The Testing of States’ Blaine Amendments– No Public Funding of Religious Schools
Given that President Trump and US Secretary of Education Betsy DeVos are poised to offer states financial incentives for instituting/expanding school vouchers, the issue becomes whether state constitutions allow public money to be used to fund private schools, particularly religious schools.
Time for a bit of history.
The commonly-used term to refer to state constitutional amendments that either prohibit or limit the use of public money in funding religious education is “Blaine amendment.”
Interestingly, the original Blaine Amendment was not a state issue but a national issue. The amendment was proposed in 1875 by Representative James G. Blaine (R-ME) at the urging of President Ulysses S. Grant in his final Congressional address, as Jay Bybee of the University of Nevada Las Vegas noted in his 2002 article on the subject. From Bybee’s abstract:
In December 1875, President Ulysses S. Grant delivered his last annual message to Congress. He warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, or school taxes . . . for the benefit of or in aid . . . of any religious sect or denomination.” There was no mistaking what President Grant referred to when he mentioned “demagogue,” “priestcraft,” and “religious sect” in connection with public education. Since the Civil War, the political influence of Catholics had become an important force in America, and in many states Catholics had sought public funding for their schools and charities.
Congress responded promptly. Within a week, Representative James Blaine, the powerful former Speaker of the House, introduced an amendment that would become known as “the Blaine Amendment,” which provided that “no money raised by taxation in any State for the support of public schools . . . shall ever be under the control of any religious sect.” In August 1876, the House of Representatives approved the bill with the necessary two-thirds vote. The proposal, however, received a majority but not a two-thirds vote in the Senate and failed.
Although Congress never sent the Blaine Amendment to the states for ratification, the states reacted to the national attention paid to the question of public financing of sectarian schools by adopting their own “Little Blaine Amendments.” Between 1840 and 1875, nineteen states adopted some form of constitutional restriction on sectarian institutions receiving state funds; by 1900, sixteen more states, plus the District of Columbia, had added such provisions.
President Grant also said the following in a September 1875 speech at a Society of the Army of the Tennessee convention in Iowa:
Now, the centennial year of our national existence, I believe, is a good time to begin the work of strengthening the foundations of the structure commenced by our patriotic forefathers one hundred years ago at Lexington. Let us all labor to add all needful guarantees for the security of free thought, free speech, a free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men irrespective of nationality, color, or religion. Encourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to any sectarian schools. Resolve that neither the State nor Nation, nor both combined shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the Church, and the private school, supported entirely by private contributions. Keep the Church and State forever separate. With these safeguards, I believe the battles which created the Army of the Tennessee will not have been fought in vain.
Newspapers throughout the country reprinted Grant’s [September 1875] speech and its effect was immediate. As a correspondent of the Chicago Tribune stated, the speech “set the nation agog.” The Protestant Christian Advocate wrote that the speech was “full of wisdom” and called for a constitutional amendment to put the suggestions into practice. Even The Index, a journal of free thought, called the speech “great,” in spite of its negative reference to atheism.
The sole voice of protest came from the Catholic Church.
Indeed, a number of documents cited in this post (Green among them) include discussion about Grant’s specific intention to prevent Catholic schools from receiving public funding. However, it appears that Blaine was more interested in capitalizing on this amendment-drafting opportunity as a career rung to secure the Republican nomination for president.
As Green notes, the call for Grant’s words to be fashioned into a constitutional amendment was even more pronounced following his December 1875 speech to Congress.
The text of the Blaine Amendment “in the House, with slight modifications” was as follows:
No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of public schools, or derived from any public fund therefor or any public lands devoted thereto, shall ever be under the control of any religious sect; and no money or lands so devoted shall be divided among religious sects or denominations.
(Source: “The Catholic Peril in America,” May 1876, page 563, in The Eclectic Magazine: Foreign Literature, Volume 23; Volume 86.)
The Blaine Amendment passed the House 180-7; however, it failed to garner the necessary two-thirds vote in the Senate: 28-16.
(Those so inclined are able to read the Senate discussion of the Blaine Amendment in Appleton’s Annual Cyclopaedia and Register of Important Events, Volume 16, pages 173-180. Also, Green has a detailed summary of the Senate discussion and amendment revisions.)
