Washington

Washington

Although Washington has a complicated history with its Blaine Amendment, there should not be a constitutional objection to any type of educational choice program after Espinoza. In Locke v. Davey, the Supreme Court upheld Washington’s exclusion of devotional theology as a major for which students could use a state-funded scholarship program (while still allowing students to use their scholarships to attend religious schools and even pay for religious courses). And in State ex rel. Gallwey v. Grimm, the Washington Supreme Court ruled it was constitutional for a state educational grant to go to students attending religious colleges. Considered in light of Espinoza, which made clear that Locke v. Davey does not justify the wholesale exclusion of religious schools and students from educational choice programs, Washington’s constitution should no longer pose a constitutional obstacle to voucher programs or other forms of student assistance.

Constitutional Provisions
Blaine Amendments
“No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment .…” Washington Const. Art. I, § 11.

“All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” Washington Const. Art. IX, § 4.

Education Article
“The legislature shall provide for a general and uniform system of public schools.” Washington Const. Art. IX, § 2.

Relevant Case Law
Locke v. Davey, 540 U.S. 712 (2004)
The U.S. Supreme Court upheld Washington state’s exclusion of a theology major from a state-funded college scholarship program. The Court held that Washington could justify this exclusion as a way to avoid an unconstitutional establishment of religion under the state constitution. Importantly, the Court carved out only a narrow exception—public funding for the religious training of clergy—to the general rule requiring equal treatment of religious and non-religious options. Indeed, the scholarship program allowed students to select religious schools, as well as public and non-religious private schools, much like K-12 school choice programs. It only excluded students actually training to be ministers.

State ex rel. Gallwey v. Grimm, 48 P.3d 274 (Wash. 2002)
The Washington Supreme Court held that a state educational grant program for “placebound” students—those whom the state identified as not likely to complete a four-year degree without public financial assistance—that included religious schools does not violate Washington’s first Blaine Amendment (Article I, Section 11) because the program was not intended to aid religious schools. The program stipulates that participating students may not select schools that require religious instruction or worship. Additionally, the Court held that Washington’s other Blaine Amendment (Article IX, Section 4) did not apply to institutions of higher education.

Malyon v. Pierce County, 935 P.2d 1272 (Wash. 1997)
The Washington Supreme Court held that a sheriff’s department’s chaplaincy program does not violate Washington’s first Blaine Amendment (Article I, Section 11) because the chaplains are not paid for their time.

Witters v. Commission for Blind, 717 P.2d 1119 (Wash. 1989)
The Washington Supreme Court held that Washington’s first Blaine Amendment (Article I, Section 11) prevented the state from using public funds to pay for a handicapped student’s seminary studies.

Higher Education Facilities Authority v. Gardner, 699 P.2d 1240 (Wash. 1985)
In accordance with its holding in Health Care Facilities Authority v. Spellman, the Washington Supreme Court held that granting tax-exempt revenue bond proceeds to religious colleges did not transfer public funds or property to a sectarian institution. For that reason, Washington’s first Blaine Amendment (Article I, Section 11) did not apply. 

Health Care Facilities Authority v. Spellman, 633 P.2d 866 (Wash. 1981)
In upholding a statute that provided tax-exempt bond proceeds for nonprofit hospitals, the Washington Supreme Court held that although the bonds were enabled by a public body, “the money was not acquired either for or from the general public” and therefore did not violate Washington’s first Blaine Amendment (Article I, Section 11). 

Weiss v. Bruno, 509 P.2d 973 (Wash. 1973)
The Washington Supreme Court invalidated both a higher education and a K–12 tuition aid grant programs for violating Washington’s Art. IX, § 4 and the federal Establishment Clause.

Calvary Bible Presbyterian Church v. Board of Regents, 436 P.2d 189 (Wash. 1967)
The Washington Supreme Court held that when public school students read the Bible as a piece of literature among other works in a class required for graduation, it does not violate either of Washington’s Blaine Amendments. The class imposes no religious or sectarian message on its students.

Perry v. School District No. 81, 344 P.2d 1036 (Wash. 1954)
The Washington Supreme Court held that allowing religious groups to distribute attendance cards and make announcements about the released-time program on public school grounds is a use of school facilities supported by public funds for the promotion of a religious program and therefore violates Washington’s first Blaine Amendment (Article I, Section 11).

Mitchell v. Consolidated School District, 135 P.2d 79 (Wash. 1943); see also Visser v. Nooksack Valley School District, 207 P.2d 198 (Wash. 1949)
The Washington Supreme Court struck down a transportation program for private school students. The Court said the program violated Washington’s Blaine Amendments because the public would incur some additional expense if private school students were transported on public school buses.

Saucier v. Employment Security Department, 954 P.2d 285 (Wash. Ct. App. 1998)
The Washington Court of Appeals held that although the Salvation Army should be treated as a church and its receipt of appropriated grants and its exemption from paying unemployment insurance taxes confer “appropriated” funds and benefits, such an appropriation does not violate Washington’s first Blaine Amendment (Article I, Section 11) because the state’s purpose in doing so is to fund a secular drug treatment program.

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

In The News