U.S. Supreme Court Paves the Way for School Choice in Idaho

The US Supreme Court’s recent decision requiring neutrality on school choice programs shows that Idaho’s Constitution violates the United States Constitution.

Idaho has a so-called Blaine amendment in its state constitution. Blaine amendments, named for James G. Blaine, a one-time presidential candidate from Maine during the 1870s, restrict public money from flowing into any sectarian religious institution.

Maine had a school choice program that gave parents tuition aid if they sent their children to approved private schools but only if those private schools were not religious. In Carson v. Makin, the United States Supreme Court ruled that this Maine law, passed in the spirit of Maine’s Blaine amendment, violated the Free Exercise Clause of the First Amendment.

The six Republican-appointed justices joined the decision written by Chief Justice John Roberts, while the three Democrat-appointed justices dissented.

Those who favor Blaine Amendments, writes Chief Justice Roberts, stress “the importance of ‘government neutrality’ when it comes to religious matters, but there is nothing neutral against Maine’s program.” According to Roberts, “The State pays tuition for certain students at private schools—so long as the schools are not religious. . . A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

That is the key. If governments make a benefit available generally, governments can no longer exclude religious groups or religious schools from the benefit. If there are school choice programs generally available, states cannot prevent money from flowing into religious schools. If grants are available for resurfacing school playgrounds, religious schools should be eligible too. If religious groups are excluded for being religious, “that is discrimination against religion,” as Roberts wrote.

Idaho’s Blaine Amendment

As a leader in the House of Representatives, Blaine tried to amend the First Amendment so that no money would ever reach religious schools. His goal was to add the following words to the Constitution: “No money raised by taxation in any state for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

His proposal did not secure the two-thirds majority necessary to pass the House. His amendment died at the national level.

Despite losing in the House, Blaine’s concept swept through the nation as thirty-eight states, at one time or another, added similar amendments to their state constitutions.

At the time, Blaine’s position against public funds flowing to sectarian schools was profoundly anti-Catholic, since Catholics were the only significant religious group that ran private schools. As detailed in Phillip Hamburger’s book Separation of Church and State, Protestants basically controlled most American public schools—and praying, Bible reading and teaching Christian morality were still commonplace in the public schools. The public schools were Protestant. The private schools were Catholic. The effort to choke off public funds from reaching private schools was indeed part of an effort to keep America a mostly Protestant nation.

No state discriminated against Catholics more than our neighbor to the west Oregon, which, between 1910 and 1920, did its best to put Catholic schools out of business. A collusion between the Ku Klux Klan and American Progressives, not as odd as it seems, led to an initiative passing that closed Catholic schools throughout Oregon. The Church fought back. Schools were allowed to reopen thanks to a landmark Supreme Court case, Pierce v. Society of Sisters (1925). More on which in a moment.

In the same spirit that directed Oregon, Idaho adopted just such a Blaine amendment in its state constitution. No public monies can, according to Idaho’s Constitution, “help support or sustain any school … controlled by any church, sectarian or religious denomination whatsoever.” This amendment gives priority to non-religious schools over religious schools, but does not go as far as Oregon in trying to shut religious schools down.

The doctrine of favoring non-religious entities over religious ones has been on thin ice for years, but the Maine case shows that Idaho’s Blaine Amendment violates the U.S. Constitution as it is currently understood.

What Should Be Done?

First, Idaho should repeal its Blaine Amendment through its normal constitutional procedures. The Amendment is a shameful vestige of a period in American history where too many Americans thought Catholicism was a threat to republican government. Idaho should face the truth about its anti-Catholic past—perhaps reparations for Catholics should be considered.

Second, Idaho should act as if the Blaine Amendment is no longer good law within the state. School choice programs should be considered without any worries that they violate this section of Idaho’s Constitution. The state supreme court must recognize that this portion of Idaho’s Constitution violates the prevailing US Supreme Court’s understanding of the free exercise of religion. So should the legislature.

In fact, Idaho should recognize parent rights in several different ways. The Blaine Amendment in Oregon was not thrown out because offended religious rights. According to the Court, it offended parent rights. Pierce v. Society of Sisters, the aforementioned Oregon case, was, in fact, a crucial case for establishing parent rights under the U.S. Constitution. Parent rights, the Court said, were violated when parents were not allowed to put their children in a Catholic school. The Court's reasoning is expansive and helpful for thinking through today's education dilemmas.

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Parents have the right and the duty to direct the education of their children. Forcing children into a one-size-fits-all education system violates the fundamental theory of liberty undergirding the American union. If forcing children into a uniform school system violates America's system of liberty, so does exclusively funding a uniform system. A free government should be helping parents to direct the education of their children, not consider parent choice just a carve out from the general uniform system.

(The cautious Court this week could just as easily have decided the Maine case on the grounds of parent rights, but it didn't. That is a shame, since the Court's idea of religious neutrality is not exactly a coherent concept. That is a story for another day.)

The idea of parent rights saved Oregon in the 1920s. Perhaps it can serve education in Idaho in the 2020s through the adoption of a school choice program. Idaho’s Constitution no longer stands in the way. The Supreme Court's reasoning in Pierce actually welcomes it.