Another Strike Against the Blaine Amendment

On Friday afternoon right before the holiday weekend, the Institute for Justice declared another major victory for school choice. They represented several Montana families against the state Department of Revenue in a case involving a tax-credit scholarship program. This win recognizes that parents can direct their children’s education to select either a religious or secular private school under the program.

Montana’s tax-credit scholarship is similar to New Hampshire’s in that it accepts private donations for low-income students which may be used for tuition at private schools. NH’s program, administered by the Children’s Scholarship Fund NH and the Giving and Going Alliance, also may be used for home education expenses.

IJ’s win is another strike against the bigoted Blaine Amendment which originates from an 1800s effort to discriminate against Catholics. At the time Protestantism was taught in public schools and the Blaine Amendment was a way to prevent Catholic schools from receiving similar financial support. It is included in 37 state constitutions, but is increasingly on shaky legal ground in several states. The central argument is that government must be neutral to religion and religious organizations, neither favoring nor discriminating against them.

In a related case, the US Supreme Court recently heard Trinity Lutheran vs. Comer involving a constitutional challenge in Missouri. The church-sponsored daycare center was denied a grant for playground equipment solely because of their religious status. Supporters believe the government’s program must be neutral relative to religion.

Various funding mechanisms including tax-credit scholarships and education savings accounts empower parents with choice and do not directly fund schools. More courts are recognizing the distinction of parents determining how those funds are utilized.

Education savings accounts have withstood constitutional challenges in states with Blaine Amendments. Arizona and Nevada rulings say that because families receive the funds, not the religious schools, and there are multiple approved uses for the funds, Blaine Amendments are not applicable. In the Arizona case, Niehaus v Huppenthal, 233 Arizona 195, 310 P.3d 983 (Ct. App. 2013), Judge Jon Thompson said,

“…the ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.

” The ESA is neutral in all respects toward religion and directs aid to a broad class of individuals defined without reference to religion. The ESA is a system of private choice that does not have the effect of advancing religion.”

In the Nevada case, Justice James W. Hardesty echoed these opinions.

“Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead the private funds of the individual parent who established the account. The parent decides where to spend that money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools. Any decision by the parent to use the funds in his or her account to pay tuition at a religious school does not involve the use of ‘public funds.’”

The Trinity Lutheran case and IJ’s Montana win could have impacts on New Hampshire’s efforts to expand educational options. Accountability to parents and empowering them to direct their children’s education is gaining ground in society, legislatures, and the courts. This is a win for students and communities.

“The most basic question is not what is best, but who shall decide what is best.” — Thomas Sowell


For more information on the Blaine Amendment and its impact on school choice, read the following articles.

Institute for Justice: Supreme Court’s Trinity Lutheran Case Asks – Can State Discriminate Against Religious Institutions?

The Federalist Society: Blaine Amendments and the Unconstitutionality of Excluding Religious Options from School Choice Programs

Institute for Justice: School Choice and the Law — School Choice and State Constitutions’ Religious Clauses

Kansas City Star by Michael Q. McShane: The Supreme Court Can Put a Nail in the Anti-Catholic Coffin

Heritage Foundation: Blaine Amendment Shouldn’t Stop Education Savings Accounts