Breaking Down Blaine Amendments’ Indefensible Barrier to Education Choice

Abstract

Though school choice has proven to be popular, barriers remain in some states as a result of so-called Blaine Amendments and similar policies to prevent education funding from following students to religious schools as a part of school choice options. If left to stand, these ignoble 19th century amendments will remain major impediments to the growth of school choice, and will be the battleground on which proponents and opponents of education reform spar in coming years. The U.S. Supreme Court has overruled the logic behind the amendments and disavowed their “shameful pedigree” (Mitchell v. Helms, 2000).

KEYWORDS:

• Blaine amendments
• school choice
• compelled support clauses
• education choice
• Catholic
• education reform

Notes

1. By way of example, Joseph P. Viteritti (1998) writes in the Harvard Journal of Law and Public Policy, “This kind of mandate appeared in the enabling legislation of 1889 that divided the Dakotas into two separate states and admitted Montana and Washington into the Union as well” (see Act of February 22, 1889, as found in Viteritti, 1998, p. 657). “Likewise, New Mexico was granted statehood only on the explicit condition that it adopt a similar provision in its constitution” (see Wiley, 1965, as cited in Viteritti, 1998, p. 657). See also Komer (2007).

2. Michigan enacted a no aid provision in 1835 followed by Florida, which enacted similar no aid language in 1838 (Florida constitution reaffirmed no aid language in 1968).

3. During the course of oral arguments, the following exchange took place, laying the groundwork for what would become Arizona’s education savings account (ESA) program. Justice Hurwitz: “Do you agree that the state could pick this population of worthy parents and say to them “here’s a grant for each of you for $2,500 to be used in pursuit of your children’s education, spend it as you wish?” Peters: “Yes.” Justice Hurwitz: “And if they spend it on a private or parochial school, or on public schools by transferring districts, that would be okay?” Peters: “Yes. I think the dividing line is how much the state constrains the choice.” Peters: “Under the Aid Clause, that funding is for the most part only going to be used to pay one of two prohibited recipients. So the choice is constrained to the point that the odds are overwhelming that it’s going to go to a prohibited recipient.” Justice Hurwitz: “So then why wouldn’t that make illegal the program I just described, where we said to each parent “here’s money to use for your child’s education?” Those who are going to public school would have no expenditure in any case.” Peters: “My assumption is that you can hire a tutor with it, you can do all kinds of things with that money other than paying a private or religious school.” See Ladner (2012).