Can a promising school-choice plan be invalidated because it is too tolerant and inclusive? Can it be struck down because it doesn’t discriminate against families and schools based on their religion?
According to the Colorado Supreme Court, the answer is yes. Last year, in Doyle v. Taxpayers for Public Education, the Centennial State’s justices struck down a K-12 tuition-assistance plan because it didn’t exclude faith-based schools. Instead, families could use the money at any qualified nonpublic school of their choice, whether secular or religiously affiliated.
The court held that such a broad, nondiscriminatory menu of choices conflicted with the Colorado Constitution’s century-old prohibition on funding for “sectarian” schools – a provision, known as a Blaine Amendment, that is a holdover from the anti-Catholic animus of a bygone era.
Alexander T. Pawlikowski gets up from his seat in a class at York Catholic High School Wednesday January 9, 2013.
Now, the U.S. Supreme Court is considering whether to take the Doyle case, and to decide whether the Colorado Constitution’s denial of equal treatment for religiously affiliated schools and their students can be squared with the U.S. Constitution’s guarantee of equal rights for everyone.
At issue is the Douglas County School District’s Choice Scholarship Program, a pilot plan to give parents and students new flexibility to meet their educational needs. It provided 500 scholarships that families could use at any qualifying school. Every participating school had to pass a rigorous academic and financial analysis, but there was no restriction on whether it was religiously affiliated or not.
This encouraging experiment in offering families more options – and injecting healthy competition into the educational system – met with immediate opposition from guardians of the status quo. A legal challenge was filed by the ACLU and Americans United for Separation of Church and State, among others.
Although the state appeals court rejected their arguments, the Colorado Supreme Court reversed and sided with the school-choice opponents last June. Its ruling against the scholarship plan rested on a state constitutional provision that prohibits aid to schools “controlled by any church or sectarian denomination.”
According to the court, this provision is more restrictive than the U.S. Constitution regarding public assistance to religiously affiliated schools. The U.S. Supreme Court has held that the First Amendment’s Establishment Clause does not bar faith-based schools from receiving public scholarship money, if assistance is available on an equal basis to secular schools.
For instance, if – as with the Douglas County program – tuition aid goes directly to families, who may choose for themselves where they will spend it, government is showing no favoritism and the arrangement passes muster under the U.S. Constitution.
In contrast, the Colorado Constitution mandates outright discrimination against faith-based schools, strictly denying them any scholarship money, according to the state’s High Court.
The provision that the Colorado justices relied on – Article 9, section 7 – is an unsavory legacy from a 19th century politician who worked to write anti-Catholic bias into American law. James G. Blaine, who served as senator from Maine and Speaker of the U.S. House of Representatives, is probably best known for the slur that helped lose him the 1884 presidential election; as Republican nominee, he was present – and offered no objection – when a speaker denounced Democrats as the party of “rum, Romanism, and rebellion.”
But it was Blaine’s crusade to create legal disadvantages for “sectarian” education that still has an impact today. He proposed to amend the U.S. Constitution to prohibit any spending on religiously affiliated schools. Many historians believe this was aimed at Catholics, because Protestants generally did not feel a need to establish private schools; the public schools often offered some Bible teaching from a Protestant perspective.
Although Blaine did not succeed in changing the U.S. Constitution, his efforts helped influence many states, like Colorado, to incorporate such restrictions into their own constitutions.
One estimate says Blaine Amendments are still found in the constitutions of at least 37 states.
So the Supreme Court’s decision on whether to accept Doyle carries implications far beyond Colorado.
To the extent that Blaine Amendments require anti-religious bias in public policy, they squarely violate the U.S. Constitution. Under the Equal Protection Clause, government discrimination based on people’s creed is just as impermissible as discrimination based on color.
The High Court should grant review of Doyle to ensure that an embarrassing legal relic of a less tolerant time cannot be used to deny families new educational choices that are offered on a religiously neutral, nondiscriminatory basis. No government officials should be allowed, much less required, to single out faith-based schools and their students, and tell them: “No scholarships for you.”
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