Ironically, in 1876, the Republicans nominated known anti-Catholic Rutherford B. Hayes for president and, as Green writes, “approved a platform calling for the preservation of the nation’s public school system and a prohibition against using public funds to benefit ‘any school under sectarian control.'”
In 2017, it is overwhelmingly the Republicans who are pushing to send public money to private schools, including religious schools.
And here’s another partisan nuance in Green: In 1875, Senate Democrats were concerned that the federal nature of the amendment would place the duty to educate with the federal government. Moreover, both Democrats and Republicans in the Senate believed that such responsibility was better left up to the states.
Green also notes that the Senate vote that killed the Blaine Amendment fell along party lines: 28 Republicans in favor; 16 Democrats opposed.
Twenty-seven Senators failed to show for the Senate vote, including Blaine, who had become a US senator following his unsuccessful presidential bid. Blaine’s absence further supports the apparently widely-held notion that Blaine only proposed the amendment to try to further his career, not from any genuine concern about public school funding.
Even though the Blaine Amendment failed on the federal level in 1875, Iowa and Illinois had included a Blaine-type language in their constitutions. Too, beginning in 1876, Congress required some Blaine-styled language in the state constitutions as a condition of statehood. (See page 15 of this Amicus brief related to Locke vs. Davey for more on Blaine as a condition for statehood.)
To date, it seems that 37 or 38 states have some sort of Blaine amendment. These two figures are cited repeatedly in various sources that I have read, including those in this post. However, I could not locate a comprehensive listing in any document that did not require purchase.
Regarding the manner in which Blaine amendments might vary from state to state, Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School, had this to say in a 2008 Pew Forum interview:
Blaine Amendments differ primarily in two ways. First, some Blaine Amendments forbid funding of religious education while others more broadly forbid funding of all religious organizations. Second, some Blaine Amendments prohibit only direct funding while others prohibit both direct and indirect funding. Direct funding involves the state actually giving aid to a religious organization. Indirect funding involves the state giving aid to a religious organization through a third party, such as a family that uses state funding to send its children to a religious school. The least restrictive Blaine Amendments, such as the one in Kentucky, forbid only direct funding of religious education; the most restrictive Blaine Amendments, such as those in Florida and Georgia, prohibit both indirect and direct funding of any religious organization.
As it turns out, Betsy DeVos’ native Michigan has a tightly-written Blaine amendment:
No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school. (Michigan Constitution, Article VIII, § 2)
In November 2000, Michigan voters defeated Proposal 1, The Michigan Vouchers and Teacher Testing Amendment, 69.1% to 30.9%. The text of Proposal 1 was as follows:
Initiative Constitutional Amendment
The proposed constitutional amendment would:
1) Eliminate ban on indirect support of students attending nonpublic schools through tuition vouchers, credits, tax benefits, exemptions or deductions, subsidies, grants or loans of public monies or property.
2) Allow students to use tuition vouchers to attend nonpublic schools in districts with a graduation rate under 2/3 in 1998-1999 and districts approving tuition vouchers through school board action or a public vote. Each voucher would be limited to ½ of state average per-pupil public school revenue.
3) Require teacher testing on academic subjects in public schools and in nonpublic schools redeeming tuition vouchers.
4) Adjust minimum per-pupil funding from 1994-1995 to 2000-2001 level.
According to Ed Week, the DeVos and her husband supported Proposal 1 to the tune of roughly $13 million. Still, the voters would not have it.
It can be difficult to convince the public to alter a state constitution in order to shuttle public money away from public schools.
Indeed, the altering of state constitutions is apparently what would have to happen in many states if states follow the lure of federal money in the name of voucher choice–either that, or some creative maneuvering in the name of “indirect” funding if a given state constitution would allow as much.
In 1876, the federal government enticed many states to include Blaine amendments as a condition of statehood. In 2017, the federal government will likely try to erase or at least seriously dilute those Blaine amendments in order to send public money to private schools, many of which will be religious schools.
Stay tuned for DeVos’ “Voucher to the Top” plan.
And stay tuned for a flurry of state constitution ballot measures and other creative means of states’ assuring the US Department of Education that they are prepared to funnel public money toward private schools in salivating reaction to those dangled federal dollars.
In this age of testing, we will soon be testing states’ Blaine amendments. That is the single reason why the likes of Betsy DeVos now carries the ill-fitting title of US secretary of education.