The U.S. Supreme Court is expected to hear a case in 2020 that is encouraging for school choice advocates. Espinoza v. Montana Department of Revenue is one in a series of cases questioning the constitutionality of state Blaine amendments. These provisions, found in 37 state constitutions, prevent the flow of public money to religious institutions. A decision in the Espinoza case could potentially clarify a longstanding split in the lower courts regarding whether public education funds flow to families or to the schools that children attend.
In 2018, the Montana Supreme Court relied on the state’s Blaine amendment in abolishing a state program that provided tax-credit scholarships to low-income students to use in a school of their choice. The court agreed with the Montana Department of Revenue that the amendment prohibits scholarships from being used in religious schools. It then went further and decided that because the state allowed students to take their scholarship money to religious schools, the entire scholarship program was void. Kendra Espinoza, who enrolled her daughters in a private Christian school using tax-credit scholarships, is challenging that decision, arguing it violates the Free Exercise, Equal Protection and Establishment clauses.
This tension around the use of “public” funds to access “private” schools isn’t unique to the United States. A number of countries around the world allow students to access religious schools with public money, but they haven’t arrived at this type of school choice without controversy. What is unique to the U.S. is the historical and legal context that prevents so many students from accessing schools of choice.
Blaine amendments date back to the 19th century. They are named for U.S Congressman James G. Blaine of Maine who in 1875, at the urging of President Ullyses S. Grant, sought to “amend the U.S. Constitution to prohibit state governments from, among other things, funding religious schools with public money.”
The amendment failed, but it inspired 37 states to amend their constitutions with similar language. While the language of the amendments varies from state to state, all originate from an anti-immigrant and anti-Catholic bias and a desire of the 19th century Protestant elite to maintain the educational status quo.
It was Massachusetts’s 1854 Anti-Aid Amendment that served as a prototype for Blaine’s failed federal amendment and, regrettably, the anti-immigrant flavor of subsequent amendments in other states. Their common goal was to ensure that school should be conducted according to Protestant teaching and often relying on the Protestant Bible, a backlash against the unprecedented numbers of Irish and Italian (mostly Catholic) immigrants settling in Massachusetts and the rest of the country.
Blaine amendments remain in place today, with unfortunate consequences. Parents in many states must pay private school tuition to access anything other than their local public school, even if that public school does not meet a child’s needs or align with a family’s beliefs.
While Blaine amendments haven’t halted school choice in every state, they have informed its evolution. Because the amendments differ by state, some school choice programs that allow parents to access religious schools pass muster with lower courts, while others do not. The Espinoza case could provide a definitive answer as to whether Blaine amendments are unconstitutional. If the U.S. Supreme Court decides they are unconstitutional, advocates for school choice will experience a victory unlike any they have seen before.
Learn more about Education Scholarship Accounts and Blaine amendments on the Opportunity Learning Hub.