Idaho

• NOTE: While Idaho has some laws that protect civil rights, it also has numerous laws that arguably infringe on civil rights, particularly for queer/trans people. These laws that encode disparate treatment are also documented and discussed below for the sake of completeness. 

• State constitutional guarantees regarding right to education

  • Education is explicitly not considered a fundamental right in Idaho. 

    • “…we further hold that education is not a fundamental right because it is not a right directly guaranteed by the state constitution. Rather, art. 9, § 1 imposes a “duty [upon] the legislature [ ] to establish and maintain a general, uniform and thorough system of public, free common schools.” (Emphasis added.) Art. 9, § 1, “[o]n its face, mandates action by the Legislature. It does not establish education as a basic fundamental right.”” Idaho Schs. For Equal Educ. Opportunity v. Evans, 123 Idaho 573, 582 (1993) (ISEEO I), citing Thompson v. Engelking, 96 Idaho 793, 806 (1975).

    • As such, rational basis review applies to all education-based statutes with disparate effects. Statutes which either 1) “blatantly discriminate” between classes, or which 2) both a) involve an “especially important interest” and b) create “unusually sensitive classes”, will instead receive intermediate scrutiny. ISEEO I, 582-83 (1993).

      • The Court found in ISEEO I that a statute that “treats chartered school districts different than non-chartered school districts in their respective powers to levy additional taxes” met the “blatant discrimination” standard and thus received intermediate scrutiny.  ISEEO I, 582-83 (1993).

  • Nevertheless, the state is constitutionally required to provide a “thorough system” of education under Article 9, Section 1 of the Idaho State Constitution. “Thoroughness” is defined by statute in 33-1612 as requiring, among other things, the following:

    • 2(a): “a safe environment conducive to learning is provided”

    • 2(e): “a basic curriculum necessary to enable students to enter academic or career technical postsecondary programs is provided”

    • 2(f): “students acquire the knowledge and skills necessary for meeting challenging academic achievement standards and succeeding in the workforce and in life” 

  • When this statutory definition was challenged, the Idaho Supreme Court said in dicta that it views these statutory guidelines as satisfying the constitutional “thoroughness” standard. Idaho Schs. For Equal Educ. Opportunity v. State, 132 Idaho 559, 566 (1998) (ISEEO III).

  • The Idaho Supreme Court later upheld a lower court finding that Idaho’s system of funding schools did not meet the “thoroughness” standards because it failed to provide a safe environment due to structural safety issues in many schools. However, it deferred to the legislature to remedy the problem. Idaho Schs. For Equal Educ. Opportunity v. State, 142 Idaho 450, 455-457; 459-460 (2005) (ISEEO V).

State constitutional protections regarding non-discrimination and equity

• Article I Sec. 4: Guaranty of Religious Liberty

  • Prohibits denial of civil rights based on “religious opinions,” but broadly permits the state to regulate any “acts of licentiousness…or other pernicious practices…inconsistent with the morality or the peace or safety of the state.”

• Article I Sec. 9: Freedom of Speech

  • “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.”

• Article III, Sec. 28: Marriage

  • “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

  • This is obviously not a protection, but should be noted nonetheless because it constitutionally enshrines disparate treatment based on sexual orientation.

• Article IX, Sec. 5: Sectarian Appropriations Prohibited

  • Prohibits use of public funds for any religious/sectarian purpose, including education. 

• Article IX Sec. 6: Religious Test and Teaching in School Prohibited

  • Prohibits racial classification of students: “nor shall any distinction or classification of pupils be made on account of race or color.”

  • Forbids religious doctrine from being taught in public schools. 

• Article X, Sec. 1: State to Establish and Support Institutions

  • Could be interpreted as requiring the state to provide educational institutions to people with disabilities. 

  • “Educational…institutions, and those for the benefit of the insane, blind, deaf and dumb…shall be established and supported by the state in such manner as may be prescribed by law.”

  • However, as stated above, provisions in the Idaho constitution that create a duty on government are not considered a “fundamental right.” Idaho Schs. For Equal Educ. Opportunity v. Evans, 123 Idaho 573, 582 (1993) (ISEEO I).

• Other relevant state constitutional civil rights protections

  •  None.

• State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) 

  • The Idaho Human Rights Act (IHRA) is the primary antidiscrimination law in Idaho. It is intended to mirror the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Titles I and III of the Americans with Disabilities Act (67-5901).

    • Historically, federal courts have interpreted the IHRA “identically” to parallel federal anti-discrimination acts, while state courts have also looked to equivalent federal laws “for guidance.” Susan E. Park & Doug A. Werth, The Idaho Human Rights Act is Long Overdue for a Legislative Update, 64-DEC Advocate (Idaho) 16 (2021). 

  • Section 67-5909(7) of the IHRA forbids discrimination in educational institutions on the basis of race, color, religion, sex or national origin in matters relating to (a) admission or expulsion, (b) applications for admission, (c) indications of preferences of particular types of applicants in written publications, and (d) quota systems. 

  • Section 67-5909A forbids discrimination on the basis of race, sex, color, ethnicity, or national origin in the operation of public education. 

• Additional state civil rights protections that go beyond federal requirements (e.g., protections for LGBTQ+ students, multilingual learners, undocumented students)

  • 33-6603 generally tracks the establishment clause, and protects students from discrimination on the basis that they refused to participate in a prayer.

  • Idaho has some state statutes that run contrary to an equal right to education by prioritizing Christian values.

