The U.S. Supreme Court has held that "parents have the fundamental liberty to choose how and in what manner to educate their children."1 While there are no longer legal impediments preventing parents from choosing the method and manner of their children’s education, financial barriers frustrate many parents’ constitutional right to choose the best education for their children. Nowhere is this more evident than in urban school districts across the United States, where innumerable families lack the wherewithal to educate their children anywhere other than in underperforming and underachieving public schools. The most noteworthy, yet highly controversial, response to this troubling inequity has been the school voucher movement, which seeks to break up the government monopoly of elementary and secondary education and provide parents with meaningful choices as to where and in what manner their children are educated.
Whatever the overall merits of school voucher programs, their implementation has engendered considerable litigation. Although the Supreme Court recently held that the state of Ohio’s voucher program for the Cleveland City School District did not violate the Establishment Clause of the First Amendment even though public funds indirectly benefited religious schools,2 the legal wrangling over school voucher programs continues in state courts, where the validity of such programs are being challenged under state constitutions.3 This article will first discuss the Supreme Court’s decision in Zelman v. Simmons-Harris4 upholding Ohio’s voucher program. Next, while Zelman renders school voucher programs constitutional under the Establishment Clause, this article will explain the infamous origin of so-called "Blaine Amendments," which are present in some form or another in numerous state constitutions, that opponents of education vouchers are now relying on to thwart school choice programs. Last, the article will examine whether Illinois’ own Blaine amendment in its constitution serves as a barrier to the institution of a school voucher program in Illinois.
After a federal district court placed the entire Cleveland City School District under state control in 1995 because that city’s public schools were among the worst in the nation, the state of Ohio enacted its Pilot Project Scholarship Program.5 The program provides financial assistance primarily to families residing in the Cleveland school district in two fundamental ways.6 First, the program offers tuition aid for parents who desire to send their children to either a private school within the district or to another public school within or adjacent to Cleveland.7 Second, the program provides tutorial aid to students who remain in public schools.8 Parents receive tuition aid based on their financial need.9 Thus, "[f]amilies with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250."10 After the state disburses the tuition aid, parents are free to choose where to send their children to school.11 The Court noted that "[m]ore than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools."12
A group of Ohio taxpayers challenged the Pilot Project Scholarship Program on the ground that it violated the Establishment Clause of the First Amendment, as incorporated by the Fourteenth Amendment to the United States Constitution.13 The Court’s two-prong test for determining the constitutionality of the Ohio voucher program was "whether the [state] acted with the purpose of advancing or inhibiting religion" and whether the program had the "effect of advancing or inhibiting religion."14 Because there was no dispute that the program had a valid secular purpose, the main issue before the Court was whether the program had the effect of advancing or inhibiting religion.15
In a 5-4 decision, the Court determined, per Chief Justice Rehnquist, that the Ohio voucher program did not have the forbidden effect of advancing or inhibiting religion.16 Rather than provide direct aid to religious schools, the Court found that Ohio’s voucher program was one of true private choice that provides aid to sectarian institutions only "as a result of the genuine and independent choices of private individuals."17 The Court deemed the Pilot Project Scholarship Program neutral with respect to religion and held that recipients of government aid "were empowered to direct the aid to schools or institutions of their own choosing."18 In his concurring opinion, Justice Thomas opined that "[t]here would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice."19 However, proponents of school choice were given short occasion to savor their victory in Zelman, as the battle over school vouchers moved back to the state courts.
THE BLAINE GAME
Even though the Supreme Court has declared that school voucher programs do not violate the Establishment Clause, school choice opponents are now testing the validity of such programs under state constitutions.20 Opponents are particularly relying on provisions in state constitutions prohibiting public support for religious schools. These prohibitions are referred to as "Blaine Amendments" after the nineteenth century Congressman, James G. Blaine of Maine, who proposed a constitutional amendment that would have denied public support to religious institutions.21 As will be shown, while the wording and reach of these Blaine Amendments vary from state to state, they all share a shameful pedigree.
As the Catholic population in America increased during the nineteenth century, Catholics "began lobbying their state legislatures for public funds to develop their own educational system" as an alternative to the public schools, which often required students to read from the King James Bible and participate in Protestant religious exercises.22 Nativist groups and Protestants responded to Catholic demands with vehement hostility.23 After local school boards in Cincinnati, Chicago, and New York voted to eliminate Bible readings and religious exercises in public schools,24 mounting political pressure compelled President Ulysses S. Grant to pledge in 1875 to "encourage free schools, and resolve that not one dollar be appropriated to support any sectarian schools."25 Hoping to capitalize on the "wide political appeal of the nativist and anti-Catholic rhetoric" that permeated the political milieu at the time, Congressman James G. Blaine transcribed Grant’s pledge into a proposed constitutional amendment.26 While masquerading under the rubric of religious freedom, the "Blaine Amendment" was nothing more than a bigoted response to the growing presence and influence of Catholic immigrants in the United States.27
"Although he would never secure passage of his controversial amendment in Congress, Blaine left a lasting mark on American constitutional discourse concerning church-state issues."28 Blaine "fell four votes short of the required two-thirds majority in the Senate . . .,"29 but his proposal sparked a conflagration that engulfed state legislatures across the country.30 "Thirty-six states. . . either amended their constitutions or sought entry to the union with Blaine prohibitions in their constitutions."31 Even though the groundswell of anti-Catholic bigotry during the nineteenth and early part of the twentieth centuries was the impetus for these amendments, school choice opponents are currently relying on state Blaine Amendments to challenge the validity of voucher programs that indirectly channel public funds to religious schools. Enacted to deny the Catholic immigrant "horde" from enjoying the same educational opportunities as Protestant children, Blaine Amendments are now the wellspring for efforts to prevent parents of limited means from choosing the best schools for their children. However, Blaine Amendments arguably infringe on the free exercise of religion and constitute viewpoint discrimination under the First Amendment to the U.S. Constitution.
