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Blaine Amendment Challenge in Limbo at the US Supreme Court

March 5, 2017

On March 04, 2017, I wrote a post about the Blaine Amendment, which was never incorporated into the US Constitution but variations of which have been adopted in 37 or 38 states.

In short, the purpose of a Blaine amendment is to restrict the use of public money in funding religious (“sectarian”) schools.

The strength of any state’s Blaine amendment depends upon the specificity and directness of the language. As noted in the March 04, 2017, post, the language of Blaine amendments in some states is so tight that there is no way to sidestep the amendment by, say, indirectly using public money to fund religious schools by giving the money to the parent first and then having the parent use the money to pay the religious school.

Interestingly, in 2011, a challenge to Colorado’s Blaine amendment, Taxpayers for Public Education vs. Douglas County School District, went all the way to the Colorado Supreme Court (June 2015) and then, a reshaped case in which petitioner became defendant, Douglas County School District vs. Taxpayers for Public Education, headed for the US Supreme Court in October 2015.

In June 2015, the Colorado Supreme Court declared unconstitutional the use of public money in the form of school vouchers to pay for religious schools.

Below are some salient excerpts from the Colorado Supreme Court ruling

 The Colorado Constitution features broad, unequivocal language forbidding the State from using public money to fund religious schools. Specifically, article IX, section 7—entitled “Aid to private schools, churches, sectarian purpose, forbidden”— includes the following proscriptive language:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . . . (Emphasis added.)

Although this provision uses the term “sectarian” rather than “religious,” the two words are synonymous. See Black’s Law Dictionary 1557 (10th ed. 2014) (defining “sectarian” as “[o]f, relating to, or involving a particular religious sect; esp., supporting a particular religious group and its beliefs”). That section 7 twice equates the term “sectarian” with the word “church” only reinforces this point. Therefore, this stark constitutional provision makes one thing clear: A school district may not aid religious schools.

Yet aiding religious schools is exactly what the CSP [Choice Scholarship Pilot Program] does. The CSP essentially functions as a recruitment program, teaming with various religious schools (i.e., the Private School Partners) and encouraging students to attend those schools via the inducement of scholarships. To be sure, the CSP does not explicitly funnel money directly to religious schools, instead providing financial aid to students. But section 7’s prohibitions are not limited to direct funding. Rather, section 7 bars school districts from “pay[ing] from any public fund or moneys whatever, anything in aid of any” religious institution, and from “help[ing] support or sustain any school . . . controlled by any church or sectarian denomination whatsoever” (emphasis added). Given that private religious schools rely on students’ attendance (and their corresponding tuition payments) for their ongoing survival, the CSP’s facilitation of such attendance necessarily constitutes aid to “support or sustain” those schools. Section 7 precludes school districts from providing such aid.

Respondents point out that the CSP does not require scholarship recipients to enroll in a religious school, nor does it force participating Private School Partners to be religious. Respondents thus suggest that the CSP features an element of private choice that severs the link between the District’s aid to the student and the student’s ultimate attendance at a (potentially) religious school. It is true that the CSP does not only partner with religious schools; several Private School Partners are non-religious. The fact remains, however, that the CSP awards public money to students who may then use that money to pay for a religious education. In so doing, the CSP aids religious institutions. Thus, even ignoring the pragmatic realities that scholarship recipients face—such as the trial court’s finding that “virtually all high school students” can only use their scholarships to attend religious schools—the CSP violates the clear constitutional command of section 7.

The program’s lack of vital safeguards only bolsters our conclusion that it is constitutionally infirm. Most troubling is that the CSP does not forbid a Private School Partner from raising a scholarship recipient’s tuition (or reducing his financial aid) in the amount of the scholarship awarded. Such conduct would pervert the program’s “offset” approach and would instead result in the District channeling taxpayer money directly to a religious school. As the trial court found, one religious Private School Partner has already engaged in this very behavior.

Next, Douglas County attacks the origin of the Blaine amendment as anti-Catholic, which the 1875 origin of the Blaine Amendment was. However, the Colorado Supreme Court maintains that what matters is the actual language of Colorado’s Blaine amendment:

Respondents nevertheless contend that the plain language of section 7 is not plain at all, but that the term “sectarian” is actually code for “Catholic.” In so doing, Respondents charge that section 7 is a so-called “Blaine Amendment” that is bigoted in origin. See Taxpayers for Pub. Educ., ¶ 62 n.13 (describing Blaine Amendments as “state laws and constitutional provisions which allegedly arose out of anti-Catholic school sentiment”). They thus encourage us to wade into the history of section 7’s adoption and declare that the framers created section 7 in a vulgar display of anti-Catholic animus.

We need not perform such an exegesis to dispose of Respondents’ argument. Instead, we need merely recall that “constitutional provisions must be declared and enforced as written” whenever their language is “plain” and their meaning is “clear.” People v. Rodriguez, 112 P.3d 693, 696 (Colo. 2005). As discussed, the term “sectarian” plainly means “religious.” Therefore, we will enforce section 7 as it is written.

Accordingly, we cannot square the CSP’s resultant aid of religious schools with the plain language of section 7.

The Colorado suit has another interesting twist: Apparently Douglas County tried to position its voucher program as a charter school– an idea that the Colorado Supreme Court shot down:

The CSP funds itself through per-pupil revenue received from the State by counting the CSP students as charter school students “enrolled” in the Choice Scholarship Charter School. … For each scholarship recipient “enrolled” at the Charter School, the District retains 25% of the per-pupil funding amount to cover administrative costs and sends the remaining 75% to the student’s chosen Private School Partner in the form of a check that the parent must endorse for the sole purpose of paying tuition at the private school.

