Tim Abram is the Associate Policy Director of Educational Opportunity for ExcelinEd.
In late 2019, we defined Blaine Amendments and explained how states differ in their interpretations of these amendments, which prevent government money from flowing to faith-based institutions. Next week the Supreme Court of the United States (SCOTUS) will hear oral arguments in Espinoza v. Montana Department of Revenue, which questions the constitutionality of so-called “Blaine Amendments” that are found in 37 state constitutions.
Blaine Amendments were crafted in the late 19th century amidst rising anti-immigrant and anti-Catholic sentiment in the United States. The original Blaine Amendment proposed that “. . . No money raised by taxation in any state for the support of public schools, or derived from any public fund…shall ever be under the control of any religious sect.”
Although each state’s Blaine Amendment is different, all prohibit the transfer of government funds to faith-based institutions. The named plaintiff, Kendra Espinoza, along with two other Montana families, claims that this prohibition is unconstitutional. If SCOTUS decides in their favor, a large hurdle will be removed for families that want to utilize government funding to attend faith-based private schools.
A decision against Espinoza could create a formidable policy environment for school choice advocates who have seen private school choice grow to include 26 states. An unfavorable decision could halt the possibility of states enacting new choice programs that include the options for families to send their children to religious private schools. While it is difficult to speculate about the precise nature of the school choice reform landscape in an environment following a decision against Espinoza, choice advocates know that a narrow interpretation or a decision against Espinoza could halt their progress.
If SCOTUS decides that students do have a right to access private schools with government funds, what could happen? In the immediate aftermath of a Supreme Court decision in favor of Espinoza, states will lose the ability to evoke Blaine Amendments as constitutional defense against the flow of state money to faith-based institutions. But, a decision for Espinoza does not mean that states will be inclined to create and implement new legislation. Even if some states do pass legislation, others might find reasons to avoid doing so.
Perhaps a decision in favor of Espinoza could result in the creation or expansion of voucher, tax-credit scholarship, education savings accounts and other legislation throughout the country. This would be a victory for advocates of private school choice, who aim for families who want alternatives to locally assigned districts to have them.
The importance of the upcoming Espinoza case cannot be overstated. Over 500,000 students nationwide currently benefit education choice, with scores more on waiting lists. Clearly, when school choice works well, parents demand more of it. Irrespective of the ultimate decision by the Supreme Court, 2020 looks to be an eventful year for school choice.