Blaine Amendments are on the ropes

The U.S. Supreme Court will decide in Espinoza v. Montana Department of Revenue if the state’s Blaine Amendment can be used to prevent tuition tax credit programs from using dollars to help students attend religious schools (“Consign James Blaine to Memory Lane,” The Wall Street Journal, Aug. 16).  Its ruling will affect the 3.8 million students enrolled in religious schools across the nation.

As readers of this column know, I support parental choice, but I draw a line when it comes to the use of tax dollars for religious schools.  Yes, religious schools can provide a quality education, especially for low-income children trapped in terrible public schools.  But if the high court strikes down the Blaine Amendment, it will open the door to further support of religious schools.  We’ve already seen the slow erosion of the wall between church and state, but I think it is nothing compared with what will ensue.

Yeshivas in New York State, for example, are supposed to provide an education that is “substantially equivalent” to that provided by public schools.  But many do not, claiming religious liberty.  Either we believe in public schools or we don’t.  If public dollars were allowed to pay for tuition at religious schools, enrollment would jump, draining funds for traditional public schools.  That happened in Cleveland a decade ago.

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5 Replies to “Blaine Amendments are on the ropes”

  1. Like you, I strongly oppose govt $ going to religious schools. But — that’s on policy grounds rather than constitutional grounds.

    It’s hard — arguably impossible — to create an analytically rational application of the establishment clause and the free-exercise clause. Pretty much anything that a govt does that in any way touches on religion can be rationally challenged as violating either one or the other of the clauses — as if the Constitution simultaneously order the govt to move and not to move.

    In my opinion, the most analytically rational application of the two clauses is to require that the govt ignore religion when it legislates + to allow govt actions that help or harm a particular religion so long as the govt’s principle motivation for the govt action was something other than helping or harming the religion.

    Of course, this approach would be extremely unpopular in some quarters — i.e., Title 7’s prohibition on gender-based discrimination would apply to hiring by churches and synagogues, state laws that prohibited LGBQ discrimination would apply to religious schools.

    Under this approach, if a govt provided $ to private schools, it could not refuse to provide the $ to a reigious religious private school based on the fact that the school was religious.

    Hard to predict what the current SCt will do with the Blaine issue. Probably strike down the Blaine laws — since the Republicans like giving govt $ to private schools and the Republicans hate the teachers unions.


  2. Labor Lawyer: The high court will no doubt declare the Blaine Amendments unconstitutional. That will open the door to the destruction of public schools and to other intrusions that have historically been in place.


    1. Not sure that striking down the Blaine Amendments would trigger a flood of $ to religious schools. In most states, the majority of voters oppose tax $ going to religious schools. Certainly, there will be the core of Catholic and Jewish voters who are already sending their kids to Catholic schools or yeshivas and who will therefore be strong supporters of giving tax $ to religious schools. But, the overwhelming majority of voters prefer public schools and/or non-religious private schools to religious private schools. So — state legislatures might be reluctant to antagonize all those anti-religious-school voters.

      The crunch would come if, as seems likely, the SCt strikes down the Blaine Amendments, state legislatures refuse to fund religious schools as a matter of policy, some states/cities continue to fund non-religious charter schools, and a Catholic school or yeshiva sues — arguing that funding the non-religious charters while failing to fund the religious school unconstitutionally discriminates against religion.

      Suppose the SCt then ruled that, if the govt was going to fund the charters, the govt also had to fund the religious schools. What do the anti-religious-school state legislatures do then? Fund the religious schools? Pull the plug on the charters?


  3. Labor Lawyer: I’m not sure that most voters prefer public schools over private and religious schools. Charter schools are the exception, witness the long wait lists for admission in almost all cities. But if parents get tired of waiting for the lottery to allow their children to enroll in charter schools, I think they will then apply to private and religious schools because the tuition will be so affordable with tax support. Why would they wait?


    1. I was referring to the majority of voters opposing tax $ going to religious private schools, not non-religious private schools. The voters are about evenly split on the issue of tax $ going to non-religious private schools.

      My evidence re the majority of voters opposing tax $ going to religious private schools is the established track record of voters voting no when a voucher referendum appears on the ballot — the usual argument against vouchers is that they would allow tax $ to go to religious schools.


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