Blaine Amendments Protect Religious Liberty, Prohibit Establishing Religion via School Vouchers

So-called Blaine Amendments in many of the state constitutions prohibit the diversion of taxpayer dollars to religious schools.  Over the weekend, The Hill published a commentary on the state Blaine Amendments by Robert G. Natelson , a retired professor of constitutional law and a fellow at the the far-right Heartland Institute. Natelson argues that the U.S. Supreme Court should overturn the Blaine Amendments in several state constitutions because they were created in an era of anti-Catholic bias and at a time when public schools reflected their Protestant beginnings.

Several times in the 1870s and 1880s, Speaker of the U.S. House of Representatives, James G. Blaine proposed a federal constitutional amendment to prohibit the expenditure of public dollars at religious schools.  While the amendment to the U.S. Constitution was never adopted, a number of the states passed so-called Blaine Amendments to their constitutions. In many those states today, the Blaine Amendment has been interpreted to mean that the state constitution prohibits the use of school vouchers in sectarian schools.

Diane Ravitch, the historian of education, responds to Natelson at the Huffington Post. She agrees with Natelson about the origin of the Blaine Amendments:, “Natelson is right that the public schools of the 19th century were deeply imbued with Protestant teachings and practices… The arrival of large numbers of Irish immigrants in the 1840s, mostly Catholic, concurred with the beginnings of public school systems in urban areas…. The Blaine Amendment appealed to anti-Catholic sentiment among the dominant Protestant majority….”

Ravitch explains, however, that public schools are no longer dominated by any religion, nor do they incorporate religious practices.  Courts, according to Ravitch, ought to consider the reality that today, public schools have shed religious practices, particularly since the 1962, U.S. Supreme Court decision in Engel v Vitale, that banned school prayer.  Today public schools are expected to protect the right of each child to worship according to the child’s or family’s religious beliefs and to protect the U.S. Constitutional ban on religious education.

There is widespread acceptance today in public schools and across U.S. religious bodies that the First Amendment protection of freedom of religion applies in schools operated in the public sphere by government. Here is the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  The first part of the First Amendment (referred to as the Establishment Clause) protects against the government’s in any way favoring—“establishing”— any particular religion, and the second clause guarantees residents of the United States the right to worship according to their own traditions.

Ravitch explains today’s reality that by law, students are protected from religious bias in their public schools:  “The motives of James G. Blaine or Catherine Beecher Stowe or Horace Mann or Henry Bernard or any of the other 19ht century founders of public schools are irrelevant today. They matter less than the reality and practices of public schools today that the Blaine Amendments permit and protect. Because of the states’ Blaine Amendments, public schools across the nation welcome children who are of every religion or no religion, whether Catholic, Protestant, Muslim, Jewish, Hindu, Buddhist, atheist, or any other belief.  To rule against the Blaine Amendments would open the door to subsidizing religious schools with public dollars.”  Many promoters of school vouchers, including Betsy DeVos, the U.S. Secretary of Education, want to eliminate the state-by-state Blaine Amendments as a way to ensure that school vouchers are permissible in every state.

Ravitch writes, “If the High Court reviews the state Blaine Amendments, I hope the Justices will recognize that the founders knowingly decided to avoid state entanglement with religious establishment… Our public schools are no longer the Protestant public schools that Bishop Hughes fought against. They are an integral part of our democratic society. They are a public good, like the services of police and firefighters, like public beaches, libraries, and parks.  Separation of church and state is a valuable principle that protects the church schools from government intervention and mandates. Religious liberty is best protected by keeping it separate from government dollars and government control.”

Today America’s major religious denominations have themselves strongly endorsed the First Amendment’s protection of religious freedom in the public schools. Ensuring that public schools do not “establish” or favor one set of religious beliefs over another means that parents will not have to worry that a school will teach religious beliefs contrary to the tradition of their family.

In 1995 the First Amendment Center convened a group of religious and educational leaders who endorsed a set of principles (Finding Common Ground, pp. 11-13)

  1. “Religious liberty is an inalienable right of every person.
  2. “Citizenship in a diverse society means living with our deepest differences and committing ourselves to work for public policies that are in the best interest of all individuals, families, communities and our nation.
  3. “Public schools must model the democratic process and constitutional principles in the development of policies and curricula.
  4. “Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.”

The religious organizations that subscribed to these principles were: the Catholic League for Religious and Civil Rights, the Central Conference of American Rabbis, the Christian Coalition, the Council on Islamic Education, the National Association of Evangelicals, the National Council of Churches of Christ, and the Union of American Hebrew Congregations.

Just last month The Christian Century editorialized supporting our nation’s public schools that serve children from many religions and opposing school vouchers. The Christian Century describes itself as a magazine that has, “For decades… informed and shaped progressive, mainline Christianity.” Its mission statement declares, “Committed to thinking critically and living faithfully, the magazine explores what it means to believe and live out the Christian faith in our time… (T)he Century is both loyal to the church and open to the world.”

In its recent editorial, The Christian Century affirms the role of public education and castigates vouchers, but the editorial focuses on the right of every child in our society to a quality public education.  The magazine does not assume any presence of religion in public schools but instead emphasizes the danger when meager public education dollars are used to privatize schools, whether or not they are religious: “(N)owhere is there demonstrative evidence that the mechanisms of market choice and privatization have improved education overall. Their downside, however, is quite clear: wherever charters and vouchers operate, they siphon money from the public school systems which are charged with educating every student, regardless of physical or mental ability, income, or parent involvement. The schools that have demonstrated real reform in recent years are ones that have focused over the long haul on the unglamorous tasks of setting high goals, finding and supporting excellent principals, continually supporting and training teachers, and staying connected to parents and community. Supporting public schools in that hard work is the best focus for government dollars.”

