School Choice & Charters

School Voucher Advocates Push Supreme Court to Hear Case on Blaine Amendments

By Arianna Prothero — December 03, 2015 2 min read
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Several heavyweight school choice groups are asking the U.S. Supreme Court to take up a case out of Colorado that could potentially smooth the way for school voucher programs to open up in every state.

In June, the Colorado Supreme Court ruled that a small voucher program being piloted in Douglass County was unconstitutional because it would have allowed students to use public dollars toward tuition at private, religious schools.

Even though the U.S. Supreme Court ruled in 2002 in a case out of Cleveland that vouchers do not violate the establishment clause of the U.S. Constitution, provisions in many state constitutions, called Blaine Amendments, have been used to strike down publicly funded voucher programs at the state level.

In an amicus brief filed with the U.S. Supreme Court this week, four groups have asked the High Court to hear the Colorado case and overturn Blaine Amendments across the country: The Goldwater Institute, the American Federation for Children, the Foundation for Excellence in Education, and the Hispanic Council for Reform and Educational Options.

In a statement, the four organizations said that were the U.S. Supreme Court to rule Blaine Amendments unconstitutional, the decision would “clear the way for school vouchers in all 50 states.”

What Are Blaine Amendments?

Back in 1875, a U.S. representative from Maine, James G. Blaine, proposed an amendment to the Constitution that would have barred states from funding religious education or any religious institutions.

Although Blaine’s proposal didn’t pass Congress, several states incorporated similar provisions into their state constitutions. Some scholars and voucher advocates argue that backin the 19th century, Blaine Amendments were adopted more out of an anti-Catholic bias than a desire to keep church and state separated. (For more on the history on Blaine Amendments, here’s an informative Q&A from the Pew Research Center with a George Washington University law scholar).

Currently, 37 states have Blaine Amendments, although they vary in how restrictive they are.

So even though the U.S. Supreme Court said that vouchers don’t violate the Constitution’s establishment clause in part because parents—not the state—decide which schools the money goes to, Blaine Amendments can create additional constitutional hurdles for voucher programs.

For that reason, Blaine Amendments have been in the crosshairs of school choice advocates for a while now. For an example, check out this 2002 article written by my colleague Mark Walsh on a plan by voucher advocates to file lawsuits attacking Blaine Amendments in several states.

But on the flip side, these provisions have given rise to new types of school choice programs, such as education savings accounts, which were first developed by the Goldwater Institute in Arizona as a way to get around that state’s Blaine Amendment.

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Photo: The Supreme Court in Washington. —Jacquelyn Martin/AP-File

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A version of this news article first appeared in the Charters & Choice blog.