New Jersey
Even before Espinoza, New Jersey’s state constitution did not pose any problems for educational choice programs. Its constitution does not contain a Blaine Amendment and its Compelled Support Clause does not preclude the use of funds—other than those allotted for public schools—to support educational choice programs. Further, the state supreme court’s decision in Abbott v. Burke requires the New Jersey Commissioner of Education to provide vouchers for preschool programs at public and private schools for all three- and four-year old children. As a result, there are no constitutional obstacles to educational choice programs in the Garden State.
Constitutional Provisions
Compelled Support Clause
“[N]or shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.” New Jersey Const. Art. I, ¶ 3.
Education Provisions
“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” New Jersey Const. Art. VIII, § IV, ¶ 1.
“The fund for the support of free public schools … shall be securely invested, and remain a perpetual fund; and the income thereof, except so much as it may be judged expedient to apply to an increase of the capital, shall be annually appropriated to the support of free public schools, and for the equal benefit of all the people of the State; and it shall not be competent, except as hereinafter provided, for the Legislature to borrow, appropriate or use the said fund or any part thereof for any other purpose, under any pretense whatever.” New Jersey Const. Art. VIII, § IV, ¶ 2.
Relevant Case Law
Resnick v. East Brunswick Township Board of Education, 389 A.2d 944 (N.J. 1978)
The New Jersey Supreme Court held that the state could allow religious groups that fully reimbursed school boards for related out-of-pocket expenses to use school facilities on a temporary basis for religious services without violating the federal or New Jersey Constitutions.
Clayton v. Kervick, 285 A.2d 11 (N.J. 1971)
Applying federal Establishment Clause precedent, the New Jersey Supreme Court held that supplying public funds for the construction of dorms at private colleges passes constitutional scrutiny as long as the buildings are not used for religious instruction and the school does not discriminate on the basis of religion in its admissions.
Everson v. Board of Education, 330 U.S. 1 (1947)
The U.S. Supreme Court held that the First Amendment does not prohibit New Jersey from spending public funds to pay the bus fares of parochial school pupils as a part of a general program under which it paid the fares of students attending public schools.
Everson v. Board of Education, 44 A.2d 333 (N.J. 1945)
New Jersey’s highest court held that the transportation of private school students at public expense was designed to help parents comply with mandatory attendance laws, which is a public purpose, and therefore does not violate the New Jersey Constitution.
Existing Private School Choice Programs
As mandated by Abbott v. Burke, the New Jersey Commissioner of Education must provide vouchers for pre-school programs for all three- and four-year olds, who may attend public or private programs.
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.
