The Battle over Blaine Amendments Heads Back to the States

Well, that was fast. On the heels of its decision yesterday in Trinity Lutheran v. Comer, the Supreme Court today granted cert to and vacated state supreme court decisions out of Colorado and New Mexico that used Blaine Amendments to exclude religious schools from government aid programs.

In  New Mexico Association of Nonpublic Schools v. Moses, the New Mexico Supreme Court ruled in 2015 that a longstanding program through which the state lends textbooks to students attending public and private (including religious) schools violated state constitutional language prohibiting state aid from going to “sectarian” and “private” schools. It did so despite the fact that the program had operated in the state, largely without controversy, since 1891, and the fact that lower courts had rejected the challenge to the program, holding that the state’s Blaine Amendment should be interpreted consistently with federal Establishment Clause jurisprudence (under which textbook loans are clearly permissible).

In  Douglas County School District v. Taxpayers for Public Education, the Colorado Supreme Court in 2015 relied on similar constitutional language to strike down a school voucher program that would have allowed students to use public funds to enroll in private (including religious) schools. It did so despite the fact that the Supreme Court in 2002 held that an Ohio voucher program that allows students to attend religious schools does not violate the Establishment Clause, and the fact that courts in several other states with Blaine Amendments have upheld voucher programs on the grounds that they constitute aid to the students who use them, not the schools those students attend.

Today’s order effectively wipes out those rulings, directing the court in each state to reconsider them “in light of” its ruling in Trinity Lutheran. The  implications of the court’s decision in that case are not obvious, however. On one hand, Chief Justice John Roberts’ majority opinion states clearly that “denying a qualified religious entity a public benefit solely because of its religious character” violates the Free Exercise Clause and could be justified only by a compelling state interest—something Missouri failed to articulate. On the other, the majority kept its opinion quite narrow, emphasizing in a critical footnote that it was addressing “discrimination based on religious identity with respect to playground resurfacing” only.

It is now up to the courts in New Mexico and Colorado to decide whether denying textbooks or tuition subsidies to students attending religious schools can be justified, even if denying playground construction aid cannot. Rest assured that the justices on the Supreme Court will be watching carefully to see what they decide—and should have an opportunity to clarify their own thinking soon.

— Martin West

Martin West is an associate professor of education at the Harvard Graduate School of Education, deputy director of Harvard’s Program on Education Policy and Governance, and editor-in-chief of Education Next.

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