The week of January 27th is National School Choice Week, which is appropriate since a potentially landmark case currently before the U.S. Supreme Court could have wide-ranging implications for California parents who want more education options for their children.
The case, Espinoza v. Montana Department of Revenue, involves a Montana school-choice program that gives Montanans a tax credit if they contribute to a non-profit organization that provides scholarships to children to attend private schools, including religious schools. The Montana Supreme Court struck down the program based on a so-called Blaine amendment provision in Montana’s state constitution that prevents government funding going to religious schools.
Blaine amendments are named after U.S. Congressman James Blaine, who proposed a failed U.S. constitutional amendment in 1875 that sought to bar government dollars from supporting schools “under the control of any religious sect.” While Blaine’s proposal died in Congress, his idea gained support in many states because of the religious bias of the time.
As the U.S. Department of Justice’s amicus brief in the Espinoza case notes, state Blaine amendments were adopted “during an era of widespread hostility to Catholicism in general and to Catholic schools in particular.” In all, 37 states adopted Blaine amendments, including California.
There are two provisions in the California state constitution that include Blaine amendment language.
Article IX, Section 8 says, “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools.”
And Article XVI, Section 5 says that no state or local government entity will use public funds “to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever.”
Besides their biased history, there are a lot of things wrong with these amendments both legally and educationally.
In 2017, the United States Supreme Court issued an important ruling in the case of Trinity Lutheran of Columbia v. Pauley, which involved Missouri’s Blaine amendment and the denial of a state grant to a church-run playground. While not overturning all Blaine amendments, the Court said that U.S. Constitution’s Free Exercise Clause “protects religious observers from unequal treatment” and prohibits “laws that target the religious for ‘special disabilities’ based on their ‘religious status.’”
Further, the Court said that Missouri’s policy “expressly discriminated against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” The Court declared that this penalty was “odious to our Constitution.”
Thus, as the Justice Department’s brief points out, Montana’s Blaine amendment (and, by extension, California’s similar amendment) “discriminates on the basis of religious status” and “incapacitates a school from receiving public funds simply because of what it is—a ‘sectarian’ school, or a school controlled by a ‘church, sect, or denomination,’” and therefore “is a violation of the Free Exercise Clause.”
Finally, given that Montana’s Blaine amendment was used to nix tax credits for donations to scholarship-granting organizations, the Justice Department harshly concludes, “It is bad enough for a State to discriminate against religion when distributing funds itself; it is even worse for a State to prohibit private parties from independently directing funds to religious entities.”
Besides the legal argument against the Blaine amendments, there are important educational arguments as well.
The educational choice programs that these amendments try to block have been shown, overall, to improve academic performance, graduation rates, college enrollment, civic engagement, crime rates, and student and parent satisfaction.
Former U.S. Solicitor General Paul Clement and Center for Education Reform CEO Jeanne Allen note, “Religiously affiliated schools in particular improve student achievement, attendance, and civic engagement.”
Erica Smith and Dick Komer, who are senior attorneys at the Institute for Justice, which represents the plaintiff families in the Montana case, have writtenthat the Supreme Court “should make clear that Blaine Amendments are repugnant to religious neutrality and, in so doing, pave the way for greater educational opportunities, not just for Kendra Espinoza and her daughters, but for hundreds of thousands of families nationwide who desperately need these options.”
If the Supreme Court does invalidate all state Blaine amendments, including California’s, it would clear the way for the enactment of an array of school-choice options, such as tax-credit scholarships and vouchers. In California, polls show strong support for school choice, and without the obstacle of the state Blaine amendment, that support could become a political force for education change.
— Lance Izumi is senior director of the Center for Education at the Pacific Research Institute and the author of the 2019 book Choosing Diversity: How Charter Schools Promote Diverse Learning Models and Meet the Diverse Needs of Parents and Children.