Several weeks after the Supreme Court’s decision in Zelman, the Ninth Circuit Court of Appeals invalidated a "Washington State law that was used to deny a state ‘Promise Scholarship’ to an otherwise-eligible college student because the student was studying theology at a religious institution."32 Washington defended the law under a Blaine Amendment contained in the religious establishment clause of its constitution. The court held that "[a] state law may not offer a benefit to all . . . but exclude some on the basis of religion."33 The court added that the state’s "interest in avoiding conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology."34
While the Ninth Circuit’s post-Zelman decision obviously did not strike the death knell for state BlaineAamendments across the country, the decision essentially found Washington’s Blaine Amendment "in conflict with the U.S. Constitution. . . ."35 As a result, the decision’s reasoning, if adopted by other circuits, may call into question existing Blaine Amendments in other state constitutions. More importantly, the Supreme Court expressed its displeasure with such amendments in Mitchell v. Helms.36 Writing for the majority, Justice Thomas noted that "[c]onsideration of [Blaine] amendment[s] arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic’. . .This doctrine, born of bigotry, should be buried now."37 Recently, however, a Florida trial court in Tallahassee ruled that Florida’s Opportunity Scholarship Program violated the state constitution’s religious establishment clause,38 which contains Blaine language.39 Nevertheless, although the Supreme Court has not directly settled the issue of whether Blaine Amendments violate the U.S. Constitution, it appears that such amendments have one foot in the grave and the other on a banana peel.
SCHOOL CHOICE IN ILLINOIS
Illinois’ Blaine Amendment is found in its constitution at article X, section 3.40 This provision of the state constitution imposes a general restriction on aid to sectarian schools.41 Furthermore, the current language of article X, section 3 is identical to language found in section 3 of article VIII of the Illinois Constitution of 1870.42 This suggests that the General Assembly enacted the prohibition on aid to religious schools during the anti-Catholic frenzy that swept the nation in the latter part of the nineteenth century. Therefore, it is reasonable to conclude that Illinois’ prohibition on any and all aid to religious schools was also "born of bigotry" and is of questionable validity under the U.S. Constitution.
While article X, section 3 does not explicitly forbid school vouchers, the prohibition on public appropriation from the treasuries of the General Assembly and all local government entities for any aid or support to sectarian learning institutions seemingly forecloses the implementation of a school choice program in Illinois. However, the Illinois Supreme Court has held "that the restrictions in our constitution concerning the establishment of religion are identical to those contained in the federal establishment clause."43 Thus, the test for determining whether a school voucher program in Illinois violates the establishment of religion clause of the state constitution ostensibly would parallel the Supreme Court’s test in Zelman. Nevertheless, the Illinois Supreme Court is not bound to follow the "lockstep doctrine," whereby the court "applies decisions of the United States Supreme Court construing federal constitutional provisions to the construction of comparable provisions of [the] state constitution."44 Instead, "where the language of the state constitution or the debates and committee reports of the constitutional convention show that the framers intended a different construction," the Illinois high court "will construe similar provisions in a different manner than has the United States Supreme Court."45
Although Illinois does not currently have a voucher program operating anywhere in the state, the Fourth District Appellate Court had occasion in Toney v. Bower to consider a statute that provides tax credits to parents who send their kids to religious schools.46 The statute allows a credit of up to $500 against income tax liability equal to 25% of qualified expenses incurred on behalf of qualifying pupils.47 Qualifying pupils are full-time students enrolled in a kindergarten through twelfth-grade education program at any public or nonpublic school.48 The plaintiffs challenged the statute as violating, inter alia, article X, section 3 of the Illinois Constitution. In concluding that the credit was constitutional, the court applied pre-Zelman precedents to determine that the General Assembly had a secular purpose for enacting the credit and that the credit did not have the primary effect of advancing or inhibiting religion.49 Moreover, the court noted that the statute is facially neutral because it is available to parents with children in public and nonpublic schools and that "public funds become available to schools only as the result of private choices made by individual parents."50 The Fifth District subsequently adopted the reasoning in Toney when it too upheld the constitutionality of the tax credit.51 As of this writing, the Illinois Supreme Court has allowed these decisions to stand.
