Veni, Vidi, Vouchers

Why the battle for school vouchers isn’t over.

In the most widely anticipated and reported decision of the past term, the United States Supreme Court found a Cleveland school voucher program constitutional in Zelman v. Simmons-Harris. Conservatives and school choice advocates hailed the decision, comparing it in significance to Brown v. Board of Education. And President Bush characterized the decision as “just as historic” as Brown. So why did a Florida court declare Florida’s own voucher program unconstitutional only six weeks later?

The answer can be found in a provision of Florida’s constitution, with significant implications for the future of vouchers nationwide. Florida—and a majority of the states—have constitutional provisions, known as Blaine amendments, imposing seemingly ironclad prohibitions on state aid to sectarian schools. In fact, these state amendments appear to be more prohibitive than the provisions of the First Amendment’s Establishment Clause. As the Florida court wrote in striking down the Florida Opportunity Scholarship, “the language utilized in the [Blaine Amendment] is clear and unambiguous. There is scant room for interpretation and parsing.”

The Blaine amendments are named for James G. Blaine, a congressman and senator from Maine who, in the mid-1870s, unsuccessfully attempted to win passage of an amendment to the U.S. Constitution that would have gone far beyond the First Amendment prohibitions regarding religion and banned all assistance to religious institutions. Blaine’s proposed amendment passed the House of Representatives with the required two-thirds supermajority but only received a majority—and not the required supermajority—in the Senate.

Although Blaine’s effort failed, the anti-Catholic sentiment fostered by his campaign and fanned by the massive Catholic immigration to the United States led to the adoption of similar amendments to numerous state constitutions. In “tribute” to the late senator, state constitutional prohibitions on aid to religious institutions are known as “Blaine amendments.”

In Zelman, the Supreme Court ruled that the Establishment Clause of the U.S. Constitution—prohibiting the “establishment” of a state religion—is violated only when a religious program receiving government funds does not have a “secular legislative purpose” or if its “primary or principal effect is to advance religion.” The court correctly found that the Cleveland voucher program had the secular purpose of offering educational choice to students in underperforming schools. The court also found that the voucher program did not have the effect of advancing a particular religion since the funds going to religious schools are triggered by private parental choice and not attributable to the government.

This reasoning doesn’t address the Blaine amendments. While the precise language of the various Blaines varies from state to state, they typically prohibit the expenditure of “public money … directly or indirectly … in aid of” any church or religious denomination, or any school under the control or direction of any religious denomination. Unlike the federal Constitution, the states do not thus appear the least bit interested in inquiries concerning purpose and effect and seem to effectively block any aid to any religious schools.

Despite their plain language, however, some state courts have found that their Blaine amendment was not an absolute bar to all forms of state aid to religious schools. Although the Florida court described New York’s Blaine Amendment as similar in “clarity and breadth” to Florida’s Blaine, the New York Court of Appeals has held that it does not prohibit the state from loaning textbooks to students attending parochial schools. Despite this ambiguity among the state courts, there is no doubt that in states that have enacted them, the Blaine amendments pose a formidable obstacle—unaffected by the Zelman decision—to voucher programs.

More sophisticated voucher advocates have thus begun to formulate strategies to overcome the Blaine Amendment. A white paper circulated by the Federalist Society outlines several legal strategies that might be pursued at the state level to avoid the reach of the Blaine amendments. The most aggressive of these is the suggestion that the Blaine amendments might violate the Equal Protection Clause of the U.S. Constitution because of their “origins in nativist bigotry” and the anti-Catholic bias that animated their enactment.

These advocates point to a pair of Supreme Court decisions striking down Alabama and Colorado constitutional amendments motivated by impermissible desires to infringe on the rights of blacks (in an Alabama voting case) and gays (in an anti-gay rights case from Colorado). They are also buoyed by an Arizona Supreme Court decision that cast aspersions on the motivation behind that state’s Blaine Amendment as a “clear manifestation of religious bigotry.”

This approach is not likely to be successful. While there certainly was an anti-Catholic sentiment motivating some of those who rallied to enact the state Blaines, that sentiment is rarely evident in the legislative debates surrounding the enactments. In fact, in the late 19th century, Congress required several prospective states to include these provisions in their constitutions as a precondition for admission into the Union. Moreover, many if not most state constitutions have been re-ratified since the inclusion of the Blaine amendments, which probably “cleanses” them of any improper motivation that may have initially existed.

A more fruitful approach for the pro-voucher camp would be to argue that because the Supreme Court has now ruled that the Establishment Clause does not prohibit a voucher recipient from exercising that voucher at a religious school, any state restriction barring them from doing so necessarily runs afoul of the Free Exercise Clause. Less than a month after the Zelman decision, the 9th Circuit Court of Appeals ruled that Washington state violated the Free Exercise Clause when it prohibited a state scholarship recipient from using it to pay for his study of theology at an accredited, sectarian college.

The court of appeals acknowledged that Washington’s constitution mandates a stricter separation between church and state than does the federal Constitution. The court nevertheless ordered Washington to allow the scholarship to be used for the study of theology at a religious school, ruling that it was a violation of the Free Exercise Clause to deny the scholarship “solely because the student decides to pursue a degree in theology from a religious perspective.”

That same rationale may be successfully applied to blunt the reach of Blaine restrictions that would otherwise prohibit a voucher recipient from attending a religious school. And this free exercise argument may have even more force, when applied in the school choice context, because parents have broad rights to direct the education of their children as they see fit. In a 1925 case, Pierce v. Society of Sisters, the Supreme Court struck down an Oregon compulsory education law requiring parents to send their children to public schools. The court held that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” States choosing to implement a voucher program may well be prohibited from interfering with the “right and high duty” of parents by barring them from using vouchers at parochial schools.

Those who championed Zelman’s comparison with Brown v. Board of Education should be careful what they wish for. While the Brown analogy can be dismissed as harmless hyperbole, it is likely to be apt in a way unanticipated by gleeful proponents of vouchers: As was the case after Brown, it’s likely that despite the court’s pronouncements  advocates will experience decades-long resistance to their efforts to implement their “victory” in states across the nation.

Like the advocates fighting to desegregate public schools after Brown, voucher advocates must still confront reluctant legislatures and overcome additional legal obstacles before a real victory can be declared. Whatever path they choose to walk, voucher advocates and the parents who support them should recognize that their victory in Zelman was merely the first leg of a very long journey.