The problem with this arrangement, of course, is that the Choice Scholarship Charter School does not in fact exist. As the trial court found, the Charter School “has no buildings, employs no teachers, requires no supplies or books, and has no curriculum.” No CSP student will spend a single day attending classes at this “school.” The Choice Scholarship Charter School is an illusion, serving merely as a conduit to collect per-pupil revenue from the state to send students to private schools. Labeling this private school funding mechanism a “charter school” to collect public funds under the Act does not make it so.

Moreover, the Private School Partners—where the CSP scholarship students are actually enrolled and educated—fail to meet multiple requirements of the Charter School Act. Most obviously, charter schools must be public, nonsectarian, and nonreligious, and they must operate within a public school district. Charter schools may not discriminate on the basis of disability, sexual orientation, religion, or need for special education services. … And charter schools may not charge tuition.

In sum, the CSP violates the Act by collecting per-pupil funding from the State for students “enrolled” in an illusory charter school and redirecting that public money to pay tuition for those students’ private education at sectarian and other private schools—including schools located outside the District. Moreover, these Private School Partners receiving public money for “charter school” students fail to meet the statutory requirements of a charter school.

The game of Douglas County’s trying to fashion its voucher program into a charter school reminds me of a situation from the 1960s when Louisiana passed legislation allowing districts to rename the state’s public schools as “private” in order to use school vouchers to reinforce segregation.

The courts didn’t buy that one, either. (To read more about this and other creative means that states tried to use to employ vouchers as a means of preserving racial segregation, see my book, School Choice: The End of Public Education?.)

As for the other suit highlighted in this post (flip the plaintiff-defendant names), Douglas County vs. Taxpayers, its certification petition now sits at the federal level, suspiciously doing nothing.

According to the US Supreme Court docket file on Douglas County vs. Taxpayers, on January 13, 2016, the case was “distributed for Conference of February 19, 2016.”

However, on February 13, 2016, Justice Antonin Scalia died unexpectedly while on a hunting trip. Whether Scalia’s death influenced the fact that the suit is now in limbo is not directly stated, but it sure is one remarkable coincidence.

Regarding the conference on February 19, 2016, to certify the case, the Court registered no disposition, and the status of the case is only notated as “distributed.” (All documents related to the case can be found on this SCOTUS blog page.)

In short, what Douglas County is seeking to have all state-level Blaine amendments declared unconstitutional:

The question presented is: Can Colorado’s Blaine Amendment, which the unrebutted record plainly demonstrates was born of religious bigotry, be used to force state and local governments to discriminate against religious institutions without violating the Religion Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment?

The US Supreme Court has yet to certify this case.

In April and May 2016, the Denver Post refers to yet another Colorado suit as well as to the federal suit, which as of this writing is stalled.

From the April 2016 Denver Post:

A Virginia-based religious freedom group filed suit Tuesday against the Douglas County School District, saying its newly established voucher program unlawfully excludes families seeking to enroll children in a religious school.

And from the May 2016 Denver Post:

Voucher opponents filed motions in court Tuesday hoping to stymie the rollout and operation of the district’s newly formed School Choice Grant program, which would funnel public money to parents to pay for schooling at private nonreligious institutions.

The American Civil Liberties Union and Taxpayers for Public Education are asking a Denver District Court judge to stop the voucher program from getting off the ground. The ACLU also is seeking to intervene in a federal lawsuit that it claims is designed to help Douglas County’s program expand, once again, into religious education.

It wants that lawsuit, which was filed against the district last month by religious liberty group Institute for Justice, dismissed.

Douglas County, Colorado, could be involved in litigation over its voucher pilot for years to come.

Regarding Douglas County vs. Taxpayers, the major question is whether the Court is waiting for confirmation of the justice who will replace Scalia before making its decision on whether or not to certify the case.

Moreover, such certification is dependent upon a majority of Supreme Court justices deciding that the intent of the original Blaine Amendment is enough to justify finding that Blaine violates the First and Fourteenth Amendments to the Constitution.

In an August 2012 NBC interview, Scalia identified himself as a valuing words over intent:

“You will see recited in opinions all the way back that the object of interpretation is to determine the intent of the drafter.  I don’t believe that.  We’re not governed by the drafter’s intent. We’re governed by laws,” [Scalia] told NBC News in an interview at the court.

Whether Scalia’s likely replacement, Neil Gorsuch, will go with the desired Douglas County result, the intent of the original Blaine Amendment, and whether such violates the First and Fourteenth Amendments, remains to be seen.

Of course, the case needs to be certified first. And Gorsuch needs to be confirmed.

Lots of “ifs,” but certainly a situation to watch.

us-supreme-court-2  US Supreme Court


Want to read more about the history of charter schools and vouchers?

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of two other books: A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

  1. Laura H. Chapman permalink

    Agree on the “worth watching.” I am fairly confident that there are “high quality” lawyers working on the issues and preparing test cases, in addition to those in the pipeline.

  2. Charles Martin permalink

    There is a case coming up at the Supreme Court, Trinity School District v. Pauley. This case will send the Blaine amendments to the trash-heap of history. Blaine amendments were born in anti=Catholic bigotry.

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