Chelsea Langston

In late July, 2015, the North Carolina Supreme Court upheld the state’s school voucher program. Just a month earlier, the Colorado Supreme Court had struck down that state’s unusual single-district voucher program. The states are different, of course, as are the voucher programs.

Yet, both the North Carolina and Colorado Supreme Court decisions provide a platform for optimism: North Carolina because its outcome supports a commonly held judicial axiom and pragmatic truth that the motivation for funding programs that give students choice is to assist and aid the student, not to support the doctrine of any particular institution; the Colorado decision because the dissenting opinion opened the door for the Supreme Court to take up a relic of bigotry–the Blaine Amendment, an anti-Catholic provision from the 19th century.

Given that the US Supreme Court itself has upheld voucher programs, is it too much to hope that the Colorado defeat may eventually issue in a Supreme Court ruling striking down Blaine amendments across the country: an outcome that would promote the flourishing of educational diversity across the US?

On July 23, 2015, the Supreme Court of North Carolina ruled 4-3 in Hart v. State of North Carolina in favor of the Opportunity Scholarship Program. This reversed a lower court decision that had struck down the program that provided to students of modest means scholarships to attend private schools, including religious schools. The state constitution’s provision protecting public school funding, the court said, was designed to undergird the state’s public school system but “not to limit the State’s ability to spend on education generally.” Furthermore, the Court said that government funding of the school vouchers did not violate the state constitution’s public purpose requirement, and that taxpayers did not have “standing” to bring a religious discrimination claim on behalf of school students.

By contrast, late last month, the Colorado Supreme Court struck down the first locally established, district-wide voucher program in the nation, the Douglas County Choice Scholarship Pilot Program, which had been created by the local school board in 2011. The program operated with success for a brief time in 2011 before it was rendered inactive when the ACLU, along with several other organizations, filed suit against Douglas County School District. The plaintiffs’ primary argument was that the program violated the Blaine Amendment in Colorado’s state constitution. This anti-voucher ruling appears to contradict the U.S Supreme Court’s Zelman decision (2002), in which the Court made clear that vouchers do not equate to governmental funding of religion. The Colorado Blaine Amendment issue may now make its way to the Supreme Court.

Blaine Amendments are an unfortunate, and perhaps even, under the US Constitution, unconstitutional, relic of the late 19th century. Dishearteningly, they are still found in about two thirds of all state constitutions. Blaine Amendments were enacted to quash any public funding for “sectarian” (shorthand for Catholic) educational institutions in a time when anti-Catholic sentiments and bigotry ran high. At the time, public schools openly taught Protestant religious doctrine.

As the Irish and Italian immigrant populations steadily rose in the US in the later 19th century, people of a Catholic background increasingly found the Protestant educational environment unfitting for their children. Wanting to ensure that Catholics would not be able to seek any state financial assistance in starting their own schools, Protestant public school proponents hypocritically pushed these amendments through. These proponents succeeded in getting Blaine Amendments that prohibited state funding for “sectarian” (i.e., Catholic) institutions while the public schools continued to manifest a supposedly neutral, but in fact Protestant, worldview.

There is reason to hope that the Colorado decision will open the way for the Supreme Court to finally consider the constitutionality of the state Blaine Amendments. Although the Colorado Supreme Court ruled against the district-wide voucher program, Justice Eid, dissenting in part, stated that the plurality should have addressed the anti-Catholic motivations of the Blaine Amendments. She makes a compelling argument that the anti-Catholic prejudices cannot be overlooked to simply read the “plain language” of the amendment, but rather cites an earlier court’s discussion of the “shameful pedigree of anti-sectarian sentiment in the 1870’s.” Quoting an earlier decision, Justice Eid states: “Consideration of the Blaine amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic’.”

According to Charles Glenn, an expert in independent school financing and regulations, there is reason to be hopeful about fairer school funding, funding that respects parental wishes, despite the ruling of the Colorado Supreme Court. The Colorado ruling just might open doors for the Supreme Court to address the hate-filled motivations of the state Blaine Amendments once and for all. As Glenn recently remarked to IRFA, “Paradoxically, therefore, I am pleased by the loss, because of what I hope it might lead to.”