In a blow to defenders of the Blaine Amendment, the Supreme Court strengthens school choice for families

Jul 13, 2017

Two recent U.S. Supreme Court decisions have raised hopes for parents seeking a better education for their children.  In the first, issued June 26th, the Court decided the Blaine Amendment in Missouri’s constitution cannot be used to deny public funding to a religious non-profit to improve child safety in a preschool playground.  The case is Trinity Lutheran Church of Columbia v. Comer, 15-577.

The Court ruled that, since the playground safety program is a generally-available public benefit open to all groups, it would be “odious” to discriminate against members of Trinity Lutheran Church simply because of their religious affiliation.

The ruling is a serious blow to defenders of the Blaine Amendment, an anti-religious provision that is incorporated into the constitutions of 38 states. 

Blaine Amendments are a 19th century relic of anti-religious bigotry.  After the Civil War, Maine’s Senator James G. Blaine wanted to amend the federal constitution to deny public funding to “sectarian,” mainly Catholic, private schools.  His federal effort failed, but Senator Blaine succeeded in requiring new states to accept his amendment as a condition of joining the union.

Backers of the Blaine Amendment were motivated by hatred for the large numbers of poor Catholic immigrants who arrived in America during the 19th century.  Today, opponents of school choice use the Blaine Amendment in states that have it to prevent parents from using public funds to seek a better education for their children.

In the second ruling, issued June 27th, the Supreme Court said a Colorado court must reconsider its decision to ban a family voucher program in Douglas County schools.  Legal experts predict the lower court will be required to restore Douglas County’s popular education vouchers, which allowed parents who request them to send their children to high-quality private schools.  The case is Doyle v. Taxpayers for Public Education, 15-556.

Michael Bindas, a lead attorney representing three Colorado families, said,

“Today’s order sends a strong signal that the U.S. Supreme Court will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs.”

Much has changed in American society since the 19th century.  Overt anti-religious bigotry has declined, yet powerful unions and the public school establishment routinely cite the Blaine Amendment as their reason for blocking education choice for families.

Still, in many places school choice is routine and non-controversial.  Today many states offer parents school vouchers, tax credit scholarships and education savings accounts to help pay tuition at private schools.  After all, letting parents guide the education of their children is hardly a radical idea.  Parents of college-age kids do it every day.

In addition, many advanced countries use public funds to send children to private schools.  Examples include Australia (where 25 percent of children attend private schools using public funds), Belgium (58 percent), Denmark (11 percent), France (16.8 percent), South Korea (21 percent), the Netherlands (76 percent), Spain (24 percent), and the United Kingdom (30 percent).

Even in Washington state, school administrators often direct public money to children attending private religious schools.  For example, in 2016 school districts paid $8.1 million to Catholic, Christian and Jewish institutions to provide special education, day care, preschool, foster care, and other education services (See WAC 392-172A-04040).

These two Supreme Court rulings are sparking excitement among parents and education rights groups across the country.  As opponents lose the historically-bigoted Blaine Amendment as a talking point against education choice, the idea that parents who want to can use public funds to send their children to a better school has taken a huge leap forward.