Blaine Is Alive and Well

A court in Colorado recently struck down a county program to assist children to pay for schools of their choice on the basis of an anti-Catholic provision in its Constitution.

The U.S. Supreme Court has increasingly recognized that programs designed to help parents select the right schools for their children through tax credits or direct refunds to parents and that are religiously neutral are constitutional. Such programs, the court held, do not automatically violate the First Amendment, nor do such programs hinder anyone’s free exercise of religion or non-religion.

Accordingly, many opponents of these plans have gone to the state courts. Many state constitutions do not have well-developed precedents on these issues, allowing for the possibility that such programs will be overturned. More importantly, many state constitutions — more than half — have provisions derived from the work of Congressman James G. Blaine, which are designed to prevent public aid to “sectarian” public schools. As we have described elsewhere (“Blaine Strikes Again,”, Jan. 16, 2009), the history of these amendments show that “sectarian” meant “Catholic,” and the laws were designed to eliminate Catholic parochial schools.

That such laws remain on the books in 2011 and are used in a similar fashion to restrict religious parents from exercising their abilities to educate their children as they see fit is a stark reminder of this lingering bigotry.

In the case of the Colorado plan, a payment equal to 75% of the amount the county received from the state will go to educate that pupil. The student, if accepted into the program, can use this amount to pay for private-school tuition, and the family remains responsible for the full amount of tuition and fees at the private school. But Colorado has, among other provisions, a Blaine amendment that states, in part, that the state can make any payment or appropriation “in aid of any church or sectarian … school.” The court disregarded the history and purpose of this amendment, simply stating that history “does not factor into the court’s decision.”

The court thought this program ran afoul of the state Constitution and granted the plaintiff’s motion to stop implementation of the program, called the Douglas County Scholarship Program. The court noted that most of the schools that received the funds were religious in nature, although there was no evidence that non-religious schools were excluded from the program or that students were otherwise prevented from attending private, non-religious schools. Similarly, the court noted that the state Board of Education advised Douglas County on the parameters of the program and that a waiver process was developed for children who wished to attend a religious school but were not of the faith of that school. Yet it nevertheless found, according to its own lights, that the waiver process was not robust enough.

What these facts demonstrate is that the state and county were sensitive to religious-freedom issues and were familiar with the legal requirements necessary to make the program constitutional. Now that a judge has intervened, such normal democratic arrangements among people of differing views will become impossible, and religious freedom will be harmed, not helped, by such judicial action. As Gregory Baylor, a senior counsel with the Alliance Defense Fund, stated with regard to the case, “When a government enables parents to make meaningful choices about the education their children receive, it advances rather than undermines religious freedom because government no longer channels virtually all children into a system with philosophical presuppositions that many parents reject. This is both good for freedom and for children.”

By the time the court got around to deciding on the motion, more than $200,000 had been sent to schools on behalf of parents for the 2011-2012 school year. Yet, amazingly, the court found that what is called “the balance of equities” favored stopping the program now, before a full trial, because of the “significant injury” continuing the program would cause the plaintiffs. This, however, elevates form over substance. The “plaintiffs” are not harmed by allowing other children to attend other schools. Now, hundreds of families must be uprooted in the midst of preparing and attending school, not to mention the effect on the schools themselves that were persuaded, by an agent of the state government, to rely on this program to plan their budgets and student bodies. At least one school hired new teachers to accommodate the anticipated scholarship students.

Currently, it is unclear whether the decision will be appealed or whether the Douglas County program can be reconfigured to satisfy the judge’s ruling. Ultimately, the program may not survive; unfortunately, however, Blaine is alive and well.

Gerald J. Russello is editor of

The University Bookman