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

The final potential challenge to state regulations rests on the free speech clause. Private schools might assert that certain curricular requirements burden their right to free speech. Private schools might also object to regulations like the one governing the Cleveland voucher program, which prohibits voucher schools from teaching "hatred of any person or group on the basis of race, ethniciry, national origin, or religion." Although a distasteful prospect, it is possible that at least some schools may wish to teach hatred, or at least intolerance of other groups.

Whether the free speech clause would protect such schools turns on the analysis provided above. If excluding religious schools from participating in voucher programs represents impermissible viewpoint discrimination, then requiring voucher schools to refrain from disseminating certain messages would also be impermissible. But if the government can selectively fund certain schools based on its agreeing with their messages, then regulating their content should not be a problem.

Given the uncertainty in the law and the range of regulations that a state may wish or be forced to apply, it is difficult to say how the battle over regulations will be resolved. But its outcome could be as important as the battle over the Blaine amendments. The reason is that the more regulations a state imposes on private schools as a condition of participating in voucher programs, the less attractive such participation will be to some, if not many, private schools. Moreover, those private schools that do participate in voucher programs may wind up looking and acting a lot like traditional public schools. This may ensure some quality control and provide crucial protection to some students and teachers who might otherwise be excluded from private schools, but only at the cost of stealing some of the justification--namely, that private schools are different and diverse--for providing vouchers in the first place.

Blaine Amendments Across the Country (Figure 1)

According to the Becket Fund for Religious Liberty, which supports public funding for religious schools, 39 state constitutions include so-called Blaine amendments. Their language varies from state to state, but they are regularly invoked by those seeking to prohibit the public funding of religious institutions. However, state courts bare interpreted these amendments in a variety of ways.

Selected Blaine Amendments

OHIO

Ohio Constitution, Article 6, Section 2: "The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state." This amendment was found not to preclude the Ohio voucher program.

FLORIDA

Florida Constitution, Article 1, Section 3: "There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace, or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." This amendment has been invoked by those seeking to ban Florida's voucher plan.