Retrograde on School Choice
(reprinted with the permission of the author)
Organizations such as the ACLU, the American Jewish Congress and the NAACP properly pride themselves on fighting religious, racial and ethnic bigotry wherever it is found. Thus it is deeply troubling that in their determination to thwart school choice programs, these champions of equality would resort to invoking state constitutional provisions whose lineage lies in the sullied era of 19th-century bigotry against Catholics.
I am referring to the "Blaine Amendments" adopted in many states in the late 1800s. One of these -- in Florida -- was the basis on which a trial judge recently struck down the state's school choice program at the behest of "civil liberties" organizations.
These provisions, found in no fewer than 46 state constitutions, are named after Sen. James G. Blaine of Maine, who made several bids for the presidency. Ironically, the anti-Catholic sentiment of that time arose from the fact that the growing community of Catholics in America objected to the Protestant doctrines that were taught in the publicly funded schools and thus sought state funds to support the creation of Catholic schools. The Blaine Amendments typically state that "no revenue of the state . . . shall be taken from the public treasury . . . in aid of any . . . religious denomination or in aid of any sectarian institution."
It would be difficult to craft a statement more in conflict with the principle of government neutrality toward religion, which lies at the core of the past two decades of Supreme Court religion clause cases. These provisions clearly discriminate against a set of institutions simply because they are religious. Having won the argument this year over whether the U.S. Constitution's establishment clause blocks school choice programs, getting Blaine Amendments recognized for the odious items they are and struck down by our courts is the next step for those of us who favor school choice.
There is good reason to believe we will win in this stage of the effort as well. Prior to the recent ruling in Florida, the U.S. Court of Appeals for the 9th Circuit (the same entity, although not the same judges, that declared the Pledge of Allegiance unconstitutional) ruled that Washington state could not prohibit the use of state scholarship funds at religious schools because to do so "facially discriminates on the basis of religion." Moreover, at least one Supreme Court justice -- Clarence Thomas -- took the time and effort two years ago to write a lengthy concurring opinion in which he reviewed the sordid history of Blaine Amendments and thus began to lay the groundwork in the high court for having them overturned wholesale.
If this policy fight were being held in the honorable manner it deserves, school choice proponents would not spend the time and money litigating these provisions. Clearly there are many policy arguments to be had over school choice programs: Will they improve failing public schools through competition? How will performance be assessed? How will resources be fairly allocated between public school and voucher budgets? But resorting to remnants of religious bigotry is repugnant and should not be the means used in this debate.