Supreme Court Voucher Challenge

Our topic is the Committee to Protect and Preserve the Idaho Constitution v. State of Idaho, the lawsuit IEA members joined questioning the constitutionality of the tax credit voucher created by 2025’s House Bill 93. Oral arguments in the suit were presented to the Idaho Supreme Court on Jan. 23 and a decision is expected in the coming weeks. 

Joining us for the discussion are three representatives of the pro-public education coalition that came together for the suit. They include Cindy Wilson, the Idaho State Director for Mormon Women for Ethical Government and a long time educator, Daniel Mooney, president of the Committee to Protect and Preserve the Idaho Constitution and a Boise attorney, and Paul Stark, executive director of the Idaho Education Association.

Transcript

Mike Journee: 0:12

Welcome to the IEA reporter podcast, a regular discussion about the news and events important to Idaho Education Association members and those who value public education. IEA members are public school educators from all over the state and members of the largest union in Idaho. They're Idaho's most important education experts, and they use their influence to fight for a free, quality and equitable public education for every student in the state. I'm Mike Journee, communications director at the IEA, and I'll be your host for this episode today. Our topic is the committee to protect and preserve the Idaho constitution versus the state of Idaho, the lawsuit IAEA members joined questioning the constitutionality of the tax credit voucher created by 2025 House Bill 93 oral arguments in the suit were presented to the Idaho Supreme Court on January 23 and a decision is expected in the coming weeks. Joining us for this discussion are three representatives of the pro public education coalition that came together for the suit. They include Cindy Wilson, the Idaho State Director for Mormon women for ethical government, and a longtime educator, Daniel Mooney, president of the committee to protect and preserve the Idaho constitution, and a Boise attorney and Paul Stark, Executive Director of the Idaho Education Association. Well, thank you all for joining us here today to discuss the challenges this challenge to the tax credit voucher created by last year's House Bill 93 the three of you represent a an important portion of the people and organizations who are part of the coalition that came together around this issue. Cindy and Daniel, before we get into the details, would you mind introducing our listeners through yourselves and the organizations that you represent? Cindy, you start please.

Cindy Wilson: 2:08

Thank you, Mike. I'm really happy to be here. It's a privilege to be here with you today and talk about something that we feel very strongly about at mweg Idaho. I'm part of an organization called Mormon women for ethical government. We often call ourselves mweg Idaho. We are a faith based community of women dedicated to Civic Empowerment and engagement. We are actually part of a national organization. We have members in every State of the Union. Idaho is our second largest state organization. Follow, or we follow Utah, and then Arizona follows us in that. And what we do is we prepare our members with information training opportunities to become more civically engaged and to participate meaningfully in politics. What we have found, even though education is not one of our major areas of advocacy. That is the area our members want to talk about. So that's how we ended up getting involved in this particular lawsuit.

Mike Journee: 3:15

Wow, that's That's great. Great summary there. I appreciate that, Daniel, your organization's name, the committee to protect and preserve the Idaho constitution, is on the suit itself.

Daniel Mooney: 3:27

Do you mind telling us really quickly about yourself and the organization? Yeah, thanks, Mike. Pleasure to be here. And my name is Daniel Mooney. I'm a Boise based attorney, multi generation Idahoan, proud to be and I'm here as the president of the committee to protect and preserve the Idaho constitution. Our committee was founded by a group of Idaho Attorneys, including two former attorneys general and Idaho judges as a sort of constitutional watchdog on the Idaho legislature. As politics across the country and in Idaho become more extreme, the legislature increasingly pushes the boundaries of what's permissible, and this ends up costing the public and policy failings and tax dollars because the state ends up defending these questionable laws in court. Ideally, our elected Idaho attorney general would be advising the legislature to stick to the Constitution as they consider these laws. But that's not always happening. So it's up to us and other concerned citizens to bring these issues to the Court's attention early to avoid serious consequences, to the public. Wonderful.

