New York

New York

New York’s highest state court interprets its Blaine Amendment to permit government benefits that may incidentally benefit private and religious schools. For example, in Board of Education v. Allen, it held that a textbook loan program benefited students, not schools, and thus did not violate the state’s Blaine Amendment. Espinoza reinforces this jurisprudence by affirming that a religiously neutral and generally available scholarship program will pass constitutional muster in the Empire State. As a result, all forms of educational choice remain as options for policymakers to pursue in their efforts to empower parents to direct their children’s education.

Constitutional Provisions
“Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.” New York Const. Art XI, § 3.

Relevant Case Law
Matter of Richard K. v. Petrone, 815 N.Y.S.2d 270 (N.Y. App. Div. 2006)
The appellate division held that, pursuant to specific legislation and the deep concern for child safety and welfare evinced in New York’s constitution, local school boards must provide nursing services to parochial school students or reimburse parents for acquiring those services on their own. 

Grumet v. Pataki, 720 N.E.2d 66 (N.Y. 1999)
The New York Court of Appeals, New York’s highest court, held that a statute creating a separate school district for members of a specific religious denomination had the primary effect of advancing religion and therefore constituted an impermissible accommodation to a single religious group in violation of the First Amendment. 

Greve v. Board of Education, 351 N.Y.S.2d 715 (N.Y. App. Div. 1974), aff’d, 325 N.E.2d 168 (N.Y. 1975)
The New York Court of Appeals held that providing a deaf student with a translator at public expense does not violate the New York Blaine Amendment if the translator does not teach the student religion.

Cook v. Griffin, 364 N.Y.S.2d 632 (N.Y. App. Div. 1975)
The appellate division held that a school board cannot transport private school students on public buses for field trips without some statutory authority and that although parents have the right to send their children to private or parochial schools, there is no corresponding right to equal state aid once they make that decision.

College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765 (N.Y. App. Div. 1971)
The Appellate Division of the New York Supreme Court held that state aid could go to a school that was founded and administered by a religious order but was not directly controlled by that order and did not teach any particular religious doctrine to the exclusion of other religious denominations.

Board of Education v. Allen, 392 U.S. 236 (1968)
The U.S. Supreme Court held that New York’s textbook loan program does not violate the First Amendment by including children in religious schools because it was intended to aid students, not to benefit parochial schools as such. Any benefit parochial schools received was minimal and therefore not an establishment of religion.

Board of Education v. Allen, 228 N.E.2d 791 (N.Y. 1967), aff’d, 392 U.S. 236 (1968)
The New York Court of Appeals held that New York’s textbook loan program does not violate the state’s Blaine Amendment because the amendment was never intended to prohibit state policies  that might ultimately entail some benefit to parochial schools. The court explicitly rejected the reasoning and conclusion of the Judd v. Board of Education case, which forbade inclusion of religious school students in a transportation program, and the Smith v. Donahue case, which prohibited providing free textbooks to students in religious schools.

 Judd v. Board of Education, 15 N.E.2d 576 (N.Y. 1938), overruled by Board of Education v. Allen,
228 N.E.2d 791 (N.Y. 1967)
The New York Court of Appeals held that although busing all students to their schools was primarily for the benefit of the child, it still had the effect of giving an incidental benefit to religious schools and thus violated New York’s Blaine Amendment prohibiting indirect aid.

Smith v. Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922), overruled by Board of Education v. Allen, 228 N.E.2d 791 (N.Y. 1967)
In holding that providing textbooks to parochial school students at public expense violated the U.S. and New York Constitutions, the appellate division held that furnishing books and ordinary school supplies to the pupils of religious schools aids those schools.

Sargent v. Board of Education, 69 N.E. 722 (N.Y. 1904)
The New York Court of Appeals held that using public funds to pay Catholic nuns to educate orphans does not violate the New York Blaine Amendment because the orphanage was not a “school,” and other provisions within the New York Constitution explicitly allow for this type of expenditure.

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.

Select Your State

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