Abstract
School choice programs have grown dramatically in the United States over the last twenty years. In some states, however, educational choice programming is prohibited by state ‘Blaine amendments’ that require state-funded grants for non-public education to be used only at secular schools. In this work, I first survey the changing landscape involving educational choice in the United States. I then critique standard arguments against state restrictions on the options available through school choice programming. I do so in part by highlighting an underappreciated aspect of the nineteenth-century debates between Protestants and Catholics over religious instruction in public schools that contributed to the enactment of Blaine amendments: the reasoned disagreement over the best means to secure the common objective of instilling religious values in the face of growing secularism, a fundamental aspect of the ‘Bible debates,’ which problematizes the contention that Blaine amendments were products only of anti-Catholic bigotry—a charge commonly advanced by defenders of educational freedom. Nevertheless, I develop an argument for the liberty of parents to send their children to religious schools where state-funded choice programs exist by highlighting the impermissible invidious categorization of religious schooling that exits under state Blaine amendments.
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Notes
- 1.
Litigation has also been initiated to eliminate all publicly funded private options on the basis of equity considerations between public and private schools (see Murray 2020).
- 2.
The language of some state constitutions is ambiguous so there is not complete agreement on the number of states with such amendments. Goldenziel puts the number at 39; the Institute for Justice places it at 37 (Goldenziel 2005, p. 15; Institute for Justice, Blaine Amendments).
- 3.
One state that does not have a no-funding provision in its constitution has still proscribed broad-based voucher programs on the grounds of its state constitution. The Supreme Court of Vermont in Crittenden Town School District v. Department of Education (1999) 169 Vt. 310 issued a swee** decision interpreting the Vermont Constitution’s provision that no person be ‘compelled to support a religious institution’ as a provision banning any state support, direct or indirect, to any religious organization and thus to religious schools. Few states have followed Vermont in holding that state grants to parents that the parents in turn use at religious schools constitutes ‘compelled support’ by the individual citizens.
- 4.
The argument in Our Lady of Guadalupe School v. Morrisey-Berru in part involved the question of exemptions from federal employment laws under the ‘ministerial exception ‘(Oral Argument, Our Lady of Guadalupe School v. Morrisey-Berru, 2019). But if schools are ministerial such that the ministerial exception attaches, aren’t they ‘essentially religious’? In oral argument in Our Lady of Guadalupe, Justices Roberts, Thomas, Gorsuch and Kavanagh each noted that not all of the functions of religious primary and secondary schools are essentially religious and that the reason the ministerial exception should apply to religious schools is that there are certain functions of religious schools that are essentially religious, but that a state inquisition as to every aspect of religious schools’ activities in search of precisely which are essentially religious would be highly problematic, for the reasons we have noted. (Oral Argument in Our Lady of Guadalupe School v. Morrisey-Berru 2019).
- 5.
Cf. Justice Thomas’s concurrence in Trinity Lutheran where he strongly implies the desire to overturn Locke altogether. The Court’s endorsement in Locke of even a ‘mil[d] kind…of discrimination against religion remains,’ Justice Thomas asserts, ‘troubling’ at 2.
- 6.
Its application would not entail that states must fund religious school options under the Free Exercise Clause for a variety of reasons, not least because any argument that states must fund religious schools to accommodate free exercise would require them to make the option available to all students, and maintaining federalism over such an historically core state function as creating state-wide systems of education would constitute a compelling state interest. It would entail only that states cannot change the public school system by providing private alternatives from which religious groups are excluded based solely on their religious identity.
- 7.
See also the June 2022 decision of the Supreme Court in Carson v Makin (2022) 596 U.S. ____. In this case the Court applied Trinity Lutheran and Espinoza to the question of whether Maine could continue to maintain a supplemental system of vouchers for rural parents that allowed the vouchers only to be used at secular private schools. The law was defended by reference to Maine’s Blaine amendment that stated that no state money may go to sectarian causes. Holding that the Blaine amendment was unconstitutional in regard to the supplemental voucher program, the Court asserted that ‘the principles applied in Trinity Lutheran and Espinoza suffice to resolve this case’ (Carson at 2).
- 8.
These advocates also argued for the complete exclusion of the Bible from public schools. As one 19th century radical secularist, F.E. Abbott—a man ‘indefatigable and unrelenting in his advocacy for…the total separation of church and state and the nation’s leading spokesperson for that perspective’ (Green 2012, p. 174)—once demanded: “so long as a single taxpayer believes in the Bible as the Word of God, it ought to be totally excluded from the public schools’ (1875, cited in Green 2012, p. 191).
- 9.
The failed federal Blaine amendment, which would have eliminated federal support going to sectarian organizations, was not intended by its authors to eliminate nonsectarian religious education (Hamburger 2004, p. 299).
- 10.