Mike Journee: 4:47

Thank you, Paul. You really don't need an introduction to most of our members, but I do want to point out that like Daniel, you're an attorney, and you served as IEA general counsel for a decade before you took the reigns as Executive Director, we had a joint press. Conference back in September and on Constitution Day, where the coalition asked for a writ of prohibition against the tax credit voucher. Tell us, what exactly does that mean?

Paul Stark: 5:14

Yeah, and I think Daniel could chime in too, if he wants. But a writ of prohibition, it generally is a judicial order, you know, in layman's terms, directing a person or an entity or a government entity to not do something. There's also the it's, it's the term writ comes from old England, and, you know the common law, and we have writs of mandamus and writs of this and that, you know, but basically, in in just regular parlance, it means it's the court telling someone don't do it.

Mike Journee: 5:52

Now Daniel, as the other attorney here, this writ of prohibition rests on the words of Idaho constitutions, Article Nine, section one, which mandates that the legislature establish and maintain a general, uniform and thorough system of free, public, free, common schools. Can you give us a better understanding of the coalition's legal argument against this tax credit voucher?

Daniel Mooney: 6:19

Yeah, our argument is essentially that this tax credit voucher, which diverts public funds to, you know, a disparate collage of private schools, doesn't pass muster under this constitutional language. So when you know, basically throughout our legislative history, our state's history, the education system, has been very important component of our state government, what our government is supposed to support. It's been a, you know, a jewel of our state, as one of our coalition members has put in the past. And so when the public funds that are supposed to be used to establish and maintain this single uniform, open system that's that's available to all, when those are diverted to, you know, private schools which don't have to comply with those requirements, you know that that system is, is diluted and it's, it becomes not really a system at all. And, you know, I think our main legal argument is, is that, you know this, this is public funds going to a system of schools that, can, you know, discriminate against certain people. Can, you know, deny, deny entrance to a certain number of people and that aren't available to the general populace. You know, people of differing income levels can't, can't get into these schools. And that's the whole the whole point of having a public system of education is that it's act. It's open to everyone.

Paul Stark: 8:30

You know it's this is where we have to be strict with our Constitution and what it says, I mean, it says, Think about these words, free and common education. What is it about? Very exclusive, very expensive education opportunities that is free. Nothing is free. In fact, many states, once they pass voucher schemes, we see tuition actually inflate to meet the handout that's going to these schools, right? And what's common about it when you can say, well, you don't, you don't look at God the same. We look way we look at God, and so you don't get to go to our school. What's common about that? And so if you look at these really plain language parts of our Constitution, I think it's not hard to suss out what these founders were trying to get at. They really believed education was super important. So we do too, right? I mean, everybody believes this. And, you know, the argument about, you know, do we have school choice in Idaho, I think, is, is rhetoric, because we do have school choice. What we're talking about with a voucher scheme is who pays for that choice, and non denominational tax dollars should, at its very foundational element, should not go to discriminatory, exclusive, expensive, sometimes very denominational education systems. I think. It's very clear to most Americans what we're talking about here.

Mike Journee: 10:04

Cindy as the one person here representing a faith based group. You mentioned earlier that your members are very keen on education issues. Can you talk a little bit more about your stance on this legislation? And you're joining the suit given kind of what Paul just talked about,

Cindy Wilson: 10:22

yes, there's actually a couple of points that I want to make about this. One of our areas of advocacy is advancing democracy. So when we talk about what that means, that means upholding a constitution or the rule of law for years, I have talked about Article, Article Nine, section one of the Idaho constitution, and what it says. I've quoted it. I know it well, and we believe, as an organization, our members, believe this, that the state should provide a public education for all students. And I think I heard Paul bring this up that we don't discriminate as a state. We don't discriminate on who is educated. In fact, we ensure that children with disabilities and handicaps, regardless of income, regardless of race, regardless of religion, they can all be educated together. I can tell you that just this week, I heard an instance of a woman who was a member of my faith, who was recently baptized two years ago into our faith, and when she was her children were attending a private religious school. It's a fine school. I know a lot of people who go there and who have graduated from there, but when they found out that the mother of the children going there had been baptized into our church, the children were told they couldn't come back to school there. That is their right. As a private school, a private religious school, they have the right to say that, however, there is a problem when you're taking tax money that all of us, all of us pay into we're all paying into this pocket because we want to see all children educated, and then to have certain children denied that because of a religion or a religion of a parent. I believe that becomes problematic when we're talking about advancing democracy.

