Alabama
Even before Espinoza, Alabama policymakers were free to adopt all forms of educational choice, including education savings account, voucher, and tax credit programs. The Alabama courts have not interpreted the state constitution’s Blaine Amendment and compelled support language to prohibit educational choice programs. Nonetheless, any publicly funded program should be explicitly financed from sources other than the state’s public school fund to avoid potential problems arising from the unique language of Article XIV, Section 263 of the state constitution.
Constitutional Provisions
Compelled Support Clause
“That no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry ….” Alabama Const. Art. I, § 3.
Blaine Amendments
“No appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house.” Alabama Const. Art. IV, § 73.
“No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian or denominational school.” Alabama Const. Art. XIV, § 263.
Relevant Case Law
Magee v. Boyd, 175 So. 3d 79 (Ala. 2015)
The Alabama Supreme Court upheld both of Alabama’s tax credit programs against several claims under the Alabama Constitution raised by the plaintiffs. Among other things, the Court held that neither of Alabama’s tax credit programs violate either of Alabama’s Blaine Amendments, since tax credits are not appropriations and are thus not governed by either provision. Furthermore, the tax credits are given to parents of students or taxpayers, not to religious institutions. Finally, the programs do not violate Alabama’s Compelled Support Clause because the programs are neutral toward religion, and any benefit to a religious institution from these programs is due to the choices of individuals, not the government.
Alabama Education Association v. James, 373 So. 2d 1076 (Ala. 1979)
After a change in U.S. Supreme Court Establishment Clause jurisprudence, the Alabama Supreme Court held that tuition grants to students attending private schools are constitutional under the First Amendment of the U.S. Constitution and Alabama’s Blaine Amendment (Article XIV, Section 263) because the aid goes to the student, not the school.
Opinion of Justices, 280 So. 2d 547 (1973)
Following then-current U.S. Supreme Court Establishment Clause precedent, the Alabama Supreme Court opined that tuition grants to students attending “church colleges” would violate both the First Amendment of the U.S. Constitution and one of Alabama’s Blaine Amendments (Article XIV, Section 263) because they would excessively entangle the state and religion.
Existing Private School Choice Programs
Alabama Parent-Taxpayer Refundable Tax Credits
Alabama Code Sections 16-6D-1 to -9
Education Scholarship Program
Alabama Code Sections 16-6D-1 to -9
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
