November 26, 2018

Liberty & Law readers know that IJ racked up a string of legal victories in defense of educational choice programs over the past few months. A recent U.S. Supreme Court decision also gave us an opportunity to go on the offensive. This fall, IJ unveiled a cutting-edge legal strategy to seize that opportunity, with two federal lawsuits in Maine and Washington state designed to knock down barriers to expanded educational opportunities.

Although IJ set a landmark 2002 Supreme Court precedent that declared educational choice programs to be perfectly legal under the U.S. Constitution, opponents have continued to file lawsuits challenging choice programs under state constitutions. Their arguments rest mainly on state constitutional provisions known as “Blaine Amendments.”

Found in some 37 state constitutions, Blaine Amendments prohibit appropriations in aid of so-called sectarian institutions. These controversial constitutional provisions are not about church–state separation. Rooted in 19th-century anti-Catholic bigotry, they were designed to protect the predominantly Protestant public school system while denying direct funding for “sectarian”—a term the Supreme Court acknowledges was code for “Catholic”—schools.

IJ’s new cases aim to remove these pernicious provisions as obstacles to educational choice. In Maine, students who live in towns too small to sustain public schools receive tuition funds to use at another town’s public school or at a nearby private school of their parents’ choice—unless, that is, the private school is “sectarian.” And in Washington, college students participating in the state’s work–study program can earn money for college and gain valuable job experience working in a field related to their major. Except those students who choose to work for a “sectarian” employer.

But discriminating against students or families who choose religious options is just as unconstitutional as endorsing religion. The Constitution demands that, when it comes to religion, the government remain neutral. IJ is challenging the “sectarian” exclusions in both programs to vindicate that principle and to give students the widest possible array of educational options.

We have fresh ammunition to support our argument: the U.S. Supreme Court’s recent decision in Trinity Lutheran v. Comer. In that case, the Court held that excluding qualified institutions—like schools—from public programs solely because of their religious affiliation is “odious to our Constitution.”

By eliminating roadblocks to new and expanded choice programs, IJ will protect one of the most essential components of parental liberty: the right to direct your children’s education. As far back as 1925, in the Pierce v. Society of Sisters decision, the U.S. Supreme Court held that government has no power to “standardize … children by forcing them to accept instruction from public teachers only.” As the Court forcefully explained, “The child is not the mere creature of the State.”

By eliminating roadblocks to new and expanded choice programs, IJ will protect one of the most essential components of parental liberty: the right to direct your children’s education.

The reality is that families who cannot afford to live in neighborhoods with high-performing public schools, or to pay the tuition for private alternatives, are often trapped in deficient schools. That is why, for nearly three decades, IJ has defended programs that empower parents to select the school that best fits their children’s unique learning needs—regardless of whether the school is public or private, religious or non-religious.

Our new cases in Maine and Washington are a continuation and an escalation of that fight. Success means we will help even more students get the education they need—while removing one more obstacle that blocks the path to educational freedom.

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