    • Though 33-1603 prohibits “sectarian or denominational doctrine” to be taught in public schools, and forbids “any books…of sectarian or denominational character” to be used therein, 33-1604 mandates that “Selections from the Bible, to be chosen from a list prepared from time to time by the state board of education, shall be read daily to each occupied classroom…without comment or interpretation.” 

    • The nonbinding guidelines around sex education in 33-1608 emphasize the legislature’s belief that the “primary responsibility for family life and sex education…rests upon the home and the church and the schools can only complement and supplement those standards which are established in the family.”

  • As described in 33-1611A, any instruction involving “human sexuality” (defined in 33-1609(c)(2) as including “deviant sexual behavior, sexual attraction, sexual orientation, or any form of sexual identity, gender identity, gender ideology, or gender conversion”) requires prior notification to parents at least two weeks in advance. Parents then have the right to review any materials that will be used in the instruction, and then must provide their affirmative consent for the child to attend such instruction. Instruction of children in matters involving “human sexuality” without parental consent can trigger investigation of the instructor by the board of trustees. Failure of the board of trustees to take action could create a private right of action by parents against the board.

  • In the IHRA, Section 67-5909B mandates disparate treatment in public schools of queer students by: 

    • Mandating that public school employees address students by their legal names and pronouns corresponding to sex assigned at birth, unless written consent from a parent is obtained (67-5909B(3)(a)).

    • Protecting public school employees from disciplinary action for using a student’s legal name or using a pronoun that corresponds with their sex assigned at birth (67-5909B(3)(b)).

    • Forbidding disciplinary action against students who a) refuse to give their pronouns, or b) address a person using a name other than their legal name or a pronoun inconsistent with that person’s sex assigned at birth (67-5909B(4)).

    • Any person who is “harmed” by a government employer, public school, or public college violating the provisions of this statute is granted a private right of action with a 2-year statute of limitations (67-5909B(5)).

  • Similarly, the “Fairness in Woman’s Sports Act” forbids trans people from competing in sports in a manner that corresponds to their identity. 33-6204 specifically protects schools from any action based on “maintain[ing] separate…teams for students of the female sex.”

  • Further, 33-6702, the “Protecting the Privacy and Safety of Students in Public Schools” Act forbids any persons from using a bathroom that does not correspond to their sex assigned at birth, and forbids the creation of multi-person gender-neutral bathrooms. The act also creates a private right of action (discussed in more detail below).

• State law protections regarding color of law or pattern/practice liability for law enforcement in schools

  • None.

• Anti-discrimination protections under state human rights statutes

  • See above. 

• Private right of action provisions under state civil rights and human rights statutes

  • As discussed below, the Constitutional Based Education Claims Act (CBECA) creates a private right of action for students and their parents to allege violations of the constitutional requirement that the state provide “general, uniform and thorough” public education (6-2205).

  • As discussed above, there is a private right of action for individuals to allege that they have been “harmed” under Section 67-5909B, the statute forbidding discipline for calling someone by their legal name or by pronouns that correspond to their sex assigned at birth.

  • As mentioned above, the “Protecting the Privacy and Safety of Students in Public Schools” Act creates a private right of action for any student who “encounters” a person of the opposite sex in a bathroom, if the school gave permission for that person to be there or failed to prohibit that person from being there. Each encounter leads to potential liability of $5,000 (33-6706).

  • 33-6603 creates a private right of action for students (and their parents) who have been punished or discriminated against for refusing to participate in a prayer.

• Identify whether state anti-discrimination laws also prohibit discrimination caused by disparate impact. If yes, does the state law allow a private right of action for disparate impact claims?

  •  The laws discussed herein do not specifically address disparate impact claims. As mentioned above, in ISEEO I the court found that laws that have disparate discriminatory effects in education do not receive any heightened scrutiny. 

Is the right provided by state law conferred on the student, parent/guardian, or both? In other words, who can bring a claim under this law? 

• All challenges asserting a violation of the constitutional mandate to provide “general, uniform and thorough” public schools must be brought through the Constitutionally Based Education Claims Act (CBECA).

  • CBECA grants standing to schoolchildren, parents/guardians of schoolchildren, or parents/guardians of any child who will enter public school in the next two years (6-2205).

  • CBECA generally requires that a plaintiff first file a complaint regarding the alleged violation to the local school district where they reside. Plaintiffs cannot bring suit against the state, legislature, or any state officers/agencies alleging the constitutional violation until they have first brought suit against their local school district (6-2205).

Does the specified law or policy provide protections against retaliation? What are the elements of a retaliation claim? Are protections against retaliation clearly spelled out in the law or policy?

• In the IHRA, Section 67-5911 forbids discrimination against individuals who have “opposed any practice made unlawful by this chapter. This is, however, a double-edged sword, as the IHRA both generally protects against discrimination on the basis of race/sex/national origin, but also mandates disparate treatment of queer people (as described above). 

• Statute of limitations for filing education-related state civil rights complaints (or state civil rights complaints broadly) or state human rights complaints?

  • There is a 1-year statute of limitations for discrimination complaints under the IHRA (67-5907).

Are there areas where the state laws provide more protections than federal law? What are those areas? 

• No – Idaho laws generally track federal law, except that they are more restrictive in areas relating to LGBTQ+ rights. However, for the IHRA specifically, it is an open question whether it is intended to mirror outdated versions of key federal nondiscrimination laws (that is, the laws that were present when the IHRA was first enacted twenty years ago) or whether it is intended to mirror up-to-date versions of federal nondiscrimination laws. The Idaho Human Rights Act is Long Overdue for a Legislative Update, 64-DEC Advocate (Idaho) 16 (2021).