Mike Journee: 12:44

Thank you all for your eloquence there. Very well, said all three of you, the types of things that happen to folks based upon this and the fact that that the legislature continues to want to funnel public dollars to those kinds of kinds of outfits, it's it's kind of shocking in some ways. Well, so after the filing the suit in September, the coalition finally got its day in court, so to speak, last Friday, when the attorneys for the coalition and the state presented their oral arguments to the justices on the Idaho Supreme Court. And to be honest, as a novice Supreme Court watcher, I did not feel all that great from coming off of that hearing, after feeling the tone of the questions asked by the justices. I'd like to get you all's opinion about how you feel about how things went, and anyone can jump in

Daniel Mooney: 13:35

tough bench. I mean, it was a tough bench, and you know that I think that the justices, fortunately, seem very well prepared for argument. I mean, I think I'm grateful that they are obviously treating this with the attention it deserves. You know, they ordered full briefing on the issues. They ordered oral arguments. They didn't have to take up the case at all. It was a discretionary jurisdiction. So So I'm grateful for that. You know, I do think that some of the questions posed by the justices felt a little a little directed at our side. I mean, I think that's typical when you have a challenge to a lot as unconstitutional. I mean, the the the burdens on us, I mean to show that the law is unconstitutional. You know that said, I think it's hard, it's it's always difficult to anticipate. A decision based on what happens at oral argument. You know, I think the other side got hammered with some very pointed questions as well, and the justices had some some good thoughts for the other side. And you know, as a former Idaho supreme clerk, my. A supreme court clerk myself. I, you know, I know that oral arguments sometimes do and don't determine what what the outcome is. So, you know, I'm still optimistic for a good result here. I think that the language of the Constitution is on our side, you know, I think our attorneys did a good job of explaining to the court that this is a a system that the legislature is tasked with maintaining, and when you create this sort of parallel arm of education and divert public funds to private schools that necessarily becomes part of that system. And so, you know, you you still have to view that through that same constitutional lens, and that part of that system that the Idaho legislature has now tried to create just doesn't pass muster under, under all those adjectives we've discussed in that constitutional article.

Paul Stark: 16:06

Paul, go ahead, I might be just echoing some of what Daniel says, but yeah, I mean, it's it's hard. I guess probably I saw it, Daniel, you did too, with a different set of eyes. I also clerked for an appellate court for two years, right at the beginning of my career, many years ago. And I think it's, I mean, I don't think I'm going out on a limb here. Oftentimes, in my experience, the oral argument is they're not, I don't see justice as making up their mind based upon oral argument. What they're trying to do is clarify issues, and they're trying to kind of probe the different issues. And in my experience, sometimes that means they're trying to resolve maybe concerns other justices have, and maybe they're trying to ferret out kind of this or that it has a lot to do, I think, with them as a collective group on how they're trying to decide things. Remember, they got to have three people that agree, and you can have five people with very different opinions on different ways. And they have, they might have each different hang ups, some one thing might bother someone and not another. So I saw the argument, although it was, it was what we call a hot bench, meaning there was lots of questioning. I see them, I see that as a good sign they're actually thinking through this. It wasn't a slam dunk. The worst is, is when it's a cold bench, you know, but this shows that they're taking it very serious. They're asking the issues we expected them to ask. I mean, I don't think there was any surprises with the questions they were asked. We we knew where the the gray area is, where the rub was. And I'm not as discouraged as perhaps Mike, you as a lay person were watching that I feel, I feel actually, you know, who knows which way the decision will go. But I feel actually encouraged that we have a very good judiciary that's very thoughtful and very considerate, and they're looking at all these different angles. And so for me, honestly, in this, you know, this day and age, it restored some of my confidence in government. So I found it very positive.

