Research and Commentary: Blaine Amendments

Published June 28, 2011

Thirty-eight states have Blaine Amendments to their constitutions, which prohibit public dollars from supporting religious private schools. States largely adopted them in the mid- to late 1800s, driven by a national Protestant majority seeking to keep Catholic schools from receiving public funds as Catholic immigrants and schools grew. When these amendments were adopted, Protestantism was America’s, and thus public schools’, dominant ethic; so rather than a measure to prohibit religion from public education completely, the amendments intended to enforce a particular brand, Protestantism, in American education.

Legal scholar Joseph Viteritti wrote, “Blaine’s history shows that it was borne out of a spirit of religious bigotry and intolerance directed against Catholic immigrants during the nineteenth century. It was not conceived in the spirit of the First Amendment but to impose restrictions.”[1] Before this era, taxpayer dollars routinely supported religious (Protestant) education, both in parochial and public schools.

Blaine Amendment supporters routinely employ them in lawsuits against state voucher programs which 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, as in Florida recently, 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.

The following documents offer additional information on Blaine amendments.

Tallahassee Spars over Separation of Church and State
Florida’s Blaine Amendment supporters claim the measure reinforces the ‘separation of church and state’ in arguments against the state’s now-passed plan to amend its constitution to eliminate a Blaine Amendment. Critics say repealing the amendment would allow anti-Semitic, extremist, or racial religious groups to qualify for state funding.

Citizens should Support Religious Freedom Act,0,127535.story
The Archbishop of Miami argues that Floridians should vote to amend their state constitution in 2012 to eliminate its Blaine Amendment, citing the social good it will produce and other examples of churches receiving state dollars for such purposes (hospitals, universities, services to the poor). He calls the amendment an “historic injustice” that should end.

DougCo Defends Voucher Pilot
A voucher pilot program slated for Douglas County, Colorado, with 500 students in fall 2011, has been challenged in court by the American Civil Liberties Union and Americans United for Separation of Church and State on the basis of the state’s Blaine Amendment. Most of the students enrolled in the program this fall plan to use their vouchers at religious schools, and the plaintiffs argue that the state constitution clearly prohibits public money going to religious organizations.

Lance Izumi: A School Choice Week Lesson for Gov. Brown
Izumi recommends several structural changes to improve the quality of education reform in California, including a repeal of the state’s Blaine Amendment. Since, Izumi says, the Supreme Court has ruled that voucher programs do not necessarily support religious instruction and therefore don’t violate the Establishment Clause, the Blaine Amendment is an unnecessary barrier to better education.

Catholic Schools, Urban Neighborhoods, and Education Reform
The authors of this Notre Dame Law Review article discuss how Catholic education responded to Blaine Amendments and religious persecution in the 19th Century: by building a separate, nationwide system of parochial schools with a reputation for excellence. The authors report that edifice is eroding today, and particularly in urban neighborhoods, largely because the Catholic Church itself is losing members, workers, and finances in America. This creates a loss for disadvantaged children, particularly, because they respond dramatically and positively to education in Catholic schools. Without public tuition assistance, the authors conclude, the strengths of Catholic education for inner-city neighborhoods will disappear.

Lawmakers Must Shield School Choice Reforms From Lawsuits
Chip Mellor, president and general counsel of the Institute for Justice, argues in Forbes that because of several structural barriers to school choice like Blaine Amendments, lawmakers must carefully craft such provisions to avoid having courts decide education policy. “To avoid running afoul of state constitutions, Blaine Amendments, and Compelled Support Clauses, reform-minded lawmakers must carefully decide whether to offer parents vouchers or tax credits,” he writes. “Each can offer meaningful choice, but the constitutional analysis for each may be different.”

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If you have any questions about this issue or The Heartland Institute, contact Heartland education policy research fellow Joy Pullmann, at 312/377-4000 or [email protected].

[1] As quoted by Hess, Frederick. The Same Thing Over and Over, p. 89. Harvard University Press, 2010.