A lawsuit filed by the American Civil Liberties Union is threatening education choice in Nevada.
The lawsuit revolves around a century-old law with a “shameful pedigree” that the U.S. Supreme Court has said arose during “a time of pervasive hostility to the Catholic Church and to Catholics in general.”
That law, known as a Blaine Amendment, has been used against the state’s new education savings account program, which the Friedman Foundation for Educational Choice calls “the most sustainable, inclusive, equitable educational choice program in the country.”
The Nevada Supreme Court is hearing oral arguments in the case today, Duncan v. Nevada, which was joined by the American Civil Liberties Union. The court will also hear arguments in a separate but related case, Lopez v. Schwartz, which centers on school funding. As Leslie Hiner of the Friedman Foundation explains:
“Despite the litigation, thousands of Nevada families have applied for ESAs [education savings accounts] hoping the court will overturn the Lopez decision and uphold the Duncan decision, which would allow parents to access this new form of education funding in the 2016–2017 school year.”
The ACLU claims the education savings account program violates this law even as the Institute of Justice notes the language of the law does not apply to “publicly funded educational assistance programs like Nevada’s ESA Program” and “does not constrain the private choices of private individuals.”
As we concluded in our 2014 article in the Journal of School Choice, education reformers must contend with a set of ignoble, mostly 19th century laws—such as the one in Nevada—that have created a major roadblock to school choice programs.
The “Blaine amendments” derive their name from politician James G. Blaine. To supporters, Blaine was the great “Plumed Knight” and a leader, but detractors accused him of abusing the public purse for personal gain and being a cunning manipulator. Blaine’s political opponents used to shout the phrase, “Blaine! Blaine! James G. Blaine! The continental liar from the state of Maine!”
In 1875, Blaine unsuccessfully pushed for a federal constitutional prohibition of aid to “sectarian” schools. As Supreme Court Justice Clarence Thomas wrote in the 2000 Mitchell v. Helms decision, “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that sectarian was code for Catholic” (Mitchell v. Helms, 2000, 120 S. Ct. 2530, 2551).
While the amendment to the U.S. Constitution failed, many states adopted such amendments, including Nevada. As we explain in the Journal of School Choice:
“The common schools were 19th century ‘agents of civic assimilation’ … ‘The common school and the vision of American life that it embodied came to be vested with a religious seriousness and exaltation. It became the core institution of American society,’ wrote education historian Charles Glenn. ‘In close alliance with, but never subordinate to the Protestant churches, the common school occupied a “sacred space” where its mission was beyond debate and where to question it was a kind of blasphemy.’ Catholics sought to establish their own schools, and proposed that funding should follow, as it had to the common school. Supporters of the common school movement perceived a threat to its mission in such proposals.”
So when he ran for president against Grover Cleveland in 1884, Blaine backed a federal constitutional amendment to prevent states from giving public money to “sectarian” schools. While the amendment passed the House, in the Senate it failed to gain the two-thirds majority necessary for a constitutional amendment to proceed.
Even before the effort for a federal Blaine Amendment in 1876, 14 states had included language in their constitutions restricting aid to religious schools. Congress also required territories in the process of crafting constitutions for admittance into the union to include the restrictions. By 1890, 29 states had such restrictions. All of these provisions (including those not codified in state constitutions but appearing elsewhere at the state and local level), were passed between 1835 and 1959, starting in Michigan and ending in Hawaii.
While Blaine lost the election and the constitutional amendment failed, numerous laws with similar language were passed at the state level. Today, 37 states have Blaine amendments on the books, and they have created a significant impediment to education reform.
Nevada’s education savings account program has been a watershed moment in school choice. The near-universal option will empower up to 93 percent of Nevada children to use state education funding to craft a completely customized education option, including private school tuition, online learning, special education services, and therapies, and more. Here’s hoping they have the chance to do so when they get ready to start school again this fall.
Lindsey M. Burke researches and writes on federal and state education issues as the Will Skillman fellow in education policy at The Heritage Foundation.
Jarrett Stepman is a contributor to The Daily Signal.
Editor's Note: This piece was originally published by The Daily Signal.