July 26, 2017

Students may be taking a break from school this summer, but IJ’s fight for school choice knows no rest. That is OK with us, because we have results to show for it.

On June 26, the U.S. Supreme Court issued a major decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which held that Missouri violated the Free Exercise Clause of the U.S. Constitution when it relied on the “Blaine Amendment” in its state constitution to exclude a religious preschool from a state program that provides grants for schools and other nonprofits to resurface their playgrounds. As IJ noted in its “friend-of-the-court” brief in the case, Blaine Amendments—found in some 37 state constitutions—are the favored weapons of school choice opponents, who rely on them to try to deny parents the ability to choose the schools that are best for their children.

It is hardly surprising, then, that the day after it ruled in Trinity Lutheran, the U.S. Supreme Court vacated a 2015 judgment of the Colorado Supreme Court in which the justices of that court struck down a Douglas County school choice program under Colorado’s Blaine Amendment. At the request of IJ, which represents families whose children had received scholarships under the program, the U.S. Supreme Court remanded the case to the Colorado Supreme Court for “further consideration in light of Trinity Lutheran.

These back-to-back developments are major milestones toward IJ’s long-term institutional objective of removing Blaine Amendments as impediments to school choice. These sordid provisions are vestiges of 19th-century anti-Catholic bigotry. Colorado’s is a typical example. Like Blaine Amendments in other states, it was designed to preserve the generic Protestant nature of the era’s public schools—which were overtly religious but not “controlled by any church or sectarian denomination”—while denying aid to Catholic schools.

Today, school choice opponents have seized on these engines of animus against Catholics and transmuted them into engines of discrimination against all religion. Almost invariably, when a school choice program is adopted in a state with a Blaine Amendment, school choice opponents run to the courthouse to challenge the program arguing that the Blaine Amendment bars the inclusion of religious options. IJ’s position, on the other hand, is that the government must remain neutral with regard to religion, and that parents should have the right to choose the best school for their children, whether it be public or private, religious or secular.

Of course, the U.S. Supreme Court’s decision in Trinity Lutheran calls school choice opponents’ argument into question and on remand in the Douglas County case, the Colorado Supreme Court will have to confront the issue head-on. If that court gets the answer right, then Douglas County’s scholarship program could be up and running in the very near future. If it gets the answer wrong, then IJ may soon be back at the U.S. Supreme Court, where we will secure a decision that puts the issue to rest once and for all—and that makes the dream of increased educational opportunity a reality for millions more of America’s children.

Subscribe to get Liberty & Law magazine direct to your mailbox!

Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.