Education Savings Accounts and Blaine Amendments

Published October 13, 2016

On September 29, the Nevada Supreme Court upheld the constitutionality of the state’s education savings account (ESA) program on two of the three fundamental questions brought before the court and rejected challenges suggesting only certain types of schools could benefit from the ESA program. The Court did say however, the state must find an alternative funding source for the program.

One remaining challenge to the ESA program’s success is the state’s Blaine amendment, which also serves as a barrier in a number of other states as well. Blaine amendments were first promoted by nineteenth-century politician James G. Blaine. 

In 1875, Blaine unsuccessfully pushed for a federal constitutional amendment that would have prohibited aid given to “sectarian” schools, so he instead turned to pressuring states and prospective states into passing similar amendments to their state constitutions. Policy Analyst Tim Benson says in a recent Research & Commentary on the subject, “Blaine amendments are anti-Catholic pieces of legislation that were designed to prevent public money from being sent to religious schools. They currently exist in 38 state constitutions.”

Blaine amendment supporters routinely employ them in lawsuits against state voucher programs that some students use at private religious schools. They tend to characterize the amendments as an important and secondary safeguard to the separation of church and state.

Advocates seek legal ways to administer school choice around Blaine amendments or by trying to dispose of the amendments entirely through re-amending state constitutions. They criticize Blaine for its formidable barrier to extending better education with public money and its discriminatory history and intent.

In a recent blog post for the Cato Institute, Cato Policy Analyst Jason Bedrick discusses the different ESA programs in existence across the nation and argues that of the five existing ESA programs, Nevada’s is the most expansive and would be the most beneficial for kids and parents.

“Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs,” wrote Bedrick. “Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible.”

Bob Luebke, senior policy analyst at the Civitas Institute, argues in a 2015 Civitas article ESAs can spur educational innovation. “ESAs empower parents with the ability to customize educational markets. In so doing, ESAs will help propel educational innovation. Market forces will come to bear on all schools, public and private. If school suppliers are responsive to these changing forces, they will adapt and survive. If not, they will fail. Parents will drive these changes.”

Reason Foundation Education Policy Analyst Tyler Koteskey argued in a recent Reason Foundation article the Nevada Supreme Court’s ruling highlights a larger ideological education reform shift school choice advocates still need to work toward, stating, “If we define ‘public education’ as education available to every child, why should we conceive of it as coming exclusively from government sources? If we’re going to spend public money to support all students having an education in the first place, why shouldn’t they be able to be use it at a variety of schools, whether traditional public, public charter, or private?”

States with Blaine amendments should follow Nevada’s example and pursue school choice through ESAs, a decision that would benefit kids and parents everywhere.

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