See Oretes Brownson for whom in Green’s words ‘everything’ genuinely ‘religious’ is ‘sectarian’ (Green 2012, p. 128, emphasis added). Thus Brownson argues if any religion is to be successfully taught it must ‘be taught as a whole, in its unity and integrity’ (Brownson 1870, cited in Green 2012, p. 128). Certainly Catholics saw Protestantism as religious, if to be sure imperfectly so. So its perpetuation, too, required immersive childhood instruction.
- 11.
The proposal passed the New York House but was defeated in the state Senate.
- 12.
Note however its potential utilization by conservative justices in matters of the ministerial exception and federal and state employment law.
- 13.
The argument that Blaine amendments were intended to assist religion is also expressed, though on a different basis, by the respondents in the Espinoza case. In an amicus brief by delegates to a later Montana constitutional convention that preserved its Blaine amendment, the delegates note that the Montana Constitution implemented its Blaine amendment to keep religion vital by freeing it from possible state micromanagement and that they reaffirmed the amendment in order to ‘avoid state encroachment on religious affairs’ in a way that could harm religious witness, Hunt (2019), Brief of Montana Convention Delegates as Amicus Curiae in Support of Respondents, Espinoza v. Montana Department of Revenue at 29.
- 14.
Also called Perry v. Brown.
- 15.
The court also holds that gay and lesbian couples’ having the state confer the civil recognition and attendant civil entitlements and responsibilities of being married is a fundamental right under the Due Process Clause that the stare is unjustified in denying.
- 16.
Space does not permit an exhaustive account of the methodology informing rational basis plus review.
- 17.
His conclusion finds support from Lawrence v. Texas (2003) 539 U.S. 558.
- 18.
Indeed, strong disagreements among the advocates for Proposition 8 emerged. Ultimately defendants chose only to provide two expert witnesses, a decision which sparked strong condemnation from other organizations supporting proposition 8, such as Liberty Counsel, which argued strenuously that the counsel for the defendants should submit an array of additional expert witnesses ‘because of concern that the case was not being adequately defended’ (Liberty Counsel 2010).
- 19.
The U.S. Supreme Court at mid-century imposed strict separationism on what legal scholar Carl Esbeck calls ‘unsuspecting states’ (Esbeck 2007–2008, p. 15) by striking down the in-school release programs in McCollum v. Board of Education.
- 20.
Other elements expressing comity were the long-standing theistic moral lessons in schools, such as ‘The Memory Gem,’ a widely used lesson plan that emphasized morality by reference to God and the immortal soul, which utilized key tenets of the Bible but without the use of specific textual passages (see Fessenden 2005, p. 806).
- 21.
This group itself has 14% who do not adhere to their own tenets and so distrust the religious ‘other,’ suggesting that the data Putnam and Campbell assemble, though very useful, likely registers, among True Believers and Non-True Believers alike, a great deal of ‘noise’ in terms of personality types, past experiences of harm inflicted by members of another faith, or a variety of other non-ideational aspects of so personal a question (Putnam and Campbell 2010, p. 544).
- 22.
This is an important point as it might be tempting for some to allege improper motives in the common task of nineteenth century educational reformers to free schools of radical secular modernism: is that not an impermissible motive that shows hostility to secularists? We need not address that point here, since even if true, it would only further the cause of removing Blaine amendments. Moreover, any contemporary idea that religious schools are breeding grounds for social intolerance of unbelievers is highly problematic in light of available data (see Wolf 2007, pp. 66–72, 70). Note also that any Lemon test objection to Blaine laws on the basis that they were, as the history I discuss suggests, intended to promote religion and for this reason are objectionable under the first prong of the Lemon Test, would additionally only further the case that Blaine Amendments should be repudiated, the outcome educational freedom advocates endorse.
Further Reading
Forster, G., and C.B. Thompson, eds. 2011. Freedom and School Choice in American Education. London: Palgrave Macmillan.
This book provides an illuminating overview of a variety of defences of school choice programs in the United States.
Trigg, R. 2013. Equality, Freedom, and Religion, 2013. Oxford: Oxford University Press.
This work explores and responds to challenges to the influence of religion on public policy, focusing on the contested meanings of equality and freedom.
Carr, D., M. Halstead, and R. Pring, eds. 2008. Liberalism, Education and Schooling: Essays by T.H. Mclaughlin. Exeter, UK: St. Andrews Studies in Philosophy and Public Affairs, Imprint Academic.
This volume provides a valuable reference compendium of influential understandings of educational theory in relationship to moral and religious instruction.
Carwardine, R. 1993. Evangelicals and Politics in Antebellum America. New Haven: Yale University Press.
This book offers an in depth discussion of the considerable influence of Evangelical Protestantism in American Life throughout the antebellum period.
Garnett, R.W. 2004. The Theology of the Blaine Amendments. First Amendment Law Review 2: 45–84.
This article provides a rich discussion of contested visions of church, state and religion in American culture and law.
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Prud’homme, J. (2023). Religion and Education: A New Birth of Freedom in Unsettled Times. In: Holzer, S. (eds) The Palgrave Handbook of Religion and State Volume I. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-35151-8_28
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