Until the General Assembly enacts a school voucher program that incidentally channels public funds to sectarian institutions, the issue of whether Illinois’ Blaine Amendment, i.e., section 3 of article X of the state constitution, permits such a program is unripe. With the recent ascendance of the Democratic Party in Illinois, it is unlikely that the General Assembly will enact a school voucher program any time soon. Nevertheless, as popular support for school choice intensifies, the political climate for vouchers in Illinois is likely to change, especially as low-income parents with children in public schools become increasingly dissatisfied with the quality of their children’s education. The Illinois Supreme Court has already stated that "the restrictions of the Illinois Constitution concerning the establishment of religion are identical to those imposed by the federal establishment clause and that any statute that is valid under that clause is also valid under the Illinois Constitution."52 Thus, a school voucher statute in Illinois that comports with the strictures of the federal Establishment Clause should also survive constitutional scrutiny under the state constitution. Therefore, should the U.S. Supreme Court find state Blaine Amendments unconstitutional because of their dubious pedigree and infringement on other fundamental rights, then the primary obstacle to the implementation of a school voucher program in Illinois will be political, not legal.
1 Zelman v. Simmons-Harris, —U.S.—, 122 S.Ct. 2460, 2482 n.5 (2002) (Thomas, J., concurring).
2 122 S. Ct. 2460 (2002).
3 See e.g., Kotterman v. Killian, 972 P.2d 606 (Ariz.), cert. denied, 528 U.S. 921 (1999); Griffith v. Bower, 319 Ill. App. 3d 993, 747 N.E.2d 423 (5th Dist.), app. denied, 195 Ill. 2d 577 (2001); Toney v. Bower, 318 Ill. App. 3d 1194, 744 N.E.2d 351 (4th Dist.), app. denied, 195 Ill. 2d 573 (2001); Jackson v. Benson, 578 N.W.2d 602 (Wisc.), cert. denied, 525 U.S. 997 (1999).
4 122 S.Ct. 2460 (2002).
5 Id. at 2463.
9 Id. at 2464.
10 Id. at 2464.
15 Id. at 2465.
16 Id. at 2473.
17 Id. at 2465.
18 Id. at 2466-2467.
19 Id. at 2482.
20 Daniel McGroarty, Friedman Fellow Published in New York Post: N.Y. Bishops & the Blaine Truth (Sept. 6, 2002), available at http://www.friedmanfoundation.org/news/2002-09-06.html (last visited Dec. 10, 2002) (reporting that an August 2002 ruling by a Florida state court struck down that state’s voucher option based on its reading of the state constitution, not the federal Constitution).
21 Joseph P. Viteritti, Blaine’s Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657, 670-71(1998).
22 Id. at 670.
23 See id. at 669.
25 Id. at 670.
26 Id. at 670-71.
27 See Mitchell v. Helms, 530 U.S. 793, 827, 120 S.Ct. 2530, 2551 (2000).
28 Viteritti, supra note 21, at 671.
29 Id. at 672.
31 McGroarty, supra, note 20.
32 David W. Kirkpatrick, Blaine Amendment Falls in Washington (Aug. 30, 2002), available at www.heartland.org (last visited Dec. 10, 2002).
33 Davey v. Locke, F.3d 748, 754 (2002).
34 Kirkpatrick, supra note 32.
36 120 S.Ct. 2530 (2000).
37 Id. at 2552.
38 McGroarty, supra, note 20. See also Court Strikes Blow to School Choice in Florida: Decision Forces Hundreds of Students to Return to or Stay in Failing Schools (Aug. 8, 2002), available at http://www.ij.org/media/school_choice/florida/8_5_02pr.shtml (last visited Dec. 17, 2002).
39 Fla. Const., art I, § 3 (providing that ". . .No revenue of the state or any political subdivsion 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.")
40 Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever. . . .
41 Viteritti, supra note 21, at 675.
42 Toney v. Bower, 318 Ill. App. 3d 1194, 1200-1201, 744 N.E.2d 351 (4th Dist. 2001).
43 318 Ill.App.3d at 1200.
44 Id. at 1202.
46 See 35 Ill. Comp. Stat 5/201(m) (1999).
47 Toney, 318 Ill. App. 3d at 1196.
49 See id. at 1205-07.
50 Id. at 1206.
51 Grifith v. Bower, 319 Ill.App.3d 993, 747 N.E.2d 423 (5th Dist. 2001).
52 People v. Falbe, 189 Ill.2d 635, 645, 727 N.E.2d 200, 207 (2000).
Jeremy McKissack is a third-year law student at Northern Illinois University, where he is an Assistant Editor of the Law Review, president of the NIUCOL Federalist Society, and member of the Moot Court Society and Mock Trial Team. After law school, he plans on serving as a judge advocate general in the United States Air Force. He is married with one cat.