When the Supreme Court agreed to hear the Michigan affirmative action case, Grutter v. Bollinger, Attorney General Spitzer rushed to throw in New York’s two cents on the matter. Eventually, the state was signed onto a multi-state brief along with about 20 others, supporting Michigan’s policies. Now that another case crucial to the future of education in America has been accepted onto the High Court’s docket, it seems only logical that Mr. Spitzer undertake an equal push to make the Empire State’s voice heard. The new case, as reported in yesterday’s New York Sun, is Davey v. Locke, and at issue is the future of the state Blaine Amendments, relics of America’s anti-Catholic past that blight the constitutions of more than three dozen states — including that of New York — and stand in the way of a serious debate on the merits of school vouchers. Named for James G. Blaine of Maine, a speaker of the House of Representatives in the mid-1800s, these amendments contain stricter language regarding religion than that in the federal Constitution. In the wake of the Supreme Court’s ruling in June that vouchers are constitutional, the Blaine Amendments have become the last sanctuary of voucher opponents.

In submitting a brief in the Davey case, Mr. Spitzer would not have to take the side of voucher supporters; he would only need to support the position that states cannot deny funding to students on the basis of religion. That’s what the United States Court of Appeals for the Ninth Circuit ruled when Washington State, in compliance with its Blaine Amendment, denied Joshua Davey a statefunded scholarship because he chose to declare a religion major and pursue a religious vocation. The action was a clear violation of the Free Exercise Clause of the First Amend ment, the court said. It’s tough logic with which to disagree, and though the attorney general’s office had no comment on the case yesterday, we would be surprised to find Mr. Spitzer on the other side of the issue.

After all, it was Mr. Spitzer who convened the commission that last year released a “Report on Non-Public Education,” which explored what further aid the state might be able to offer private and religious schools. It proposed expansions in areas such as computer hardware, teacher training, and special education, and broke down the discussion of each topic into two sections: how it would comply with the Establishment Clause of the federal Constitution, and how it would comply with New York’s Blaine Amendment. Mr. Spitzer is someone familiar with the collar Blaine has put on the state, and someone familiar with its origins. Notably, Mr. Spitzer’s report makes specific mention of the intentions of the drafters of New York’s amendment: “The drafters of this provision 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.'” It’s hard to miss the code words.

“Sectarian” and “denominational” meant Catholic, of a piece with the history of the Blaine Amendments. The Plumed Knight, as James Blaine was known, hoped to ride anti-Rome sentiment into the White House, and in 1875 he proposed an amendment to the federal Constitution stipulating that no public money shall go to schools “under the control of any religious sect.” At the time, the schools were hardly the bastions of secularism they are today — instead, they preached a more popular form of Christianity: Protestantism and the King James Bible. In the words of education reformer Horace Mann, the publicly support ed schools were to be a “nursery of piety” and were also supposed to alleviate the “superstitious inheritance of priestcraft.” The anti-Catholic amendment passed the House but failed to gain the requisite two-thirds majority in the Senate; regardless, many states adopted Blaine-like language in the ensuing years, and many western states were forced to add such language to their constitutions in order to be admitted to the union.

New York’s Blaine Amendment was etched into the state’s constitution in 1894. It forbids the state to “use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance…of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.”

No one but a fool could argue that Blaine is the only obstacle standing between New York’s children and the chance for their parents to choose their schools. But Blaine has provided a fig leaf under which voucher opponents can hide from debate: How can vouchers be discussed when they may not be permissible under the state’s constitution? Mr. Spitzer could do his part to clear the way for an honest debate by taking a stand for the enforcement of the Free Exercise Clause. There are likely to be at least two other states on this side: Florida, which has been fighting a Blaine challenge to its Opportunity Scholarship Program, and Colorado, which recently created the first new voucher program since the Supreme Court’s decision in Zelman v. Simmons-Harris and now faces a challenge from the state’s teachers unions.

If Mr. Spitzer believes, as is written in the Grutter brief, that in education “States must have the freedom and flexibility to create strong institutions tailored to the needs of each particular State and its citizens,” then he would do well to pipe up in the Davey case. The ghost of Blaine, in its many incarnations, impinges on the flexibility needed to reform our sclerotic schools. It’s flexibility we need here in New York City, if ever we are to break the Tweed Trust.