Laws from the 1800s Are Still Impeding Modern School Choice

School choice programs, such as Education Savings Accounts (ESAs) or Tax-Credit Scholarships, are regularly met with hostility, and often on the same precarious legal grounds. As IJ Attorney Michael Bindas pointed out in a recent op-ed for The Wall Street Journal, one of the primary legal weapons wielded against school choice is a common state constitutional provision from the late 1800s with roots in anti-Catholic animus.

“Inspired by the original 1875 congressional supporter, James Blaine, state “Blaine” amendments barred funding for “sectarian” schools, which in Protestant America at the time meant Catholic schools. But the worm has turned. The judges charged with interpreting those constitutions today are interpreting sectarian to mean all religions.” 

These amendments were largely in a response to a growing number of Catholic immigrants who wanted separate education from the (then overtly Protestant) public schools.

As Bindas highlights in his op-ed, religious schools have been denied things as harmless as recycled rubber tires, all on the presumption that this provides illegal aid to a sectarian institution.

“Although the playground-resurfacing program in Missouri provides aid directly to schools, the program’s environmental and safety goals are entirely secular. Those recycled tire bits are not going to indoctrinate the children playing on them. Rubberized playgrounds might save knees and the environment, but they do not save souls.”

In fact, most school choice programs provide no monetary aid to private schools at all. Instead, they provide financial assistance to low- and middle-income families who may then choose to send their children the school of their preference, religious or otherwise.

IJ has successfully defended school choice in states with Blaine amendments before, and has continued to rise to the challenge in places like Douglas County, Co., where a scholarship program was struck down by the state Supreme Court, and in the state of Nevada, where an ESA program is being challenged with multiple lawsuits. In both cases, IJ’s opponents rely on their flawed interpretation of Blaine amendments to delay the expansion of school choice programs, even though these programs assist parents, not particular schools.

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