By Andrew Vandiver
The U.S. Supreme Court is currently considering a case that will have a significant impact on educational choice and religious liberty. Espinoza v. Montana Department of Revenue deals with whether a state may ban parents from using a scholarship tax credit program to attend a religious school. Scholarship tax credit programs encourage charitable donations to tuition assistance programs for families who want access to a nonpublic school education.
This is not the first time that educational choice has come before the Supreme Court. The Court had already ruled that the U.S. Constitution does not prohibit states from enacting programs that include religious schools. Losing on that front, opponents turned to state constitutional provisions, commonly known as Blaine Amendments, to block families from accessing a religious education for their children.
Blaine Amendments can be found in 37 state constitutions. While wording may differ, they often share in common language that prohibits aid from going to “sectarian schools.” To modern eyes, these provisions appear to be an effort to maintain the so-called wall separating church and state.
A closer look at the history behind the Blaine Amendments reveals that they were part of a 19th century movement targeted at Catholics. At the time the amendments were adopted, public schools provided religious instruction and teacher-led prayer. The adopters of the amendments were simply opposed to Catholic forms of religious education.
Times have since changed and these amendments now discriminate against families of all faiths. It is worth noting that the parent at the center of the current Supreme Court case, Kendra Espinoza, is seeking a nondenominational Christian education for her children.
For many years, scholarship tax credit programs remained undefeated in both state and federal courts when it came to Blaine Amendments. Opponents won their first major victory in Montana due to its unique and particularly restrictive amendment. After the Montana Supreme Court struck the scholarship tax credit program down, parents appealed to the U.S. Supreme Court.
Blaine Amendments have not fared well in the U.S. Supreme Court as of late. In 2017, the Court struck a major blow when it ruled that states could not discriminate against religious institutions with regard to a public program for playground resurfacing. It is expected that the Court will follow the logic of this ruling and similarly find that Montana’s Blaine Amendment is discriminatory and unconstitutional in Espinoza.
Kentucky has its own Blaine Amendment that is substantially weaker than the Montana version. If scholarship tax credits are passed by the Kentucky General Assembly, it is highly unlikely that opponents will be able to utilize this provision to block students from attending religious schools.
In light of the almost certain demise of Blaine Amendments, I would encourage our lawmakers to focus on another provision of the Kentucky Constitution. Section 5 sets forth that no man shall “be compelled to send his child to any school to which he may be conscientiously opposed.” While this provision provides some protection, it is effectively meaningless to families who cannot afford tuition at a nonpublic school. Kentucky lawmakers have an opportunity during the 2020 session to take a step forward when it comes to educational freedom by passing a scholarship tax credit program that will enable more families to choose the education most appropriate for their children, whether it be religious or secular.
Andrew Vandiver is the associate director of the Catholic Conference Kentucky.