Ninth Circuit Ruling in Religious Funding Case Could Remove “Blaine Amendment” Obstacle to School Choice

J. Justin Wilson
J. Justin Wilson · July 19, 2002

Washington, D.C. – Building on the momentum of the recent U.S. Supreme Court decision upholding the Cleveland school choice program, a panel of the U.S. Court of Appeals for the Ninth Circuit voted yesterday 2-1 to invalidate a Washington State law that singles theology students out for exclusion from college benefits that are available to all other students.

The State of Washington attempted to justify the discrimination under the religious establishment clause of its state Constitution, which contains one of the most notorious and broadly construed Blaine Amendments in the nation.

Blaine Amendments are provisions in about three dozen state constitutions that prohibit aid or support of religious schools. They arose in the 19th century as part of an anti-Catholic effort to preserve Protestant hegemony over public schools. Although several state supreme courts, including Arizona and Wisconsin, have interpreted Blaine Amendments narrowly in upholding school choice programs, the teachers’ unions have promised to use them to challenge such programs. The Institute for Justice represents school choice families in pending litigation over Florida’s Opportunity Scholarships program that will decide the proper interpretation of that state’s Blaine Amendment.

“This is a terrific, well-reasoned precedent, and if it were adopted by the U.S. Supreme Court would likely remove the Blaine Amendment obstacle from school choice programs nationwide,” said Clint Bolick, vice president of the Institute for Justice, which has defended school choice programs across the country—including Cleveland’s.

In yesterday’s decision, Davey v. Locke, Judge Pamela Rymer found that the discrimination triggers strict scrutiny under the free exercise of religion clause of the First Amendment. The question as framed by the Ninth Circuit was whether the state’s interest in enforcing its constitutional provision, “no matter how stringently construed, is compelling enough to outweigh a credible free exercise challenge under the federal Constitution.” The Court concluded that “Washington’s interest in this case is less than compelling.” In other words, the Blaine Amendment must yield to the federal constitutional command of nondiscrimination.

The case was filed by the American Center for Law and Justice on behalf of theology student Joshua Davey. The Institute for Justice will offer assistance to ACLJ should the Ninth Circuit be asked to review the decision en banc review and should the case reach the Supreme Court.

In the meantime, IJ will proceed aggressively with test cases in other states.

“Activists and policymakers in Blaine Amendment states should proceed with plans to implement school choice programs,” said IJ Senior Attorney Richard Komer. “A state court may construe its constitutional provisions in harmony with the First Amendment. If it doesn’t, the Ninth Circuit decision provides powerful ammunition.”