Blaine it on Politics: The Effect of Anti-Aid Amendments on Private School Choice Programs in the U.S. States

Abstract

The primary legacy of Senator James G. Blaine of Maine was the enshrinement of "anti-aid" amendments in the constitutions of 39 U.S. states. These so-called "Blaine Amendments" prohibit government funds from supporting "sectarian" schools and often religious organizations. In Blaine's day, "sectarian" was widely understood to be a euphemism for "Catholic", as nondenominationally Protestant organizations such as the public schools were considered to be non-sectarian and entirely worthy of government support. The Blaine Amendments ensured that government-sponsored schools in the U.S. would be pervasively Protestant, at least until the 1960s, and that Catholic schools would have to make do without any substantial government aid.

Several U.S. courts have decried the "shameful pedigree" of the Blaine Amendments, but the questions before us today are whether, how, and why the anti-aid provisions affect the design and implementation of private school choice programs in the U.S. states, 25 of which currently exist. We find that the Blaine Amendments certainly influence the design of private school choice programs, as some states with anti-aid amendments opt for privately administered "scholarship" programs, funded through tax credit incentives, instead of "voucher" programs managed by the government and funded through general revenues. What is most surprising in our analysis, however, is the fact that different state courts have rendered very different judgments regarding the extent to which anti-aid amendments have the practical effect of prohibiting private school choice programs. The differences in these court opinions often have little to do with the wording of the constitutional provisions, most of which are nearly identical. The single factor that currently most determines how limiting a given Blaine Amendment will be regarding private school choice is the ideological bent of a given state court. Simply put, states with conservative-leaning courts tend to hold that anti-aid amendments do not limit or prohibit private school choice programs as commonly designed. States with liberal-leaning courts, on the other hand, tend to hold that anti-aid amendments absolutely prohibit the implementation of private school choice programs, regardless of how they are designed.

This paper will weave together historical, political, and legal analyses. First, we will describe the religious and political context in which the Blaine Amendments originally were proposed and adopted. Second, we will examine the number and types of private school choice programs that have been enacted in Blaine and non-Blaine states, to show that the existence of a Blaine Amendment itself is insufficient to prevent government-financed private school choice programs from flourishing. Third, we will review the substantive content of the major state-level court opinions regarding private school choice and the Blaine Amendments to show the general lack of consistency in both the rulings themselves and their legal justifications. Finally, we will draw upon measures of the ideological leanings of the courts that have ruled in Blaine cases to demonstrate that, in the end, as in the beginning, it all boils down to politics.

Keywords: School Choice, Blaine Amendments, Judicial Politics, Federalism