California
In California, all forms of educational choice should be constitutional. However, drafters of publicly funded choice programs must take care to comply with the California Constitution’s prohibition on the state directly financing private schools. In Board of Trustees v. Cory, the California Court of Appeals held that direct payment of public funds to private schools is unconstitutional because the payments were neither “incidental” nor within the “indirect benefit exception.” However, that court also noted that if the payments were made directly to students they would be constitutional. Later, in California Teachers Association v. Riles, the California Supreme Court held, in part, that lending textbooks to private schools was unconstitutional because the benefit to the school was neither “indirect” nor “remote.”
Constitutional Provisions
Blaine Amendments
“No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.” California Const. Art. IX, § 8.
“Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI.” California Const. Art. XVI, § 5.
Relevant Case Law
California Statewide Communities Development Authority v. All Persons Interested, 152 P.3d 1070 (Cal. 2007)
The California Supreme Court held that the issuance of tax-exempt bonds for the benefit of “pervasively sectarian” religious schools would not necessarily violate the state’s second Blaine Amendment (Article XVI, Section 5).
Wilson v. State Board of Education, 89 Cal. Rptr. 2d 745 (Ct. App. 1999)
A California Court of Appeals held that charter schools are considered “public schools” for the purpose of California’s first Blaine Amendment (Article IX, Section 8).
Woodland Hills Homeowners Organization v. Los Angeles Community College District, 266 Cal. Rptr. 767, 774 (Ct. App. 1990)
A California Court of Appeals upheld a community college’s temporary lease of surplus land to a religious organization at fair market value under California’s second Blaine Amendment (Article XVI, Section 5).
California Teachers Association v. Riles, 632 P.2d 953, 960 (Cal. 1981)
The California Supreme Court held that lending textbooks to private schools violated the state constitution’s Blaine Amendments.
Board of Trustees v. Cory, 145 Cal. Rptr. 136, 139 (Ct. App. 1978)
Citing Bowker v. Baker, a California Court of Appeals held that direct payment of federal funds to private medical schools violates the first of California’s Blaine Amendments because it does not fit within the “incidental” or “indirect benefit exception,” and provides funds to schools “not under the exclusive control of officers of the public schools.”
Bowker v. Baker, 167 P.2d 256 (Cal. 1946)
The California Supreme Court held that transporting private school students at public expense is constitutionally acceptable because it is aimed at child safety not education, and any benefit to the school is “incidental.”
Existing Private School Choice Programs
None.
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.