Mike Journee: 18:11

Thank you for that, Cindy, you got something you want to

Cindy Wilson: 18:14

say yes, because I love listening to Supreme Court oral arguments, and I've done that kind of as a hobby for years as a government teacher, it's one of my favorite things to do. So I was very excited about coming back into the Idaho supreme court room, and I felt so I don't know, I just was heartened by the fact that the courtroom was packed. I mean, everybody was there. I talked to one of the attorneys representing the state, and he said I was so surprised when I walked in and there were so many people there. And I said, Oh, this, yeah, this is a good case. It's gonna be a fun one. And I'm like, you, Paul, when you said you were heartened by the questioning, I felt the same way. I was glad to see the the justices take it very seriously and ask good questions. They did not waste any time. They got right in and started asking questions. So I appreciated that fact. I had read all of the briefs that all the briefs that had been filed on both sides. I had read through them, and I saw the tight argument that that our attorneys had prepared, and I was really impressed by that. The other thing that I found quite interesting, this case could come down to a one syllable word. You know, there was a time in history when we talked about, let's see, was it that or I can't remember what the word was now, but like, one syllable words can become so significant in a case like this, and that's what it came down to. What is a system? What is a system? What is. That mean. And so I think that's a big part of what the decision is about. What does that word mean in Article Nine, section one, and so I'm anxiously looking at what that word has meant in other places and how it might be interpreted, because really it's up to those five judges to interpret that meaning

Daniel Mooney: 20:25

you should have been a lawyer. Cindy, go ahead. Paul, well, yeah, I

Paul Stark: 20:34

want to comment that. But first, let's let's not, let's not miss the fact that we have now figured out what happens with donuts. When your kids ask for two donuts or two scoops of ice cream, that that will finally get settled in Idaho, and we're very proud that we will reach that threshold. But going back to what Cindy was saying, All joking aside, you know, it is a system, and I've thought about this since oral argument. The founders could have said systems of public education. They, you know, they could have said that, but they didn't. They said a system. Now there is some argument that, okay, you've done a system. And, you know, there's some mis arguments about whether we've actually funded that. That's another podcast. But this second system, and I think Justice Mueller was getting into this right, this private school system, is that part of a system? Is it part of the singular Well, if it is, Where the heck is the government oversight and the accountability, right? None of that exists. So if it's a if it's part of a system, this private school scheme, then where, how it has zero accountability or anything to the dollars, the public dollars that go into it. Now, if it's not part of a system, if it's a second rail, a second system, then it's not constitutional. So, you know? So it's, you can't, you can't have it both ways. And I think it's, I think it's, I think the argument about, oh, we've hit the floor, this is the ceiling, and that sort of thing is illusory. I don't think that's the right argument, because it is a system, right? So if you want to be part of a system, then you sure as heck better have all the accountability. And when tell me this, I challenge anybody listening to this podcast, when has the state of Idaho ever appropriated money without accountability? Why are we writing a blank check here? For some reason, because I've been around the legislature for many years now, and they don't give out money without some kind of return on investment and accountability, and which is absolutely, completely missing here. So that's a little bit some of the nuances. And again, I'm happy that the donut debacle is finally getting resolved.

Mike Journee: 22:56

Thanks for that. For our listeners who haven't had a chance to listen to the to the oral arguments. There was a, there were, I don't know, it was about five or seven minute detour where there's lots of discussion about about choice and and, and, and whether or not giving had to do with children's breakfast. And they talked about donuts and ice cream. And it got really kind of convoluted for a second there. So thanks Paul for bringing that up. We so all of us are are familiar with the fact that if anyone has an opinion about vouchers or about this bill or this case at all, they're pretty they're pretty strident in their perspectives. Just just as evidence of that, when this legislation was being considered by the legislature, it was perhaps one of the largest outcries of public opinion around any policy issue in modern history that we can think of. More than 30,000 Idahoans called the governor's office alone, not to mention all the public testimony and legislative hearings and all the other venues. And then on January 15, as per the legislation, the tax commission opened the window for applications for, for, for these vouchers. They aren't paying them out yet. That won't happen for another several, several months. So this case is kind of it's in its timely moment, as far as that goes. But within just the first few hours, they had over 3000 applications within that window. So clearly, there's demand for this out in the world. I guess the reason I'm asking this question is, what if anything? Are you guys hearing from people in your orbit around vouchers these days, around this case, around any around the all the issues around this are people paying attention to this outside of of our groups? And I'll let whoever wants to jump in on that. Jump in. I'll tell you what.

