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The "Blaine Amendments" are bigoted relics

Updated: May 14

Here's the good news: the U.S. Supreme Court has, for all intents and purposes, struck down the core of the so-called Blaine Amendments as they relate to education choice options. As a result, dozens of states with Blaine Amendments currently offer families the options of Education Savings Accounts or education choice tax credits.

The bad news is three fold: many states have their own Blaine language, most citizens don't know what a Blaine Amendment is, and even fewer know how policymakers are using its bigoted foundation as an excuse to block children who need more education options.

Last month brought news that a new lawsuit is challenging the Blaine Amendment in Idaho. Like many other states (more than two-thirds, to be exact), Idaho adopted its Blaine Amendment at the time of statehood in 1890. The language, which was debated as a federal constitutional amendment as well, essentially prohibits the use of state funds for any religious purposes.

"Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever..."
-Article IX, Section 5, Idaho State Constitution

Why was this such an issue in the country at the time of adoption in the 19th century? Put simply, it was fear of Catholics. As the Catholic population grew, bigotry aimed to keep public funds in schools that were teaching - even praying - under a Protestant umbrella.

More than 130 years later, opponents of additional education options for children have used the outdated relic of the Blaine Amendments as an excuse to block any legislation that might expand education options for families - with one notable, local exception (more on that in a moment). Blaine Amendments, however, have not stopped many states from providing families with more education choice options.

Two recent U.S. Supreme Court cases have curtailed Blaine Amendment restrictions: Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022).

The Espinoza decision held that government attempts to exclude religious schools from public scholarship or tax credits are subject to strict scrutiny, meaning lawmakers must prove they have a “compelling interest” in restricting the free exercise of religion of scholarship or tax credit recipients. The Carson majority held that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause."

In other words, states cannot fall back on their Blaine Amendments to justify prohibitions on public funding of schools solely due to their religion. In addition, a state cannot discriminate against religious beneficiaries of public scholarships or tax credits by forbidding them from using those benefits at religious schools. As the Institute for Justice writes, “these obstacles to educational freedom are now largely a dead letter.”

Each state's Blaine Amendment is different in scope and impact. But if the opponents of additional education choice options are correct, it could be argued that Idaho is already violating its Blaine Amendment. Careful readers will notice the language in the Idaho constitution includes "college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever..."

As we've previously noted, the successful Idaho Launch program does exactly that. Students receive state help to cover about 80% of the cost of their college tuition. Near the top of the list of institutions where the grants for Idaho Launch can be used and where students have applied are Brigham Young University-Idaho, a private, religious school run by the Church of Jesus Christ of Latter-Day Saints. Northwest Nazarene University is another private, religious institution on the list.

So, using the same arguments of those opposing education choice, how does this not violate the Blaine Amendment? Proponents may say the funds are not going directly to the institution, but rather to students and families. And that's true - but that's exactly what K-12 education choice options would do.

The allocation of public funds in this context is determined by the private choices of individuals, rather than any direct governmental action to funnel public resources into religious or private educational institutions. The courts have underscored that this mechanism does not result in the state endorsing or establishing any religion, thus maintaining a clear separation between church and state.

Anyone who still uses Blaine Amendments as an excuse to block education reform is stuck in a 19th century mindset. It is past time to commit to the educational needs of every child.

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