The Problem With The Blaine Amendment

A Supreme Court decision that could change the balance of power in schools from system power to parent power is well-known in policy circles but not by the general public. Yet anyone with an interest in great education should be aware of its importance. The case is Trinity Lutheran Church v. Comer, decided on the last day of the courts term in June. Its the latest in a series of cases that have gradually pushed aside barriers to the broadest possible approach to school opportunity and innovation.

Officials in Missouri argued that the states Blaine Amendment, added to the state constitution in an 1870 ballot referendum, to suppress Catholic education and now applied to all religious entities, required them to turn down a request by Trinity Lutheran church for funds from a state program that provides new rubber surfaces for childrens playgrounds. But the nations high court unequivocally ruled otherwise: The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.

On the surface, it looked to observers like it was just about putting a new surface on a childrens playground. But what it really does is get us much closer to putting children at the center of our education priorities, and recognizing the fact that our 150-year-old approach to public schooling need not be, and should not be, our default option.

Blaine Amendments are the last line of defense for education choice opponents the unions, the school districts and hundreds more who earn a living in the employ of traditional public schooling and thousands of related parties. They fight to block any proposal or program that permits parents the discretion to direct the dollars allocated for their childrens education. The Supreme Court decided 15 years ago that the U.S. Constitution allows a well-designed school choice program (Zelman v. Simmons-Harris, 2002). Only those discriminatory Blaine Amendments embedded in 38 state constitutions stand in the way of the publics want and the needs of students to find the best fit for their education, and not have to settle for a school into which they are zoned by zip code for lack of money or options.

Missouri argued that an absolutist notion of separation of church and state takes priority over the best interests of the children when they attend a church-owned and operated school. Thats another way of saying that the well-being of the children comes last, not first. A remarkable seven-vote majority of the Supreme Court saw it differently.

In a very interesting twist, Justice Sotomayor went to great lengths to argue that the court majority has, in effect, concluded that Article I, 7 [the Missouri Blaine Amendment], cannot withstand strict scrutiny.

The reasoning behind the Supreme Courts ruling in Trinity Lutheran applies just as forcefully to school choice as it does to a rubberized playground. The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program for which it is fully qualified, the court declared in striking it down. The same logic applies to a choice plan that excludes church-sponsored schools from a state school choice plan because of their religious character.

Today, 17 states allow an allocation of state funds or tax credits to be used to fund education choice scholarships for an estimated 400,000 students across the nation. Many of the scholarships help the most vulnerable among us. But tens of thousands more children remain stuck in failing schools that do not meet their most basic needs. Annual battles for parental choice in state capitals too often find lawmakers ignoring majority support and siding instead with intensely focused teacher unions. A popular scare tactic is to argue that educational choice violates a states Blaine Amendment. Raising the specter of court challenges is often enough to discourage legislatures from acting.

This decision has the potential to change all that. Now all we need are lawmakers willing to put that premise to the test. With a nation where only 35% of all students are proficient in core subjects, we dont have time to waste.

Jeanne Allen is an entrepreneur, an innovator, and a leader. Her entire career has been devoted to education reform, and, as a result, she is the most recognized and respected expert, thought leader, speaker, and writer in the field. She founded the Center for Education Reform in 1993 and leads the nationwide fight to ensure that the bedrock of U.S. schooling is innovation, freedom and flexibility. Shes active on Twitter, at @JeanneAllen .