Oregon

Oregon

Oregon remains open to all forms of educational choice after Espinoza. Oregon’s modern cases have followed the federal Establishment Clause jurisprudence in resolving challenges under the state’s Blaine Amendment. However, even if the provision were construed restrictively, as it was in the older case, Dickman v. School District, it discriminates against religion in the same way that Montana’s Blaine Amendment discriminated against religion in Espinoza. Because this type of discrimination violates the federal Constitution, if Oregon’s policymakers choose to enact an educational choice program, they must ensure families can choose from religious options, alongside nonreligious educational options. The federal Constitution, wrote Chief Justice Roberts, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [educational choice program[s] . . . is odious to our Constitution.”

Constitutional Provisions
Blaine Amendment
“No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.” Oregon Const. Art. I, § 5.

Relevant Case Law
Powell v. Blum, 185 Or. App. 334 (2002)
The Oregon Court of Appeals rejected abandonment of the parallel interpretation, interpreting Oregon’s Religion Clauses as intended to maintain neutrality toward religion.

Eugene Sand & Gravel, Inc. v. City of Eugene, 276 Or. 1007 (Or. 1976)
The Oregon Supreme Court adopted the federal Lemon test for resolving challenges under its Blaine Amendment. Oregon courts have continued this parallel interpretation of the federal Establishment Clause and Section 5 ever since.

Fisher v. Clackamas County School District, 507 P.2d 839 (Or. Ct. App. 1973)
Applying the reasoning of Dickman, the Oregon Court of Appeals held that Oregon’s Blaine Amendment prevented the state from paying the salaries of teachers who teach secular subjects to parochial school students only.

Dickman v. School District, 366 P.2d 533 (Or. 1961)
The Oregon Supreme Court held that secular textbooks could not be supplied to parochial school students at public expense under Oregon’s Blaine Amendment.

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

Program Status
All Educational Choice Programs
Only Tax Credit and ESA Programs
Educational Choice Programs Unavailable

For More Information

Read Our Model Education Legislation


Contact IJ's Educational Choice Team

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