In 2002, school choice advocates won a major victory when the Supreme Court of the United States upheld an Ohio scholarship program designed to provide better educational options to students in inner-city Cleveland. The program provided district students with a scholarship to attend any participating public or private school within the district boundaries, including religiously affiliated schools. The poorest families were given priority: those with incomes more than 200% below the federal poverty line were eligible to receive 90% of tuition up to $2,250. Like all school choice programs, it was designed to give low-income students in failing public schools the option of attending a better school.
Who would oppose that? Well, as my colleague Wen Fa noted yesterday, those who stand to lose their monopoly – the teachers’ unions and administrators of failing public schools. But those groups can’t fight school choice programs in court on the ground that they are bad for business. They need a constitutional argument that can actually win. That’s where the Establishment Clause of the First Amendment comes in. Several taxpayers challenged the Cleveland program on the ground that it impermissibly “establishes” religion because some of the taxpayers’ money that went to fund the scholarships ultimately ended up paying tuition at religious schools. In Zelman v. Simmons-Harris, a 5-4 majority of the Supreme Court rejected that argument, concluding that the program was constitutional because it awarded money to parents and students (and not the schools themselves). The Court rightly declared the program to be one of “true private choice.”
The victory in Zelman means that, if structured in the correct way, state-funded scholarship programs meant to expand educational choice do not violate the United States Constitution. But opponents of school choice have not surrendered. Instead, they turned to an infamous provision included in many state constitutions. So-called “Blaine Amendments,” named for late nineteenth-century statesman, politician, and three-time Republican presidential candidate James G. Blaine, prohibit government aid to “sectarian” or “religious” institutions. While he was Speaker of the House, Blaine unsuccessfully tried to get the amendment added to the United States Constitution. But state-level action was more successful. Aided by anti-Catholic sentiment, Blaine Amendments were added to the constitutions of 38 states. Today, as the recent decision of the Colorado Supreme Court shows, they are one of the most significant roadblocks to the advancement of school choice.
Because the Blaine Amendments are enshrined in state constitutions, they can only be invalidated if they conflict with federal constitutional guarantees. But as my colleague noted last month, the Amendments’ explicit discrimination against religious institutions as a class raises a significant constitutional question under the Equal Protection Clause. And even if that challenge is ultimately not successful, state courts should not read Blaine Amendments to prohibit “private choice” programs like the one in Zelman, which only incidentally benefit religious schools. Unlike those who supported the Blaine Amendments’ passage, state legislators that support school choice today are not doing so for religious reasons. They support school choice because, like PLF, they believe that every child deserves a chance to succeed.
As Justice Thomas said in response to the Establishment Clause arguments in Zelman, “[t]here would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.” Likewise, the Blaine Amendments’ prohibitions on religious subsidies should not be used to deprive children of better opportunities.