Cindy Wilson: 25:00

Thing I'm hearing from my colleagues in Arizona, putting together a voucher system and supporting that double system of education in their state has bankrupted the state. The program has grown and grown, causing less money to go into their public schools. Public schools are struggling. At the same time, the overall budget in the state of Arizona has taken a huge hit, and they don't know how to balance that, because now they have this out of control, multi system of public funding for every type of education you can imagine in that state and teachers there are demoralized. Parents are demoralized. People are frustrated as to what has happened in their state since then. I don't think we can go forward into this any further into the future. I mean it, you know, depending on how the the court decides, without looking at the other states who have tried this or tried something similar and seen what, what was the result of that? We have so much evidence that is clear to how that affected budgets. This is not a conservative approach to funding government. I'll leave it at that.

Mike Journee: 26:39

Well. Said. Daniel

Daniel Mooney: 26:44

Paul, yeah. I mean, I think people are keyed into this, but I agree. Cindy, I don't think they totally understand how bad it can get, right? I mean, we've got a certain amount allocated this year, and it's in a year when we have a major budget deficit already, and we look at these other jurisdictions and see how it can spiral out of control. And I think with this legislature, that's absolutely bound to happen, even though it is antithetical to a Conservative government, for some reason that this is that I think it's gonna just spiral and blossom from here.

Mike Journee: 27:31

Thank you all for this conversation. As we wrap up, I wanted to ask this one, one more quick question from you guys. So if you step away from the legal arguments for a moment, what do you each hope Idahoans ultimately take away from this case about our Constitution, about our shared responsibility for public education?

Paul Stark: 27:52

I'll jump in first. I think there is a broader conversation to be had here. You know, as Cindy just kind of described this, this. People in Arizona are experiencing this just like out of control, runaway big government program, which isn't what conservative Republicans usually are in favor of. And there's, there's just overwhelming proof from many states that that's what happens here in this situation. But it's also, you have to take it also in the broader perspective of what's happening to public education as a whole. And you know, it's when you have folks paying, you know, sometimes north of $10,000 in tuition to go to these private schools. It's not it's not a school, it's not a common school, it's most people, I couldn't have afforded that when my children were little. And then also, if you look at what's happening to our public schools, and although there has been some good moves by the legislature to help in that regard, we still increasingly have to rely on supplemental levies just to keep the lights on, just to keep functioning. We these, these, these, lot of sympathy to these superintendents of these local schools, they have to go every year, sometimes, hat in hand, on bended knee to their community, saying, Please, please tax yourself, because I'm not getting the funding from the state, which the Constitution requires them to maintain these system or this system, because of that hat in hand, these superintendents have to beg their community to fix themselves just to beat the basics needs of what these kids need for an education. And that's where it really boils down to these children, all children of Idaho, and unfortunately, it feels like it's all over twist where the children of Idaho, as students, are having to go to their communities, go to the legislature, saying, Can I just have a little more porridge? Please? It's not a good situation, and it burns me up when I hear politicians rail against what are perceived failures. Of public education. I'm very proud of what we have been able to do as educators in the state, on shoestring budgets, on the very minimum, on begging and scratching every place we can just to get enough to get a basic education. It's fundamentally unfair to starve the people of the state of Idaho of a good education in favor of a large government program that favors just a very few. And this is, this is absolutely a principled thing. Now, last comment, the judiciary is not a panoply of solutions to all of our problems, the solutions have to come through the political process. This is what America has guaranteed us, is a voice in the political process, and us. Idahoans need to avail ourselves of that the very baseline of civic engagement in America is to register to vote and then go vote. I mean, that is, that is, apart from maybe jury duty, you can't get any more basic civic engagement. And the numbers show over and over again that people aren't engaging in their society. And so what? What really has to happen if we really want to see our society get better if we really want to see our children prosper. You know, these are the workers that are going to be going into our jobs in the future generation. We have to, we have to invest in education, and we have to avail ourselves of that political process so our voice is heard.

