or universities.

State law also provides for a tax deduction for contributions to churches and other religious institutions, including schools. Both laws have enjoyed “longstanding and unquestioned acceptance,” he said.

“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,” Lance wrote.

“In fact, such a distinction is probably violative of the U.S. Constitution’s First Amendment guarantee of the free exercise of religion.”