State Constitutions and Challenges to Nonpublic School Transportation Programs

In Everson v. Board of Education,1 the U.S. Supreme Court upheld a New Jersey program under which a township reimbursed parents, including those sending their children to local Catholic parochial schools, for the cost of transportation on public buses, finding it constitutional under the First Amendment's Establishment Clause. Twenty-four years later, the Idaho Supreme Court addressed a challenge to a similar school transportation program in its state; however, notwithstanding the Supreme Court's previous decision in Everson, the court declared it unconstitutional. The different result occurred because the Idaho high court found that the program, although permissible under the federal Constitution, violated the provision of its own state constitution, which explicitly prohibits state aid to sectarian schools, concluding that “the framers of our constitution intended to more positively enunciate the separation between church and state than did the framers of the United States Constitution.”2 Because the court based its decision on state constitutional grounds, it was shielded from review by the Supreme Court.