Mike Journee: 31:37

That's a great plug for the IEA may Matters campaign is coming up this May for around, around our public education, we need all of our members to get engaged with that and and and be part of that campaign. Go to the IDEO ea.org to find out more about that. Daniel Cindy, have anything to add?

Cindy Wilson: 31:59

Yes, thanks, Mike. I'd like to take this idea that Paul brought up on civics a little bit further. I'm a political scientist. I've studied how governments how governments get their power, how they maintain themselves, how they address different issues with people. And when I look at the Idaho Constitution, Article Nine, section one, there's a line there that really hits hard this constitutional duty, and it's talking about maintaining a general, uniform and thorough system of free, public common schools. It says this constitutional duty is based on the principle that a stable Republican and that's small r, not political party, but small r like a representative democracy, that a stable republican form of government depends on an intelligent populace. The framers wrote that the Idaho State framers wrote that, but it was also considered by the framers of the US government and the United States Constitution in 1787, and the reason they wanted to create public schools at that time is they wanted a system where young people could be taught what government is, how it operates, how to participate and in the concern of Ben Franklin, how to maintain it and protect it. There is a lot of talk going around right now that people just don't understand civics, that they don't understand how government's supposed to work, that they don't understand the importance of getting involved. And Paul just brought that up just now so many people don't vote in a primary in Idaho. Well, guess what, folks, this, we are the government. We are the government. If you don't like the government, you take a look at yourself, because we are the ones who are voting for what happens. We are the ones who are providing a say for the laws that are developed and what's coming out of our Boise State House. So we have to participate, and we have to make sure that every student in Idaho understands it. My concern is that we have schools where there's no accountability for a curriculum. There's no accountability for what's being taught. There's no accountability for a kid being able to read, write or understand how government works, we have to ensure that we can protect this stable, republican form of government that we value so greatly and that we're so proud of. My family came here and homesteaded in Idaho. They were proud to come here and be part of a system where people could be educated. They. Came from all over to to Idaho, so that they could participate in this system that we have created here. And I think the important thing is to look at this Idaho constitution and do everything we can to protect it.

Mike Journee: 35:15

Daniel, last word,

Daniel Mooney: 35:17

oh, I don't know I can follow those those two but I would just like to say I like this issue because it's not political. It doesn't have to be political. It's not us versus them, it's not left versus right. I mean, this is about maintaining a state system of education that can give all of our children a reliable and consistent starting place in this world. And you know, I know personally that private schools have a place in our state. I was a private school student through eighth grade at a Christian school, and I'm grateful to my parents for the sacrifice they made to, you know, making that choice, but that's just it. You know, not every parent can make that sacrifice, and not every parent should have to make that choice and make that sacrifice, and that's the whole reason for having this, this single, uniform, free, common system. So I, you know, I like, I like this issue because it applies to every one of us, to every one of our families, to every one of our children, and it can only make the state stronger to foster that system.

Mike Journee: 36:36

Wonderful. Well said all three of you. Again. Thank you so much for the conversation today. It was really great. I'm excited for our members to hear all the things, wonderful things that you guys have had to say about this. We're awaiting a judgment from the Supreme Court here in the next several weeks. We don't have any particular timeframe. It's on their timeframe now, and so as soon as we get word about adjustment coming down, we'll get word out to our members. In the meantime, fingers crossed for everybody, right? Thank you guys so much for the conversation, and thank you for listening to this episode of The IEA reporter podcast. And thanks to Cindy Wilson, Daniel Mooney and Paul Stark for joining us. Please watch for updates about new podcast episodes on IEA social media channels or sign up to receive IEA reporter email updates on our website@idahoea.org I'm Mike Journee, and as always, I hope you join me in thanking Idaho's public school educators for everything they do for our State students, families and public schools. You.