Pataki School Plan Ignites a Debate Over Blaine Law

ALBANY - Governor Pataki's proposed private school tax credit is sparking a sudden debate between two leading contenders for governor over an obscure, anti-Catholic provision in the state constitution known as the Blaine amendment.

The ink was barely dry on Mr. Pataki's proposal for private school tuition tax credits to help children in failing public schools when Attorney General Eliot Spitzer and Republican gubernatorial candidate William Weld fell to feuding over whether the governor's plan would violate a provision of the state constitution barring any government support for religious schools.

Mr. Spitzer, the leading Democratic candidate for governor, yesterday questioned the constitutionality of giving education tax credits to private school students, though a report from his office three years ago had given some private schools hope that he might help them break through the amendment to the state's constitution that makes it difficult to aid parochial education.

The beginning of the debate over the issue is important because the constitutional amendment in New York, known as the Blaine amendment, is seen by many as a relic of the anti-Catholic known-nothing movement of the 19th century, when a former speaker of the House of Representatives, James Blaine of Maine, went around the country seeking amendments to state constitutions designed to stop the growth of Catholic schools. Mr. Pataki's budget proposal represents an attempt to get around the amendment that Blaine's movement won to the constitution in New York.

Mr. Spitzer's doubts about the legality of the tax credit initiative, a high profile component of Mr. Pataki's education budget plan, immediately provoked criticism from one of the attorney general's chief rivals in the race, Mr. Weld, who suggested that Mr. Spitzer's position on the credits was influenced by his support from the New York City teachers union.

Mr. Spitzer's Democratic opponent in the governor's race, Nassau County Executive Thomas Suozzi, said he would be "open to exploring tuition tax credits" and called them a "creative and different approach." He added that they would have to be part of a larger effort to help children perform better in struggling schools.

In his budget address on Tuesday, Mr. Pataki proposed giving as much as $500 in tax credits to parents of public and private school students. Parents could use the dollar-for-dollar credits to pay for instructional expenses like textbooks and school supplies, or, more controversially, they could use them to pay for tuition at private and religious schools. Under the governor's plan, the tax credits would be available to parents in any New York City school district and a total of 82 districts in the state, officials said.

Education tax credits have become increasingly popular with the school choice movement, which views them as a less powerful but more politically realistic alternative to vouchers, which are tax-funded education scholarships. Opponents, especially teachers unions, say the tax credits are really vouchers-lite and that they would siphon money away from the public school system.

Tax credits, which have been adopted in several states, have survived legal challenges on First Amendment and state law grounds. Illinois and Arizona courts have ruled that the credits do not violate the states' Blaine amendments, which prohibit the use of public funds to directly or indirectly support religions institutions.

Asked about the governor's credit program, Mr. Spitzer said it would likely face legal challenges on the state and federal levels.

"We all know there are going to be some serious legal issues that are raised by that depending upon how those $500 are used," Mr. Spitzer said. "I think there will be serious constitutional issues if they are used for parochial schools, and that's what we have to look at. Whenever there is state funding tax dollars used for nonpublic schools, parochial schools in particular, there are First Amendment issues that are raised."

He added that the provision may violate New York's constitution. His comments came despite an opinion issued by his office in 2002 suggesting that at least some form of aid to religious schools in New York might be permitted, a report that raised hopes of advocates of parochial education that they had found at least a potential ally among the Democrats.

A Spitzer aide reached last night said the attorney general had not yet seen the details of the governor's proposal and had not ruled anything out at this point.

Mr. Weld, a Republican who served as governor of Massachusetts in the 1990s and who led the Justice Department's criminal division in the 1980s, told The New York Sun that he strongly disagrees with the notion that tax credits would violate the law and he questioned Mr. Spitzer's motives

"I've said for some time that it's going to be difficult for the attorney general ... to take all the steps our state needs, given the prominence of both the teachers' unions and trial lawyers as his base of support," Mr. Weld said.

The legality of education tax credits is "partly a political question as well as a legal question," Mr. Weld said. "The point is: Do the leaders of our state think the pendulum has swung too far in the direction of the Blaine amendment and against private and parochial schools? And I think the answer to that is yes."

Another Republican candidate, John Faso, said, "It's a shame that Eliot Spitzer thinks it's okay for wealthy parents to have school choice but not poor and middle-income New York parents." A former Assembly minority leader, Mr. Faso in 2001 proposed an education tax credit bill that never came up for a vote.

Education tax credits are available in Arizona, Pennsylvania, Illinois, Florida, and Iowa. In 1999, the Arizona Supreme Court ruled that the state's tax credit program did not violate the Blaine amendment or the First Amendment's establishment clause. The Arizona program provided parents with tax credits of up to $500 that they could give to fund programs offering scholarship to private schools. Illinois courts have repeatedly rejected challenges to the state's tax credit program.

"There's no question in my mind that tax credits are constitutional in New York," said Clark Neily, a senior attorney at the Institute for Justice, which has defended the legality of tax credits. "And any argument that they are not is a purely political argument and not a constitutional argument."

He pointed to a 1967 New York Court of Appeals ruling in the case of Board of Education of Central School District No. 1 vs. Allen, which upheld a statute requiring school districts to purchase and loan textbooks upon request to public and private school students.

"Certainly, not every State action which might entail some ultimate benefit to parochial schools is proscribed," wrote Judge John Scileppi in the court's opinion. "Examples of cooperation between State and church are too familiar to require cataloguing here."

John West, an attorney with Bredhoff & Kaiser, who has helped represent plaintiffs challenging education tax credit programs, said the constitutionality of a tax credit program in New York is "eminently questionable."

He said: "If it's structured like the ones in Arizona, the notion that this is not public money being spent but rather is simply private money is a sham. What it's doing is giving people the option to redirect taxes that they have to pay anyway to a voucher program rather than to the state treasury."