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New York

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.

Vouchers: Yes

Tax Credits: Yes


Existing Private School Choice Programs

None

Relevant Case Law

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.

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.

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 Edcuation 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.

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.

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.

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.

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.

Analysis and Recommendations

Despite an initially restrictive interpretation of its Blaine Amendment, New York courts have abandoned that approach and both tax credit and voucher programs are school choice options for New York. New York’s highest state court held  in Board of Education v. Allen that the Blaine Amendment was never intended to bar government programs providing incidental benefits to parochial schools.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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