Choice Before the Court

Today the Supreme Court will hear oral arguments in the case of Locke v. Davey, the outcome of which could radically accelerate the movement for school choice. Things sped up for a while, after the Supreme Court declared last year, in Zelman v. Simmons-Harris, that school vouchers redeemable at religious schools do not violate the federal Constitution. A new voucher program was launched in Colorado, and Texas and Louisiana moved in a similar direction; Congress has moved toward establishing a voucher program in the nation's capital. Progress has been slowed, however, by a relic of our nation's anti-Catholic past that has been picked up and wielded as a weapon by the teachers unions and other defenders of monopoly public school systems: the so-called Blaine Amendments, which blight the constitutions of three-dozen states, including New York. It is the fate of these amendments that the High Court is expected to resolve in the case before it today.

Named for James G. Blaine of Maine, a speaker of the House of Representatives in the mid-1800s, the Blaine Amendments contain stricter language regarding religion than that in the federal Constitution. Attorney General Spitzer, though he didn't file an amicus brief in this case — tellingly we might add, as the Court's decision will directly affect New York State — has spelled out the amendments' purpose elsewhere. In his "Report on Non-Public Education" last year, it was recalled that: "The drafters of [New York's Blaine Amendment] stated that its purpose was to protect the State's public school system 'from all sectarian influence or interference,' and to ensure that 'public money shall not be used, directly or indirectly, to propagate [sic] denominational tenets or doctrines.'" For students of history, it's hard to miss the code words for Catholic.

This ban on public money going to religious schools clearly has the potential to thwart voucher programs in states with Blaine Amendments. That is unless the Supreme Court finds that such a prohibition is in violation of the Free Exercise Clause of the First Amendment. Justice Scalia et al would only be agreeing with the justices who ride the 9th United States Circuit. Last year, those riders ruled that Washington state was in error when, in compliance with its Blaine Amendment, it denied Joshua Davey a state-funded scholarship because he chose to declare a religion major and pursue a religious vocation. The state would be discriminating against Mr. Davey on the basis of religion if it denied him the scholarship, the court ruled.

If the Supreme Court upholds in the Locke case, it seems clear that it will also apply to the case of parents who chose to use state-funded vouchers at religious schools. This would bring an end to legal wrangling over the new Colorado voucher program and the older Opportunity Scholarship program in Florida, which gives vouchers to children in chronically failing schools. The only barrier left to vouchers sweeping the nation and breaking down public school monopolies that hold sway in so many states and cities will be political. And those trying to give parents more choice in where to send their children to school can win a political battle once the legal clouds clear up. It's hard to see why there would be an exception in New York, where it has been argued that the state's Blaine Amendment forbids vouchers redeemable at religious schools. Similar tactics are used in the three dozen states. If the Supreme Court casts off this remnant of an era when Americans feared Catholic conspiracy, the arguments can turn to the real question that needs to be asked — what is best for the children.