The Christian Century endorses justice for all children, whatever their families’ religious beliefs, in democratically owned and operated public schools designed to protect the rights and serve the needs of our nation’s 50 million students.

Update: Yesterday afternoon in the “Answer Sheet” column at the Washington Post, Valerie Strauss re-printed Diane Ravitch’s Huffington Post column and added an introduction about the timeliness of this issue. Strauss reports that the U.S. Supreme Court is soon scheduled to begin hearing a case, Trinity Lutheran Church of Columbia v. Pauley, which involves the constitutionality of Missouri’s Blaine Amendment.  Arguments are set to begin on April 19, and Strauss explains that, “the decision could determine the fate of Blaine Amendments across the country.”  Strauss adds another piece of important legal history, citing a quite recent U.S. Supreme Court decision that affirmed the Establishment Clause itself in relation to public education: “In the landmark 1947 Everson v. Board of Education of the Township of Ewing case, the Supreme court wrote that the Establishment Clause does create a ‘wall of separation’ between church and state, and that means that, at the very least, no ‘tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion.'”

It is very much worth reading Ravitch’s column here or reprinted in Valerie Strauss’s “Answer Sheet” column with Strauss’s introduction.


Vouchers and Tax Credits Threaten Religious Liberty and Sense of a Shared Public Space

The idea of religious liberty in American public education is basic.  This is the promise that the U.S. Constitution protects children from the teaching of somebody else’s religious views at public expense in their schools.  The First Amendment of the Constitution protects religion in two ways: government may not impose religion (public schools may not teach religious doctrine) and government must protect the free exercise of religion.

The idea of religious freedom is being perverted in myriad ways by those who perpetually try to figure out how public schools or publicly funded schools can teach religion.  Yesterday, Stephanie Simon published a fascinating and detailed article at Politico about the many ways school vouchers and closely related tuition tax credits are being used by those who want to promote their religion.

Simon summarizes the thinking of Neal McCluskey, a libertarian analyst from the Cato Institute, for example, who says that public funds ought to be allowed to go to schools that promote all kinds of religious values.  Then parents should be free to choose for their children the schools that reflect their own beliefs.  “If you want very rigorous evolution instruction, you should be able to choose that.  But you have to let other people choose something else.”  McCluskey’s thinking gets us to a very peculiar definition of scientific thinking: you should be able to choose for your child what kind of science you want your child to believe.  Most scientists, however,  would define scientific thinking as a matter of empiricism not a matter of belief.

According to Simon, only 250,000 students use vouchers and tuition tax credit scholarships, a tiny percentage of the more than 50 million children in public schools in the United States, but the number has grown 30 percent since 2010.  Not-for-profit 501(c)(4) organizations actively pushing vouchers are the American Federation for Children, with leadership from the far-right Betsy DeVos, and Americans for Prosperity, the Koch-funded group.  Vouchers and tax-credit scholarships are constitutional under the U.S. Constitution under the 2002 decision in Zelman v. Simmons-Harris, in which the Supreme Court said vouchers can subsidize religious education if the state funds flow to the parents, not directly to the school, and if the parents have a choice about where to use the voucher.  Simon describes voucher programs in place in a growing number of states whose state constitutions do not prohibit them.

During his term as General Minister and President of the United Church of Christ, the Rev. John Thomas authored a profound pastoral letter that endorsed independent scientific inquiry: “Through the scientific advances of our time, we are seeing nature with new eyes, and what we see fills us with wonder and praise. Stunning images of deep space are like new windows on creation. Microscopic details of living cells show us the unexpected intricacies of our biology. Mathematical equations unravel the secrets of  the first seconds following the birth of the universe. Through these gifts of science, we look across ever-expanding vistas of cosmic beauty, almost to the beginning of time itself. What we see evokes wonder and humility, and we hear within ourselves a new voice arising and singing an anthem of praise that reverberates through the whole creation.”  Rev. Thomas understands that children ought to learn science including the theory of evolution, not religious stories of creation, in their public school science classes.

Just last week in a blog post at Chicago Theological Seminary where Rev. Thomas now teaches, he declares his support for public funding of public schools and  raises an additional set of concerns about tax credits.  These diversions of tax money to private entities are,  “one more part of the relentless chipping away at the public in our public school system.”  “A century ago the Progressive era ended the tyranny of business tycoons who controlled utilities, railroads, state houses, banking, city halls, and the wages and working conditions of millions, all without the inconvenience of public oversight. Today a new elite is returning us to a bygone era many of us thought we’d left in the 19th century.  The chipping away of the public is well underway.”

As a religious leader who supports each person’s freedom of religious belief, Thomas describes the importance of scientific research.  He also argues that tax dollars be directed to support a vibrant public space which all citizens, whatever their faith, are obligated to support, and from which all citizens, whatever their religion, can benefit.  Taxes, according to Rev. Thomas, should not siphoned off for private or religious purposes.  About a recent proposal for tax credits Thomas writes: “… it represents one more part of the relentless chipping away at the public in our public school system. By encouraging voluntary private donations by corporations and individuals directly to schools of their choice – public and private – we further shift control of the education of our children away from the public to the private sector. The tax credits further reduce state revenue, squeezing already inadequate public funding of our most struggling school systems. What happened to the notion that a fair tax system should support public responsibilities?”