Pennsylvania
After Espinoza, Pennsylvania is even more hospitable to educational choice programs than it was before. Pennsylvania courts construe the state constitution in harmony with the federal Constitution. There is thus no question that, between Zelman and Espinoza, a properly structured educational choice program that is neutral to religion and allows parents to exercise a genuine choice as to where to enroll their students will be constitutional. In crafting these laws, policymakers should ensure that publicly funded educational choice programs do not use funds that were “raised to support public schools,” Article 3, Section 15.
Constitutional Provisions
Compelled Support Clause
“[N]o man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent .…” Pennsylvania Const. Art. 1, § 3.
Blaine Amendment
“No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.” Pennsylvania Const. Art. 3, § 15.
Other Relevant Provisions
“No appropriation shall be made for charitable, educational or benevolent purposes to any person or community nor to any denominational and sectarian institution, corporation or association: Provided, That appropriations may be made for … loans for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning except that no scholarship, grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.” Pennsylvania Const. Art. 3, § 29.
“No appropriation shall be made to any charitable or educational institution not under the absolute control of the Commonwealth, other than normal schools established by law for the professional training of teachers for the public schools of Pennsylvania, except by a vote of two-thirds of all the members elected to each House.” Pennsylvania Const. Art. III, § 30.
Relevant Case Law
Haller v. Department of Revenue, 728 A.2d 351 (Pa. 1999)
The Pennsylvania Supreme Court held that a tax exemption for the sale and use of “religious publications” sold by “religious groups” violates the First Amendment’s Establishment Clause because it shows a preference for religious communications without some overarching secular purpose. The exemption’s narrow focus makes it unconstitutional.
Christen G. v. Lower Merion School District, 919 F. Supp. 793 (E.D. Pa. 1996)
A federal district court held that in accordance with the Individuals with Disabilities Education Act a state could reimburse parents for private school tuition without violating either the U.S. or Pennsylvania Constitutions because the payments do not advance religion.
Springfield School District v. Department of Education, 397 A.2d 1154 (Pa. 1979)
The Pennsylvania Supreme Court held that free school bus transportation provided to parochial school children does not violate the U.S. or state Constitutions because any benefit to a religious institution is indirect and incidental.
Wiest v. Mt. Lebanon School District, 320 A.2d 362, 366-67 (Pa. 1974)
In holding that a religious invocation at the start of a public school graduation ceremony does not violate the First Amendment, the Pennsylvania Supreme Court also concluded that such an invocation would not offend Pennsylvania’s Compelled Support Clause because it is coextensive with the First Amendment.
Rhoades v. School District, 226 A.2d 53 (Pa. 1967)
The Pennsylvania Supreme Court upheld the constitutionality of a statute authorizing transportation of private school students at public expense as a health and safety measure.
Schade v. Allegheny County Institution District, 126 A.2d 911 (Pa. 1956)
The Pennsylvania Supreme Court held that payments of public funds to religious orphanages did not violate Pennsylvania’s Blaine Amendment because they were not “appropriations,” but rather payments for services rendered. Nothing in the Pennsylvania Constitution prevents the state from contracting with religious institutions and then paying its debts upon performance.
Collins v. Martin, 139 A. 122 (Pa. 1927)
In striking down a welfare appropriation in which public money would flow to private or religious hospitals, the Pennsylvania Supreme Court held that the Pennsylvania Constitution plainly stated that the people’s money should not be given for charity, benevolence or education to persons or communities, or for any purpose to sectarian and denominational institutions, corporations or associations.
Collins v. Kephart, 117 A. 440 (Pa. 1921)
Under an earlier version of Pennsylvania’s Blaine Amendment, the Pennsylvania Supreme Court held that religious hospitals were barred from receiving state funds despite their status as “worthy charities.”
Giacomucci v. Southeast Delco School District, 742 A.2d 1165 (Pa. Commw. Ct. 1999)
The Pennsylvania Commonwealth Court held that a local school board lacked the statutory authority to institute a voucher program.
Existing Private School Choice Programs
Education Improvement Tax Credits
24 Pennsylvania Code Sections 20-2001-B to 20-2013-B
Pre-K Tax Credits
24 Pennsylvania Code Section 24-2003-B
Opportunity Scholarship Tax Credit Program
72 Pennsylvania Consolidated Statutes Sections 8701-G.1 to 8712-G.1
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.
