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A relic of anti-Catholic bigotry

An appeal to the United States Supreme Court has set the stage for what could be a landmark ruling on school choice and education funding, should the court elect to take the case.

In a brief filed Tuesday, three “low-income mothers” sought to invalidate a Montana Supreme Court ruling that struck down the Treasure State’s school-choice program due to its inclusion of religious schools.

The vehicle through which the state court struck down the program was Montana’s so-called Blaine Amendment, the shorthand for state constitutional amendments designed to prevent public funds from going to “sectarian” schools.

The late 19th century movement, born out of anti-Catholic bigotry, failed to pass a federal constitution amendment but spurred dozens of states to adopt them. Currently 37 states have them in place, but a Supreme Court ruling in favor of the mothers could invalidate all of them.

The Institute for Justice is representing the mothers, who are trying to keep their children’s state scholarships to attend a Christian school. Just last month the libertarian law firm won its most recent case at the Supreme Court, which invalidated excessive fines in Indiana state law under the 8th Amendment.

The issue of public funding for religious school choice has deeply divided state and federal courts across the country. That’s a very good indication that the Supreme Court will take the case, IJ attorney Erica Smith told The College Fix in a phone interview Thursday.

“This case has the potential to affect tens of thousands of families across the country,” Smith said regarding the nationwide impact of the case. “They just want the best for their kids.”

Twice as many federal appeals courts have ruled that the government cannot “prohibit religious options in student-aid programs,” compared those who say it can, according to IJ’s press release on its appeal. The 6th, 7th, 8th and 10th Circuits support neutrality in funding, while the 1st and the 9th Circuits upheld Blaine Amendments.

In contrast, only one state supreme court – New Mexico’s – agrees with the four federal appeals courts. High courts in Vermont and Maine ruled the same as Montana’s.

“The only way to resolve the split is for the Supreme Court to grant certiorari in another student-aid case,” IJ senior attorney Tim Keller said in the press release. Some states have spent more than two decades blocking families who want to send their children to religious schools from participating in these programs, he said.

‘Nearly 70 percent of Montana’s private schools are religiously affiliated’

The confusion stems from the Supreme Court’s last foray into the student-aid issue in 2004, when it upheld a Washington state scholarship that excludes studies in “devotional theology.”

The Locke ruling “did not address the issue head-on” and lower courts became even more divided, the brief said. Some courts interpreted it as prohibiting “the wholesale exclusion of religious options” while others came to “the exact opposite conclusion.”

Montana’s legal spat began in 2015 when the state enacted school-choice legislation and an accompanying scholarship program that gave a tax break to anyone who donated to a private scholarship organization.

But because the donations to scholarships were being subsidized by tax breaks, the Montana Department of Revenue enacted a regulation that forbade the recipients from using them at religious schools.

This functionally crippled school choice in the state, according to IJ: “Nearly 70 percent of Montana’s private schools are religiously affiliated and excluding them severely limited the choice of families.”

The subsequent lawsuit challenging the regulation culminated with the Montana Supreme Court. It voted 5-2 to strike down the entire scholarship program because of the initial inclusion of religious schools, citing the state’s Blaine Amendment.

“By applying [the Blaine Amendment] to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of 19th century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school,” IJ senior attorney Michael Bindas said in the IJ press release.

IJ hopes to use the Supreme Court’s precedent last year in the Trinity Lutheran religious-discrimination case as the vehicle to invalidate all Blaine Amendments.

The Supreme Court ruled 7-2 that Missouri’s exclusion of a church-run school “from a public benefit for which it is otherwise qualified, solely because it is a church” – a playground-resurfacing grant program – “is odious to our Constitution all the same,” according to Chief Justice John Roberts’ majority opinion.

Justice Stephen Breyer concurred in the judgment but not the opinion, while Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.

In a section of its website entirely dedicated to the late 19th century laws, IJ says it is “pursuing a legal strategy to eliminate these obstacles to educational freedom.”

“IJ believes this [Trinity Lutheran] opinion is a death sentence to Blaine Amendments, which have been invoked by teachers’ unions and their allies for decades to try and prevent choice programs from spreading and generating widespread reform,” the webpage reads.

MORE: When colleges use nondiscrimination policies to discriminate

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