The neutrality principle: the Supreme Court will soon reconsider Washington State's revoking of Joshua Davey's college scholarship after he decided to major in theology. Will its decision render the Blaine amendments, provisions of state constitutions that prohibit aid to religious schools, unconstitutional? - feature

Education Next, Fall, 2003 by James E. Ryan

Even if this prediction proves incorrect, there is a final reason why the Blaine amendments might be unconstitutional. This has to do with the fact that most, if not all, of the amendments were adopted because of hostility toward the Catholic Church. The equal protection and free exercise clauses, as suggested above, generally prohibit laws that discriminate on the basis of religion or that discriminate against a particular religion. The history of the Blaine amendments suggests that they were designed to discriminate against Catholic schools.

Although this legal argument may succeed in some state courts, voucher proponents seeking to overturn Blaine amendments on this basis face a number of practical difficulties. First, the fight would have to occur state by state, with courts looking into the history of specific state amendments. Second, and more troublesome for voucher advocates, a court might conclude that the passage of time or a more recent rewriting of a state constitution has cleansed whatever improper motive lay behind the original adoption of the Blaine amendment. Moreover, even if a court were to strike down a Blaine amendment on these grounds, there would be nothing to prevent a state's passage of precisely the same provision, provided that the reenactment was not motivated by anti-Catholic bias. For all of these reasons, voucher proponents will certainly be pinning their hopes on a favorable decision in Davey.

One final wrinkle must be noted. About ten states, including California, Colorado, and Massachusetts, have provisions in their constitutions that prohibit aid not just to private religious schools, but to all private schools. Colorado's constitution, for example, provides: "No appropriation shall be made for ... educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association." These provisions, which have gone virtually unnoticed in the voucher debates thus far, represent a much more serious obstacle to voucher programs because they do not discriminate on the basis of religion. It is possible, of course, that state courts will interpret these provisions to allow aid to flow indirectly to private schools, through the use of vouchers. But if courts interpret these provisions strictly, the only option for voucher proponents would be to amend the state constitution. This might seem like a far-fetched possibility, but it is actually a realistic option in many states, where amending the constitution, while not simple, has proved much easier than trying to amend the federal Constitution.

Indeed, Colorado recently enacted a voucher program, and voucher proponents are already at work to amend the Colorado constitution to remove the blanket prohibition on aid to private schools. In the meantime, however, voucher opponents have filed suit alleging, among other things, that Colorado's program runs afoul of the state constitutional ban on aiding private schools.